2016Da15518 Claims

A

person

B

Busan District Court Decision 2015Na3980 Decided February 18, 2016

July 29, 2016

Of the part of the judgment below against the plaintiff, the part concerning the offset defense based on the right to claim distribution of residual property shall be reversed, and this part of the case shall be remanded to the Busan District Court Panel Division.

All remaining appeals by the plaintiff and the defendant are dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. In a case where the partnership is dissolved and only the remaining assets remain, without having to conduct separate liquidation procedures, each partner may request the association member to divide the remaining assets within the scope of its ratio of distribution of the remaining assets. Furthermore, in order to make such a claim for distribution possible, the details of the entire residual assets of the association, their legitimate ratio of distribution, and the details of each partner’s possession of the remaining assets should be first determined (see, e.g., Supreme Court Decisions 99Da35713, Apr. 21, 2000; 2005Da30682, Dec. 8, 200).

B. According to the reasoning of the lower judgment, the lower court recognized the following facts: (a) the Plaintiff, the Defendant, and the N jointly operated “I” at least on September 2012; (b) the Plaintiff and the N transferred the business of “I” to a third party on or around February 2013; and (c) received KRW 105,00,000 as premium; and (d) the report on the closure of the business of “I” on March 14, 2013; and (b) there was no evidence to support the Plaintiff’s assertion that the Defendant renounced his/her shares in “I” on or around October 2012, but there was no evidence to support the fact that there was no evidence to support the fact that the Plaintiff and the Plaintiff received KRW 105,00,000 for the premium that the Plaintiff and N received under a three-party partnership relationship.

Then, the court below determined that since the business of "I" was transferred to a third party and the business relationship between the plaintiff, the defendant and the N was dissolved at that time, since there is no particular dispute between the plaintiff and the defendant as to the remaining business of the union that is separately treated by the plaintiff, the relationship between the plaintiff, the defendant and the N, and that there is no specific dispute between the plaintiff and the defendant about the remaining business of the union. Furthermore, the ratio of the remaining property distribution of the plaintiff and the defendant to the 30% of the above 105,000,000 won, which was received as premium, was recognized as 31,50,000 won equivalent to 30% of the defendant's distribution ratio as the amount of the remaining property distribution, the plaintiff cited the defendant's counterclaim as the automatic claim.

C. However, as seen earlier, a claim for the distribution of residual property without undergoing the liquidation procedure can only be made within the extent exceeding the distribution ratio only where the other party owns residual property beyond its own distribution ratio. Even according to the reasoning of the judgment below, the court below also received premium of KRW 105,00,00,00 which the court below recognized as a union property from the Plaintiff and another association member's N, and there is sufficient possibility that the Plaintiff and N used the above premium for the repayment, settlement, etc. of union debts before and after the closure of the business. As alleged by the Plaintiff, the court below held that the court below's claim for the distribution of residual property of this case and the amount of KRW 105,00,000, which the Plaintiff and N received together with the third party's obligation at the time of the transfer of the business of the Plaintiff and N, by examining the details of the entire residual property of the association of this case, its legitimate distribution ratio, and the details of each member's possession of residual property at present, etc.,

Nevertheless, the lower court erred by misapprehending the legal doctrine on the distribution of the residual property of the cooperative, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal assigning this error is with merit.

D. Meanwhile, while the Plaintiff filed an appeal against the remainder of the losing part, the Plaintiff did not state the grounds of appeal as to the appeal and the appellate brief.

2. Defendant’s appeal did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the submission period.

3. Conclusion

Therefore, among the part against the plaintiff in the judgment of the court below, the part concerning the claim for allocation of residual property against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiff and the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jae-han

Chief Justice Kim Jong-il