[1] In a case where a creditor, who has an executory exemplification of a judgment, claims preferential payment right and makes a demand for distribution based on a security right, the method of disputing the existence and scope of the secured claim having preferential payment right to the distribution of the security right (i.e., a lawsuit of demurrer against distribution), and in a case where the judgment ordering the debtor to perform the secured obligation against the creditor before or after the lawsuit of demurrer against distribution was filed, whether the subject matter of the lawsuit of performance and the subject matter of the lawsuit of demurrer against distribution are identical

[2] In a case where a creditor, who has an executory exemplification of a judgment, claims a preferential payment right and makes a demand for distribution based on a security right, whether the debtor may assert a set-off in a lawsuit of demurrer against distribution filed after having raised an objection to the distribution against the security right (affirmative), and in a case where the debtor set-off against the secured claim of the security right, which is the basis of the creditor's demand for distribution, whether the same amount is retroactively extinguished

[3] Where an applicant for registration bears the responsibility for fraudulent registration under Article 39 of the Commercial Act without making a registration by himself/herself

[4] In a case where a person, other than the applicant applicant, prepares a false minutes of a general meeting of shareholders to make the appearance of a resolution of a general meeting of shareholders, and a director or representative director, which is recorded as appointed in the false minutes, is less than a majority by holding a general meeting of shareholders and passes a resolution of appointment of directors only with some shareholders, who excludes the directors and representative directors legally appointed in the existing minutes, and a new representative director is appointed by the board of directors composed of the appointed directors and completes the registration of appointment, whether the company may be held responsible for making a false registration under Article 39 of the Commercial Act (negative in principle), and whether the company may be held liable for making a false registration by intention or negligence solely on the ground that the person who has

[5] Requirements for a company to be held liable for the act of expression representative director under Article 395 of the Commercial Act, and the standard for determining whether a company has permitted the expression representative

[1] A debtor who has raised an objection to the distribution of a creditor who has an executory exemplification of a judgment of demurrer against distribution shall file a lawsuit of demurrer against distribution, but in cases where a creditor who has an executory exemplification of a judgment of demurrer claims preferential payment right and claims a distribution based on a security right, the distribution basis is not the executory exemplification of judgment. Therefore, when a debtor seeks to dispute the existence and scope of a secured claim that has preferential payment right to the distribution of a security right, the secured right is not an executory exemplification, and when the debtor seeks to dispute the existence and scope of a secured claim that has preferential payment right to the distribution, he/she shall be exempted from dispute by a lawsuit of demurrer against distribution, and there is no need to file a lawsuit of demurrer against a claim necessary for excluding executory exemplification of an executory exemplification of judgment. In this case, in a lawsuit of demurrer against distribution, the judgment on the existence and scope of a claim secured by a security right of a creditor as well as the priority order of preferential payment, and accordingly the distribution schedule is corrected in the text of judgment, even before

[2] In a case where a creditor who has an executory exemplification of a judgment asserts a preferential right to payment and makes a demand for distribution based on a security right, it is not an executory exemplification of a security right. Thus, an obligor is entitled to set-off in order to dispute the existence and scope of a secured claim that may exercise preferential right based on a security right in a lawsuit of demurrer against distribution filed after having raised an objection to the distribution of a security right. In such a case, it is apparent that the obligor’s extinguishment by set-off is not an executory power of the judgment with executory power, and therefore, it is not necessary to file a lawsuit seeking an objection necessary to exclude the executory power of the executory power judgment in order to claim such set-off. In addition, where each obligation is declared, it shall be deemed to have been extinguished retroactively to the time when each obligation can be set-off. In this context, even if both claims have arrived at the maturity of both claims, and even if the obligor has not yet arrived at the maturity of a claim, it shall include the case where the obligor waives the benefit of set-off at the same time as above obligation.

[3] In order to hold the applicant for registration liable for fraudulent registration under Article 39 of the Commercial Act, in principle, the registration is required to be completed by the applicant for registration by the applicant for registration, and in the case of a corporation, the existence of the intention or negligence in the fraudulent registration shall be determined on the basis of representative director. However, even if the applicant for registration did not make a registration by himself/herself, if there are special circumstances that can be deemed the same as the registration by intention or negligence as the registration by the applicant for registration, such as where the registration is completed due to his/her responsibility or where the existence of the fraudulent registration is not corrected despite being aware of the existence of the fraudulent registration by himself/herself, the applicant for registration may be held liable for the fraudulent

[4] Where a person, other than the applicant applicant, falsely prepares the minutes of the general meeting of shareholders and the minutes of the board of directors and makes the appearance of the resolution of the general meeting of shareholders and the resolution of the board of directors, and thereby completes registration of appointment of directors and the representative director, as well as where the director and the representative director, who recorded false minutes as elected in such false minutes, sent a notice of notification to only some shareholders who fall short of the majority, and subsequently held a general meeting of shareholders and passed a resolution of appointment of directors with the consent of some shareholders, and appointed a new representative director with the consent of some shareholders. Where a new representative director is appointed after holding a board of directors composed of appointed directors, even if there is a resolution of the general meeting of shareholders and the resolution of the board of directors, it shall not be deemed that the company which is the applicant applicant for registration took part in the appointment registration, unless there are special circumstances that make it identical with the registration of fraudulent acts by intention or negligence of the company. In this case, even if a person who formed a false appearance of a resolution of the general meeting of shareholders and completed a new representative director by negligence, such intention or negligence cannot be deemed as a company.

[5] In order for a company to be held liable for an act of the Apparent representative director under Article 395 of the Commercial Act, the third party who believed the act of the Apparent representative director shall be bona fide, and it shall also be limited to cases where the company has allowed the Apparent representative actively or implicitly. In this context, for the purpose of allowing the Apparent representative, the true representative director shall be permitted, or at least the number of directors as stipulated in the articles of incorporation of the company for the establishment of the board of directors even if it is not all the directors, and unless there is any provision in the articles of incorporation, at least the majority of the number

[1] Article 216 of the Civil Procedure Act, Articles 44, 154, and 256 of the Civil Execution Act / [2] Articles 44, 154, and 256 of the Civil Execution Act, Articles 492 and 493 of the Civil Act / [3] Article 39 of the Commercial Act / [4] Article 39 of the Commercial Act / [5] Article 395 of the Commercial Act

[1] Supreme Court Decision 2004Da72464 Decided April 14, 2005 / [2] Supreme Court Decision 80Da939 Decided September 9, 1980 (Gong1980, 13165) / [3] Supreme Court Decision 2006Da24100 Decided July 24, 2008 (Gong2008Ha, 1221) / [3] Supreme Court Decision 70Da1361, 1362 Decided February 23, 197 (No 19-1, 93), Supreme Court Decision 79Da1618, 1619 (Gong1, 1981, 13673) / [5] Supreme Court Decision 2006Da59295 Decided January 27, 1982

Nam Industrial Co., Ltd. (Law Firm Gyeongsung, Attorneys Kang Sung-sung et al., Counsel for the defendant-appellant)

Defendant 1 and three others (Attorneys O Young-young et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2010Na307 decided July 22, 2010

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. As to the grounds of appeal by Defendant deceased non-party 1’s litigant

A. As to the grounds of appeal Nos. 1, 2, and 3

A debtor who has raised an objection to the distribution to a creditor with an executory exemplification of judgment shall file a lawsuit of demurrer against a distribution, not a lawsuit of demurrer against a distribution (see, e.g., Supreme Court Decision 2004Da72464, Apr. 14, 2005). However, in cases where a creditor with an executory exemplification of judgment claims preferential payment right and claims a distribution based on a security right, it is not an executory exemplification of judgment. Therefore, in cases where a debtor seeks to dispute the existence and scope, etc. of a secured claim that has preferential payment right to the distribution of the security right, he/she is dissatisfied with a lawsuit of demurrer against a distribution, and it is not necessary to file a lawsuit of objection against a claim necessary to exclude the executory exemplification of judgment. In such cases, in a lawsuit of demurrer against a distribution, not only the existence and scope of a claim secured by the creditor's security right, but also the distribution schedule has been corrected based on the text of judgment, so even if the judgment ordering the debtor to file a lawsuit of demurrer against a distribution becomes final and conclusive, the subject matter of lawsuit against a distribution cannot be deemed identical with the subject matter of lawsuit.

According to the reasoning of the judgment below, the court below determined that the distribution of KRW 1,698,782,411 against the deceased non-party 1 on April 25, 2007 was not due to the reason that the deceased non-party 1 was the mortgagee of the right to collateral security, and it was not due to the fact that the deceased non-party 1 demanded the distribution based on the executory exemplification of the judgment. Thus, even if the judgment on the loans of the deceased non-party 1 became final and conclusive after the distribution of this case, a legitimate lawsuit of demurrer to collateral security is not unlawful due to the reason that the lawsuit of demurrer to collateral security is not filed within the prescribed period by the final and conclusive judgment, and further, in the lawsuit of demurrer to collateral security, whether the above loans are included in the deceased non-party 1's secured claims of the right to collateral security, whether the deceased non-party 1 can receive dividends based on the above loans, and the subject matter of the final and conclusive judgment on the above loans cannot be deemed identical.

The above determination by the lower court is justifiable in light of the legal doctrine as seen earlier.

The court below did not err in the misapprehension of legal principles as to the requirements for litigation of demurrer against distribution as otherwise alleged in the ground of appeal.

The ground of appeal on this part is without merit.

B. As to the grounds of appeal Nos. 4 and 5

In a case where a creditor with an executory exemplification claims preferential payment right and makes a demand for distribution based on a security right, the act of forming the basis for the distribution of dividends does not constitute an executory exemplification of judgment. Thus, a debtor may assert a set-off in a lawsuit of demurrer against distribution filed after having raised an objection to the distribution of such security right in order to dispute the existence and the scope, etc. of the secured claim that affects preferential payment right based on such security right. In such a case, it is apparent that the secured claim itself is not an executory power of the judgment with executory power, so it is apparent that the secured claim is extinguished by a set-off by the debtor is not an executory power of the judgment. Therefore, it is unnecessary to file

Meanwhile, in cases where an obligee expresses his/her intent of set-off, each obligation shall be deemed extinguished retroactively to the time when set-off can be effected (Article 493 of the Civil Act). Here, the time when set-off can be effected includes cases where both claims have become due and where both claims have not yet come due (see Supreme Court Decision 80Da939, Sept. 9, 1980). Therefore, even in cases where an obligor set-off against a secured claim of a security right, which serves as the basis for the obligee’s demand for distribution, the amount equivalent retroactively to the above set-off amount at the same time shall be extinguished, and this does not change because there is a final judgment ordering the obligor to perform the obligation with respect to the above secured claim.

According to the reasoning of the judgment below, the court below determined to the effect that the damage claim against the deceased non-party 1 was set-off on January 7, 2005 against the deceased non-party 1, and that the plaintiff company expressed its intent to set-off the above amount of claims on the equal amount upon the delivery of a copy of the statement of grounds of appeal on February 11, 2010, the deceased non-party 1's loan claim was extinguished retroactively from the above set-off date within the extent equivalent to the plaintiff company's damage claim.

The above determination by the lower court is justifiable in light of the legal doctrine as seen earlier.

The court below did not err in the misapprehension of legal principles as to offset as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

C. Regarding ground of appeal No. 6

A set-off is a requirement that both parties have the same kind of claim against the other party and the maturity date of the automatic claim arrives. Here, the purpose of the set-off is to provide the same kind of benefit is sufficient if the purpose is the same, and further, the cause and amount of the claim, the performance period, the performance period, etc. need not be the same.

Examining the reasoning of the judgment below in light of the above legal principles, it is justifiable for the court below to view that the Plaintiff Company may offset the damage claim against the Plaintiff Company’s loan claim against the deceased Nonparty 1 by using its automatic claim.

The judgment below did not err in the misapprehension of the legal principles as to offset, as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

2. As to Defendant 4’s ground of appeal

A. As to the first ground for appeal

In order to hold the applicant for registration liable for fraudulent registration under Article 39 of the Commercial Act, in principle, the registration is required to be completed by the applicant for registration, and in the case of a corporation, the existence of intention or negligence with respect to fraudulent registration shall be determined on the basis of its representative director (see, e.g., Supreme Court Decisions 70Da1361, 1362, Feb. 23, 1971; 79Da1618, 1619, Jan. 27, 1981; 79Da1618, 1619, etc.). Even if the applicant for registration fails to make registration on his/her own, the applicant for registration may be held liable for fraudulent registration under Article 39 of the Commercial Act by failing to correct the fact or neglecting the registration despite having knowledge of the existence of such fraudulent registration on the ground of his/her responsibility (see, e.g., Supreme Court Decision 200Da4264, Jul. 26, 2008).

In a case where a person, other than the applicant applicant, falsely prepares the minutes of a general meeting of shareholders and the minutes of a board of directors, etc. and completes registration of appointment of a director or representative director by making the minutes of a general meeting of shareholders and the minutes of a board of directors, and thereby making the resolution of a general meeting of shareholders and the minutes of a board of directors, as well as completing registration of appointment of a director or representative director. In such a case, the director or representative director, who is recorded as elected in such false minutes, sent a notice of convening a general meeting of shareholders only to some shareholders falling short of the majority by lawfully appointing the directors and the representative director, and subsequently appointed a new representative director by holding a board of directors with the consent of only some shareholders, and completes registration of appointment of a representative director after the appointment of a new representative director, the applicant company shall not be deemed to have participated in registration of appointment unless there are special circumstances that make it identical with the registration of a false director or representative director by intention or negligence of the company. In this case, even if a person who formed the appearance of a general meeting of shareholders as above and completed registration of a false stockholder, it cannot be deemed to be deemed to have the same intent or negligence (see).

(5) On September 15, 198, the non-party 2 established the plaintiff company for the purpose of the above 10-party 2's meeting; the non-party 3 was appointed as the representative director of the plaintiff company on July 6, 200, and the non-party 5 was changed to the non-party 2's shareholders meeting; the non-party 2 was not appointed as the non-party 5's representative director; the non-party 3 was 30,00 and the non-party 4 was 30. The non-party 5's resolution was not adopted on August 5, 2005; the non-party 2 was not appointed as the non-party 5's representative director; the non-party 2 was not appointed as the non-party 5's representative director; the non-party 4 and the non-party 2's representative director who were appointed as the non-party 5's meeting; the non-party 1 and the non-party 2's representative director.

We examine the above facts in light of the legal principles as seen earlier.

Inasmuch as a resolution was made only on the minutes of the company by Nonparty 2, who holds only 50% of the shares of the Plaintiff company, without the involvement of the representative director, directors, and the remaining 50% shareholders, the registration of appointment of the representative director based on each of the above resolutions shall be deemed not to have been made in the process of its registration. Unlike the above representative director's participation in the process of registration of appointment, there is no special evidence to acknowledge that the registration of appointment of the representative director based on each of the above resolutions was made in the same manner as a false registration of the Plaintiff company, and each of the board of directors consisting of the directors appointed at each of the above shareholders' meetings as of September 27, 2005, Jan. 5, 2006, and the pertinent shareholders' general meeting as of January 9, 2006.

The judgment of the court below to the same purport is justifiable.

The court below did not err in the misapprehension of legal principles as to the liability for fraudulent registration under Article 39 of the Commercial Act, as otherwise alleged in the ground of appeal.

The ground of appeal on this part is without merit.

B. As to the grounds of appeal Nos. 2 and 3

In order for a company to be held liable for an act of Apparent representative director under Article 395 of the Commercial Act, the act of Apparent representative director shall be deemed bona fide, and it shall be limited to cases where a company has actively or implicitly permitted a Apparent representative. Here, for the purpose of allowing an Apparent representative, the true representative director shall be permitted, or the number of directors determined by the articles of incorporation of the company for the establishment of the board of directors at least for the establishment of the board of directors, and unless otherwise stipulated in the articles of incorporation, at least a majority of the total number of directors shall be permitted actively or implicitly (see Supreme Court Decision 91Da5365 delivered on September 22, 192, etc.).

According to the records, there is no evidence to deem that a majority director of the board of directors of the plaintiff company composed of the non-party 3 or a legitimate representative director of the plaintiff company has actively or implicitly permitted the use of the name of the non-party 9 or the non-party 10, and thus, the non-party 9 or the non-party 10 should not be held liable for the instant mortgage contract and the loan and interest payment agreement made by the non-party 10 using the name of the representative director of the plaintiff company.

The judgment of the court below to the same purport is justifiable.

The court below did not err in the misapprehension of legal principles as to the representative director under Article 359 of the Commercial Act, as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

As long as liability under Article 395 of the Commercial Act of the Plaintiff Company is denied, it shall not be deemed that Defendant 4 violated the duty of explanation, even if he did not properly give the above Defendant an opportunity for pleading regarding whether the act of the expressed representative director is a bona fide third person who is believed lawful.

The court below did not err in the misapprehension of the duty of explanation as otherwise alleged in the ground of appeal.

This part of the grounds of appeal is without merit.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)