[1] Where a partner withdraws from a partnership, the method of calculation due to the withdrawal between the withdrawing and the remaining partner, and the standard of calculation of the share ratio of the partner

[2] The method of calculating the amount of damages caused by deception in case where the withdrawn partner received the amount calculated according to the ratio of shares calculated in proportion to the value of the investment from the partnership property and it is revealed that part of the investment amount was delivered by deception

[1] Where a partner withdraws from a cooperative, the calculation due to the withdrawal between the withdrawing person and the remaining person shall be made by returning in cash the amount equivalent to the withdrawing person’s share out of the partnership’s property appraised based on the “the status of partnership’s property at the time of withdrawal” pursuant to Article 719(1) and (2) of the Civil Act, barring any special circumstance. The ratio of partner’s share shall be calculated based on the “ratio of sharing of profits and losses inside the cooperative” but if the parties did not set the ratio of sharing profits and losses, it shall be determined in proportion to the value of each

[2] In a case where the withdrawn partner received the amount calculated according to the ratio of shares calculated in proportion to the amount of the investment in the partnership property, and where the part of the investment amount was distributed by deception, and the compensation for the total amount of the investment amount was ordered to be paid by deception, the portion of the amount of the investment amount would be paid twice to the withdrawing partner. Therefore, in calculating the amount of damages to be compensated by deception, in the amount of the investment amount, the difference between the amount actually refunded from the partnership property (i) and the amount of the withdrawal in the event that there was no contribution due to deception (ii) and the amount of the withdrawal in the event that there was no contribution due to deception, the difference between the withdrawing partner and the amount to be refunded (iii)

[1] Articles 711 and 719 of the Civil Act / [2] Articles 393, 711, 719, and 763 of the Civil Act

[1] Supreme Court Decision 2004Da49693, 49709 decided Mar. 9, 2006 (Gong2006Sang, 577) Supreme Court Decision 2005Da65333, 65340 decided Nov. 29, 2007

Plaintiff

Defendant

Busan High Court Decision 2007Na13008 decided May 14, 2008

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

Where a partner withdraws from a cooperative, the calculation due to the withdrawal between the withdrawing person and the remaining person shall be made in cash pursuant to Article 719(1) and (2) of the Civil Act, unless there are special circumstances, the amount equivalent to the withdrawing person's share out of the cooperative's property evaluated based on "the status of the property of the cooperative at the time of withdrawal" shall be returned, and the ratio of the partner's share shall be calculated based on "the ratio of sharing of profits and losses inside the cooperative". However, if the parties do not determine the ratio of sharing profits and losses, it shall be determined in proportion to the value of each member's investment in accordance with Article 711 of the Civil Act (see Supreme Court Decisions 2004Da49693, 49709, Mar. 9, 2006; 2005Da653340, Nov. 29, 2007; 2005Da65340, if the withdrawing person actually received the difference from the investment amount due to the deception's investment amount (see: 2).

According to the facts duly admitted by the court below, if the plaintiff purchased 00 won from 00 to 100 won of 00 won of 20,000 won of 20,000 won of 20,000 won of 00 won of 20,000 won of 0,000 won of 20,000 won of 0,000 won of 20,000 won of 20,000 won of 0,000 won of 20,000 won of 0,000 won of 0,000 won of 0,000 won of 20,00 won of 0,000 won of 0,00 won of 10,00 won of 0,00 won of 20,00 won of 0,00 won of 20,00 won of 0,00 won of 20,00 won of 20.

On the other hand, the court below recognized 30,000,000 won calculated by deducting 2,00,000,000 won from the purchase price of the loan from 70,000,000 won, which was paid by the plaintiff as the amount of the plaintiff's investment in the company and 75,000,000 won paid as the amount of the non-party's discount from the amount of the plaintiff's investment in the company, and the plaintiff later participated in the business operations, and thus, 120,000,000 won was deducted from the amount of the loan purchase price of 120,00,000 won, which was 1/30,000,000 of the amount of the damages, and determined that the plaintiff can claim damages of this case, separate from the above settlement, which affected the conclusion of the judgment by misapprehending the legal principles on the calculation of damages in the case of investment by deception, which affected the conclusion of the judgment.

Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)