2. Company B:

2. D;

2. The total cost of a lawsuit shall be borne individually by each party.

원고들과 피고들 사이의 미합중국 캘리포니아 중부 연방지방법원 서부지원(United States District Court, Central District of California, Western Division) |CV 06-7813 CAS 특정이행과 변호사보수 및 비용(specific performance and attorneys' fees and costs) 사건에 대하여 위 법원이 2009. 1. 15.자로 한 판결에 기하여 별지 판결문 중 선고내용에 따른 강제집행을 허가한다.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

A. In the first instance court, the plaintiffs filed a lawsuit against the defendants against the defendants against the CAV 06-7813 specific performance of the CAS and attorney fees and expenses in accordance with the decision of January 15, 2009, for which the U.S. court filed a lawsuit seeking permission of compulsory execution in accordance with the sentence of the attached judgment, among the judgments of January 15, 2009. The first instance court accepted the plaintiffs' claims.

B. Accordingly, only the Defendants appealed, and this Court revoked the first instance judgment before the remand and dismissed all of the Plaintiffs’ instant lawsuit against the Defendants.

C. Accordingly, only the Plaintiffs appealed, and the judgment of remand reversed the part on attorney fees and expenses in the judgment before remanding, and that part was remanded to this court.

D. Therefore, the claim for specific performance, which is not subject to reversal and return, becomes final and conclusive simultaneously with the pronouncement of the judgment of remand, and the scope of this court’s trial after remand is limited to the claim for attorney’s fees and expenses.

2. Determination on the defense prior to the merits

A. The defendants' assertion

Since the Plaintiffs had already lost their party capacity before filing the instant lawsuit, the instant lawsuit is unlawful.

B. Determination of the governing law

1) The instant case is a claim for the recognition and execution judgment of a foreign judgment against a corporation or the Defendants, a corporate body established under the laws of the Republic of Korea, established under the laws of the Republic of Korea, and is a foreign element, and the governing law shall be determined.

2) Under the Civil Procedure Act, the ability of a corporation to become the plaintiff and the defendant to become the party is the ability under the Civil Procedure Act, and the procedure is subject to the law suspension law in accordance with the principle of law. Thus, the governing law on the defense of this safety is the law suspension law, the law of the Republic of Korea.

3) Article 51 of the Civil Procedure Act of the Republic of Korea of the Republic of Korea of the instant suspended legal entity provides, “Except as otherwise provided for in this Act, the capacity of a party, litigation capacity, legal representation of an incompetent person, and the granting of authority required for the procedural acts shall be governed by the Civil Act and other Acts,” and the said provision’s “other Acts” shall include private international law.

4) The main sentence of Article 16 of the Private International Act provides that “a corporation or an organization shall be governed by the applicable law of its establishment.” In principle, the applicable law of a corporation shall be determined on the basis of the applicable law of its establishment. There is no provision that restricts the application of this provision. The scope of application shall be deemed to include all the issues concerning a corporation, including the establishment and extinguishment of a corporation, internal relations between the organization and the organization, rights and obligations of an institution and its members, and legal capacity (see, e.g., Supreme Court Decision 2017Da246739, Aug. 1, 2018). Therefore, the applicable law of the relevant corporation shall apply to whether a corporation has legal capacity as a party.

5) Therefore, it should be determined by the application of the California law, which is the governing law of the plaintiffs' establishment, as to whether the plaintiffs who are corporations established under the California law filed in the instant lawsuit with the Korean court.

(c) Facts of recognition;

The following facts and circumstances may be acknowledged according to the overall purport of the statements and arguments in the evidence Nos. 22, 31-2, 33-2, and 33-3.

1) According to the California Company Law (hereinafter “Company Law”), a legal entity also has the same ability as the capacity of natural persons to hold in the course of carrying on business activities (Article 207(1) of the Company Act). Meanwhile, in the event that the obligation to submit corporate information under Article 1502 of the Company Act is not fulfilled, the legal entity’s ability, right, and privilege is suspended (Article 2205(2) of the Company Act). In the event that the U.S. tax payment corporation fails to perform its obligation to submit corporate information under Article 1502 of the Company Act, (3) the legal entity’s ability, right, and privilege can be suspended (Article 2301(4) of the Company Act).

2) 미국 캘리포니아주 항소법원은 2000, 12. 15. 선고 No. E025519 판결5)에서 "본 재판부는 세법에 따라 능력 등이 정지된 법인의 경우와 마찬가지로, 회사법에 따라 능력 등이 정지된 법인의 경우에도 소송활동에 참여하는 것이 불가능한 것(disabled from participating in litigation activities)으로 해석할 수 있음이 분명하다고 판단한다. …… 회사법 제2205조에서 정한 법인정보 서류 제출의무 불이행에 따라 능력 등이 정지된 법인은 세금 미납을 이유로 세법 제23301조에 따라 능력 등이 정지된 법인과 마찬가지로 소송에 참여할 수 없다(Disabled From Participating in Litigation)..…… 본 재판부는 해당 조항을 회사법 제1502조에서 정한 법인 정보 서류 제출의무 불이행에 따라 능력 등이 정지된 법인은 세금 미납으로 인해 세법 제23301조에 따라 능력 등이 정지된 법인과 마찬가지로 어떠한 소송활동에도 참여할 수 없게 된다(disabled from participating in any litigation activities)는 뜻으로 해석하는 것이 당연하다고 본다 ,…… 세법 제23301조의 목적은 '의무불이행 법인으로 하여금 운영 중인 회사가 지니는 통상의 특권을 향유하지 못하게 하는 것(prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern)' 그리고 해당 법인에게 세금을 납부하도록 압력을 가하는 것이다)"라고 판시하였다.

3) On September 1, 2009, the California Corporate Tax Committee suspended the Plaintiff Company’s ability, right, and privilege in accordance with the provisions of the tax law on the grounds of the unpaid corporate tax of each of the Plaintiff Company A on January 4, 2010. The aforementioned suspension against the Plaintiffs is maintained thereafter.

D. Determination

Since a lawsuit for which a judgment of execution is requested is a kind of lawsuit, it shall meet the requirements for the lawsuit, such as the ability of the parties, as in the ordinary lawsuit.

According to the above facts, since September 1, 2009 pursuant to Article 23301 of the tax law, the plaintiff Eul company was suspended from the corporation's ability, rights, and privileges from January 4, 2010, and since the plaintiffs established pursuant to the law of California were not able to participate in any litigation activity under the suspension of such action, it shall be deemed that the plaintiff's party ability as the plaintiff was lost. The plaintiffs' lawsuit in this case was filed with the Seoul Central District Court, the first instance court of March 1, 2010 during the suspension period of the corporation's ability, and it constitutes a lawsuit filed by the non-party with the plaintiff. Accordingly, the lawsuit in this case is unlawful.

Therefore, the defendants' defense prior to the merits is justified.

3. Conclusion

The lawsuit of this case against the Defendants shall be dismissed in entirety. Since the remaining part (excluding the part against the Defendants that was affirmed by a judgment of remand (the specific performance part) among the judgment of the court of first instance (hereinafter "the part concerning attorney's fees and expenses") is unfair, the remaining part of the judgment of the court of first instance is revoked, and all of the lawsuit of this case against the Defendants corresponding to the revoked part is dismissed, and it is so decided as per Disposition.

Judges Full-time Leave

Judges Credit Guarantee

2) Paragraph (c) of Article 2205 of the Company Act does not submit a written statement under section 1502 of the Company Act within 60 days from the date of notice of the Secretary’s office.

Upon the expiration of the time limit for submission, the Secretary of the State shall notify the Corporation of the suspension of the Corporation at the Corporate Tax Committee, and such Corporation shall

(1) the Corporation shall notify the Corporation of its suspension and immediately suspend its capacity, rights and privileges; and

The area of the competent district is stipulated as "the area of the competent district."

(3) section 2301 (b) of the tax law has to be paid under Section 4 of Section 10.2 of the tax law (Articles 1901 through 1901) or under this Section;

notice of payment to the corporation at the Corporate Tax Committee, of gold, interest, or part thereof, but that notice of payment to the corporation was given;

From the 11th month of the payment date, ‘if the payment is not made by 6 p.m.'.

4) The term “U.S. Tax Corporation’s ability, rights and privileges may be suspended (with respect to capital gains, resources, and arbitrative agents of the State, i.e., government agencies of the State.

Podyer may be given to suspended.

5) Parm Valley Hameowers Inc. v. Degn Mc, (200), 85 CA 4th 53m, 560.

6) Grest V. Li Beau Corp. (199) 73 Cal, P. 4th 1300, 1306, 87 Cal, R. 2d 358