합명회사 업무집행사원의 업무집행권한 상실에 대한 소고: 대법원 2015. 5. 29. 선고 2014다51541 판결을 중심으로

In a partnership company, unless otherwise provided for in the articles of incorporation, each member has the rights and obligations to manage the affairs of the company. If other members raise an objection in respect to the management of affairs by any member, the said member shall immediately suspend such act and follow a decision of a majority of all the members. Also, if one or more members have been designated by the articles of incorporation as managing members, those members shall have the rights and obligations to manage the affairs of the company. If other managing members raise an objection in respect to an act of management by a managing member, that member shall immediately suspend such act and follow the decision of a majority of all the managing members. However, according to the Article 205 (1) of the Commercial Code, if a managing member is clearly unfit to manage the company or he/she has breached material duties, a court may, upon the request of a member, adjudicate the forfeiture of the power against such managing member. When a judgment has become final and conclusive, such fact shall be registered at the place of the principal office and branch offices of the company. Recently, in the Decision 2014Da51541, the Supreme Court noted that the Article 205 (1) of the Commercial Code was still able to be applied in particular cases even though members agreed to change this non-mandatory provision in the articles of incorporation. In order to review this conclusion, this article studies the essence of the partnership company, non-mandatory provision, principle of private autonomy and public interest, and it criticizes the decision of the Supreme Court.