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(영문) 서울중앙지방법원 2018.07.05 2017가합556707

신주발행무효확인의 소

Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. As of October 26, 2016, the Defendant’s total number of outstanding shares was 22,500 shares (in face value 5,000 shares per share) and among them, the Plaintiff held 4,50 shares (20% of the total number of outstanding shares), C 2,925 shares (13% of the total number of outstanding shares), D Co., Ltd. (hereinafter “D”) 7,425 shares (3% of the total number of issued shares), E 7,650 shares (34% of the total number of outstanding shares).

(The status of the shares held above was maintained by the defendant until February 24, 2017, which was issued by the new shares. (B)

On October 26, 2016, the Defendant held a general meeting of shareholders and passed a resolution to change the total number of shares to be issued from 40,000 to 5,00,000 shares in the Defendant’s articles of incorporation with the consent of shareholders (D 33%, E 34%) who hold shares equivalent to 67% of the total number of shares issued.

C. On February 3, 2017, the Defendant decided to hold a board of directors on January 16, 2017 and issue 600,075 shares (the issue price per share 5,000 won) through the allotment of shareholders by way of content-certified mail to the Defendant’s shareholders. As such, the Defendant notified the Defendant that the shareholder who intends to make an offer for new shares should pay the total subscription deposit by February 20, 2017, which is the date of subscription.

Meanwhile, the date of payment indicated in the subscription form for new shares enclosed with the above content-certified mail is 6:00 on February 23, 2017, and with respect to the method of acquiring new shares, the method of acquiring new shares is stated as follows: “The shares that waived acceptance may be accepted by a third party through the board of directors held on the day following the due date of payment.”

Of the Defendant’s shareholders, the Plaintiff, C, and D lost the right to subscribe for new shares as they did not make an offer to acquire shares until February 20, 2017, and E acquired 134,657 shares out of new shares allocated according to the initial share ratio and forfeited shares of other shareholders.

Of the new shares acquired by E, 204,025 shares, 204,025 shares were effective on February 24, 2017, 134,657 shares, which became effective on February 25, 2017.

The above new shares are each new shares made on February 24, 2017 and February 25, 2017.