Plaintiff (Law Firm Western, Attorneys Lee Jin-won et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Kim Il-tae et al., Counsel for the defendant-appellant)

October 11, 2012

1. The defendant's non-party limited partnership company and the non-party limited partnership company lose the power to execute the business.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances leading to the instant case;

A. On February 6, 1998, the Defendant established a limited partnership company for the purpose of passenger transport business (hereinafter “daily transport”), and transferred 50% of the equity shares in the daily transport to Nonparty 6, etc. on April 1, 2003 while managing the daily transport as a general partner and a representative member. In addition, on June 15, 2006, Nonparty 6, etc. sold the said 50% equity shares to Nonparty 1 in KRW 1,348,50,000.

B. On September 17, 2006, the Defendant agreed with Nonparty 1, 26,00,000 (with unlimited liability) in the name of the Defendant; KRW 19,50,000 in the name of Nonparty 3; KRW 13,00,000 in the name of Nonparty 7; KRW 6,50,000 in the name of Nonparty 8; KRW 6,500 in the name of Nonparty 1; KRW 25,000 in the name of Nonparty 1; KRW 10,000 in the name of Nonparty 1; KRW 10,000 in the company’s corporate register; KRW 20,000 in the name of Nonparty 5,00 in the name of Nonparty 1; KRW 20,00 in the name of Nonparty 1; and KRW 10,000 in the name of Nonparty 1; and 10,000 in the name of Nonparty 1; and 20,000 in the name of Nonparty 6.

C. After that, on July 30, 2007, the defendant and the non-party 1 reached an agreement to take over the other party's share at the price of KRW 29,00,000 per 1/2,00 per 15/207, in order to resolve the dispute. The defendant and the non-party 1 shall dispose of all the vehicle and the business rights to the third party selected by the defendant. However, if the disposition is not made until August 15, 2007, the vehicle equivalent to each party's share (46.5) shall be managed in separate places. In addition, if the disposition is not made against the third party, one party agrees to take over the other party's share at the price of KRW 29,00,00

However, around July 31, 2007, when the above agreement was made difficult to keep it out of disagreements between the defendant and the non-party 1, the non-party 1, from August 1, 2007 to October 30 of the same month, had 20 vehicles with 20 vehicles for daily transportation from the non-party 9 and the non-party 1, and had 20 vehicles for daily transportation and installed a temporary vehicle at the parking lot at the Daejin gas charging station located in Daejeon-gu, Seo-gu, Daejeon, with 20 vehicles for daily transportation. The above taxi's transportation income was managed separately from daily transportation.

D. After that, on July 10, 2008, the defendant filed an application for provisional disposition demanding the suspension of Nonparty 1’s performance of duties as the Daejeon District Court 2008Kahap943, and on August 8, 2008, the above court rendered a provisional disposition suspending the performance of duties as the representative member and the managing member of Nonparty 1.

In addition, between the defendant and the non-party 1, the Daejeon District Court 207Gahap4916 (Main Office) and 11228 (Counterclaim) were pending in the lawsuit against the declaration of loss of the power of representation and the power of execution. On November 27, 2008, the above court sentenced the non-party 1 to the forfeiture of the power of execution of duties against the non-party 1 on the ground that the non-party 1 committed the "act of violating the heavy duties" under Articles 269 and 205 of the Commercial Act on the ground that the non-party 1 committed the "act of violating the heavy duties" on the grounds that the non-party 1 committed the "act of theft of the non-party 1," and sentenced the judgment dismissing the counter-party 1's counterclaim. However, on May 22, 2009, the appeal was dismissed, and the above judgment became final and conclusive on June 13, 2009.

E. On July 1, 2009, the Plaintiff and Nonparty 1 transferred the Plaintiff’s status of 25,000,000 and general partners with respect to the daily transport, and appointed the Plaintiff as the managing partner and representative members with respect to the daily transport. The Plaintiff entered into a contract for share transfer with Nonparty 1 to transfer the status of 10,00,000 and limited partners with respect to the daily transport. The Plaintiff transferred all of the shares and their respective positions against the Defendant and the Defendant’s family members to Nonparty 1, and Nonparty 1 transferred the Plaintiff’s position of 10,000 and its respective status as to the daily transport, and Nonparty 1 was to appoint the Plaintiff as the managing partner and the representative member with respect to the same amendment of the articles of incorporation (Seoul District Court Decision 2009Da581, Daejeon High Court Decision 2009Na5542, Daejeon High Court Decision 2009Da921379, Sept. 1, 2012 and Nonparty 29, Incheon District Court Decision 20097Da131.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1 through 5, 15, 16, Eul evidence 21-1, 4, 5, 8, 9, and 11, and the purport of the whole pleadings

2. Determination on the cause of the claim

A. The parties' assertion

1) The plaintiff's assertion

From September 208, the Plaintiff continued to be appointed as the general partner and the representative member with unlimited liability for Japan, and requested perusal and copying of documents related to the accounting of Japan Transport as the authority of the limited partner, the Defendant did not comply with this request and further disbursed money in the name of a large amount of non-performance penalty with the funds for Japan Transport. While operating the Japan Transport, the Defendant embezzled large amount of money by arbitrarily paying for himself/herself and children, his/her own operating expenses, attorney fees for personal civil and criminal cases, withdrawing the provisional payment for personal purposes, and using the Japanese card for personal purposes. Even after the Plaintiff was appointed as the general partner with unlimited liability for Japan, the Defendant’s managing duties should lose his/her authority on the Japanese Transport should be forfeited.

2) The defendant's assertion

Some of the documents related to the accounts requested by the plaintiff is a document that does not exist originally, and it was discarded after keeping the deposit slip only one month, so it could not be perused and copied to the plaintiff. The defendant received the payment for labor and the payment for lawful performance of duties while working as the president of the Japanese Transport Service. The defendant's children also worked as the vice president of the Japanese Transport Service and received the payment for labor. The plaintiff and the non-party 1 were appointed an attorney with the funds of the Japanese Transport Service and withdrawn the funds of the defendant, the Japanese Transport Service and the third party for the payment of the funds that the defendant lent to the Transport Service. The provisional payment was also used for the legitimate performance of duties. Although the plaintiff was appointed as the general partner of the Japanese Transport Service after his appointment, the plaintiff still did not lead to the plaintiff 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's representative.

(b) Fact of recognition;

1) According to Article 22 of the articles of incorporation, the managing member of the daily transport service submitted documents such as a list of property, balance sheet, business report, profit and loss statement, agenda on disposal of profit and loss amount, agenda on distribution of dividends, etc. to each member at the end of each business year, and obtained approval from each member. However, the defendant did not hold a general meeting to obtain approval of each of the above documents from the last half of July 2007 in accordance with the articles of incorporation or general accounting standards of the daily transport service with the non-party 1 and there was no fact that the defendant did not hold a general meeting to the non-party 1 members and distributed profits and losses each year.

2) The Plaintiff, as the authority of a limited partner under Article 10 of the Articles of incorporation (the managing member shall report at any time the company’s business and the status of its property at the request of another member) and Article 277 of the Commercial Act, intended to peruse accounting documents, such as cash withdrawal and payment for each business year from 2008, transport income register, dispatch day, vehicle maintenance log, vehicle maintenance log, subsidy book, wage ledger, etc. However, the Plaintiff obstructed the Plaintiff’s exercise of surveillance authority due to the Defendant’s failure to comply therewith. Accordingly, the Plaintiff failed to comply with the court’s decision (Seoul District Court Decision 2008Du31 - Monetary withdrawal and payment, transport income register, vehicle maintenance log, vehicle maintenance log, subsidy book, wage ledger, etc.) and the permission for inspection and copying of the company’s business affairs and daily traffic, but the Plaintiff failed to comply with the purpose of the inspection and inspection.

Therefore, the plaintiff filed a lawsuit against Japanese Transportation for the perusal and copying of accounting-related documents (Seoul District Court Decision 2009Da581, Daejeon High Court Decision 2009Na5542, Supreme Court Decision 2010Da12371). The plaintiff filed an application for provisional disposition with the purport that permission for the perusal and copying of accounting-related documents against Japanese Transportation (Seoul High Court Decision 2009Kahap13, Supreme Court 2010Kahap343, 20000, 2000Da64300, 20000, 20000, 2000Da643010, 2000, 2000, 2000, 100, 300, 100, 200, 100, 200, 200, 200, 200, 2067, 300, 106, 400, 7, 2000.

On the other hand, the defendant filed a lawsuit against the plaintiff as a special agent of the Japanese Transportation for the revocation of the grant of each of the above execution clause (Seoul Daejeon District Court 2010 Gahap11273), but the above court rendered a ruling that the defendant does not accept the claim for the revocation of the grant of each of the above execution clause on August 17, 2012, and the defendant appealed and is continuing to the appeal court (Seoul High Court 2012Na4679).

3) In addition, the articles of incorporation of the daily transportation business provides that remuneration for the managing member and the representative director shall be determined by the consent of the total number of members (Article 11); the joint representative member shall not perform any act of voluntary withdrawal or use of corporate funds without the consent of the total number of members (Article 13(1)2); while it is deemed that the defendant has consented to the total number of members who are the managing member of the daily transportation business and are to receive the daily living expenses of KRW 2,00,000 from the daily transportation as the representative member, the defendant shall not be paid money in excess of the above amount without the consent of the total number of members; therefore, the defendant shall not be allowed to arbitrarily withdraw corporate funds from the name of the managing member; however, the defendant shall not be allowed to withdraw corporate funds from the president of the company from December 31, 2007 to June 7, 201 to the aggregate of the defendant's wages and working expenses of KRW 217,605,045 [the defendant shall not withdraw the defendant's wages of KRW 1050,60.7.7.10.

In addition, due to the management dispute with the plaintiff and the non-party 1, the defendant embezzled the total of KRW 146,910,000 from September 23, 2008 to April 20, 201 as the attorney fees for the civil and criminal cases in which the defendant or the non-party 1 became a party to the lawsuit. While the transportation is a party to the civil lawsuit, the purpose of the lawsuit is to defend the plaintiff and the non-party 1 against the defendant's management right, and thus, the transportation is to defend the plaintiff and the non-party 1 from January 28, 2009 to February 1, 2011 as the attorney fees for the lawsuit without any special interest in the result of the lawsuit.

In addition, from November 12, 2008 to May 24, 2010, the Defendant embezzled the total of 10,181,730 won of the Defendant’s personal hospital’s medical expenses or weak value with the corporation card of daily transportation.

On September 28, 2012, the Defendant was indicted to the Daejeon District Court on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) as the charge that the Defendant embezzled funds for the Japanese traffic as above, and the current criminal trial ( Daejeon District Court 2012Gohap543) is in progress.

4) After the Plaintiff was appointed as a joint managing member and a joint managing member of daily transportation, the Plaintiff notified the Defendant of the demand to convene a general meeting of members several times from June 30, 201 to July 15, 2011. However, the Defendant did not comply therewith. Notwithstanding the Plaintiff’s objection, the Plaintiff employed a security guard and installed a tape recorder in the primary transportation office for the purpose of preventing the Plaintiff and Nonparty 1 from participating in the daily transportation management.

5) In the Daejeon District Court case No. 201 High Court No. 908, 1801, 201, 2012 High Court No. 825, 1781, 2012 High Court No. 503 and 519 (each combination), the Defendant was found to have committed occupational breach of trust with the payment of KRW 30,00,000 to the Plaintiff with funds for the first time, and the Defendant committed occupational breach of the Protection of Communications Secrets Act, and committed occupational breach of trust with the payment of KRW 30,00,00 to the Plaintiff for the first time, and recorded conversations between the Plaintiff and Nonparty 1, which was not opened to the public by installing a tape recorder for the purpose of recording the conversations between the Plaintiff and Nonparty 1, according to the court’s decision on the provisional disposition for inspection and copying of documents, and provided the Plaintiff with the perusal and copying of documents, the Defendant continued to be punished by imprisonment with prison labor for up to 200,000 won for the second time, 2000.

[Reasons for Recognition]

The facts without dispute, Gap's statements in the evidence Nos. 3, 57, 17 through 19 through 21, 24 through 27, 29, 30, 33 through 36 (including the branch numbers, if any), and the result of the verification of the multimedia claim data conducted on Sept. 10, 201 and Oct. 8, 2012, as a result of the verification of the multimedia claim data conducted on Oct. 8, 2012;

C. Determination

According to the above facts, the defendant violated Article 22 of the articles of incorporation by failing to properly handle the affairs related to the settlement of accounts, which are important duties as managing members of the daily transportation, in accordance with the articles of incorporation, and did not provide accounting-related documents related to audit to the limited partner, and thereby failing to perform duties under Article 10 of the articles of incorporation and Article 277 of the Commercial Act, thereby hindering other members from performing their legitimate duties and thereby causing damage to the daily transportation by paying indirect compulsory payment with the daily transportation fund, and thereby causing damage to the daily transportation. When the articles of incorporation designates multiple members as joint managing members for private purposes, it causes damage to the daily transportation by using the funds of the Japanese transportation company for private purposes. If multiple members are jointly managing members without the consent of all them under Articles 269 and 202 of the Commercial Act, it is deemed that the daily transportation business was executed without obtaining the consent of the plaintiff appointed as joint managing members of the daily

In light of such circumstances, it is reasonable to deem that the Defendant committed “any act that is clearly unfit for, or seriously violating, the performance of duties” under Articles 269 and 205(1) of the Commercial Act. Therefore, without determining other circumstances of the Plaintiff’s assertion, the Plaintiff’s assertion is with merit.

3. Conclusion

Therefore, according to Articles 269 and 205(1) of the Commercial Act, the defendant is declared to lose his/her authority to perform duties with respect to the Japanese traffic. The plaintiff's claim is justified and it is so decided as per Disposition.

Judges Jeong Ho-so (Presiding Judge) Kim Jong-Un