[1] Whether the business entity with a business right should be included in the evaluation of the business right when evaluating the shares of the member who left the business in the business relationship while operating the business as a partnership (affirmative)

[2] The method of interpreting the content of an agreement in a case where the parties to an agreement on the calculation of shares of a withdrawing partner was written, but there is a conflict of opinion on the content and interpretation of the agreement, and the interpretation of the parties expressed in the disposition document

[3] In a case where Party A, who operated a female hospital and a postnatal care center jointly with Party B, withdrawn from the partnership relationship for about three years after the opening of the hospital and claim for refund of shares under the partnership agreement, and where Party A withdraws from the partnership relationship within five years after the opening of the partnership agreement, the case holding that the lower court’s judgment assessed Party A’s shares, excluding the goodwill, erred by misapprehending the legal doctrine

[1] If a business entity has a profit-making power exceeding the normal profit ratio of the same company, it is expected that the business entity with such a goodwill will naturally exchange for the part of the trade. Therefore, if a business entity with a goodwill becomes the object of trade, it is expected that the business entity should be operated as a partnership business, and the shares of the association members who left the partnership business should be included in the goodwill as a matter of course. The association members may determine the method of appraisal of shares by agreement that they will not be included in the appraisal of the goodwill, but the burden of proof should be borne by the claimant.

[2] Where a written agreement on the calculation of shares of a withdrawing partner is prepared, the written agreement constitutes a disposition document. If there is any difference between the parties regarding the content and interpretation of the agreement and the interpretation of the intent of the parties expressed in the disposition document is at issue, the content of the agreement shall be reasonably interpreted in accordance with logical and empirical rules, social common sense and transaction norms, by comprehensively examining the contents of the agreement, the motive and background leading up to the agreement, the purpose and genuine intent to achieve the agreement through the agreement, transaction practices, etc. In particular, if the content of the agreement claimed by either party imposes significant disadvantages such as waiver of rights on the other party, the meaning of the agreement shall be strictly interpreted.

[3] In a case where Gap et al. operated a female hospital and a postnatal care center jointly with Eul et al., and claimed for refund of shares from the partnership after withdrawal from the partnership in approximately three years after the opening of the partnership, and where the partnership agreement provides that "if a business entity withdraws from the partnership within five years after opening of the partnership, it shall have to the degree of shares," the case holding that the court below erred by misapprehending the legal principles on the appraisal of shares, except for goodwill, in a case where a business entity with goodwill, such as a hospital or a postnatal care center, naturally becomes an object of a transaction, it can be expected that it would have received a price for the part, and thus, it can be anticipated that the market price includes the appraisal of goodwill, in light of the nature of a natural interpretation, it is difficult to view that the partnership member would have agreed to exclude the business license from the appraisal of "shares" by including it in the object of calculating the goodwill.

[1] Article 719(1) of the Civil Act, Article 288 of the Civil Procedure Act / [2] Articles 105 and 719(1) of the Civil Act / [3] Articles 105 and 719(1) of the Civil Act

[1] Supreme Court Decision 96Da44839 Decided February 14, 1997 (Gong1997Sang, 761), Supreme Court Decision 201Da67699 Decided December 26, 2013 / [2] Supreme Court Decision 86Meu1907, 1908 (Gong1987, 720) Decided March 24, 1987 (Gong1987, 720), Supreme Court Decision 95Da29130 Decided July 30, 1996 (Gong196Ha, 2639), Supreme Court Decision 200Da72572 Decided May 24, 2002 (Gong200Ha, 1479), Supreme Court Decision 2002Da318282 Decided June 28, 2002 (Gong1479)

Plaintiff (Law Firm Sejong, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 2015Na2062072 decided August 16, 2016

Of the part of the lower judgment against the Defendants, the part corresponding to 100,558,958 won and damages for delay thereof and the part against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by Defendants 1, 3, 4, and 5 are dismissed. The costs of appeal corresponding to the dismissed appeal are assessed against Defendants 1, 3, 4, and 5.

The grounds of appeal are examined.

1. The plaintiff's ground of appeal No. 1

A. The right to operate a business is to assess the excess profit if the business entity has a profit-making power exceeding the normal profit ratio of the same company. If the business entity with such a goodwill becomes the object of transaction, it is expected that it will naturally exchange for the part of the business. Therefore, if the business entity with the goodwill operates the business as a partnership, and the partner's share in the company that left the partnership with the goodwill should be naturally included in the goodwill (see, e.g., Supreme Court Decisions 96Da44839, Feb. 14, 1997; 2011Da67699, Dec. 26, 2013). Members may determine the method of appraisal by agreement and determine that the goodwill should not be included in the assessment, but the burden of proof exists to the person who asserts it.

Where an agreement on the calculation of shares of a withdrawing union member is prepared in writing, the written agreement constitutes a disposition document. In the event that there is any difference between the parties regarding the content of the agreement and its interpretation, and the interpretation of the intent of the parties expressed in the disposition document is at issue, the content of the agreement shall be reasonably interpreted in accordance with logical and empirical rules, general common sense and transaction norms (see, e.g., Supreme Court Decisions 95Da29130, Jul. 30, 1996; 2002Da23482, Jun. 28, 2002). In particular, where one party imposes a disadvantage, such as waiver of rights on the other party, the meaning of the agreement should be strictly interpreted (see, e.g., Supreme Court Decisions 86Meu1907, Mar. 24, 1987; 1907; 2008Da5275, Feb. 27, 2005).

B. The Plaintiff operated ○○○○○ Women’s Hospital and Postnatal Care Center (hereinafter “instant hospital and Postnatal Care Center”) jointly with the Defendants, and filed a claim for refund of shares under the said business agreement after withdrawing from the business relationship.

For the following reasons, the lower court acknowledged that Article 9 (hereinafter “instant provision”) of the same business agreement determined not to include business rights when withdrawing from the same business relationship within five years from the opening of the hospital, and rejected the Plaintiff’s assertion that the business rights should be assessed by including business rights.

(1) Article 5 of the Agreement provides that the first operating period of a hospital shall be five years after the commencement of its operation, and the instant provision provides that the withdrawal within five years after the commencement of its operation shall be waived and the shares shall be settled.

(2) Premium, in particular, goodwill premium, is generally used as a transfer of intangible property value, such as trade name, business facility and bonus, or tangible and intangible property value, such as business technology and credit, business know-how or location of the place of business, or a cost for use for a given period, which can be seen as a consideration for goodwill.

(3) The Plaintiff, the Defendants, and Nonparty 1, and Nonparty 2 (C) agreed to maintain a partnership for at least five years for the stable operation of the hospital, and the instant provision appears to have been established to secure the implementation thereof. If the premium is not interpreted as a consideration for a goodwill, even if it is withdrawn before the withdrawal, it is difficult to secure the implementation of the agreement because there is no disadvantage in the settlement of shares.

(4) The purport of the instant provision that “in assessing the degree of contribution to a hospital, the inclusion of management participation, external activities, etc. in addition to the diagnosis and treatment shall be included” is to reflect the said contents along with the goodwill in calculating premium, and it does not seem to have prescribed premium separate from the goodwill.

C. However, the lower court’s determination is difficult to accept for the following reasons.

(1) According to the records, since the Plaintiff withdraws from the partnership after the opening of the hospital in approximately three years after the opening of the hospital, the part of the provision of this case stating that “the Plaintiff may hold in proportion to shares, except that the Plaintiff waives the premium.” It is difficult to view the provision of this case as an agreement to exclude the Plaintiff from the assessment of “shares,” by including the goodwill in the object of calculating the “contribute premium.”

(A) The instant provision classifys the method of calculating shares by adjusting the ratio of shares according to the time when the hospital’s business operation period is scheduled to be five years and the time when the hospital withdraws from the hospital or by separately adjusting the amount of the premium. In other words, the members (i) give up the premium in case of withdrawal within two years after the opening of the hospital, and only the remainder after deducting 30% from the name of personal (palty, this is applicable to penalty) in case of withdrawal within five years after the opening of the hospital, (ii) give up the premium in case of withdrawal within five years after the opening of the hospital, and (iii) receive a refund of shares in the market price along with the premium in case of withdrawal after five years. Meanwhile, in the case of Nonparty 1 and Nonparty 2, the shares will be transferred if requested by other partners from the two to five years, but the shares will be transferred in addition to 30% of the appraised value under the pretext of consolation benefits, and (v) the shares may be refunded at the market price or at the arm’s length price by discountinging price.

The instant provision uses various expressions, such as ①, ②’s “shares”, ③’s “shares in the market price”, ④’s “value of shares”, and ⑤’s “market price” and “normal price” with respect to the matter. However, in light of the purpose and structure of the provision, and the context, the said expressions refer to the appraised value of shares that are the object of refund to the withdrawing partner. Here, the “market price” of “market price” refers to the same meaning as “market price or normal price” and it is natural interpretation to deem that the “market price” or “market price” includes the appraisal of business rights. This is because, as in the instant case, it is naturally expected that a business entity with business rights becomes the object of transaction, such as a hospital or a postnatal care center.

(B) On the other hand, if interpreted as an assessment of shares other than a goodwill in this case, the equity value for a considerable period of time under the financial structure of a hospital and a postnatal care center is equal to -- (-). (A) According to the records, the Plaintiff’s value of a hospital and a postnatal care center assessed excluding business rights at the time of December 2013, 2013, when the Plaintiff withdraws from the business relationship, may not exercise the right to claim a refund of shares during that period, thereby resulting in an excessive disadvantageous result in the Plaintiff’s withdrawal from the association because it is difficult to exercise the right to claim a refund of shares during that period. In the instant provision, where a partner withdraws within two years, the Plaintiff shall be called “personal person” and the parties have to deduct or reduce 30% of the equity interest. In addition, it cannot be deemed that the parties have agreed to impose significant disadvantage on the partner by excluding business rights.

(C) The Defendants asserted that the “Premium” used in the instant clause was used in a meaning that includes business rights, but the said agreement does not provide for the concept of the Premium, and only stipulates that “in evaluating the degree of contribution to a hospital, it shall include management participation, external activities, etc. other than medical treatment, in addition to medical treatment.” This is merely the meaning that if a withdrawing member contributed to the management of a hospital as a result of evaluating the degree of contribution to the hospital, beyond the ratio of contribution stipulated in the said agreement, it may be deemed as a premium if it were to have contributed to the management of the hospital, and it is difficult to view that the said agreement includes business rights in the premium.

(2) As above, it is difficult to recognize that members, including the original and the Defendant, agreed to evaluate their shares, excluding the goodwill when they withdraw from the partnership within five years after the opening of the partnership. The lower court should have examined not only the language and structure of the instant provision, but also the motive and background of the agreement, the purpose and genuine intent to achieve the agreement by agreement, and transaction practices, etc., and examined the meaning of the “shares” or “contribute premium” used in the instant provision. Nevertheless, the lower court assessed the Plaintiff’s shares, excluding the Plaintiff’s goodwill, by deeming that the ownership is not included in the “shares” as prescribed in the instant provision without providing sufficient reasons. Thus, the lower court erred by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error

2. The grounds of appeal by Defendant 2 and the judgment on the remaining Defendants’ ground of appeal No. 1

The court below held that the above net debt amount should not be considered in the share assessment on the ground that the hospital of this case 702,982,739 won, and the postnatal care center 86,035,358 won (the Plaintiff’s share value decrease is 100,558,958 won if it is reflected in the share value of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○)

However, if it is deemed that the Plaintiff’s share should be included in the business right when evaluating the Plaintiff’s share, the lower court’s above determination on a different premise may no longer be upheld. As long as the said share should be evaluated as included in intangible assets, it is reasonable to consider the remainder of the instant hospital’s assets and liabilities together with the instant asset. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the

3. Determination on the remaining grounds of appeal

A. The Plaintiff’s ground of appeal No. 2

The lower court determined that the content of the instant trade agreement cannot be deemed changed according to the terms of the legal advice agreement in light of the time of conclusion, the process of conclusion, the time of withdrawal, etc. of the Plaintiff’s assertion.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine

B. Defendant 1, Defendant 3, Defendant 4, and Defendant 5’s ground of appeal No. 2

The court below rejected the above defendants' assertion that the amount equivalent to the rental debt borne by the plaintiff and the defendants should be deducted from the stock value in assessing the value of ○○○○○, a leasing corporation.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to

Meanwhile, the above Defendants filed an appeal against the remainder of the judgment below, but did not state in the petition of appeal or the appellate brief legitimate grounds for appeal.

4. Conclusion

Of the part of the judgment below against the Defendants, the part corresponding to the above 100,558,958 won and damages for delay, which are the Plaintiff’s share value decreased due to the reflection of net debts of the hospital and postnatal care center, and the part against the Plaintiff is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by Defendants 1, 3, 4, and 5 are dismissed as without merit. The costs of appeal as to this part are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)