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The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
The grounds of appeal are examined.
1. As to the ground of appeal No. 1, the lower court rejected the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s assertion that the instant special agreement is null and void without a special resolution of the general meeting of shareholders, on the ground that it is difficult to deem the existing business portion, etc. of the case, which the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) agreed to be transferred from the instant special agreement, falls under the “all or part of K’s business.”
Examining the reasoning of the lower judgment in light of the relevant legal principles and records, although it was inappropriate for the lower judgment to state its reasoning, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the probative value of disposal documents, a special resolution of the general meeting of shareholders on the transfer of business, etc.
2. Regarding ground of appeal No. 2
A. Article 393(1) of the Commercial Act provides that the disposal and transfer of important assets of a corporation shall be made by a resolution of the board of directors.
In this context, whether the disposal of important assets does not correspond to “disposition of important assets” should be determined based on whether it is reasonable to assign the decision of the representative director to the company in light of the value of the pertinent property, ratio of total assets, size of the company, status of the company’s business or property, management status, purpose of holding assets, relationship with the company’s ordinary business and affairs, etc.
(2) In the event that a representative director of a stock company fails to undergo an external transaction subject to a resolution of the board of directors, the transactional act does not have effect on the other party to the transaction, if he knew or could have known that there was no resolution of the board of directors.
Supreme Court on August 17, 2012