[2] The degree of offer for the performance of one party's own obligations in a bilateral contract

[3] In a case where shareholders’ share certificates against a transfer of business were deposited in a financial institution, but the opposing shareholders exercised their appraisal rights while paying fair purchase price and delivering their share certificates at any time, the case affirming the judgment below holding that the opposing shareholders completed the duty to deliver share certificates, even if the opposing shareholders did not demand the company to receive share certificates at the same time as the purchase price of shares were paid at the time when 2 months elapsed from the date when they exercised their appraisal rights, even if they did not demand the company to issue share certificates separately

[4] In a case where shareholders who oppose a transfer of business exercise their appraisal rights, but did not pay shares within the purchase period of two months, the case affirming the judgment below holding that damages for delay can not be reduced or limitation of liability solely on the ground that considerable period of time has been taken upon the court's appeal or reappeal against the court's decision on the purchase price of shares

[2] If a party’s performance of one party’s own obligation is strictly required in a bilateral contract, it may be deemed that the other party acting in good faith may be made. Thus, the extent of provision to which one party should provide should be reasonably determined so as not to violate the principle of trust and good faith depending on the time and specific circumstances.

[3] In a case where shareholders’ share certificates against the transfer of business were deposited in a financial institution, but the opposing shareholders exercised their appraisal rights while paying fair purchase price and delivering their share certificates at any time, the case affirming the judgment below rejecting the simultaneous performance defense of the company on the ground that the opposing shareholders completed the simultaneous performance defense, even if the opposing shareholders did not demand the company to receive share certificates at the same time as the purchase price of shares and at the same time at the time when 2 months elapsed from the date when they exercised their appraisal rights, even if they did not demand separate notice to do so

[4] In a case where shareholders who oppose a transfer of business exercise their appraisal rights, but did not pay their desired purchase price within two months, the court affirmed the judgment below which held that damages for delay can not be reduced or limits are not limited solely on the ground that the opposing shareholders' abuse of their rights is a right recognized by the Commercial Act, and an appeal and reappeal against the court's decision on purchase price of shares is also recognized by the Non-Contentious Case Litigation Procedure Act, barring special circumstances where the opposing shareholders abuse their rights as above, the court's appeal and reappeal against the court's decision on purchase price of shares is also recognized by the Non-Contentious Case Litigation Procedure Act

1. Regarding ground of appeal No. 1

In light of the purport of Article 374-2(1) through (4) of the Commercial Act, which regulates the appraisal rights of the shareholders opposing a transfer of business (hereinafter “shareholders opposing a transfer of business”), appraisal rights of the opposing shareholders are established regardless of whether they have consented to the exercise of their right as so-called formation right, and the term “two months from the date when the company has received the request for appraisal of shares” under Article 374-2(2) of the Commercial Act means that the period during which the obligation to pay the purchase price of shares has been satisfied. This legal doctrine is different even if the purchase price of shares was not determined within the said two months.

According to the reasoning of the judgment below, the court below decided on March 2, 2004 that the defendant made a resolution to transfer all of the business related to mortgage securitization to the Korea Housing Finance Corporation; on March 17, 2004, a general meeting of shareholders was held to transfer all of the business related to mortgage securitization to the Korea Housing Finance Corporation in accordance with the net asset value; on March 17, 2004, the defendant concluded a transfer contract with the Korea Housing Finance Corporation to transfer the business in accordance with the net asset value as of March 15, 2004; on March 15, 2004, the plaintiffs notified the defendant of his objection to the transfer of business; and on March 16, 2004, the plaintiff International Finance Corporation notified the defendant of his objection to the transfer of business; on March 25, 2004; and on March 25, 2004, the defendant did not exercise the appraisal claim against the defendant on March 25, 2004, and thereafter, the defendant should pay the appraisal claim to the defendant on March 36, 20014.

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the legal nature of appraisal rights under the Commercial Act or the interpretation of Article 374-2 (2) of the Commercial Act, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

If a party's performance of one party's own obligation in a bilateral contract is strictly required, it may be the case where the other party is not bona fide, so the degree of offer to be made by one party shall be reasonably determined as not to violate the principle of trust and good faith, depending on the time and specific circumstances (see Supreme Court Decisions 95Da40397, Dec. 22, 1995; 2005Da8637, Apr. 29, 2005, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence. The plaintiffs' share certificates are not delivered to the plaintiffs. The plaintiffs continued to issue new share certificates before the plaintiffs exercised their appraisal rights, and they were deposited in the National Bank of Korea (hereinafter "National Bank"), a transfer agent, and submitted to the defendant a document to the effect that the plaintiffs would pay fair purchase price and deliver their share certificates at any time at the same time through the exercise of appraisal rights. When the plaintiffs received payment of purchase price of shares from the defendant at the time of exercise of appraisal rights, the plaintiffs can deliver their share certificates to the defendant without delay through the National Bank of Korea, which directly occupied the plaintiffs' share certificates, while exercising their appraisal rights, and the defendant also could easily receive the plaintiffs' share certificates. Considering that the plaintiffs' share certificates were more easily, the court below rejected the defendant's obligation to provide share certificates at the time of the lapse of March 16, 2004 or March 25, 2004, the defendant did not have any obligation to provide the plaintiffs' share certificates at the same time.

In light of the above legal principles, the court below's measures are just and acceptable, and there is no violation of law such as misunderstanding of legal principles as to concurrent performance, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the plaintiffs' assertion of their desired purchase price in the decision on the purchase price of shares is a right recognized by the Commercial Act, and the appeal and reappeal against the decision on the purchase price of shares are also a right recognized by the Non-Contentious Case Litigation Procedure Act. Thus, in this case, unless there are special circumstances where the plaintiffs abuse the above rights, the plaintiffs cannot reduce the damages for delay or limit their liability under the principle of good faith merely because the appeal and reappeal were made against the court's decision on the purchase price of shares, and thus, they cannot reduce the damages for delay or limit their liability.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)