[1] The standard period for assessing the partnership assets for calculating the shares of the withdrawing union members (=the time of withdrawal) and whether the goodwill is included in the subject of evaluation (affirmative)

[2] In a case where property (including a business license) of an association pursuing profit-making purposes is assessed, whether the method of appraisal of the stock value of an unlisted corporation can be applied mutatis mutandis (affirmative in principle) and specific method of assessment

[3] The purpose of the simultaneous performance defense system and the case where each of the parties' obligations is not in an inherent quid pro quo relationship in the bilateral contract, but can be admitted as a simultaneous performance defense

[1] Article 719(1) of the Civil Act / [2] Article 719(1) of the Civil Act, Article 60 and Article 63(1)1(c) of the Inheritance Tax and Gift Tax Act, Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act / [3] Article 536 of the Civil Act

[1] Supreme Court Decision 96Da19208 delivered on September 6, 1996 (Gong1996Ha, 2982), Supreme Court Decision 96Da44839 delivered on February 14, 1997 (Gong1997Sang, 761), Supreme Court Decision 2004Da49693, 49709 delivered on March 9, 2006 (Gong2006Sang, 577) / [2] Supreme Court Decision 2005Da18962 delivered on June 2, 2006 (Gong206Ha, 1247) / [3] Supreme Court Decision 91Da30927 delivered on August 18, 1992 (Gong1992, 2737, 2005Da46375 delivered on June 25, 2006)

Plaintiff (Law Firm LLC, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (LLC, Kim & Kim LLC, Attorneys Ko Hyun-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na94054 decided July 13, 2011

The part of the judgment below against the Defendants regarding the claim for the settlement amount is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ grounds of appeal

A. As to grounds of appeal Nos. 1 and 2

(1) In a case where a part of a partner withdraws from a partnership relationship, the calculation between the withdrawing partner and the other partner shall be based on the partnership’s property status at the time of withdrawal pursuant to Article 719(1) of the Civil Act. Thus, in calculating the share, the standard time for assessing the asset should be deemed to be at the time of withdrawal (see Supreme Court Decision 96Da19208 delivered on September 6, 196, etc.

In addition, in case where 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 business right will be paid for that part of the business, as a matter of course, if the business entity becomes the object of a transaction. Therefore, when it operates a business entity with a business right as a partnership, and evaluates the shares of the member who left the partnership with the business relation as a matter of course, it should include the business right (see, e.g., Supreme Court Decisions 96Da44839, Feb. 14, 1997; 2004Da49693, 49709, Mar. 9, 2006).

Meanwhile, even in cases of assessing the property (including goodwill) of a cooperative seeking profits for profit, the method of appraisal of the stock value of an unlisted corporation may be applied mutatis mutandis to the extent not contrary to the nature of the cooperative. In such cases, where there is a normal example of transaction that properly reflects the objective exchange value, the transaction value shall be deemed the market price and the value of the property of the cooperative shall be appraised. However, in the absence of such transaction cases, a number of methods of appraisal generally recognized, but the relevant laws and regulations governing such method of appraisal shall not be determined at all times in light of the application of different standards according to the purpose of its enactment, and it shall be determined reasonably by taking into account the situation of the relevant cooperative, the characteristics of the relevant business, etc. (see Supreme Court Decision 2005Da18962, Jun. 2, 2006).

(2) According to the reasoning of the judgment below, the court below acknowledged the following facts based on the adopted evidence: (a) the Plaintiff and the Defendants entered into the instant club business agreement around May 1990, and formed an association and jointly operated the “○○ Hospital” (the first name was “○○ Hospital,” hereinafter “○○○ Hospital”); (b) on November 30, 2005, the Plaintiff withdrawn from the partnership business relationship where the Defendants jointly operated the ○○ Hospital and jointly operated the same type of business in the neighboring area; and (c) on November 30, 2005, the Plaintiff withdrawn from the partnership on November 30, 2005; and (d) the Defendants were obligated to pay an amount equivalent to 1/3 of the Plaintiff’s share in the property value of the ○○ Hospital, a partnership property at the time of withdrawal of the Plaintiff; and (e) on the basis of calculating the value of business rights, the Plaintiff calculated the value of business rights based on ○○ Hospital’s cash flow Act based on its reasoning.

Examining the records in light of the above legal principles, the above measures of the court below are just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the method of evaluation of goodwill or the violation of the rules

The judgment of the court below which assessed the value of ○ Hospital's business rights by using the cash flow discount method is not unlawful, as alleged in the grounds of appeal, since it cannot be seen that the court below adopted the method of evaluating the business rights included in the association's assets in calculating the equity interest among the union members and the remaining union members who withdraw from the association in this case under the Inheritance Tax and Gift Tax Act in calculating the equity interest of the association.

(3) As of November 30, 2005, the court below adopted the cash flow discount method at which the value of ○○ Hospital’s business rights is discounted at the market value or used the actual sales value, etc. of ○○ Hospital’s ○○ Hospital’s 2006, 2007, and 2008, which was after the Plaintiff’s withdrawal from the association, when evaluating the value of ○○ Hospital’s business rights as of November 30, 2005, it is merely one method for assessing the accurate business value of ○○ Hospital’s ○○ Hospital’s ○○ Hospital’s business rights as of November 30, 2005, and the court below excluded the effect arising from the new medical sector of ○○ Hospital’s ○○ Hospital’s business rights after the Plaintiff’s withdrawal from the association. Therefore, the court below did not err in the misapprehension of legal principles as to the point of time of assessing the shares of members, as alleged in the grounds of appeal.

B. Ground of appeal No. 3

(1) As indicated in its reasoning, the lower court determined that: (a) around May 1990, the Plaintiff and the Defendants continued to grow up to have continued to have continued to have had a considerable reputation in the field of ○○ Hospital disease since the Plaintiff left the association; (b) around November 30, 2005, employees, including at least 20 doctors at the time of withdrawal, have more than 170,000 won, and (c) has more than 20 billion won and 5 billion won after the Plaintiff’s withdrawal from the association; (d) on the grounds that the Plaintiff’s ○ Hospital’s ○ Hospital’s ○ Hospital’s ○ Hospital’s ○○ Hospital’s 00,000 won and 300,000 won and 50,000,000 won and 30,000,000 won and 10,000,000 won and 10,000,000 won and 3,000,0.

(2) The sales and operating income of the ○○ Hospital after the Plaintiff’s withdrawal from the cooperative consisting of the part directly generated by the Defendants, which are the remaining members of the association, and the part generated from the ○ Hospital System (including non-contractual customer relationship, brand, human resources, etc. with the ○ Hospital) that the Plaintiff operated in a partnership for a period of 15 years and 6 months from May 1990 to November 30, 2005. The results of the examination of the first instance court adopted by the lower court reveal that the Plaintiff calculated surplus cash flow generated by the ○ Hospital System after the Plaintiff’s withdrawal from the cooperative, and then calculated the surplus cash flow generated by the ○○ Hospital System by deducting the surplus cash flow directly created by the Defendants from the total surplus cash flow of the ○○ Hospital.

Therefore, we cannot accept the allegation in the grounds of appeal purporting that the Plaintiff cannot seek part of the operating income of the ○ Hospital after the Plaintiff’s withdrawal from the cooperative as the settlement amount, since the Plaintiff’s withdrawal was only directly generated by the Defendants, and the ○○ Hospital System, which was created by the Plaintiff and the Defendants, was not entirely contributed to the creation of the operating income.

(3) In addition, in light of the record, the result of the first instance court’s appraisal, adopted by the court below, is based on the calculation of the actual sales and operating income from 2006 to 2008, which was after the withdrawal from the Plaintiff’s partnership, and it is difficult to view that the change in the value of operating rights of ○○ Hospital arising from the withdrawal of the Plaintiff was not reflected.

Therefore, we cannot accept the allegation in the grounds of appeal, which is based on the premise that the reduction in the value of business rights due to the withdrawal of one member from three of the three members in the result of the appraisal in the first instance.

(4) However, it is difficult to accept the lower court’s assessment of the operating value of the ○ Hospital for the following reasons, on the premise that the excess profit-making power of the ○ Hospital system from December 1, 2005 to December 31, 2020, the Plaintiff’s retirement age as an external doctor, continues for 15 years and one month from December 31, 2020, under the premise that the Plaintiff’s retirement age as an external doctor.

In light of the records, it is difficult to recognize that the Plaintiff and the Defendants agreed to view the excess profit-making period of the ○○ Hospital System as the retirement age of the outside doctor. In addition, the excess profit-making period of the ○○ Hospital System shall be determined by taking into account the contents and composition of the system, the business environment of the ○○ Hospital and patient trends and management performance, changes in the ○○ Hospital’s human and physical facilities and the medical department, the current status of the same medical industry, competition, future profitability, etc., and it is not simply determined based on the retirement age of the outside doctor.

Nevertheless, without clear grounds, the court below assessed the value of the ○○ Hospital's business rights in accordance with the result of the first instance court's appraisal premised on the premise that the excess profit-making power of the ○○ Hospital system continues until the Plaintiff reaches the retirement age as an external doctor. Thus, the court below erred by misapprehending the legal principles on the duration of excess profit-making power, thereby adopting erroneous appraisal results, thereby affecting the conclusion of the judgment. The ground of appeal pointing

2. Plaintiff’s ground of appeal

A. As to the ground of appeal on discount rate etc.

The lower court calculated the discount rate of 7.87% according to the weighted average capital cost of the ○○ Hospital that applied an adequate weight in light of the rate of equity capital and the total assets of other capital at the request of its members and creditors. The lower court calculated the sales right value of the ○○ Hospital Association by adding 50% to the equity capital cost, taking into account the following circumstances: (a) the Plaintiff, as ○○ Hospital and the specialized department of the ○○ Hospital wanted to open almost the same △ Hospital, and thus, the Plaintiff had no choice but to have a customer influence; (b) ○ Hospital and △ Hospital are located in a reasonable basis; and (c) the Plaintiff is using ○ Hospital’s work experience in ○ Hospital for marketing of △ Hospital, which is the discount rate of 10.03

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above measures of the court below are just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the interpretation of discount rate or appraisal

B. As to the ground of appeal on simultaneous performance relationship

When each party's right to defense of simultaneous performance is related with each other's obligation on the basis of the concept of fairness and the principle of good faith, one party's right to defense of simultaneous performance is recognized to allow the other party to refuse to perform his/her obligation when the other party's obligation is requested to discharge his/her obligation without performing the other party's obligation or not providing the other party's obligation. In light of the purport of the system, even if each obligation to be borne by the party is not in the bilateral contract's own quid pro quo quo, in accordance with the content of the agreement on the obligation to be borne by each party under a specific contractual relationship, if it is of a quid pro quo meaning and there is a circumstance to recognize the relationship of performance (see Supreme Court Decisions 91Da30927, Aug. 18, 1992; 2007Da3285, Jun. 14, 2007, etc.).

The lower court determined that the Defendants are liable to pay damages for delay from the day after the Plaintiff deposited documents necessary for the registration of transfer of the said real estate in the future of the Defendants, on the grounds that the Plaintiff’s obligation to transfer ownership of real estate stated in the attached list of the lower judgment was in the relationship of simultaneous performance with the Defendants

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to concurrent performance as alleged in the

3. Conclusion

Therefore, the part of the judgment of the court below against the defendants as to the claim for the settlement of accounts is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed in its entirety. It is so decided as per Disposition by the assent

Justices Kim So-young (Presiding Justice)