Whether a creditor of an agricultural partnership under the former Act on Fostering and Supporting Agricultural and Fisheries Enterprises may claim for the performance of an obligation to each partner at the time of the occurrence of the obligation (affirmative)

Article 16(1), (3), and (7) (see current Article 16(8)) of the former Act on Fostering and Supporting Agricultural and Fisheries Enterprises (Amended by Act No. 12961, Jan. 6, 2015); Article 712 of the Civil Act

Supreme Court Decision 2016Da39897 Decided April 12, 2018 (Gong2018Sang, 872)

Rice Packaging Co., Ltd. (Attorney Gyeong-ho et al., Counsel for defendant-appellant)

Defendant 1 and four others (Law Firm brightness et al., Counsel for the defendant-appellant)

Jeonju District Court Decision 2016Na11045 decided September 22, 2017

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. Article 16 of the former Act on Fostering and Supporting Agricultural and Fisheries Enterprises (amended by Act No. 12961, Jan. 6, 2015; hereinafter “former Act on Agricultural and Fisheries Enterprises”) provides that at least five farmers, etc. who intend to enhance productivity through collaborative agricultural management, and jointly ship, distribute, process, export, etc. agricultural products may establish an agricultural partnership with its members. Paragraphs (3) and (7) of the same Article provide that agricultural partnership shall be a juristic person, and the provisions concerning partnership in the Civil Act shall apply mutatis mutandis to the agricultural partnership except as otherwise provided for in the above Act.

In full view of the contents of these regulations and the fact that it is an issue of legislative policies, it is understood that the former Agricultural and Fisheries Business Entities Act explicitly grants legal personality to an incorporated association that meets certain requirements to improve agricultural productivity through collaborative agricultural management by admitting the substance of the incorporated agricultural association as an incorporated agricultural association under the Civil Act. Therefore, the legal principles on partnership under the Civil Act shall apply to an incorporated agricultural association unless otherwise provided for in the relevant Acts and subordinate statutes, such as the former Agricultural and Fisheries Business Entities Act.

However, there is no particular provision in the former Agricultural and Fisheries Business Act regarding the exercise of rights by a creditor of an agricultural partnership against a member, so the legal doctrine on partnership under the Civil Act is applied. Ultimately, a creditor of an agricultural partnership can claim the performance of the obligation against each member at the time of the occurrence of the claim pursuant to Article 712 of the Civil Act.

2. According to the reasoning of the lower judgment and the evidence admitted by the lower court, ① one of the agricultural partnership was established pursuant to Article 16 of the former Agricultural and Fisheries Business Entities Act for the purpose of agricultural management, entrusted farming, shipping, distributing, processing, exporting, and selling agricultural products on December 20, 2010, and ② the Plaintiff supplied rice to one of the agricultural partnership from November 7, 2013 to May 12, 2015, but did not receive KRW 33,05,700 out of the price.

Examining these facts in light of the legal principles as seen earlier, one of the members of an incorporated farming association is liable for the above rice distribution obligation under the Civil Act. Nevertheless, the lower court determined that the Defendants, a member of an incorporated farming association, were not liable for the above obligation under the Civil Act. In so determining, the lower court erred by misapprehending the legal principles on Article 16 of the former Agricultural and Fisheries Business Entities Act and the liability of a member of an incorporated farming association for the obligations of an incorporated farming association, thereby adversely affecting the conclusion of the judgment. The

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)