[1] Whether a partnership can seek distribution of residual property without following liquidation procedures when it is dissolved (affirmative with qualification)

[2] The case holding that the remaining affairs after dissolution of a cooperative do not result in a violation of equity among union members even if the distribution of residual assets is permitted without completing the allocation by sharing and settling the expenses of the cooperative in substance among union members

[1] Articles 87, 724(1) and (2) of the Civil Act / [2] Articles 87, 724(1) and (2) of the Civil Act

[1] Supreme Court Decision 2004Da30682 Delivered on December 8, 2005

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

Defendant

Seoul Central District Court Decision 2007Na31814 Decided September 25, 2008

Each appeal is dismissed. The costs of appeal are assessed against each appellant.

The plaintiff's grounds of appeal and the defendant's grounds of appeal are also examined.

1. In full view of the adopted evidence, the court below acknowledged that the plaintiff and the defendant purchased forest land 21,719 square meters in 00 m2,00 m2,00 m2,00 m2,000 m2,000 m2,00,000, and purchased the above land from the non-party 1 and the non-party 2 by investing KRW 70,000,00,000 from the non-party 1 and the non-party 2. However, the court below rejected the plaintiff's claim for the transfer registration of ownership in the name of the defendant as to the land of this case or the non-party 5's share transfer registration in the name of the non-party 1 and the non-party 2 as to the non-party 1's share in this case was based on the title trust with the defendant of the association of this case, and rejected the plaintiff's right to claim dissolution of the remaining property of this case and the non-party 1 and the non-party 2's right to claim for dissolution of this case.

In light of the records, we affirm the above judgment of the court below. The plaintiff did not err by misapprehending the legal principles as to the ratio of dissolution of partnership or the distribution of residual property, or by violating the rules of evidence, and there is no error of misapprehending the legal principles as to the association agreement or the voluntary withdrawal of union members or violating the rules of evidence, as

2. The lower court rejected the Defendant’s assertion that the Plaintiff is unable to seek a distribution of remaining assets, as long as the Plaintiff’s business remains, even if the instant association was dissolved.

In principle, if a partnership is dissolved and its business affairs such as collection of claims or repayment of debts have not been completed, it shall not be allowed to seek the distribution of residual assets without going through the liquidation procedures. However, in cases where it is possible to distribute residual assets fairly among partners even though the collection and repayment have not been completed, an exception is allowed without going through the liquidation procedures (see Supreme Court Decision 2004Da30682, Dec. 8, 2005).

However, the Defendant’s assertion that the administrative affairs of the instant association remain after the dissolution of the instant association does not substantially differ from the administrative affairs of sharing and settling the administrative affairs of the instant association between the Plaintiff and the Defendant. This does not change from the administrative affairs of the instant association, and even after the dissolution of the instant association, the administrative affairs of the Plaintiff and the Defendant may be carried out simply by making direct settlement and payment of the other party’s apportionment according to the ratio of sharing of profits and losses, which would be left after setting the apportionment according to the ratio of sharing profits and losses and deducting the apportionment from the mutual equal amount. In full view of all the circumstances indicated in the records, such as the details of administrative affairs expenses borne or to be borne by the Plaintiff and the Defendant, the ratio of sharing of profits and losses, and the details of residual assets, etc., even if the distribution of residual assets of the instant case is permitted without completing

In light of these circumstances and the above legal principles, the judgment of the court below is just in its conclusion and there is no error of law by misunderstanding the legal principles as to the dissolution and liquidation of a union as otherwise alleged in the ground of appeal.

3. Therefore, each appeal is 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 who reviewed the appeal.

Justices Kim Nung-hwan (Presiding Justice)