1 747

Incheon LTS DTS DITS MTOS

Representative liquidator KimM

(former Trade Name: IT Co., Ltd.)

Seoul MIT ALIVE ADITNE ALTS

14. On the other hand, in the case of voluntary retirement, the effect of the retirement takes place when the procedures for the invalidation of the shares under Article 342 of the Commercial Act are completed as above. However, even if the shareholder’s acquisition of the claim for each share price does not coincide with the effective time of voluntary retirement, and at least when the shareholder’s consent to voluntary retirement is obtained and the capital reduction procedure under the Commercial Act is completed, the claim for the share purchase price occurs, but if the shares are not issued to the company by that time, the company can claim for the claim for the share purchase price against the shareholder for the simultaneous performance of the claim for the share purchase price.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, i.e., the plaintiff's primary cause of claim, i.e., the defendant's arbitrary retirement, which takes effect when the defendant acquired the shares subject to retirement from the shareholders for the purpose of the retirement and invalidated them after acquiring them with its own shares for the purpose of the retirement, and therefore, when the defendant received the share certificates for the acquisition of the shares subject to retirement [as to the shares subject to 1,92,922,72,727 out of 755 shares, the reorganization company (the company reorganization procedure was commenced on November 30, 200, 200, 200, 28 shares which were issued the share certificates to the defendant; hereinafter referred to as "the company")]. As to the remaining 28 shares, the defendant's claim for the share retirement price becomes effective, regardless of whether or not the defendant received the share certificates since the share certificates were in accordance with the main sentence of Article 343 (1) of the Commercial Act.

On November 28, 200, the date following the expiration date of the creditor's objection, the claim on the stock retirement payment becomes effective on November 28, 200 and this claim is rejected.

In light of the above legal principles and the records, the defendant's stock retirement in this case is a voluntary retirement since the defendant acquired the shares of this case from TT as its own shares with the consent of TT, which is the shareholder of the stock subject to retirement, and therefore, it constitutes a voluntary retirement. Thus, the validity of the voluntary retirement of this case shall take place at the time when the defendant acquired the shares subject to retirement as its own shares and completed the procedure of effective acquisition of shares under Article 342 of the Commercial Act, as alleged in the ground of appeal No. 1. However, the acquisition of the stock purchase price claim for the stock transfer should take place at the time of voluntary retirement, unlike the time of voluntary retirement and the time of completion of the procedure for completing the reduction of capital under the Commercial Act. < Amended by Presidential Decree No. 17090, Nov. 28, 2000>

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the point at which stock retirement takes effect. However, when the court below completed the capital reduction procedure under the Commercial Act for the time of the occurrence of the stock retirement claim in this case, which is the day following the expiration date of the period of the company creditor.

28 and 28 are justified in its conclusion. Therefore, the ground of appeal on this point cannot be accepted.

2. Effectiveness requirements for offsetting a bill with automatic bonds;

In light of the adopted evidence, the court below determined that the defendant notified the defendant that the defendant's notice was delivered to the plaintiff on December 27, 2000 prior to the expiration of the period for reporting the reorganization claim in Eul's company reorganization procedure, and that "the defendant's notice was extinguished on an equal amount as of August 28, 2000, the amount of the principal of the promissory note issued by the defendant, which was transferred by endorsement on August 18, 199 by OOE Co., Ltd., and the interest claim in arrears after August 27, 199 as of August 27, 199, the due date of the said promissory note, shall be set off as the automatic bond and the claim for the share retirement price in this case against the defendant as the claim for the share retirement price in this case against the defendant on December 28, 200.

However, the above decision of the court below is not acceptable for the following reasons. The delivery of a bill does not take effect unless there are circumstances such as the consent of the obligor of the bill in the case of expressing an intention of offsetting a bill by using a bill as an automatic claim outside a lawsuit (see, e.g., Supreme Court Decisions 91Da2892, Apr. 9, 191; 76Da299, Apr. 8, 197; 75Da739, Apr. 27, 197; 75Da739, Apr. 27, 1976). In this case, the delivery of a bill is the effective requirement of offsetting, and therefore a person who expresses his/her intent of offsetting must assert and prove it.

According to the records, the defendant merely notified only the declaration of offset to the above person at the time of December 27, 2000 and did not deliver a bill separately. Thus, unless there are circumstances such as the debtor's consent on this issue, the above set-off by the defendant is invalid.

Nevertheless, the court below, as stated in its holding, judged that the defendant's expression of offset becomes effective only by the declaration of intent of offset. Thus, the court below erred by misapprehending the legal principles as to the effective requirements of offset, which is based on the automatic claim, and it is clear that such illegality has influenced the judgment.

3. Whether it falls under Article 163 subparagraph 2 (b) of the former Company Reorganization Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428 of March 31, 2005, hereinafter the "Company Reorganization Act"), the court below acknowledged the facts as stated in its decision after compiling the adopted evidence. The final installment disposal on November 9, 200 constitutes the suspension of payment under subparagraph 2 of Article 163 of the Company Reorganization Act, and the defendant's obligation to pay the stock retirement price on November 28, 200, which the defendant used as a set-off claim, was incurred on November 28, 200, because the defendant was aware of the fact that the payment suspension was suspended, and thus the defendant's set-off by the defendant constitutes an exceptional set-off under Article 163 subparagraph 2 of the Company Reorganization Act, which is the basis of the provisional special resolution of the defendant's 160th day prior to the occurrence of payment suspension under Article 163 (20.

However, the above judgment of the court below is not acceptable for the following reasons.

Under the proviso of Article 163 subparagraph 2 (b) of the Company Reorganization Act, the legal relation corresponding to the "grounds arising before a reorganization creditor or a secured creditor becomes aware that an application has been made for suspension of payment or bankruptcy, commencement of composition, or commencement of reorganization proceedings," should be the same as that of causing a specific offset period to a creditor, and in individual cases, it should be deemed that the reorganization creditor's trust in relation to the secured effect of offset is justifiable (see Supreme Court Decision 2003Da61931, Sept. 28, 2005, etc.).

According to the records, the defendant's retirement of shares was conducted by the defendant's request that the company retire shares with the funds for sale of 000 that was owned by the defendant for the implementation of the financial structure improvement agreement which was concluded with the 20th Operating Council of the creditor financial institutions ("the Council of Financial Institutions") and by the approval of the Financial Institutions Council under the premise that the retired funds would be distributed and reverted to the creditor financial institutions belonging to the Council of Financial Institutions. The first reason is that as Kim 1's ownership, the defendant's temporary retirement of shares was made after the 3,779,127 shares issued by the creditor financial institutions were donated to the company as security, which were offered as security, and then the 20th shareholders' general meeting was held to repay the debts to the creditor financial institutions' creditor financial institutions' 1, but the 20th shareholders' general meeting was held before the expiration of the above 20th shareholders' general meeting, and the above 1,000 shares were distributed to 1,000 shares of the above 30th shareholders's general meeting.

Nevertheless, the court below held that the defendant's offset of this case constitutes an exceptional set-off clause under Article 163 subparagraph 2 (b) of the Company Reorganization Act solely on the ground that the resolution for a capital reduction at the above provisional shareholders' meeting was made prior to the suspension of payment, as stated in its holding. The court below erred in the misapprehension of legal principles as to the interpretation of Article 163 subparagraph 2 of the Company Reorganization Act and did not examine as to whether the defendant had a specific expectation for the above provisional shareholders' meeting at the time of the above resolution, and the illegality also affected the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Jae-chul et al.

Justices Kim Gin-tae

Justices Cha Han-sung