Whether a “provisional disposition setting forth a temporary position” under Article 300(2) of the Civil Execution Act requires the existence of a disputed legal relationship (affirmative) / Whether a lawsuit for formation may be brought only where there is a express provision in the law (affirmative)

"Provisional disposition which determines a temporary position" under Article 300(2) of the Civil Execution Act is an urgent and provisional disposition which is allowed for a person having the right to a provisional disposition to avoid present significant damages or prevent imminent danger until it is finalized by the lawsuit on the merits, and thus, the existence of the disputed relationship is required.

A lawsuit for the formation of a legal relationship may be instituted only where the relevant law expressly provides for the change and formation of a legal relationship. A lawsuit for a claim for dismissal of a representative, etc. of an organization constitutes a lawsuit for the formation of a legal relationship, and in cases where there is no legal ground to permit such action, an application for provisional disposition seeking suspension of performance of duties and appointment of an acting representative with respect to a representative

When a partnership is dissolved, liquidation shall be conducted jointly by all the partners or by a person appointed by them, and the appointment of a liquidator shall be decided by a majority of the partners (Article 721(1) and (2) of the Civil Act). The Civil Act merely provides that when a liquidator is appointed from among the partners, a liquidator shall not be dismissed unless he/she accords with the other partners (Articles 723, 708), and no provision exists that a partner may request a court to dismiss a liquidator (Articles 723, 708). Since the right to request a court to dismiss a liquidator from a partnership under the Civil Act is not recognized as a partner, barring any special circumstance, a provisional disposition seeking suspension of the performance of duties and appointment of an acting liquidator is not allowed on the ground that the right to request such dismissal is a preserved

Articles 708, 721, and 723 of the Civil Act; Article 248 of the Civil Procedure Act; Article 300(2) of the Civil Execution Act

Supreme Court Order 94Ma605 Decided March 10, 1995 (Gong1995Sang, 1698) Supreme Court Order 97Ma2269 Decided October 27, 1997 (Gong1997Ha, 3742) Supreme Court Decision 2000Da45020 Decided January 16, 2001 (Gong2001Sang, 446) Supreme Court Decision 2005Da11626 Decided January 25, 2007 (Gong2007Sang, 3333)

Applicant (Attorney Park Jong-woo et al., Counsel for the plaintiff-appellant)

Category & Construction Co., Ltd

Seoul High Court Order 2019Ra20671 dated November 22, 2019

The reappeal is dismissed.

The grounds of reappeal are examined.

1. “Provisional disposition which determines a temporary position” under Article 300(2) of the Civil Execution Act is an urgent and provisional disposition which is allowed for a person having the right to a provisional disposition to avoid present significant damages or prevent imminent danger until it becomes final and conclusive by the lawsuit on the merits, and thus, the existence of the disputed relationship is a requirement for the existence of the disputed relationship (see, e.g., Supreme Court Decisions 94Ma605, Mar. 10, 1995; 2005Da11626, Jan. 25, 2007).

A lawsuit for the formation of a legal relationship may be instituted only where there is a express provision in law. A lawsuit for a claim for dismissal of a representative, etc. against a representative, etc. constitutes a lawsuit for the formation of a legal relationship. In cases where there is no legal ground to permit such dismissal, an application for a provisional disposition seeking suspension of performance of duties and appointment of an acting representative against a representative, etc. cannot be deemed as the existence of a legal relationship to be preserved by a provisional disposition (see Supreme Court Order 97Ma269, Oct. 27, 1997; Supreme Court Decision 2000Da45020, Jan. 16, 2001, etc.).

When a partnership is dissolved, liquidation shall be conducted jointly by all the partners or by a person appointed by them, and the appointment of a liquidator shall be decided by a majority of the partners (Article 721(1) and (2) of the Civil Act). The Civil Act merely provides that when a liquidator is appointed from among the partners, a liquidator shall not be dismissed unless he/she accords with the other partners (Articles 723, 708), and no provision exists that a partner may request a court to dismiss a liquidator (Articles 723, 708). Since the right to request a court to dismiss a liquidator from a partnership under the Civil Act is not recognized as a partner, barring any special circumstance, a provisional disposition seeking suspension of the performance of duties and appointment of an acting liquidator is not allowed on the ground that the right to request such dismissal is a preserved

2. The reasoning of the lower judgment and the record reveal the following facts.

A. To conduct an urban-type residential housing project, the respondent purchased approximately 429.1 square meters (number 1 omitted) and approximately 514.4 square meters (number 2 omitted) in Do Government-si, and completed the registration of ownership transfer in the future on August 29, 2012, and received a building permit on November 22, 2012.

B. The applicant agreed to operate the foregoing business with the respondent on May 15, 2014 (hereinafter “instant partnership agreement”) and concluded a sales contract on the said land, and completed the registration of ownership transfer on June 11, 2014.

C. From November 4, 2014 to November 20, 2014, the respondent notified the applicant to the effect that the pertinent partnership agreement was terminated and the pertinent sales contract was terminated and the pertinent sales contract was terminated on the grounds that the applicant’s payment of only a part of the investment funds agreed upon was impossible. On November 18, 2014, the applicant responded that the respondent did not set the due date for the payment of the agreed amount and that he/she would claim a separate compensation for losses arising from the unilateral notification of termination. The said construction permit was revoked on December 23, 2014 on the ground that the construction permit was not commenced within two years from the date of the construction permit.

D. On March 18, 2015, the respondent filed a lawsuit against the applicant to cancel the registration of transfer of ownership on the said land due to the cancellation of the instant partnership agreement and the restoration to the original state following the cancellation of the said sales agreement. However, the respondent was sentenced to a judgment against the court of appeal on August 25, 2016. The respondent changed the claim in exchange for the claim at the appellate court. The respondent implemented the procedure for transfer of ownership due to the liquidation of the instant partnership agreement with respect to the said land, or distributed the said land to the respondent and the applicant by auction. On September 14, 2018, the appellate court rendered a judgment dismissing the respondent’s claim on the ground that the said land does not constitute a case where a claim for distribution of residual property can be filed without liquidation procedures (Seoul High Court 2016Na208909). The above appellate judgment became final and conclusive as it is (Seoul High Court 2016Na208909).

E. On July 25, 2016, the applicant filed a lawsuit against the respondent seeking confirmation of the absence of the obligation to pay the settlement money for operating a partnership under the instant business agreement with the District Court Decision 2016Kahap54411, which became final and conclusive on November 29, 2017. On September 14, 2018, the said judgment dismissed the applicant’s claim on the ground that it did not go through the liquidation procedure and does not constitute a case where it is unnecessary to go through the liquidation procedure or it is possible to distribute residual assets without the liquidation procedure. The said judgment was finalized as it became final and conclusive (Seoul High Court Decision 2018Na200235).

F. The applicant filed a claim against the respondent on December 31, 2018 to dismiss the respondent from the liquidator of the instant trade agreement and to appoint a temporary liquidator. However, the said court rendered a dismissal decision on March 15, 2019. The said decision was dismissed on July 25, 2019 (Seoul High Court 2019Ra20380) (Seoul High Court 2019Ma6200), and the reappeal was dismissed on November 15, 2019 (Supreme Court 2019Ma6200).

G. The applicant filed an application for provisional disposition against the respondent. The purport of the application is that the respondent should not perform its duties as a liquidator of the partnership until the completion of liquidation affairs of the partnership composed of the applicant and the respondent, and that the person designated by the court during the period of suspension of the above duties shall be appointed as a liquidator of the partnership.

3. The lower court dismissed the application for provisional disposition of this case on the following grounds. The applicant does not have any ground to file a lawsuit of dismissal against the respondent, who is a joint liquidator of the instant association, and thus, the application for provisional disposition of this case, the right to claim dismissal, is unlawful

The lower court is justifiable in light of the foregoing legal doctrine. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on suspension of performance of duties and appointment of acting directors, without exhausting all necessary deliberations, as alleged in the grounds of reappeal. The Supreme Court Decision 92Da42620 Decided March 23, 1993 cited in the grounds of reappeal is inconsistent with this case and the case is inappropriate

The remaining grounds of reappeal are based on the premise that the court below determined that the application in this case has no practical benefit. However, the court below merely stated that the suspension of the execution of duties and provisional disposition of the appointment of the acting representative where the right to claim distribution of residual assets can be exercised without following the liquidation procedure because the remaining assets are not treated as the remaining remaining business of the union and only the distribution of residual assets remains, and that the above assertion does not have practical benefit since the above case did not

4. The reappeal is dismissed on the ground that it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)