Plaintiff (Law Firm 21st century, Attorneys Seo Han-chul et al., Counsel for plaintiff-appellant)

Defendant Limited Partnership Company (Attorney Kim-hwan, Counsel for defendant-appellant)

December 23, 2009

Gwangju District Court Decision 2008Gahap11889 Decided June 18, 2009

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

2. The plaintiff's claim corresponding to the revoked part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim

The defendant's decision that the plaintiff shall implement the procedure for the registration of change of membership based on the registration in the attached list.

Purport of appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. The summary of the case and the facts premised on the case

A. Case summary

The instant case asserted that Nonparty 1, 2, and 3, a partner of the Defendant Company, transferred all shares to the Plaintiff on January 1, 2003, who is a partner with limited liability of the Defendant Company, and that the Defendant Company held a general meeting of partners on December 29, 2006 and made a resolution to change the Plaintiff, a partner with limited liability, to the general partner of the Defendant Company, and sought implementation of the procedures for the registration of change of a member based thereon.

The judgment of the court of first instance rejected the request for the performance of the procedure for the registration of change of a member based on a resolution of a general meeting of members, and dismissed the request for performance of the procedure for registration of change of a member based on a transfer of share, and the defendant raised an appeal against the part against which he lost (the part of the claim for performance

B. Presumed factual basis

【Evidence Ac, 5, 6, Nonparty 11, and the purport of the whole pleadings】

(1) The Defendant (former and South Korea Partnership Company) is a limited partnership with the purpose of the taxi passenger transport business, and the Plaintiff is a limited partner of the Defendant Company.

(2) On September 29, 1997, the Defendant composed of five general partners (non-party 9, 10, 11, 12, and 18 limited partners (non-party 14, 4, 15, 5, 2, 16, 6, 17, 7, 8, 18, 18, 19, 19, 3, 20, 21, 22, 23) and 18 limited partners.

(3) Of the Defendant’s general partners, Nonparty 12 and 13 transferred the entire shares to Nonparty 10 on July 21, 2000, Nonparty 9 transferred the entire shares to the Plaintiff and Nonparty 10 on August 11, 200, October 16, 200, and April 3, 2002, respectively.

(4) Of the Defendant’s limited partners, Nonparty 16 transferred all shares to Nonparty 21 on March 15, 1988, Nonparty 18 to Nonparty 10 on May 24, 200, Nonparty 14 to the Plaintiff on March 15, 2002, Nonparty 15, 19, and 17 to Nonparty 24, Nonparty 4, 5, 6, 7, and 8 to Nonparty 24 on August 21, 2003, respectively.

(5) Around December 29, 2006, at the “○○○○○○○○○ Center (cafeteria) located in the Dong-dong, Gwangju, the Defendant Company held a general meeting under the attendance of six general partners, including the Plaintiff and Nonparty 20, 21, 22, and 24, and changed the Plaintiff into the general meeting of partners of the Defendant Company with the consent of five limited partners, and made a resolution to select the Plaintiff as the representative of the Defendant Company.

(6) According to the contents of the articles of incorporation of the defendant company, a regular general meeting of partners shall be convened once every year during April (Article 10). The shares of members shall not be transferred to another person without the resolution of the general meeting of partners or the consent of the representative (Article 8). Except as otherwise provided in Acts and subordinate statutes, a resolution of a general meeting of employees shall be adopted with the consent of a majority of the members present at the meeting and, when the numbers of votes of approval and disapproval are approved, shall be decided by the chairperson (Article 14), not more than five general partners,

2. The issues of the instant case and the parties’ assertion

Of the resolution of December 29, 2006 by Defendant Company, the validity of the part of changing the Plaintiff from a limited partner to a general partner.

【Plaintiff’s Claim】

The plaintiff asserts that the defendant company held a general meeting of members on December 29, 2006 and passed a resolution to change the plaintiff from limited partners to the general partner with unlimited liability, and the plaintiff became a general partner of the defendant company.

[Dissenting of the Defendant]

The defendant asserted that only elected the plaintiff as a partner with limited liability and that there was no decision to change the plaintiff from a partner with limited liability to a general partner.

3. The judgment of this Court

However, whether a limited partnership company is liable for unlimited liability or limited liability is an absolute entry in the articles of incorporation (Article 270 of the Commercial Act). If a partner’s liability is changed according to the procedures for amendment of the articles of incorporation. If there is no separate provision in the articles of incorporation, the amendment of the articles of incorporation requires the consent of all partners unless there are special circumstances, such as amending the articles of incorporation, thereby causing an amendment of the articles of incorporation (see Articles 269 and 204 of the Commercial Act). Therefore, in order to change a limited liability partner of a limited partnership company to a general partner, the consent of all partners is required unless otherwise stipulated in the articles of incorporation (i.e., a resolution of

According to the aforementioned premise facts, the articles of incorporation of the defendant company does not separately provide for the procedures for amending the articles of incorporation. However, the resolution of the general meeting of the defendant company only requires the consent of the majority of the members present, unless otherwise expressly provided for in the statutes. The employees as of December 29, 2006 were composed of the plaintiff, non-party 2, non-party 3, 20, 20, 21, 21, 22, 23, 249 as general partners and limited partners. Therefore, it cannot be deemed that the consent of the plaintiff, non-party 20, 21, 222, and 24 as limited partners was obtained, and the plaintiff cannot be changed from limited partners to general partners. Accordingly, the plaintiff cannot be viewed as acquiring the status of general partners in accordance with the resolution of the general meeting of December 29, 206. The plaintiff's assertion is without merit.

4. Conclusion

Therefore, the part of the plaintiff's claim seeking the implementation of the procedure for registration of change of membership shall be dismissed on the ground that the plaintiff acquires the status of general partner with unlimited liability according to a resolution of the general meeting of members on December 29, 2006. In conclusion, the part against the defendant among the judgment of the court of first instance which received the plaintiff's claim on this part is unfair, and the defendant's appeal is reasonable, and the part against the defendant in the judgment of first instance which ruled against the defendant is revoked

[Attachment]

Doctrine (Presiding Judge) The degree of merit of judges