Opera et Dies

Several executive partners ant the method of disposal of partnership property 

1. 조합재산의 처분·변경에 관한 행위는 다른 특별한 사정이 없는 한 조합의 특별사무에 해당하는 업무집행이다.

An act of disposal or alteration of partnership property is part of the special affairs of the partnership absent special circumstance.

2. 업무집행조합원이 수인 있는 경우에는 조합의 통상사무의 범위에 속하지 아니하는 특별사무에 관한 업무집행은 민법 제706조 제2항에 따라 원칙적으로 업무집행조합원의 과반수로써 결정한다.

If there are several executive partners, the execution of special affairs, which are not within the scope of ordinary affairs of the partnership, should in principle be decided by a majority vote of the executive partners in accordance with Article 706, Paragraph 2 of the Civil Code. 

3. 물론, 조합의 업무집행 방법에 관한 위 민법 규정은 임의규정이므로, 당사자 사이의 약정에 의하여 조합의 업무집행에 관하여 조합원 전원의 동의 또는 조합원총회의 결의를 요하도록 하는 등 그 내용을 달리 정할 수 있다.

Of course, since the above Civil Code provisions on the method of execution of partnership affairs are non-mandatory provisions, the parties may decide otherwise with respect to execution of partnership affairs through an agreement, for instance to require consent of all partners or a resolution of the general meeting of the partnership.

Supreme Court Decision 99Da23888 delivered on April 11, 2000

1. Summing-up

① The defendant assumed the obligation to pay 99,656,268 won as construction payment to G.

③ On February 17, 1997, the defendant was served with a provisional seizure order against claims rendered by the above-mentioned branch (Order 97kahap26) on February 15, 1997 for the claimed amount of 55,736,330 won with Choi Dae-yoon and two others as the creditors, 'G' as the debtor and the defendant as the garnishee.

④ On April 1, 1997, the defendant was served with a provisional seizure order against claims rendered by Western Branch of Seoul District Court (Order 97Kadan2974) delivered on March 31, 1997 for the claimed amount of 40,000,000 won with Lee Kil-won as the creditor, 'G' as the debtor and the defendant as the garnishee. 

⑤ On April 4, 1997, the defendant was served with an amended Judgment rendered by the above-mentioned branch (Order 97Kagi61) on March 31, 1997 in connection with the above-mentioned provisional seizure order against claims (Order 97Kahap26).

⑥ On April 4, 1997, the defendant was served with a seizure and collection order rendered by the above-mentioned branch (Order 97Tagi287, 288) on April 1, 1997 amending the above-mentioned provisional seizure order (Order 97Kahap26) to the order for seizure.

⑦ On April 11, 1997, the defendant received a bond transfer notice from 'G', which was transferred on January 9, 1997.

⑧ The plaintiff claimed the construction payment assigned(71,000,000 won) from 'G' to the defendant.

2. Judgment of the court below

ⓐ The plaintiff, who became an assignee of the claim for 71,000,000 won out of the above-stated claim for construction payment after the defendant was served with each of the above-mentioned provisional seizure orders against claims, could not claim the construction payment assigned from 'G' over the above-mentioned provisional seizure obligees preferentially in the order of priority. 

ⓑ Consequently the plaintiff's claim had no merit.

3. Judgment of the Supreme Court

ⓐ Because the provisional seizure against claims generally prevents only the collection by the provisional seizure obligor from the garnishee, the provisional seizure obligor can file a suit for the performance against the garnishee and the court cannot reject such claim on the ground of the provisional seizure.

ⓑ The assignment of claims refers to a contract to assign the claims from the former creditor, the assignor, to the new creditor, the assignee, while maintaining the identity of the claims.

ⓒ A claim is assigned from the assignor to the assignee without losing its identity; the claims subject to the provisional seizure can be assigned without being subject to any restrictions.

ⓓ Provided, that the assignee of the claims subject to the provisional seizure obtains the claims as restricted in rights by such provisional seizure. 

ⓔ The judgment of the court below was rendered due to a misinterpretation of the law concerning the legal status of the assignee of the provisionally attached or confiscated claims.

ⓕ When there exists a seizure and collection order, the claim for performance against the garnishee can be filed only by the collection creditor and the debtor shall lose its standing to file a claim for performance in connection with the seized claims.

ⓖ There existed the seizure and collection order against claims dated April 1, 1997 changing the provisional seizure order against claims dated February 15, 1997 or the claimed amount of 55,736,330 won with Choi Dae-yoon and two others as the creditors, 'G' as the debtor and the defendant as the garnishee, the part of the suit in this case claiming the above-mentioned confiscated amount is unjustifiable.

The certificate of deposit and the duty of care to inquire

1. 양도성예금증서는 무기명채권인 관계로 통상의 경우 발행확인서상 수취인의 기재는 양도성예금증서에 대하여 특별한 의미가 없다.

A certificate of issuance intended to make it easier for the purchaser of the certificate of deposit to confirm the issuance and the report of loss or theft, therefore, a certificate of deposit in bearer form the description of the recipient on the certificate of deposit does not have any particular meaning.

2. 양도성예금증서는 무기명으로 양도가능하고 증서의 소지만으로 권리 추정을 하며 그 소지인을 권리자로 보도록 되어 있다.

A certificate of deposit is transferable without registration, the rights thereon is presumed by the possession, and the holder will be presumed to be the owner. 

3. 따라서, 양도성예금증서는 단순한 교부만으로 양도가 가능하므로, 양수인이 할인의 방법으로 이를 취득함에 있어서 그 양도성예금증서가 잘못된 것이라는 의심이 가거나 양도인의 실질적인 무권리성을 의심하게 될만한 특별한 사정이 없는 이상, 위 양도성예금증서의 발행인이나 전 소지인에게 반드시 확인한 다음 취득해야 할 주의의무는 없다. 

Thus, a certificate of deposit can be transferred merely by delivery of the instrument, the transferee of the certificate of deposit does not have the duty of care to inquire the issuer or the previous holder of the certificate of deposit about the legal right of the transferee when acquiring the certificate of deposit upon discount, unless there is a doubt that the certificate of deposit has defects or the transferor does not have the legal right. 

4. 그러나, 양도성예금증서를 취득함에 있어서 통상적인 거래기준으로 판단하여 볼 때 양도인이나 그 양도성예금증서 자체로 양도인의 실질적 무권리성을 의심하게 할 만한 사정이 있는데도 불구하고 이에 대하여 상당하다고 인정될 만한 조사를 하지 않고 만연히 양수한 경우에는 중대한 과실이 있다.

If the transferee acquires the certificate of deposit without any reasonable investigation as to the authority of the transferor when there is doubt about the legal right of the transferor considering the transferor or the certificate of deposit itself in light of the normal standard of transaction, it shall be deemed that there exists gross negligence on the part of the transferee.