In a case where the pre-existing shareholders have given up their shares and agreed to distribute them to workers according to the payment ratio in lieu of paying funds to the company for the acquisition of shares in the manner of corporate normalization, the case reversing the judgment of the court below that the above agreement took place only in the form of acquisition of shares, and that the employee actually lent or invested the operating funds

The case reversing the judgment of the court below on the ground of violating the rules of evidence, in case where workers have concluded an agreement for stock transfer and acquisition with the previous shareholders to give up their own stocks instead of paying their operating funds to the company for the normalization of the company, and then to assign them to the employees in accordance with the payment ratio, on the grounds that the transferor is not stated in the contract for stock transfer and acquisition, that employees did not receive dividends or exercise shareholders' rights through a general meeting of shareholders, and that employees cannot know specific share ratio as employees by taking full charge of registering in the register of shareholders, and that the company cannot be aware of the share ratio of the company's shares.

Article 105 of the Civil Act, Article 187 of the Civil Procedure Act

[Judgment of the court below]

Members of a corporation (Attorney Lee Jae-soo, Counsel for defendant-appellee)

Jeju District Court Decision 95Na993 delivered on June 18, 1997

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

A. When the Defendant Company established for the main purpose of the set-off automobile transportation business around October 1993 and the financial situation has disappearedd, Nonparty 1, the largest shareholder of the Defendant Company and the representative director of the Defendant Company, at the time, paid-in capital to the drivers belonging to the Defendant Company around October 1994, who paid-in operating capital and paid-in capital to the Defendant Company, directly manage the Company while paying-in capital, and assign shares to the drivers who paid-in capital by letting the existing shareholders renounce their shares, and proposed the method of returning the paid-in capital when the company normally operates the company. The 32 drivers belonging to the Defendant Company accepted it and formed a blank Promotion Committee (hereinafter referred to as the “Promotion Committee”). The drivers of the Defendant Company were to receive 25,00,000 won per capita, Nonparty 2, and Nonparty 3 decided to receive 1,000,000 won per capita and paid-in capital from the previous shareholders at the time of the transfer of shares at a certain rate of time.

B. On November 11, 1994, the Plaintiff attended the promotion committee and paid KRW 8,835,620 of his own contribution to KRW 25,00,00,000, and received a share transfer/acquisition contract (Evidence 7) from the Defendant Company to the transferor in blank. As Nonparty 2 and Nonparty 3 did not pay the funds initially promised, the Plaintiff paid KRW 29,842,010 in total by the end of February 1995, including the amount of KRW 5,00,000,000 that the Defendant Company decided to make additional payments.

C. On December 12, 1994, nine persons, including the Plaintiff selected as the representative of the promotion committee, were the former shareholders of the Defendant company, the Jeju International Tour Company, the non-party 4, the non-party 5, and the non-party 6, the promotion committee was responsible for and repaid the Defendant’s liability to the non-party company to the non-party national mutual savings and finance company, etc., and the non-party 4 recovered bills, checks, etc. issued by the non-party 50% for the operation of the Defendant company, and the non-party 4, etc. entered into an agreement to waive and transfer the shares to transfer the shares by waiver of the total 50% shares owned by the non-party 1. The promotion committee formed a new director, such as the non-party 1’s representative director.

D. At the time of the settlement of accounts in 194, the Defendant Company listed drivers who paid operating funds of the Company, including the Plaintiff, in the register of shareholders, as shareholders of 2.5% of the total shares of the Defendant Company. However, drivers did not actually pay dividends or exercise shareholders’ rights through the shareholders’ meeting, etc., and the registration in the register of shareholders was also known that the Defendant Company received specific shares ratio or any shareholder’s waived shares in full charge of the Defendant Company.

E. On March 15, 1995, the Plaintiff was elected as a director of the Defendant Company, and entered in the corporate register on the 24th day of the same month, but did not participate in the operation of the Defendant Company. Nonparty 4, etc. notified the Promotion Committee of Korea, around April 1995, that the agreement was rescinded on the ground that the Promotion Committee did not pay the debt to the Hanyang Depository, etc. up to March 31, 1995, and then re-invened in the management of the Defendant Company from August 1995.

F. From March 195, 1995, the Plaintiff raised a dispute over the problem of the dispatch of shares with Nonparty 1, the representative director at the time of the Defendant Company. On May 20 of the same year, the Plaintiff agreed to receive the refund of the shares and set aside the Plaintiff, and the shares allocated to the Plaintiff was agreed upon by the Defendant Company to identify and process the Defendant Company, and was issued a receipt for the payment of shares (No. 1) from the Defendant Company.

2. Based on the above factual basis, the court below rejected the plaintiff's assertion that the plaintiff participated in the promotion committee and was elected as a director of the defendant company in view of the circumstances from the date when the plaintiff joined the promotion committee and received a receipt from the defendant company, but the plaintiff paid a specific transfer/acquisition relation of shares to the defendant company, and the plaintiff agreed to return the shares at the time of retirement. Thus, the defendant is liable to return the shares. The defendant's claim that the defendant is liable to return the shares, which is the share acquisition price entered into between the existing shareholders and the plaintiff, and that the defendant company does not have any obligation to return the shares. The court below rejected it on the ground that the plaintiff's claim that the plaintiff's transfer/acquisition relation of shares was done by taking over the existing shareholders' shares at the time of retirement, and that the defendant company did not have any obligation to return the shares.

3. A summary of the judgment of the court below is that the plaintiff had the form of acquiring the shares of the defendant company, but it does not actually acquire the shares, and the amount paid by the plaintiff to the defendant company is not a share price but a loan or investment with the company's operating fund, and the defendant company agreed to return it, but it is difficult to accept it in the following respect

A. In a case where the authenticity of a disposal document is recognized, the existence of a juristic act in its content should be recognized unless there are any special circumstances as clear and acceptable to deny the existence of the expression of intent indicated in the document (see, e.g., Supreme Court Decision 94Da56043, May 10, 1996). No. 7, which the court below employed as evidence, is the transferee of the Plaintiff. On November 11, 1994, the Plaintiff transferred shares of 2.5% out of 89,000 common shares of the Defendant company to KRW 25,00,000 and paid KRW 8,835,620 as down payment, and the remainder of KRW 16,164,380 as a down payment, and the Plaintiff received a loan and paid shares to Nonparty 11-6 (No. 2, 200, No. 3809, Apr. 14, 199).

B. In light of the reasoning of the lower judgment, the lower court seems to have determined that: (a) the Plaintiff did not actually acquire shares; (b) the Defendant Company’s driver did not actually receive dividends or exercise shareholder’s rights through a general meeting of shareholders; and (c) the Defendant Company did not have known that the Plaintiff did not actually acquire shares but only have the form of acquisition of shares, by taking full charge of registering the shareholder registry.

However, although Eul evidence No. 7 is the transferor's column, it can be deemed that the process of handling affairs related to transfer and acquisition of shares was conducted in the form of a package between the promotion committee established by the plaintiff et al. and the existing shareholders. According to the evidence No. 6 (list of shareholders), the plaintiff can be found to have been registered as a shareholder holding 2.5% of the total shares by acquiring 2,225 shares from non-party 1 in the register of shareholders. Thus, it is difficult to view that the plaintiff is not a transferor in the evidence No. 7 merely because the transferor is not entered in the certificate No. 7.

C. As above, if the Plaintiff et al. actually acquired the shares, it can be deemed that the price was not paid to the transferor and the payment was made to the Defendant company. However, according to the records, the promotion committee may have known that the existing shareholders, such as Nonparty 4, etc. were to recover the bills, checks, etc. issued for the operation of the Defendant company in return for the waiver and transfer of the shares owned by the existing shareholders. Thus, it may be deemed that the Defendant company and the existing shareholders agreed to pay the obligations of the existing shareholders with the amount paid as the price of shares upon delegation from both the promotion committee and the existing shareholders, so long as the relationship of transfer and acquisition of shares is acknowledged as above, the lower court should have determined that the shares were paid as the funds for the operation of the Defendant company, but should have further deliberated on the background that the Plaintiff paid the shares to the Defendant company, and should have clarified whether they were paid as the price of shares.

D. Although there is evidence as to the fact that the Defendant Company agreed to return the payment amount to the Plaintiff, the Defendant Company testified as the witness Nonparty 1 (Receipt) and Nonparty 7 and Nonparty 8 of the lower court’s judgment, it is merely a fact that the Defendant Company received the payment amount of KRW 29,842,010 in the share capital, and thus, there is no room to interpret that the Defendant Company would return the money to the Plaintiff. Each testimony of Nonparty 7 and Nonparty 8 was made by using a loan certificate to the effect that the Defendant Company would return the money to the Plaintiff. However, this is inconsistent with the content of evidence No. 1, and there is no special circumstance to return the amount of the share payment to the Plaintiff on the ground that the Plaintiff was actually transferred the shares to the Plaintiff by acquiring the shares on the record. Moreover, it is difficult to readily conclude that the Defendant Company intended to return the money to the Plaintiff when Nonparty 1 operated normally.

E. Nevertheless, the court below acknowledged that the plaintiff only took the form of acquiring shares from the existing shareholders, but actually lent or invested the company's operating fund, and that the defendant company agreed to return it. The court below erred in the misunderstanding of facts against the rules of evidence, incomplete deliberation, or failure of reasoning, which affected the conclusion of the judgment. Therefore, the part of the grounds of appeal pointing this out has merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)