Transfer of shares of unlimited partners in a limited partnership company and obligations to change a partner;

The general partner with unlimited liability in a limited partnership company has entered into a contract with the plaintiff as if it had caused misunderstanding of the right of partners and sold the shares of the company to the plaintiff due to the lack of legal knowledge. This is deemed to have transferred the legal status of the defendant company to the plaintiff, i.e., the right of partners, and the transfer has become legitimate with the consent of other members.

Articles 197 and 183 of the Commercial Act

Supreme Court Decision 68Da1088 delivered on October 29, 1968 (Supreme Court Decision 7054 delivered on November 29, 1968; Supreme Court Decision 163Da119 delivered on October 29, 199 and Decision 183(2)727 of the Commercial Act)

Plaintiff

Defendant 1 Limited Partnership Company and one other

Daejeon District Court of Daejeon District Court (66A197) Gangwon Branch Court of Daejeon District Court (66A197)

Supreme Court Decision 68Da1088 Decided October 29, 1968

The original judgment shall be revoked.

As between the Plaintiff and Defendant 2, Defendant 2 transferred to the Plaintiff on September 20, 1961 all shares held by Defendant 1 limited partnership company on September 20, 1961, and the Plaintiff is in the position of the transferee.

On September 20, 1961, Defendant 2, from the registration of the company against the Plaintiff, transferred all of his share to the Plaintiff on September 20, 1961, and the Plaintiff shall become a partner with unlimited liability of the said Defendant Company as of that day.

All the costs of lawsuit shall be borne by the defendants in the first and second instances.

The same shall apply to the order.

On September 20, 1961, when Defendant 1 Limited Partnership Company (hereinafter referred to as Defendant Company) was operated in the name of a limited partnership company (name omitted), the said Company has no dispute between the parties as to the facts that the said Company was composed of Defendant 2, who has 435/90 of its invested assets, as well as the general partner of two parties and the limited partner of the third party who has 30/90 of their invested assets.

In full view of Gap's evidence Nos. 2 (a sales contract, Eul evidence No. 3) and 3 (a sales certificate, a copy of which was corrected later by the defendants, but which is no legitimate ground for the withdrawal of the establishment thereof, the plaintiff's above 4 (a notice of disposition of expulsion), 6 (a certificate No. 8-1 through 3 (a judgment), 9-1 through 4 (a certificate), and 9-2 (a certificate of sale), the plaintiff's share transfer of the above 20-party company's own shares to the plaintiff on March 5, 1960, and the plaintiff's above 10-party 2 purchased the above 0-party share of the defendant company's own shares from the non-party 2's company as its main business, and thus, the plaintiff's ownership transfer registration of the above 10-party company's own shares to the non-party 2 who purchased the above 0-party company's shares as 0-party 2's shares.

Defendant 2 asserted that the above sale and purchase is not a true sale, but is merely an agreement on a sale security that is to be returned when the principal and interest of the above defendant's debt is repaid to the plaintiff, but the corresponding evidence is not accepted in light of each of the above evidence (in particular, evidence Nos. 8-1 through 3 and 9-1 through 3, and evidence No. 7, which does not conflict with the formation), and there is no other evidence, and there is no other evidence.

In addition, there is no clear evidence that the above share transfer contract is an act of significantly losing fairness with Defendant 2’s old-age, rashness, or inexperience.

In addition, as the Plaintiff’s obligation was already performed in the above sales contract, the cancellation of the sales contract according to changes in circumstances cannot be made (as stated in the evidence No. 2 of this case, although the amount of KRW 560,000 out of the sales price was not liquidated, it can be seen that the Plaintiff’s claim against Defendant 2 against the payment of the sales price was set-off according to the evidence No. 14 of this case, the evidence No. 15-2 of this case’s interrogation protocol, and the evidence No. 24 of this case’s examination protocol.

Meanwhile, according to the statement in Gap evidence No. 3 as to the transfer of shares by the defendant 2, the defendant company sold 1,00,000 won to the plaintiff as the seller's position, and the non-party 3 and the non-party 2 affixed their seals as the representative members and joint and several liability members, respectively. As such, it is reasonable to view that the non-party 3 already delegated the affairs of the company to the non-party 2 as the representative member of the defendant company in form, and that such delegation delegated not only the authority concerning the execution of the company's affairs and the representative of the company, but also the authority to consent to the transfer of the right of the employee. Thus, it cannot be said that the non-party 3 did not directly participate in the above consent, and thus, the consent

Part of Gap evidence Nos. 13 (Protocol of Statement) and 15 (Protocol of Statement) that are contrary to the facts of recognition, and part of the result of the examination of the records by the court below, and the testimony by non-party 2, 3, 4, 5, and 6 of the trial witnesses, which are non-party 2, 3, 4, 5, and 6, which are contrary to the above facts of recognition, shall not be accepted, and other evidence shall not be reversed.

Accordingly, there is a reason to confirm the Plaintiff’s status due to the above share transfer between the Plaintiff and Defendant 2 (the purport of seeking the confirmation of the Plaintiff’s share transfer is to seek the confirmation of the existence of the legal relationship against the above Defendant due to the denial of the transfer by Defendant 2, in light of the purport of oral argument, the Defendant Company is obligated to perform the obligation to register the change of employee, barring special circumstances against the Plaintiff, so the Defendant Company’s claim against the Defendants of this case against the Plaintiff is unreasonable on the ground that the original judgment rejecting the Plaintiff’s claim on the ground of justifiable reasons (the lower judgment does not affect its conclusion on the ground that there was a capital increase by the Defendant Company) is unreasonable, and thus, the appeal is to be revoked on the ground that the original judgment is reasonable, and it is so decided as per Disposition by the application of Articles 96, 89,

Judges Cho Young-dong (Presiding Judge) Kim Young-dong