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(영문) 부산고등법원 2018.11.14 2018나50157

주식양도의 의사진술 등

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1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. Of the total litigation costs, 20% is the Plaintiff, and the remainder is the Plaintiff.

Reasons

Basic Facts

On January 22, 2015, the Plaintiff entered into a loan agreement with the Defendant Company to lend KRW 300,000,000 (hereinafter “instant loan”) at a rate of 25% per annum, and on August 30, 2015, the due date for repayment was determined and fixed, and Defendant B and D jointly and severally guaranteed the Defendant Company’s debt.

On January 23, 2015, the Plaintiff transferred KRW 300,000,000 to the bank account under the name of the Defendant Company.

On April 2015, the Plaintiff and the Defendant concluded a share transfer agreement (hereinafter “instant share transfer agreement”) with the Plaintiff of the Defendant Company (as stated in subparagraph 2 of A, the principal amount of KRW 405,00,000, interest rate of KRW 25% per annum, and maturity of payment on August 30, 2015) to transfer the instant shares to secure the Defendant Company’s obligations (hereinafter “instant share transfer agreement”). The Defendant Company consented to the transfer of shares by Defendant B.

【In the absence of dispute over the grounds for recognition, each entry of Gap evidence Nos. 1 through 4, and the purport of the entire pleadings, according to the instant transfer security agreement, defendant B shall express his/her intention to transfer the shares of this case to the plaintiff, and notify the defendant company of the transfer of shares. The defendant company is obligated to implement the transfer of shares to the plaintiff by changing the name of shareholders on the register of shareholders to the plaintiff.

Since the Defendants deposited the principal and interest of the instant loan in deposit, they cannot comply with the Plaintiff’s claim of this case. Thus, according to the evidence Nos. 5, 7, and 8, the Defendants’ respective statements are as follows: (a) 541, 636, 985 won on June 29, 2018 to repay the principal and interest of the instant loan; (b) 541, 636, 985

7. 16,056,442 won, and the same year;

8. The fact that the Defendants deposited a total of KRW 570,00,000 in the amount of KRW 12,306,573 as of August 28, 201 can be recognized as having paid the principal and interest of the instant loan by depositing the said KRW 570,00,000. As such, the Defendants’ defenses are with merit.

As to this, the plaintiff is the fourth instance of the trial.