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(영문) 서울고등법원 2014.01.22 2012나90230
이익배당금
Text

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiffs' damages claim against the defendant G.

Reasons

1. With respect to this part of the lawsuit by the plaintiffs against the defendants claiming the determination of the principal safety defense against the claims for dividend or settlement of accounts, the defendants asserted that this part of the lawsuit is unlawful because all union's dividend or settlement of accounts belongs to all union members, and the plaintiffs shall file a lawsuit against all union members including them as defendant. The plaintiffs' omission in the defendant, etc., are not sufficient to be the defendant's qualification.

However, the partnership's obligations are the obligations of each partner, the obligations of which are indivisible, or the creditors of the partnership can only claim performance according to the ratio of shares or equal proportion to each partner, unless otherwise stipulated.

(See Supreme Court Decision 85Meu1499 Decided November 12, 1985). In addition, in a case where a creditor of the partnership exercises a claim against each partner on the basis of his/her personal responsibility, he/she may file a lawsuit seeking performance against each partner.

(See Supreme Court Decision 91Da30705 delivered on November 22, 1991). Furthermore, in a case where a partner has a claim against a partnership, he/she may, regardless of the liquidation procedures, exercise his/her right as a creditor of the partnership by himself/herself as a result of his/her own burden of loss to other partners.

(See Supreme Court Decision 92Da42620 delivered on March 23, 1993. The right to claim the distribution of residual property is an internal relationship between partners, and it is sufficient that each partner individually exercises the residual property against the partners who own the remaining property beyond the distribution ratio, but it does not necessarily mean that the partners jointly exercise the right or exercise the right against all the partners.

(See Supreme Court Decision 9Da35713 delivered on April 21, 2000). In light of such a legal doctrine, a partner may individually pay dividends or settle accounts in proportion to the share of another partner.

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