Whether a union may file a claim for distribution of residual property without following the liquidation procedure in cases where it is dissolved under the circumstances where the affairs such as collection of claims or repayment of debts which have been reverted to the union jointly and severally are not completed (negative in principle); and conditions on the premise that the claim for distribution of residual property may

Articles 721 and 724 of the Civil Act

Supreme Court Decision 2004Da30682 Decided December 8, 2005, Supreme Court Decision 2007Da87214 Decided April 23, 2009

Plaintiff

The Intervenor joining the Plaintiff

Defendant (Attorney Ba-woo et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2009Na8827, 8834 decided April 28, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the claim for ownership transfer registration based on the cancellation of a partnership agreement

In the partnership agreement such as the partnership agreement, as in the general contract, the partnership agreement cannot be terminated and the other party can not seek restitution from the other party.

Therefore, with respect to the Plaintiff’s share in the partnership business among the real estate in Jincheon-dong, the lower court’s rejection of the claim in accordance with the above legal doctrine is justifiable and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the dissolution and liquidation procedures of the partnership or by failing to exhaust all necessary deliberations.

2. As to the assertion regarding the claim for distribution of residual property following the dissolution of the association

In a case where the partnership is dissolved due to the achievement of its original purpose, there is no remaining business of the partnership, but to divide its residual assets, each partner may immediately request the association members who own residual assets in excess of the distribution ratio within the scope of their residual assets, without undergoing separate liquidation procedures. In this case, if the affairs such as collection of claims and repayment of debts have not been completed due to the partnership's partnership's partnership's partnership's partnership's partnership's partnership's partnership's partnership's partnership's partnership's joint recovery of claims or repayment of debts, etc. Thus, unless special circumstances are acknowledged such as where the fair distribution of residual assets is possible among union members without undergoing liquidation procedures, it shall not be allowed to seek distribution of residual assets immediately without undergoing liquidation procedures. Furthermore, in order to make such a request for distribution, a claim for distribution of residual assets without undergoing liquidation procedures against other union members is allowed within the scope of the portion exceeding the distribution ratio. Thus, the entire available ratio of the partnership's residual assets, legitimate allocation ratio, and each partner's remaining assets should be determined.

The lower court determined that the Plaintiff’s assertion seeking the distribution of residual property cannot be accepted on the ground that there was no evidence to acknowledge that there was no remaining remaining business to be handled by the partnership company related to the new real estate and Jincheon-dong real estate or that there was no remaining business to be handled by the partnership company, and that there was no evidence to acknowledge that there was a debt collection or debt repayment in addition to the distribution of residual property, and in the case of Jincheon-dong real estate, it is unclear whether there was a share to be distributed to the Plaintiff as residual property

In light of the above legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on dissolution, liquidation procedures, distribution of residual property, etc.,

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)