[추심금][공2003.4.1.(175),775]
The meaning of the merger of companies and the status of the members (shareholders) of the company to be extinguished by the merger;
The merger of a company means that two or more companies either establish a new company under a contract or incorporate one of them into another company, and that the property and employees (shareholders) of the extinguished company are transferred or expropriated in accordance with statutory procedures for the newly incorporated company or the surviving company. In principle, employees (shareholders) of the extinguished company shall acquire the right of shareholders of the surviving company or the newly incorporated company in accordance with the merger ratio and allocation method in accordance with the merger agreement, except in special cases where they acquire only less than a share of less than one share of the extinguished company through the merger or exercise the right of appraisal as shareholders who oppose the merger.
Articles 174 and 523 of the Commercial Act
Kusan Public Co., Ltd.
Construction of substitute Corporation, Inc., a party to a lawsuit for the construction of a limited partnership company
Daejeon High Court Decision 2000Na1967 delivered on January 31, 2001
The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.
1. (1) Based on the original copy of the judgment declaring provisional execution with executory power against the non-party 1, the lower court determined on December 4, 1998 that the non-party 1 transferred to the non-party 1 on December 4, 1998 red support of the Daejeon District Court 98ta2578,2579, and that the non-party 1 was subject to seizure and collection order of KRW 145,693,649, out of the claim claiming the repayment of investment in the third debtor limited partnership company, and the non-party 1 was subject to seizure and collection order of the claim for delay damages, and that the order was served on the non-party 1 on December 5, 1998, and that the non-party 1 was dissolved to the non-party 200,000,000 won (the non-party 1's original judgment appears to have become the non-party 1'60,000,000 won of investment shares, and that was dissolved to the non-party 282.
2. The term "merger of a company" means that two or more companies establish a new company under a contract, or one of them incorporates another company, and the properties and employees (shareholders) of the extinguished company are transferred or expropriated in accordance with statutory procedures for the newly incorporated company or the surviving company. Except in special cases where (a) employees (shareholders) of the extinguished company acquire only less than one share of less than one share by the merger or exercise appraisal rights as a shareholder opposing the merger, in principle, an employee of the extinguished company or the surviving company becomes an employee of the surviving company or the newly incorporated company by acquiring the shares of the surviving company or the surviving company in accordance with the merger ratio and allocation method under the merger contract in principle, except in cases where
In light of the records, in the merger of forest construction around June 200, the defendant company's merger ratio was determined by the ratio of 1:1 between the defendant company and the forest construction, and the defendant company's stock shares allocated to its members to the extinguished forest construction company were not likely to occur. Since the forest construction is a limited partnership company and there is no room for holding the shares of the members opposing the merger, the non-party 1, who was members of the forest construction company, was normally allocated the shares of the defendant company and became the shareholders of the defendant company.
Nevertheless, the lower court determined that the effect of Nonparty 1, who was a partner of the forest construction, naturally retired from the forest construction due to the merger and extinction of the forest construction in the defendant company, was committed by misapprehending the legal doctrine on the merger of the forest construction in the forest. Furthermore, while the lower court acknowledged that Nonparty 1, upon the merger, distributed shares of the defendant company corresponding to the claim for the refund of the amount of investment in the forest construction in the forest construction, and took office as the director of the defendant company, the lower court concluded that Nonparty 1 issued the result of withdrawing from the forest construction due to the extinguishment of the forest construction in the forest with the reason that the status as a partner of the forest construction in the forest and the status as a shareholder and director of the defendant company are different from each other, and therefore, it is not justified. The allegation in the grounds of appeal pointing this out is with merit.
3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)