[이익배당등청구사건][고집1976민(2),329]
The nature of shareholder's right to claim dividends prior to the resolution
The shareholder's right to claim dividends can not be a non-performance or tort of a company under the Commercial Act because there is no fixed claim for dividends or a resolution for dividends to shareholders because it is not an abstract before the resolution of the general meeting of shareholders.
Articles 14, 15, and 25 of the Assets Revaluation Act, Articles 462 and 447 of the Commercial Act
Gwangju City
In the 2nd century Commercial Corporation
Seoul Central District Court (74Gahap4663) in the first instance trial
The appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The original judgment is revoked. The defendant shall pay to the plaintiff the amount of KRW 19,004,556 with the rate of five percent per annum from the delivery date of the instant case to the full payment. The costs of the lawsuit shall be borne by the defendant and a declaration of provisional execution.
On March 27, 1972, the Plaintiff acquired 32,00 shares issued by the Defendant Company from the Nonparty, but currently owned 30,50 shares. The Defendant Company passed a resolution to conduct asset revaluation at a regular shareholders’ meeting on February 25, 1972, which became 484,298,463 won as a result of revaluation, deducted the revaluation margin from the amount of carry-over revaluation deficits, etc., and did not allocate new shares due to the said transfer to the Plaintiff on May 1, 1973. The Defendant Company did not allocate the Plaintiff new shares due to the said transfer at a regular shareholders’ meeting on February 28, 1974, at a 50,476,000 shares out of the net profit of the Defendant Company in 1973 to the small shareholders other than the shareholders who own 10,000 shares or more, and there is no dispute over the amount of shares distribution between 100,000 per share and 100% per share.
First, in order to transfer part of the asset revaluation reserve into the capital, the defendant company should adopt a resolution of the general meeting of shareholders on May 1, 1973. The defendant company transferred 372,380,000 won to the capital by the resolution of the board of directors only on May 1, 1973 without such resolution. Since new shares were allocated at the rate of 0.5854 per previous shares, the above issuance of new shares is null and void. Even if it is not so, there is no allocation of new shares issued due to capital transfer to the plaintiff who is a shareholder as of May 1, 1973. The resolution of the general meeting of shareholders on February 25, 1972, which was allotted to the shareholders as of January 1, 1972, is null and void as an unlawful resolution disregarding the shareholder's preemptive right. In addition, the defendant company's failure to issue new shares to the plaintiff according to the invalid resolution is caused by intention or negligence, and thus, the plaintiff's loss to the plaintiff is not paid to the plaintiff.
Second, the defendant company decided not to pay dividends to the plaintiff who owns more than 10,000 shares at a regular general meeting of shareholders on February 28, 1974 as mentioned above. This is null and void because the defendant company is not obligated to pay damages to the plaintiff intentionally or by negligence because it does not pay dividends to the plaintiff. Thus, the defendant company's assertion that this claim was made for the performance of each of the above obligations. The defendant company's first is a compulsory law in special relations with the Commercial Act, and the Assets Revaluation Act is not applicable to the capital transfer due to asset revaluation, and the effect of the asset revaluation decision also takes place retroactively to the date of revaluation. Thus, the defendant company's resolution on February 25, 1972 on the premise that the capital transfer will be made in advance in the shareholders' meeting, and the shareholders' resolution on the issuance of new shares should be excluded from the board of directors' resolution on February 17, 1972 to the extent that the above resolution on the issuance of new shares will be null and void. Second, the defendant company's resolution on February 197, 197.
First, according to Article 15 of the Assets Revaluation Act (hereinafter referred to as the "Evaluation Act"), a person who intends to conduct revaluation shall submit a revaluation report to the Government by no later than one day before the revaluation date (referring to the first day of each business year according to Article 4 of the same Act, and the evaluation date of the defendant company shall not be dispute) as prescribed by the Presidential Decree. According to Article 15 of the same Act, a person who conducts revaluation shall submit a revaluation report to the Government within 90 days after the revaluation date. According to Article 25 of the same Act, a person who conducts revaluation shall submit a revaluation report to the Government within 90 days after the revaluation date. According to Article 25 of the same Act, if a corporation conducts revaluation, he/she shall obtain approval from the Government before the re-assessment date pursuant to Article 14 of the Assets Revaluation Act. According to Article 9 of the Enforcement Rule of the Assets Revaluation Act, it shall be presumed that he/she conducted revaluation of the matters to be approved by the general meeting of shareholders pursuant to the above Article 25 of the Assets Revaluation Act and a resolution of the shareholders' meeting shall not be held by the above 27.
Second, since the right to claim a dividend of shareholders cannot be deprived of or restricted to the shareholder's own right, the resolution of dividend against the principle of shareholder equality is null and void. However, since the decision of dividend is exclusively belonging to the authority of the general meeting of shareholders, its contents are specifically decided only by the resolution of the general meeting of shareholders, and the shareholder's right to claim a dividend of shareholders is not only an abstract right, but also an abstract right, the plaintiff's right in this case where the plaintiff is the person who does not have a separate resolution of the shareholders including the above 10,000 shares or more than 10,000 shares in addition to the above resolution of invalidity is nothing more than an abstract right, the plaintiff's right is not limited to the plaintiff's right to claim a dividend of shareholders by revising the resolution of the general meeting of shareholders in place of the general meeting of shareholders under the current Commercial Act, and the shareholder cannot force the resolution of the general meeting of shareholders on the dividend. Thus, the plaintiff's right to claim a dividend of dividends can not be a non-performance or tort under the Commercial Act.
Therefore, the plaintiff's claim for objection is just dismissed, and since the original judgment is consistent with this conclusion, the appeal is dismissed without merit, and it is so decided as per Disposition by applying Article 95 of the Civil Procedure Act to the burden of appeal cost.
Judges Park Young-young (Presiding Judge)