개정상법상의 합자조합에 대한 소고

Abstract

This article briefly studies the Limited Partnership(LP) recently introduced in the Korean Commercial Code(§86-2 ∼ §86-9). On March 2011, the National Assembly adopted the KCC Revision Bill submitted by the Ministry of Justice on May 7. 2008. The Revision Bill, among others, includes two new types of business organization : Limited Partnership(LP) and Limited Liability Company(LLC). According to the Revision Bill, LP is framed and structured in between the General Partnership in the Korean Civil Code and the Limited Partnership Company(Kommanditgesellschaft in the German Commercial Code) in the Korean Commercial Code. A LP may come into existence with the written partnership agreement between one(or more) management partner(general partner) and one(or more) limited partner. A LP is nevertheless to be recognized as a changed form of General Partnership. In this context, relevant provisions in the Korean Civil Code apply mutatis mutandis to the LP, otherwise provided in the Korean Commercial Code or partnership agreement. Despite of all efforts, legislators seem to fail to meet the needs of our business societies. Here I am not reluctant to point out several legislative defects. Firstly, the business purposes of LP are restricted to profit ones : therefore LP is not available for doctors, lawyers, accountants etc. because their businesses are traditionally treated as non-commercial. It is undoubtedly undesirable. Secondly, while transfer of the management partner's membership interests is allowed with the other management partners' unanimous consents, that of the limited partner's membership interests depends on the partnership agreement, which may give rise to unnecessary interpretational issues. Still worse, §86-7 (3) provides rather ambiguously of the legal effects of transfer of the limited partner's membership interests. §86-7 (3) does not make any sense when only a part of membership interests is transferred. Thirdly, while the management partner is liable only when LP is insolvent or its assets do not satisfy the creditors(the management partner's liability is secondary), the limited partner cannot refer to such requirements(the limited partner's liability is unconditionally primary). This is unequitable. Fourthly, the legislator shapes LP not as a legal entity but as an aggregate of partners, which will bring about much difficulty in both internal partnership relations and external third party transactions. Such a legislative choice is old - fashioned. It is strongly argued in this article that the LP should be interpreted to be a legal entity in spite of lack of the positive provisions.