Plaintiff 1 and one other (Attorney Cha-tae, Counsel for the plaintiff-appellant)

Defendant (Attorney early First LLC et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2009Kahap6266 Decided October 22, 2009

August 20, 2010

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim

The defendant's declaration of forfeiture of the power to conduct business for the Gwangju metropolitan commerce limited partnership company.

Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

In light of the purport of the whole arguments stated in Gap evidence Nos. 1, 41, 49, 56 (each certified copy of the register), the plaintiff 1 entered the membership by acquiring part of the shares of the Gwangju International Trade Partnership (formerly changed: : 2002. 7. 30, 2000: hereinafter referred to as "Magju Trade Partnership") owned by the non-party 1 from August 11, 200. The plaintiff 2 performed the obligation of investment of KRW 1,020,000 before September 27, 1997 and thereafter became a Gwangju International Trade Member from around that time. ② The defendant was admitted by taking over part of the shares from the non-party 1 on September 27, 1997 to the non-party 1's general partner's general partner's general partner's general partner's general partner's general partner's general partner's general partner's general partner's general partner's general partner's general partner's decision that the plaintiffs's general partner's general partner's general partner's general partner's general partner's general partner's general partner's exercise of duty cannot be held.

2. Determination on the defense prior to the merits

A. Summary of the defendant's assertion

① Around May 29, 2009, the Plaintiff 1 was resolved to dismiss the Plaintiff 1 at the general meeting of the members of the Gwangju metropolitan trade. ② A resolution was made to continue to exist in the general meeting of members of the Gwangju metropolitan trade on July 30, 2009, with the period of existence expired on June 28, 2009. Since the Plaintiffs retired without their consent, the instant lawsuit by the Plaintiffs, who are not the members of the Gwangju metropolitan trade, is unlawful.

B. The part concerning the plaintiff 1's assertion of expulsion

With respect to the expulsion of a limited partnership member, Article 220 (1) of the Commercial Act which applies mutatis mutandis by Article 269 of the Commercial Act provides that "if any member has any of the following reasons, the company may request a court to declare the expulsion of such member by a majority of the other members." In Article 220 (1) of the Commercial Act provides that "if the member fails to perform his/her duty of investment, when the member fails to perform his/her duty of investment; 2. Where the member violates the provisions of Article 198 (1) of the Commercial Act (where he/she or a third party's account without the consent of other members, he/she shall not engage in any transaction belonging to the same kind of company as the limited partnership company or any other company's general partner or director, and the expulsion does not carry out his/her duty without authority or represent the company." However, since the expulsion of a member is deprived of his/her qualification, it shall not be deemed that there is a significant effect on the judgment of the majority of the members, and thus, the expulsion of the company shall not be governed by the articles of the company.

As alleged by the Defendant, even if he/she decided to dismiss Plaintiff 1 at the general meeting of members of Gwangju Trade on May 29, 2009, as alleged by the Defendant, in light of the respective descriptions of evidence No. 57-1 and No. 2 of evidence No. 57, he/she rather asserted that Gwangju Trade resolved to dismiss Plaintiff 1 at the general meeting of members on May 29, 2009, and sought an adjudication of expulsion against Plaintiff 1 as the Gwangju District Court 2009Gahap8071, but the above court dismissed the claim of Gwangju Trade on December 17, 2009, and the above judgment became final and conclusive on January 8, 2010, the Defendant’s allegation in this part cannot be accepted without examining the remainder of the issues.

C. The part concerning the plaintiffs' withdrawal from office

According to the records of Gap evidence No. 23-1 and No. 2, the plaintiffs agreed to continue Gwangju Trade around June 25, 2009. Thus, the defendant's assertion on this part cannot be accepted.

3. Judgment on the merits

A. Summary of the parties' arguments

(1) The plaintiffs asserted that the defendant did not perform his/her duty under the Articles of Incorporation as to the settlement of accounts since 2002, and that he/she neglected the registration of change with respect to retired members in Gwangju Trade, and ③ committed crimes such as fabrication of private documents, occupational embezzlement, etc., and that he/she sought the forfeiture of his/her executive authority against the defendant who violated these important duties.

B. The defendant asserts that, on January 31, 2007, the defendant agreed not to raise any objection with the plaintiffs regarding the accounting and settlement of accounts until around that time, and that, on May 29, 2009, the general meeting of partners approved the accounting and settlement of accounts from January 1, 2007 to December 31, 2008, and that, on the other hand, the members including the plaintiffs did not complete the registration of change with respect to retired members because they continuously caused managerial disputes without consent to the registration of change, the registration of change with respect to the retired members was not completed, and the defendant was sentenced to the disposition of non-prosecution (no charge) or the verdict of innocence with respect to the business embezzlement, etc. claimed by the plaintiffs.

B. Determination on the parties' arguments

(1) First, as alleged by the Plaintiffs, whether the Defendant failed to perform its duties as the managing partner of Gwangju Trade.

㈎ 결산의무 불이행에 관하여

(a) Examining the overall purport of pleadings in each statement of Gap evidence 2, Gap evidence 9, Eul evidence 14, Eul evidence 3, 4 and Eul evidence 37 through 39 (including branch numbers, if any) 1. Article 30 of the Gwangju Commercial Code provides that ① The settlement of accounts in Article 30 shall be settled by the end of February of each fiscal year, the auditor shall be audited within one month after preparing a bill concerning the disposition of the assets list, balance sheet, profit and loss statement, business report, and profit and loss loss, and submitted it to the general meeting of members for approval. ② The defendant did not hold a general meeting of members for the settlement of accounts from May 2002 to February 2009 under the articles of incorporation or general accounting standards, ③ The defendant did not present the audit report to the plaintiff's general meeting of members for the period of 20 years from August 2002 to February 2009; ③ the defendant did not present the audit report to the plaintiff's general meeting of members within 30 years from February 27, 20007.

(b) Meanwhile, the defendant alleged that there was an agreement between the plaintiffs and the defendant on January 31, 2007 that it would not raise any objection to the accounting and settlement of accounts until that time, and that it would not be a ground for loss of executive authority. According to the Eul evidence No. 2, it is acknowledged that the agreement was reached between the plaintiffs and the defendant on January 31, 2007 that "it would not raise any objection to the company with respect to various taxes incurred from January 31, 1997 to January 31, 2007, and the accounting and settlement of accounts of the company," but there was no agreement between the plaintiffs and the defendant on February 31, 2007 that "the defendant would not raise any objection to the company with respect to the accounting and settlement of accounts of the company" until the end of 2007, and that the defendant did not submit the above agreement to the general meeting of shareholders from the end of 207 to the end of 207, and that it did not dispute the above agreement between the court of first instance and the defendant's first instance.

The Defendant also asserted that at the general meeting of members of May 29, 2009, there was a resolution approving the accounting and settlement of accounts from January 1, 2007 to December 31, 2008. According to the statements in Eul evidence 5, 6, and Eul evidence 26, the audit report was submitted to non-party 4, 5, and 6 on May 22, 2009 by requesting an audit to the non-party 2, which was an external auditor on May 22, 2009, and it is difficult to view the above audit report as having been submitted by the Defendant to the general meeting of members, who was held on May 29, 2009, separately from whether the audit report, was submitted. However, according to these evidence, it is difficult to view the above audit report as having been submitted by the non-party 3, 200,000 won to the extent that the audit report was approved by the above external auditor, as stated in the articles of incorporation of the audit report at the general meeting of members.

㈃ 결국 피고는 적어도 2003년 이래 대표사원으로서 회사 결산에 관한 정관 제30조에서 정한 의무를 제대로 이행하지 아니하였고, 그로 인하여 원고들을 비롯한 광주통상의 사원들이 장기간 이익을 배당받을 수 있는지 여부를 확인하는 등의 자익권을 행사하는 데 현저한 어려움을 겪게 되었다고 하겠다.

㈏ 사원변경등기에 관하여

(4) On the other hand, with the approval of Nonparty 1 to the effect that Nonparty 2’s above-mentioned shares were transferred to Nonparty 1, Nonparty 1, Nonparty 2, Nonparty 2, and Nonparty 3, Nonparty 1 and Nonparty 2, with the approval of the court below, for the alteration of Nonparty 1’s shares at 0.3, Nonparty 1 and Nonparty 2, for the alteration of Nonparty 2’s shares at 0.3, and for the alteration of Nonparty 1’s shares at 0.3, Nonparty 1 and Nonparty 2, for the alteration of Nonparty 2’s shares at 0.3, for the alteration of Nonparty 1 and Nonparty 2’s shares at 0.3, for the alteration of Nonparty 1’s general meeting, and for the alteration of Nonparty 2’s shares at 0.5, for the alteration of Nonparty 1’s shares at 0.7, this decision was rendered to the effect that the Plaintiff transferred the shares to Nonparty 1, 204 or 300,00.

(b) As to this, the defendant asserts that existing members, including the plaintiffs, could not complete the registration for change of management without their consent to the change of management. According to each of the statements in Eul evidence Nos. 33 through 35 (including each number), the non-party 17 and 2 filed a lawsuit to confirm the change of management rights against the defendant in Gwangju District Court No. 2002Kahap571, and the plaintiff 2 et al. filed a lawsuit to confirm the change of management rights against the defendant in Gwangju District Court No. 2004Kahap8533, Aug. 25, 2003, which the defendant was elected as joint representative members, and the plaintiff 1 et al. filed a lawsuit to confirm the change of management rights against the Gwangju District Court No. 2005Ka7650, May 13, 2005, which had not been made for a considerable period of time until the settlement of accounts was made by the defendant. However, the defendant did not appear to have fulfilled his duty to register the change the management rights as above.

C. After all, the defendant, as a representative member, has the duty to make efforts to complete the registration of the corporation so that the contents of the change of the status of the employee are consistent with the substance, but the proposal of the members, including the plaintiffs, etc., including the plaintiffs, to hold a general meeting of members to solve procedural problems, has been rejected, and has caused trouble in the smooth operation of the company by forcing the resolution on the change of the status of the member in Gwangju Commerce by creating a dispute on the status of the

㈐ 사문서위조 등에 관하여

In light of the overall purport of arguments as to Gap evidence Nos. 8, 51, 62 and 68, the defendant forged the minutes of provisional general meeting of 18 members, which were non-party 1 who had been a limited partner of Gwangju metropolitan trade around March 26, 2004. On April 9, 2004 and May 7, 2004, the defendant submitted forged general meeting minutes as evidence when filing a lawsuit seeking a declaration of expulsion and a lawsuit claiming compensation for damages against non-party 19, etc. The defendant was sentenced to a fine of 1 million won on February 2, 2006 and was sentenced to a fine of 0,00 won on February 2, 2007, which became final and conclusive by the defendant as the representative of Gwangju District Court's decision of 200,000 won for an act of forging 10,000 won as the representative of Gwangju District Court's decision of 20,000 won for the above act of embezzlement 20,007.

Doz. Whether it constitutes a mistake in the loss of authority

(1) In light of the overall circumstances, the defendant did not properly deal with the business of accounting and settlement of accounts, thereby making it difficult for its members including the plaintiffs to exercise their right to self-interest by violating the duty under Article 30 of the articles of incorporation, and without fulfilling the duty of registration of change for retired members, thereby causing legal disputes over the overall operation of Gwangju Trade by abusing his authority as a representative member, such as not convening a general meeting of members to solve this problem, and it is reasonable to deem that the defendant committed "act of violating the duty of management of business" under Articles 269 and 205 (1) of the Commercial Act, such as the act of forging temporary general meeting minutes by using his status as a representative member or embezzlement of the company's operating funds. In light of the purport of Articles 269 and 205 of the Commercial Act, it is reasonable to determine the loss of the defendant's right to conduct business as to the company's operation.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal of this case against the plaintiffs is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Choi Pung-ho (Presiding Judge)