(영문) 대구고등법원 2010.11.19.선고 2010누581 판결

The primary purport of the claim is to confirm that the defendant's acceptance of the report on the change of the business plan against the defendant's assistant intervenor (hereinafter "the intervenor") on December 20, 2006 and the re-issuance of the license for marine passenger transport services stated in the attached Form 2 is invalid.

Preliminary claim: The defendant's acceptance of the report on the change of the business plan against the intervenor on December 20, 2006 and the revocation of the re-issuance of the license for marine passenger transport services as stated in the attached Form 2.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

Reasons

1. Details of the disposition;

A. The Plaintiff operated a vessel listed in the attached Table 1 Ship List, which is a passenger ship between C and D (hereinafter “instant vessel”), and operated marine passenger transportation services and D tourist excursion ship business.

B. On November 30, 2006, the Plaintiff and the Intervenor entered into a contract with the Intervenor to transfer the instant vessel and its operating permit and all of the licenses to the Intervenor in price of KRW 1 billion (hereinafter “instant transfer contract”).

C. On December 18, 2006, the Intervenor acquired marine passenger transport services (in-house irregular passenger transport services) from the Plaintiff from the Plaintiff and changed the trade name, representative, address, etc. of the Plaintiff. For reasons, the Intervenor submitted a document under the title “application for succession to the C/D business” and submitted a report on the change of the business plan (hereinafter “the report of this case”).

D. On December 20, 2006, the Defendant accepted the instant report (hereinafter “instant acceptance disposition”) and reissued the marine passenger transport service license (hereinafter “instant license”) on the part of the intervenors, whose trade name, representative, and address were changed from the Plaintiff to the Intervenor from the Plaintiff to the Intervenor.

[Reasons for Recognition] Unsatisfy, Eul's entry in the Evidence Nos. 1, 2, and 4 (including each number), the purport of the whole pleadings

2. Scope of the judgment of this court;

The plaintiff filed a claim against the defendant for the confirmation of the primary invalidity and the preliminary revocation of the re-issuance of the license of this case, and the primary nullity and the preliminary revocation of the repair disposition of this case. The court of first instance rejected the primary nullity and the preliminary revocation claim against the re-issuance of the license of this case, and accepted the plaintiff's claim against the plaintiff as to the primary nullity and the preliminary revocation claim against the sub-issuance of the license of this case. Accordingly, the plaintiff appealed for the primary nullity and the primary nullity as to the repair disposition of this case which is only the part against

subject to the judgment of the court.

3. Whether the repair disposition of this case is null and void

A. The plaintiff's assertion

The plaintiff asserts that the transfer contract of this case constitutes "transfer of the whole or essential part of the business" under Article 374 (1) of the Commercial Act, which requires a special resolution of the general meeting of shareholders. Since the transfer contract of this case was not subject to a special resolution of the general meeting of shareholders at the time of the transfer contract of this case, the transfer contract of this case is null and void. Since the transfer contract of this case is based

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Validity of the transfer contract of this case

(A) Even if the disposal of a company's business assets, other than the company's own business assets, results in the same result as the transfer or discontinuation of all or part of the company's business, a special resolution of the general meeting of shareholders under Article 374 subparagraph 1 of the Commercial Act is required in the disposal of the company's business assets. However, in case where the company has already discontinued or suspended its business at the time of disposal of the company's business assets which are the foundation of the company's existence, it cannot be deemed that the whole or part of the business is discontinued or suspended only due to such disposal, and thus, the "suspension of business" above means the situation corresponding to the discontinuance of business as the suspension of all business activities and does not constitute the case of temporary suspension of business activities due to the aggravation of management conditions, such as financial situation of the company (see, e.g., Supreme Court Decision 91Da14369, Aug.

(B) In the case of this case, the fact that the plaintiff sold the ship of this case to the intervenor on November 30, 2006 and transferred all of the operation permit and license rights together with the ship of this case is recognized as above. According to the above acknowledged facts, the transfer contract of this case is not merely a transfer of the ship of this case, but also a transfer of all of the non-regular passenger transport services between C-D through the ship of this case. Thus, the transfer contract of this case constitutes "transfer of an essential part of the business requiring a special resolution of the general meeting of shareholders under Article 374 of the Commercial Act." However, since the fact that the transfer contract of this case was concluded without a special resolution of the plaintiff's general meeting of shareholders does not conflict between the parties

(C) The intervenor, at the time of the instant transfer contract, has already been engaged in business related to the instant vessel.

However, there is no evidence to acknowledge that the passenger transport business of the instant vessel was suspended at the time, and rather, according to the evidence No. 23-1, No. 2, 3, and No. 10, the instant vessel can be recognized as operated from April 2006 to December 2, 2006, and thus, the Intervenor’s above assertion is rejected.

(D) In addition, the defendant and the intervenor asserts that denying its validity on the ground that E, a representative director, who is a de facto shareholder holding the shares equivalent to 69% of the shares issued by the plaintiff, has not concluded the transfer contract in this case, does not violate the principle of trust and good faith. However, Article 374 of the Commercial Act provides that Article 374 of the Commercial Act is a mandatory provision that accepts a somewhat sacrifice of transaction safety in the legislative intent to protect the interests of the company and its shareholders. If the transferor of all or part of the business without a special resolution of the general meeting of shareholders, in violation of this provision, rejects its validity on the ground that it goes against the principle of trust and good faith and the principle of good faith, barring any special circumstance, it cannot be rejected that such assertion is contrary to the principle of trust and good faith (see, e.g., Supreme Court Decisions 2003Da19961, Aug. 22, 2003; 2004Da56677, Sept. 22, 2006).

(2) The report on the change of the operator of coastal passenger transportation services, which takes place following the transfer or acquisition of the validity of the repair disposition of this case, is based on the premise that a legitimate transfer or acquisition of the business, and thus, if the transfer or acquisition of the business subject to the repair is null and void, the repair disposition is null and void naturally as it is not valid (see, e.g., Supreme Court Decision 2005Du3554, Dec. 23, 2005). As seen earlier, as the transfer contract subject to the repair disposition of this case is null and void, the repair disposition of this case is also void.

4. Conclusion

The judgment of the first instance that accepted the plaintiff's main claim seeking confirmation of invalidity of the repair disposition of this case is justifiable, and the defendant's appeal is dismissed as it is without merit.