[2] In a case where the assets of the reorganization company exceed its liabilities, whether a preemptive right is recognized to the shareholders of the reorganization company (negative)

[3] In a case where shareholders who become the largest shareholder of a reorganization company after the commencement of reorganization proceedings apply for the suspension of the continuation of the corporate sale procedure in accordance with the reorganization programs, the case holding that since the right to expectation or trust in exercising the management right as the controlling shareholder of the reorganization company does not concept as specific rights or interests under the positive law, it is not possible to seek the suspension of the continuation of the corporate sale procedure due to a provisional disposition under the civil law as preserved right

[4] Status and scope of authority of a receiver of the liquidation company, and whether a shareholder of the liquidation company may demand an illegal act against the receiver (negative)

[2] The preemptive rights of shareholders under Article 418 of the Commercial Code may be limited by articles of incorporation, law, etc. In particular, Article 418 of the former Company Reorganization Act (repealed by Article 2 of Addenda to the Debtor Rehabilitation and Bankruptcy Act, Act No. 7428, Mar. 31, 2005) excludes the application of Article 418 of the Commercial Code, which guarantees the preemptive rights of shareholders in the case of issuance of new shares pursuant to a reorganization plan. The rights of shareholders of the reorganization company are modified pursuant to the provisions of the reorganization plan. Under the interpretation of Article 228(1) of the same Act concerning the provision on the alteration of rights, the rights of shareholders are recognized with the concession and sacrifice of creditors, who are prior rights holders. Since such priority rights of shareholders are to achieve the common goal of the reorganization company, the rights of shareholders of the reorganization company are still restricted by the matters stipulated in the reorganization plan, even if the acquisition price of shares after the commencement of reorganization procedures, even if they cannot be seen as reflecting all information on the reorganization plan. This is the same even if the acquisition of shares did not present.

[3] In a case where shareholders who become the largest shareholder of a reorganization company after the commencement of reorganization proceedings apply for the suspension of the continuation of the corporate sale procedure in accordance with the reorganization programs, the case holding that since the right to expectation or trust in exercising the management right as the controlling shareholder of the reorganization company does not concept as specific rights or interests under the positive law, it is not possible to seek the suspension of the continuation of the corporate sale procedure due to a provisional disposition under civil law on the ground that it

[4] Upon the commencement of a company reorganization procedure, the right to manage and dispose of the company's business operation and property is entirely exclusive to the manager, and the manager bears the responsibility for performing his duties under the supervision of the court and is liable for damages against interested parties. The receiver of such reorganization company is a kind of public trustee as a manager of so-called interested organization composed of the reorganization company, its creditors, and shareholders. The receiver is not an institution or representative of the reorganization company, but is limited to the management and disposal of the company's business operation and property, and does not extend to any other matters. In light of the status of the receiver of the reorganization company and the scope of its duties, the court's supervision over the reorganization company, etc., it cannot be deemed that the receiver of the reorganization company is identical or similar to the director or liquidator of the company. Thus, the liquidation company's manager cannot be deemed to be subject to the request for the maintenance of the company's illegal act or to be analogically applied

2. The costs of the application shall be borne by the applicants.

The respondent shall suspend the corporate sale procedure of the company in accordance with the public announcement of the sale of the company on January 18, 2007 with respect to the company Chungcheong, Chungcheongnam-si, the liquidation company, and shall not continue to continue the procedure.

(a) the status of parties and reorganization companies;

(1) The reorganization company, Chungcheongnam-gu, Inc. (hereinafter “resolution company”) mainly engaged in the manufacture and sales business of various kinds of amnestys, textile business, manufacture and sales business of clothes, etc. The reorganization company was ordered to commence corporate reorganization proceedings on December 12, 2002 by the Daejeon District Court (hereinafter “Seoul District Court”), and the reorganization company was ordered to authorize corporate reorganization programs on September 19, 2003.

(2) On March 14, 2007, the applicants are shareholders of the reorganization company, who are owned as stated in the column for “number of shares held” as of March 14, 2007, and who hold shares of the reorganization company held by them, are 1,872,395 shares totaling 1,872,395 shares (40.77% total number of shares issued). Of the applicants, some of the applicants received a power of representation as to the exercise and disposition of voting rights against the total number of shares held by the reorganization company by them from “2. proxy investors” as stated in the attached Table 2.

(3) The respondent is the receiver of the reorganization company.

B. Progress of the company reorganization procedure of this case

(1) The reorganization company was engaged in corporate improvement operations on the two occasions on November 1, 1998 and August 1, 2000, but the possibility of corporate normalization has been unexpected due to the deterioration of the management environment in the textile market. The reorganization company was suspended on November 2002. The reorganization company filed an application for commencement of corporate reorganization proceedings with the reorganization court on November 19, 2002, upon which the commencement of corporate reorganization proceedings was decided on December 12, 2002, and on September 19, 2003.

(2) The main contents of the above company reorganization program are as follows.

(1) In relation to a self-rescue plan, a reorganization company shall carry out a plan to actively promote the third party takeover of the reorganization company through consultation with the creditors' consultative council in order to facilitate the early normalization of the company, to preserve the creditors' interests, and to stabilize the employment of employees (Article 7

(2) In relation to a person who takes over a reorganization company, a custodian shall actively promote the third party's acquisition for the early normalization of the reorganization company and shall report the progress of such acquisition on a regular basis ( Chapter IX).

③ With respect to the change of shareholder’s rights, the company shall not pay dividends to the shareholders until the completion of the reorganization proceedings as prescribed by the reorganization programs, and shall not hold a general meeting of shareholders during the reorganization proceedings, and shall prevent shareholders from exercising their voting rights (Section 1 of Chapter X), while the company shall reduce its capital by consolidating five common shares with a face value of 5,000 won per common share with a face value of 5,000 won per share prior to the decision to authorize the reorganization programs (Section 2(1) of Chapter X).

(4) With respect to the issuance of new stocks, a reorganization company may issue new stocks in several installments with the permission of the court from the date of authorization of the reorganization program to the date of termination of the reorganization program, and the receiver shall determine the person to underwrite new stocks, the method of allocation, the issue price, the date of payment, etc. after obtaining permission of the court (Section

(3) As of June 30, 2006, the reorganization company's total assets amounting to approximately KRW 162 billion, and liabilities amount to approximately KRW 78.9 billion, net assets amounting to approximately KRW 83.1 billion.

C. Applicant's acquisition of shares

After visiting the reorganization court on May 15, 2006 and June 9, 2006, the applicants purchased 7.8% of the shares of the reorganization company on June 19, 2006 after commencing a public tender offer to purchase shares of 38.5% per share on June 19, 2006, and completing a public tender offer on June 26, 2006, the applicants purchased 7.8% of the shares of the reorganization company. The applicants commenced the second public tender offer on July 27, 2006 to purchase shares of the reorganization company with 5,250 won per share, and acquired 30% of the shares of the reorganization company until August 15, 2006. The applicants acquired control over the shares of the reorganization company on August 15, 2006 due to the results of the tender offer over the above 1,200. However, the applicants acquired control over the shares of the reorganization company with 50% or more of the total shares issued by other shareholders.

(d) Offering new stocks through the third party allocation method;

(1) On July 31, 2006, the respondent made a fair disclosure to the effect that "the Respondent is competing between the present reorganization company's stock tender offer and the cfa-fs restructuring association, but it is difficult to predict whether the controlling shareholder can be formed within the time that the present reorganization company's stock tender offer and the cfa-fs restructuring association, but it is difficult for the controlling shareholder to expect it to achieve the management normalization of the company, as long as there is no inflow of new funds in the company, it is difficult for the manager to know that it would be able to achieve the management normalization of the company as long as there is no inflow of new funds."

(2) After publicly announcing the third party’s capital increase policy, the respondent commenced the procedure of selecting the third party company’s capital increase for the purpose of M&A on September 21, 2006 and commenced the procedure for the third party capital increase, such as selecting and publicly announcing the third party’s capital increase, and the applicant filed an application with the reorganization court to suspend the third party capital increase, while the respondent demanded the third party to suspend the third party capital increase.

2. Applicant's assertion

(a) Offenses of the right to be preserved and respondent;

(a) Infringement of preemptive rights by stockholders (the preemptive rights of stockholders: the preemptive rights of stockholders);

In the case of a reorganization company whose assets exceed its liabilities, the shareholders have a significant interest in the continuation of the reorganization company and the change in the composition of the capital. If new shares are issued to a third party, the shareholders of the old shares will suffer economic loss in addition to the decrease in the ratio of voting rights, and further affect the previous shareholders from the perspective of the value of the shares after repayment according to the reorganization plan is completed. Therefore, in the case of a reorganization company whose assets exceed its liabilities, the interests of the shareholders should be properly protected. Thus, Article 418(2) of the Commercial Act, the principle for protecting the interests of shareholders, which is a provision for protecting the interests of shareholders, shall apply mutatis mutandis to a third party

Although the assets of the reorganization company exceed KRW 83 billion, the respondent's implementation of capital increase with respect to capital increase by issuing new shares to a third party is an infringement on the preemptive rights of the existing shareholders, which goes beyond the inherent limit for the third party allocation.

(2) Infringement of right of management (right of preservation: Right of expectation of right of management to be acquired at the time of termination of management or reorganization proceedings by applicants for reorganization company)

(A) Violation of management rights in violation of the principle of trust.

On May 15, 2006, when the applicants visited the reorganization court and asked the court's opinion on the acquisition of the reorganization company, the reorganization court expressed a favorable position on the applicants' acquisition of management rights, such as expressing the intent of controlling shareholders to promptly appear. Accordingly, the applicants have believed that management rights can be acquired if they become controlling shareholders through the tender offer, and there was no change in circumstances or special notification from the respondent that could undermine the applicants' trust. The applicants entered into the second tender offer on the basis of these trust and entered into the second tender offer at a price of 2,250 won or higher than the first tender offer around July 27, 2006.

The applicants have lawfully acquired the right of management as a controlling shareholder, and the court and the administrator have the duty to recognize and protect the applicants' right of management in light of the process of the acquisition thereof. Therefore, the applicants are deprived of the right of management that they have as controlling shareholders where the right of management is promoted by issuing new shares to a third party.

(B) Violation of management rights by a major shareholder in a reorganization company whose assets exceed liabilities.

In the process of management normalization of the reorganization company, capital reduction and conversion into investment have been made without compensation, and those who have become shareholders and those who have taken over stocks from them are entitled to the decision of management normalization of the reorganization company as well as the decision of management normalization of the reorganization company. Therefore, their rights should be protected as a matter of course, and they should not be unfairly infringed.

A controlling shareholder has control over a company to be arranged through shares, and maintains control over the company to be arranged through preemptive rights, which constitutes an essential part of shareholders' rights.In the case of a reorganization company, even though shareholders' rights are partially restricted, this is inevitable for the reorganization company, and the restriction of shareholders' rights is not allowed in excess of reasonable scope or it does not necessarily mean that the inherent limitation does not apply to the restriction of shareholders' rights. Therefore, in the case of an asset exceeding its liabilities, the rights of shareholders should be protected to the maximum extent, the rights of shareholders should be protected, and the rights of shareholders should be respected as a matter of course. Furthermore, the rights of the applicants who have acquired shares under the court's understanding should be more protected, and the issuance of new shares by the respondent to a third party is unlawful as it unfairly infringes upon the applicants' preemptive rights and

(3) Violation of the principle of good faith (the right to preserve: the administrator's right to demand the maintenance of the unlawful act)

On May 15, 2006, when the applicants visited the reorganization court, the liquidation court did not express any other position by the time when the respondent published the Respondent's issuance of new shares on July 31, 2006, after showing the response that the Claimant returns to the Claimant's acquisition of control shares through the Claimant's tender offer. In addition, the Claimant notified the Respondent of the tender offer at the beginning date of the first and second tender offer and publicly announced the details related to the Financial Supervisory Service and the securities market, thereby recognizing that the Respondent is working for the Respondent to acquire management rights of the reorganization company.

However, the court or respondent did not give any notice to the applicant on the possibility of acquiring new shares allocated to a third party, which violates the duty to protect the applicant, and also violates the principle of good faith. In such a case, it is interpreted that the other party may demand suspension of the act in violation of the principle of good faith. Thus, the respondent's issuance of new shares to a third party should be suspended.

(d) A significant change in reorganization proceedings (the right to be preserved: the right to expect management or management for the reorganization company).

Although there is a provision regarding M&A in the reorganization program, the respondent did not implement M&A in the method of acquiring a third party from December 12, 2002 to July 31, 2006. Meanwhile, the reorganization program of the reorganization company was not actively implemented with a third party as a plan close to the rehabilitation type, rather than a third party acquisition type.

However, the applicants were forced to take over the right of management of the reorganization company by the third party's acquisition policy, which is likely to violate the principle of good faith, as it seriously changes the reorganization proceedings to the reorganization company, and thus, it may be contrary to the principle of good faith, and is also contrary to the trust authority of the court, and is likely to cause losses to the applicants. Therefore, it should not be allowed.

(5) Violation of the inherent limit of M&A by the reorganization company (the preserved right: the shareholder's preemptive right and the right to expect the management right or management right)

It is most cases where a reorganization company with considerable surplus assets, even though it pays off its liabilities as a reorganization company in excess of its liabilities, meets the termination requirements of reorganization proceedings. Thus, it should be treated differently from the reorganization company, and it should be viewed differently from the management company, and it is the correct interpretation of the Company Reorganization Act, which is the basis of the market economy principle, to reflect the intent of shareholders in respect of the important management matters.

Therefore, there is a major shareholder who is not responsible for the insolvency in the management of the reorganization company as above, and it goes beyond the authority of the court under the Company Reorganization Act to force the issuance of new stocks by the court for the issuance of new stocks by a third party against the will of the major shareholder. In addition, it is illegal to promote the issuance of new stocks by a third party against the will of the major shareholder, which is to abuse his authority and make it illegal. In addition, the purpose of management such as the introduction of new funds is to fall short of importance compared to the rights of the interested parties infringed, and there is no reason that the introduction of new funds must be made in the form of a change in the management right, such as capital increase by

(6) Violation of the latter part of Article 37(2) of the Constitution (the right to preserve: shareholder's right to expect the preemptive right, management right, and management right)

Even if reorganization proceedings were commenced, there is a need to restrict the fundamental rights if the cause for commencement of reorganization proceedings is cured. Therefore, it is natural that the court or the administrator's involvement is minimized in the reorganization company that stably exceeds its liabilities. Therefore, it would be contrary to the spirit of the latter part of Article 37 (2) of the Constitution to deprive the current shareholder of his/her management right without any responsibility for the insolvency of management even if the assets exceed his/her liabilities.

(7) In violation of the Supreme Court Order 2004Da84 dated June 15, 2005 (the right to preserve: shareholder's right to expect the preemptive right, management right, and management right)

The above decision of the Supreme Court accepted the decision of the court below that the allocation of new shares by a third party to a reorganization company whose assets exceed its liabilities is unlawful. The basic purpose of this decision is to allocate new shares to a third party who is accompanied by deprivation of management rights to a reorganization company whose assets exceed its liabilities is unreasonably limited to the basic rights of shareholders under the Constitution, and thus, it should not be done unless the consent of the shareholders is obtained.

Therefore, while the Supreme Court clearly expresses its position, it should not promote the third party's acceptance that conflict with it.

(8) Defect in the process of M&A (the right to preserve property: shareholder's right to claim distribution of residual property)

As a result of the applicant's inquiry of the liquidation value of the liquidation company to the respondent and the main company of the company in charge of liquidation, three-day accounting corporations, as the main company, did not separately calculate the liquidation value, and three-party accounting corporations, as the result of the answer that M&A is proceeding on the basis of the values stated in the liquidation value report (Evidence No. 15) prepared by the three-party accounting corporations around June 2006.

However, the above report is based on the officially announced land price in 2005, and was erroneous in calculating the liquidation value by applying the average successful bid rate of Korea Asset Management Corporation, which is not the average successful bid rate of the real estate bid procedure of the court. As above, M&A, which is being conducted by the administrator and the main company, based on an inaccurate liquidation value. If the value of new shares issued by a third party is determined based on the low liquidation value, part of the existing shareholder's right to claim allocation of residual property is transferred to a new shareholder, and such right is infringed.

B. Necessity of conservation

This case's M&A procedure is expected to be terminated promptly in the event that the application for the provisional disposition of this case is not accepted in light of the content of the public notice of sale. If so, the applicants lose their status as a controlling shareholder of the reorganization company, and there is a significant infringement on shareholders' rights, thereby causing irreparable damages. Therefore, the provisional disposition of this case needs to be compensated.

3. Determination

(a) Status of shareholders of the reorganization company;

The right to manage and dispose of the company's business and the property upon the decision to commence reorganization proceedings under the Company Reorganization Act (Article 53(1)). On the other hand, the right to manage and dispose of the company's business shall not belong exclusively to the administrator until the reorganization proceedings are completed (Article 52(1) of the Company Reorganization Act ("the Company Reorganization Act"). In implementing the reorganization programs, despite the provisions of Acts and subordinate statutes or the articles of incorporation, a resolution of the inaugural general meeting, general meeting of shareholders or the board of directors is not required (Article 249 of the Act), sale or transfer of important assets, and transfer of business, and delegation of all or part of the company's business operation to the reorganization proceedings (Article 217 of the Act). As a result, the exercise of the right of the board of directors and the general meeting of shareholders is limited to most important parts of the company's right of shareholders, and the shareholders of the reorganization company may exercise control, such as exercising control over the reorganization company's shares through the reorganization proceedings.

However, the shareholders of the reorganization company are also entitled to partial self-interest and public interest rights, and, in particular, in cases where the assets of the reorganization company exceed their liabilities, voting rights are recognized at the meeting of interested persons, and such rights are not recognized as comprehensive and complete shareholders' self-interest or public interest rights for the reorganization company (see Supreme Court Order 2004Do84, Jun. 15, 2005). Therefore, it cannot be recognized that applicants outside the reorganization proceedings have general and comprehensive rights as shareholders of the reorganization company. However, it can be reviewed whether each specific right can be recognized within the extent consistent with the purpose and proceeding of the reorganization procedure.

B. As to the assertion on the violation of shareholder's preemptive right

First, it is examined whether the preemptive right claimed by the applicant is recognized as the shareholder's right of the reorganization company.

Although Article 418 of the Commercial Code recognizes preemptive rights to shareholders, the preemptive rights of shareholders can be limited by articles of incorporation and laws, and in particular, Article 418 of the Commercial Code, which guarantees preemptive rights of shareholders in the case of issuance of new stocks according to reorganization plan, is excluded (Article 255(2)).

Notwithstanding the above provisions of the Company Reorganization Act, in cases where an asset exceeds its liabilities as a shareholder of the reorganization company, the applicant claims to the effect that the right as a shareholder of the reorganization company should be guaranteed to the maximum extent possible, so the applicant has preemptive rights. However, the right of the shareholder of the reorganization company is modified pursuant to the provisions of the Company Reorganization Act, and the right of the shareholder of the Republic of Korea supporting the relative preferential theory under the interpretation of Article 228(1) of the Company Reorganization Act concerning the provision on the alteration of rights is recognized under the concession and sacrifice of the creditor, who is the senior right holder. Since such priority right holder's concession is to achieve the common goal of the company reorganization, even if a change in circumstances, such as the company's assets exceed its liabilities during the process of implementing the reorganization plan, it is reasonable to view that the right of the shareholder of the reorganization company is still restricted in the matters stipulated in the reorganization plan. In addition, the acquisition price of the shares can not be deemed to reflect all information on the reorganization plan, and if the shareholder newly appeared through this process can secure control over the company's right merely because it is unreasonable.

In light of the above provisions of the Company Reorganization Act, the purpose of the company reorganization procedure, and the rights in the reorganization proceedings by the shareholders of the reorganization company, even though the assets of the reorganization company exceed their liabilities, the preemptive rights cannot be acknowledged to the applicants, who are shareholders of the reorganization company. As so argued, the applicants expressed their intent to secure the control over the reorganization company, such as the court of liquidation, and subsequently acquired shares for the purpose of securing the control over the reorganization company, there is no ground to deem that the preemptive rights that are not recognized as a matter of principle to the applicants are acknowledged to the shareholders of the reorganization company. Ultimately, the applicants, who are shareholders of the

Therefore, this part of the argument that the applicant has a preemptive right to new shares is without merit.

C. As to the assertion regarding infringement of the right of management or management for the reorganization company

It is considered whether the right to expect the management right to be acquired when the reorganization company completes the management right or reorganization proceedings for the reorganization company.

In this case, in light of the fact that in the reorganization program of the company on September 19, 2003, it is already stipulated that it is a plan to proceed with the business sale procedure by M&A, the purpose and procedure of the company reorganization procedure, the Company Reorganization Act provides that the shareholders shall participate in the reorganization procedure, such as voting rights, and protect their interests; the applicant who becomes the largest shareholder of the reorganization company after the commencement of the reorganization procedure for the reorganization company, is not in the legal status that can exercise the right of management for the reorganization company or the right of management for the reorganization company. In this case, even if the assets of the reorganization company exceed the liabilities of the reorganization company, the right of expectation for the right of management can not be assumed in excess of the liabilities; in light of the fact that it is difficult to generally recognize the right of expectation for the right of management solely on the ground that the assets exceed the liabilities, as asserted by the applicant, it cannot be concluded that the expectation or trust interest for exercising the right of management as a controlling shareholder is not a specific right or interest under the positive law.

D. As to the assertion regarding the violation of the right to maintain an illegal act

(1) Whether the respondent is subject to shareholder's illegal act claim

With regard to the assertion of the Claimant, the respondent, who is the administrator of the reorganization company, is the object of the shareholder's claim.

Upon the commencement of the company reorganization procedure, the right to manage and dispose of the business and property of the company is entirely exclusive to the manager, and the manager bears the responsibility of performing his duties under the supervision of the court and is liable for damages against interested parties. The manager of the reorganization company is a kind of public trustee as the manager of the so-called organization of interested parties composed of the reorganization company, its creditors and shareholders. The manager is not an institution or representative of the reorganization company, but is limited to the management and disposal of the business and property of the reorganization company, and does not extend to any other matters (see Supreme Court Decisions 73Da692, Jun. 25, 1974; 86Da1858, Aug. 9, 198; 92Nu3120, Jul. 14, 1992; 94Mo25, Oct. 28, 1994). Therefore, the manager cannot be deemed to be subject to such reorganization of the company's illegal act or the scope of supervision of the company.

(2) Whether the respondent committed an unlawful act

Even though the respondent becomes the object of the shareholder's claim for the illegal act, the respondent should have committed an illegal act in violation of the law or the articles of incorporation in order to become the object of the applicant's claim for the illegal act.

However, since the reorganization program of September 19, 2003 already specifies the third party acquisition plan of the reorganization company, the respondent's act is not only an act in accordance with the above reorganization program, but also an obligation of the respondent to notify the applicant of the possibility of the third party's acquisition of new shares prior to the announcement of the third party allocation allocation policy. Thus, it is difficult to view the respondent's conduct of the corporate sale procedure of this case as an illegal act.

(3) Sub-decisions

Therefore, this part of the argument is without merit, which is premised on the applicant's right to claim for violation.

E. As to the assertion on infringement of the right to claim the distribution of residual property

Since the shareholders of the reorganization company also recognize the right to claim distribution of subordinated residual assets, in particular in this case the assets of the reorganization company exceed their liabilities, it is clear that the applicants have the right to claim distribution of the residual assets of the reorganization company.

However, we examine whether it is necessary to accept the application for provisional disposition of this case on the grounds that the applicant's right to claim distribution of residual property was infringed due to the progress of the business sale procedure of this case, and that there is any other necessary reason to avoid significant damages or prevent imminent danger.

The petitioners claim that the respondent calculated the liquidation value based on the liquidation value report prepared on June 2006 and the respondent's right to claim the distribution of residual assets is likely to be infringed. However, there is no evidence to acknowledge that the respondent actually calculated the liquidation value based on the above report. Moreover, as there is no specific material on the liquidation value and the issue value of new stocks of the liquidation company, the respondent stated that the liquidation value of the liquidation company is calculated based on the above report and the respondent's assertion that there is serious error in the above report, it is difficult to recognize that the respondent's right to claim the distribution of residual assets is infringed by the M&A procedure of the respondent. In addition, considering that the acquisition contract or this contract entered into between the liquidation company and the acquirer is subject to the permission of the court with regard to the acquisition price contract or this contract, it is difficult to recognize the necessity to preserve the provisional disposition.

4. Conclusion

Therefore, the provisional disposition application of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Doi (Presiding Judge) Jin Jae-nam Kim Jong