[2] Requirements for setting up against a third party of the transfer of shares before the issuance of share certificates (=Notice of transfer or approval of the company by the certificate with the fixed date)

[3] In a case where a double transferee of the shares before the issuance of share certificates fails to meet the requirements for notification or acceptance by a certificate with a fixed date, whether the second transferee of the shares can request the company to cancel the transfer lawfully completed under the name of the first transferee of the shares (negative), and whether the company is still entitled to exercise shareholder's right in relation to the company even if the company accepted such claim and completed the transfer under the name of the second transferee of the shares (affirmative)

[4] Whether a third party acquires the opposing power in a case where a notice of transfer or acceptance of shares by a certificate with no fixed date is obtained after obtaining the fixed date (affirmative), and whether the effect of acquiring the opposing power is retroactive to the date of the initial notice of transfer of shares (negative)

1. As to whether Nonparty 1 acquired shares or not

In a written judgment, a judgment on a party’s assertion and other means of offence and defense should be indicated to the extent that it is possible to recognize that the text is justifiable, and there is no need to determine all allegations by the parties or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s assertion as a ground of appeal is indicated in a court judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment. Even if the court did not actually make a judgment, if it is obvious that the assertion would be rejected even if it was rejected, it cannot be said that there was an error of omission of judgment since it did not affect the conclusion of the judgment (see Supreme Court Decision 2006Da

The reasoning of the judgment below is that the non-party 2 was authorized to dispose of 1,90 shares held by the non-party 3, 4, 5, and 6 (hereinafter "the shares of this case"), and that the non-party 2 did not specify specific and direct determination as to whether the non-party 3 transferred the shares of this case to the non-party 1 within the scope of its authority. However, the court below, based on the adopted evidence, rejected the non-party 2's assertion that "the non-party 3, 4, 5, and 6 renounced the rights to 7 shares of the defendant company to the non-party 2 on September 30, 202, and that the non-party 2 transferred the shares of this case to the non-party 2 on October 1, 200, and that the non-party 1 was not entitled to dispose of the shares of this case by the non-party 2, the non-party 2 and the non-party 1, the non-party 1, the non-party 2, the plaintiff 90 and the non-party 1.

2. As to the requirements for setting up against double transferee of the shares before the issuance of share certificates

(a) Requirements for setting up against double transferee of the stocks before issuing stock certificates;

The transfer of shares before the issuance of share certificates under Article 335 (3) of the Commercial Act is effective against the company when 6 months have elapsed since the company's establishment. The transfer of shares before the issuance of share certificates complies with the general principles of the transfer of nominative claims. Thus, it is reasonable to view that the transfer of nominative claims before the issuance of share certificates is the notification of transfer or the consent of the company with the certificate with the fixed date like the transfer of nominative claims (see Supreme Court Decision 94Da36421 delivered on May 23, 1995).

However, in case where shares are transferred before the issuance of share certificates, the company that issued the shares has completed the change of entry to the transferee of shares meeting the requirements for notification or consent of the transfer of shares without using the certificate with a fixed date (hereinafter “the transferee of shares 1”), even if the transferee of shares that issued the shares twice satisfies the requirements for notification or consent of the transfer to the company thereafter, if the notification or consent is not based on the certificate with a fixed date, the transferee of the shares 2 cannot assert that the transferee of the shares is in a preferential position in relation to the first transferee of the shares by the transfer of shares. Thus, the transferee of the shares 2 cannot claim that the company has a preferential position in relation to the first transferee of the shares. Therefore, even if the company accepted the claim of the second transferee of shares and completed the transfer of shares in its name, it is reasonable to deem that such transfer is unlawful, so that the transferee of shares 1 is still entitled to exercise the shareholder’s rights in relation to the company.

According to the facts duly established by the court below, the defendant company completed the entry of the change of holders in the name of the non-party 1 on October 2002 with respect to the 1,90 shares that the non-party 1 acquired from the non-party 3 and the non-party 3 and the non-party 4 received from the non-party 3, 5, and 6 on November 28, 2007, and 1,500 shares out of the shares that the non-party 1 acquired. The non-party 1 and the non-party 4 at the time of December 24, 2007, which was the date of holding the temporary general shareholders' meeting of this case, failed to meet all the requirements for notification or approval with a fixed date, but the non-party 3, 5, and 6 thereafter notified the non-party 1 to the non-party company by content-certified mail. In such case, it is reasonable to view that the non-party 4 had no right to claim the transfer of shares in the name of the non-party 1's.

The judgment of the court below is somewhat unclear in its reasoning, but it is just in its conclusion that the person entitled to exercise the rights as a shareholder at the time of the provisional shareholders' meeting of this case is Nonparty 1, and it is not erroneous in the omission of judgment, the lack of reasons, the failure of reasons, the order of reasons, and the incomplete hearing, as otherwise alleged in the ground of appeal. This part of the ground of appeal is

(b) Whether the effect of acquiring the opposing power is retroactive

On the other hand, even if the notification of transfer of shares was made by the certificate with no fixed date and the third party fails to have the opposing power, if the notification of transfer or acceptance of the certificate without the fixed date is obtained after the fixed date, the opposing power against the third party is obtained after the date (see Supreme Court Decision 2005Da45537, Sept. 14, 2006). However, the effect of the opposing power acquisition is not a retroactive effect on the date of the initial notification of transfer of shares.

As seen earlier, on September 24, 2008, after the resolution of the provisional shareholders' meeting of this case, Nonparty 3, 5, and 6 notified the Defendant Company of the transfer of shares to Nonparty 4 by content-certified mail. As such, Nonparty 4 merely acquired the opposing power against a third party with respect to the transfer of the above shares 1,500 shares after the resolution of the provisional shareholders' meeting of this case, and the effect of acquiring such opposing power cannot be seen as retroactively to the notification date of the transfer of shares by Nonparty 4 prior to the resolution of the provisional shareholders' meeting of this case. The allegation in the grounds of appeal on this part is not acceptable.

3. As to the invalidity of a transfer of business

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the contract of the transfer of business of this case was concluded without a special resolution of the general meeting of shareholders, unless the defendant company notifies the non-party 1 and the non-party 9, who is the majority of the shares to convene the general meeting of shareholders, or the non-party 1 and the non-party 9 did not exercise their voting rights at the above general meeting of shareholders. It is not erroneous in the misapprehension of legal principles as to the defect and validity of the resolution of the general

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)