(영문) 대법원 2018.7.26.선고 2017다6030 판결

1. Pursuant to the former Act on Fostering and Supporting Agricultural and Fisheries Enterprises (amended by Act No. 12961, Jan. 6, 2015; hereinafter referred to as the “former Act on Agricultural and Fisheries Enterprises”);

Except as otherwise provided for in relevant Acts and subordinate statutes, the legal doctrine on partnership under the Civil Act applies to an incorporated agricultural partnership, except for those premised on a legal personality (Article 16(3) and (7) of the former Agricultural and Fisheries Business Entities Act). However, in cases where a creditor of an agricultural partnership exercises his/her rights to a member, the legal doctrine on partnership under the Civil Act is applicable since it is not specifically provided for in the former Agricultural and Fisheries Business Entities Act. Ultimately, a creditor of an agricultural partnership may claim for the performance of the relevant obligation to each member at the time of the occurrence of the claim pursuant to Article 712 of the Civil Act (see, e.g., Supreme Court Decision 2016Da39897, Apr. 12

Meanwhile, barring any special circumstance, a creditor of a cooperative may claim reimbursement of the partnership's obligations at the ratio of equity shares or at the same level with respect to each partner. However, if the partnership's obligations are particularly borne by an act of commercial activity for all partners, it is reasonable to apply Article 57 (1) of the Commercial Act to determine whether the joint and several liability of partners is jointly and severally liable (see, e.g., Supreme Court Decision 97Da6919, Mar. 13, 1998).

2. According to the reasoning of the lower judgment and the record, G farming association corporation (hereinafter referred to as “instant corporation”) was established on July 27, 2004 pursuant to Article 15 of the former Framework Act on Agriculture and Rural Community (wholly amended by Act No. 8749, Dec. 21, 2007; the title was changed to the Framework Act on Agriculture, Rural Community and Food Industry) and the Defendant (Appointed Party) and the designated parties were members of the instant corporation. The Plaintiff filed an application for an order to pay the price of the goods with the Suwon District Court, as the Plaintiff supplied the instant corporation’s health packing machine, but did not receive the price. On July 11, 2012, the instant corporation was notified the Plaintiff of the order to pay the payment of KRW 12,169,200, and delayed payment damages and expenses, and became final and conclusive around that time.

Examining these facts in light of the legal principles as seen earlier, in the instant case where it is evident that Article 17(3) (limited to the amount of investment made by a member or an associate member of an agricultural partnership) amended on or before July 7, 2015 pursuant to Article 3 of the Addenda to the Act on Fostering and Supporting Agricultural and Fishery Enterprises as amended on or before January 6, 2015 is not applicable, the Defendant (appointed party) and the designated parties, who are members of the instant legal entity, are liable for the above goods payment obligation as a cooperative member under the Civil Act. Furthermore, it is reasonable to view that the instant legal entity was liable for the goods payment obligation due to the acts that constitute commercial activities for all of its members, and thus, the Defendant (appointed party) and the designated parties are jointly and severally liable to pay the goods to the Plaintiff pursuant to Article 57(1) of the Commercial Act.

Nevertheless, the lower court rejected the Plaintiff’s claim of this case on the grounds that the Defendant (Appointed Party) and the appointed parties did not assume liability as a partner under the Civil Act. In so determining, the lower court erred by misapprehending the legal doctrine on Article 16 of the former Agricultural and Fisheries Business Entities Act and the liability of a partner of an agricultural partnership for the

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.