[주주명의변경무효확인등][집25(1)민,99;공1977.4.1.(557) 9944]
A. Whether or not a company should prove the insolvency of a debtor who holds shares in order to acquire its own shares in accordance with Article 341 (3) of the Commercial Act
(b) In case where the purport of transferring registered shares is stated in a protocol of compromise prepared by a judge participating in, whether it is valid as a certificate of transfer of registered shares under the latter part of Article 336 (1) of the Commercial
A. In case where a stock company is able to acquire its own shares and it is necessary to achieve its objective in executing the company's rights stipulated in Article 341 subparagraph 3 of the Commercial Act, it shall be interpreted that the company may acquire its own shares by auction, payment in kind, etc. only when it does not have property other than the debtor's shares because of compulsory execution and exercise of security rights in order to execute its rights. Therefore, the debtor's insolvency is a requirement for allowing the acquisition of the company's own shares, and it has the burden of proving its insolvent.
B. The purpose of the latter part of Article 336 (1) of the Commercial Act that the transfer of registered shares is limited to the issuance of share certificates and certificates of transfer with the name and seal of the person indicated as the shareholder, is to first, the delivery of share certificates is possible by transfer of the right to request a simple transfer or alteration of possession, in addition to the actual delivery. Second, the transfer certificate with the name and seal of the shareholder is required to clarify the intent of transferring the shares. Therefore, if the purport of transferring the shares to the protocol of compromise prepared by the judge is clearly stated, it is valid as a transfer certificate.
Articles 341(3) and 336(1) of the Commercial Act
Plaintiff
[Defendant-Appellant] Defendant 1 et al., Counsel for defendant-appellant
Gwangju High Court Decision 75Na285 delivered on May 13, 1976
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Article 341 of the Commercial Act provides that when a company acquires its own shares and it is necessary to achieve its purpose in exercising its rights, the company can acquire its own shares by auction or by payment in kind only when the company is subject to compulsory execution security right in order to exercise its rights and there is no property other than the company's shares. Therefore, the debtor's insolvency is a requirement for allowing the company's own shares acquisition, and the company has the burden of proving its insolvent. In this regard, the judgment of the court below is justifiable to determine that the acquisition of shares by the defendant company is null and void because it has no property other than this case's shares in order for the defendant company to acquire its own shares effectively.
2. Article 336 (1) (latter part) of the Commercial Act provides that the transfer of registered shares shall only be made by delivery of share certificates and certificates of transfer with the name and seal of the person who is indicated as the shareholder, in addition to actual delivery, the delivery of share certificates can also be made by simple delivery, alteration of possession, and transfer of right to request a return in addition to actual delivery.Second, the shareholder's name and seal is required to clarify the intent of transferring the shares. Thus, if the purport of transferring the shares is clearly stated in the protocol of compromise prepared by a judge participating in the court, it is valid as a certificate of transfer, since the witness evidence No. 1 clearly states that the transfer of the shares to the plaintiff and the transfer of the right to request a return of the secured and pledged share certificates to the defendant company and the rural Development Corporation is clearly stated in the purport that the shares in this case should be transferred to the plaintiff, and even if it was delivered to the defendant company and the rural Development Corporation, the notification of transfer was made properly, so the judgment of the court below that the transfer of shares was lawfully made in this purport.
Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)