In a case where a cooperative is unable to expect a smooth operation of a cooperative due to the failure of trust between the cooperative members, whether notification of termination may be deemed a request for dissolution of the cooperative (affirmative) and whether the requirements for rescission or termination of the contract should be separately satisfied in such a case (negative)

Articles 543, 703, and 720 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Defendant

Daejeon High Court Decision 2008Na7626 Decided February 5, 2009

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. The plaintiff's grounds of appeal are examined.

In a partnership agreement, such as a partnership agreement, a request for dissolution of a partnership, withdrawal from a partnership, or expulsion from a partnership, and it is not possible to cancel a partnership agreement as in a general contract and to bear the obligation to restore the original state arising therefrom (see, e.g., Supreme Court Decision 94Da7157, May 13, 1994). A notification of termination to another partner can be deemed a request for dissolution of a partnership (see, e.g., Supreme Court Decision 94Da46268, Mar. 26, 1996). The above request for dissolution does not need to separately meet the requirements for rescission or termination.

Therefore, with respect to the plaintiff's claim that the contract was terminated on the ground of damage to trust between the defendant and the defendant, and against the defendant for the prohibition of use or infringement of each patent right of this case, the court below did not examine whether the plaintiff satisfies the requirements for requesting dissolution of the association and decided that the termination notice of the association agreement did not take effect on the ground that it did not give a peremptory notice of performance necessary to exercise legitimate right to terminate the association agreement as alleged by the plaintiff. However, according to the joint management agreement (Evidence A4) between the plaintiff and the defendant, it can be known that the plaintiff and the defendant agreed that the plaintiff and the defendant may continue to manufacture and sell the products based on each patent of this case even if the partnership agreement between the plaintiff and the defendant is terminated, even if the plaintiff acted on the ground that the defendant was dissolved for the termination of the partnership relationship with the defendant, it cannot be accepted in light of the contents of the above agreement.

Therefore, the court below's decision that rejected the plaintiff's claim against the defendant seeking the prohibition of use or infringement of each patent right of this case is justified in its conclusion, and there is no error of law such as misunderstanding of legal principles as to exclusive license contract, contrary to the allegations in the grounds of appeal.

2. The defendant's grounds of appeal are examined.

The court below, based on its adopted evidence, recognized the facts that the net profit of each of the instant products from March 2006 to July 12, 2007 was 230,624,000, and accordingly, calculated the non-payment profit to the plaintiff by the defendant. According to the evidence duly admitted by the court below, the above fact-finding and decision of the court below are just and acceptable, and there is no error of incomplete deliberation or lack of reasoning as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals by the plaintiff and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Ill-sook (Presiding Justice)