The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 195 of the Commercial Act provides that “The provisions of the Civil Act concerning partnership shall apply mutatis mutandis to internal relations of partnership companies unless otherwise provided in the articles of incorporation or in this Act with respect to internal relations of partnership companies.”

In light of the above provisions, in principle, the provisions of the Commercial Act concerning internal relations of an unlimited partnership company shall be discretionary provisions, and it shall be permissible in its articles of incorporation to provide otherwise.

In cases where the articles of incorporation of a partnership company provide for internal relations differently from the Commercial Act, whether the relevant articles of incorporation excludes the relevant provisions of the Commercial Act shall be determined by comprehensively taking into account various circumstances, such as the contents of the relevant articles of incorporation, the purpose of the relevant provisions of the Commercial Act

2. Article 205(1) of the Commercial Act provides, “If a member is clearly unfit for the management of affairs or has breached his material duties, the court may, upon the request of a member, adjudicate the forfeiture of the power to execute affairs.” Article 11 of the articles of incorporation of the company of this case, which is a partnership company, provides, “if a managing member is clearly unfit for the management of affairs or has breached his material duties, the power to execute affairs may be forfeited upon the resolution of all the members.”

The lower court determined that the provision of the above Articles of incorporation is a provision replacing the above provisions of the Commercial Act, and determined that the lawsuit seeking the adjudication on the forfeiture of the Defendant’s right to execute business was unlawful on the ground that there is no legal basis

3. However, the above judgment below is hard to accept for the following reasons.

The following two types can be presented in the way of losing the executive power of a partner or executive partner of an unlimited partnership company under the Commercial Act: