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(영문) 서울서부지방법원 2015.12.24 2015가합2638

신주발행무효

Text

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On December 24, 2014, the Defendant, at the board of directors, issued new shares of 329,380 common shares (hereinafter “instant new shares”) with a face value of KRW 500 per share of KRW 1,518,00, and decided to allocate new shares in proportion to the number of shares held by the former shareholder, but to allocate new shares to the former shareholder who wishes to accept if the former shareholder renounces his/her acceptance.

B. On December 24, 2014, the nature and environment of the Defendant, a single shareholder, remitted to the Defendant KRW 499,998,840 (i.e., new shares of this case 329,380 x the issue price per share 1,518) for all of the instant new shares.

C. On December 29, 2014, Defendant Company completed the registration of modification due to the issuance of the instant new shares.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

2. The Plaintiff asserted that the issuance of the new shares of this case by the Defendant was null and void without going through the announcement under Article 418(3) of the Commercial Act and the notification procedure under Article 419(1) of the Commercial Act, and sought confirmation of the invalidity of the issuance of the new shares as the Defendant’s shareholder.

According to Article 429 of the Commercial Code, a lawsuit for nullifying issuance of new shares may be brought only by shareholders, directors, or auditors.

According to Gap evidence No. 1 and Eul evidence No. 1, the plaintiff entered into a contract with B on January 25, 2014 to transfer 153,924 shares, all of the shares issued by the defendant, which are 153,924 shares (e.g., par value KRW 500) owned by the plaintiff, to KRW 2,00 won per share, total trading amount of KRW 307,848,00, and the date the defendant's establishment was recognized as of February 10, 199, and the fact that the shares issued by the defendant, including 153,924 shares owned by the plaintiff, have not been issued. There is no dispute between the parties.

According to the above facts, 153,924, which was owned by the plaintiff, shall be subject to the general principle of assignment of nominative claim as of January 25, 2014.