2016Na2031136 Action for demanding the performance of a change of holders

A

1. B

2. C

3. Stock companies D.

Seoul Western District Court Decision 2015Da230658 Decided May 13, 2016

December 8, 2016

January 26, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's primary claim against the defendants and the conjunctive claim against the defendant B added in the trial are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. The primary purport of the claim

The Defendants confirm that each of the shares listed in the separate sheet is owned by the Plaintiff. Defendant D will implement the transfer procedure to change the name of the shareholder on each of the shares listed in the separate sheet to the Plaintiff.

B. Preliminary purport of claim

Defendant B shall pay to the Plaintiff 98,000,000 won with 5% interest per annum from January 1, 2015 until the delivery date of a copy of the claim of this case and the application form for modification of the cause of the claim of this case, and 15% interest per annum from the next day to the day of complete payment (the Plaintiff added the Plaintiff’s preliminary claim to Defendant B and the Defendant B at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. A. The F Co., Ltd. for the purpose of telecommunications equipment wholesale and retail business (the trade name was changed to Defendant D Co., Ltd. through G; hereinafter referred to as “Defendant Co., Ltd.”) was established by E around August 2006, and E had 24,000 shares out of 40,000 shares issued by Defendant Co., Ltd. under its own name, and the remainder was owned under its own name.

B. On October 31, 2014, among the shares issued by Defendant Company 40,000, the list of shareholders was prepared as follows: Defendant B 19,600 shares; Defendant C 1,200 shares; and I 19,20 shares; and

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

Around October 2014, the Plaintiff, via her husband, sold to Defendant B 196,00 shares of the Defendant Company (the shares listed in paragraph (1) of the attached Table) for KRW 98,00,000,000,000,000,000,000 of shares of the Defendant Company, and the register of shareholders was prepared as above by title trust with Defendant C. Since Defendant B refused to pay the sales price without paying the sales price, the Plaintiff cancelled the share sales contract with Defendant B, and the title trust agreement with Defendant C is terminated.

Therefore, the Defendants confirm that each shares listed in the separate sheet are owned by the Plaintiff, and the Defendant Company is obligated to implement the transfer procedure with the name of the Plaintiff on the list of shareholders as to each of the above shares. If the cancellation of the share sales contract with the Defendant B is not recognized, the Defendant B, upon preliminary claim, is obligated to pay the Plaintiff the purchase price of shares KRW 98 million and delay damages therefor.

2) The defendants' assertion

E, H, and Defendant C engaged in the same business, intended to use the Defendant Corporation, a dormant company, and H and Defendant C agreed to make each contribution to the patent right and cash, and accordingly, H and Defendant C allocated shares of the Defendant Company, such as the shareholder registry as of October 31, 2014, respectively, and H held the shares in title trust with Defendant B, who is a punishment, and neither Defendant B purchased the shares of the Defendant Company nor was Defendant C nominally held the shares from the Plaintiff.

B. Determination

1) On October 29, 2014, the Plaintiff transferred KRW 1960,00 of the shares of the Defendant Company to Defendant B, and Defendant B deposited the transfer price in cash on December 31, 2014 with the Plaintiff and Defendant B’s share transfer contract (Evidence A4; hereinafter “instant share transfer contract”) and the Plaintiff’s title trust agreement with the Plaintiff on the title trust of 1200 shares of the Defendant Company to the Defendant C with the content that “the Plaintiff shall deposit the transfer price in cash to the Plaintiff on December 31, 2014.” There is no dispute between the parties concerned between the Plaintiff and the Plaintiff.

On the other hand, the following facts may also be acknowledged in full view of the facts not disputed, Gap evidence 1, 2, 4 through 8, Eul evidence 4-1 through 3, Eul evidence 24, Eul evidence 24, Eul evidence H's testimony, Eul's testimony of witness E of the first instance court, part of the testimony of fact inquiry to the judicial scrivener of the court of the first instance, and the whole purport of the arguments in relation to the fact inquiry to the judicial scrivener

A) H with Defendant C, who had patent technology for the manufacture of the Gu’s ridge, promoted a club business with regard to the manufacture of the Gu’s ridges, etc., and three persons, upon request from E, decided to operate a club business with regard to the manufacturing of the Gu’s ridges (hereinafter “instant club business”).

B) The initial H, E, and Defendant C decided to establish a new corporation for the foregoing operations.

A. In accordance with the proposal of E to use the company G, which is a telegraphic body of the defendant company, the company used G for the partnership business.

C) Accordingly, around October 2014, E, H, and C changed the trade name of G Co., Ltd. to the Defendant company, and amended the articles of incorporation to add the Gu’s ridge manufacturing business, etc. to its business purpose. Defendant B, Defendant C, and I, who are the births of H, was the inside director of the Defendant company, and Defendant B was the representative director of the Defendant company.

D) Meanwhile, a certified judicial scrivener entrusted the affairs such as the registration of change of corporation, etc. in the process of changing the Defendant Company’s corporate body, provided in advance the form of a share transfer contract and a title trust contract in which the content of the contract is in blank via E. On November 5, 2014, upon visiting the Defendant Company and obtaining the Plaintiff’s seal from E, H, and the Plaintiff’s seal on the share transfer contract form, and received the Plaintiff’s seal certificate, resident registration certificate, and resident registration certificate from H after sealing affixed the seal of Defendant B, and received the Defendant C’s seal impression from Defendant C in the above title trust contract form. Ultimately, the instant share transfer contract, the party’s personal information under the title trust contract, the indication of shares subject to transfer, and the amount of transfer price, etc. were supplemented and drafted.

2) In light of the developments leading up to the preparation of the instant share transfer agreement and the title trust agreement, it is difficult to deem that these documents were forged regardless of the will of Defendant B, H, and Defendant C, who is the title holder of the said recognition. However, considering the following circumstances, considering the aforementioned evidence and the overall purport of the evidence as well as the evidence Nos. 24, and No. 39-1 through No. 40-2, the instant share transfer agreement and the title trust agreement are not made with the intent of acquiring the Plaintiff’s right as a seller under the instant share transfer agreement or title trust of the Plaintiff’s shares with the Defendant C, not with the intent of acquiring the Plaintiff’s right as a seller under the instant share transfer agreement, or with the intent of making a title trust of the Plaintiff’s shares with the intent to operate the instant business by using the Defendant Company’s corporation, and the ownership of the Defendant Company was transferred to H and the Defendant Company’s company before the completion of the foregoing business relationship with the Defendant Company’s business relationship with the Defendant Company C by way of the title trust agreement, it is reasonable to view that the witness testimony was made.

① Since E, H, and Defendant C used the Defendant Company’s corporate body in the process of engaging in the business of manufacturing the ridges of the Gu, it was necessary to transfer the shares of the Defendant Company to H and Defendant C as a party to the business in trust during the process of maintaining the business relationship (However, for convenience due to credit problems, H appears to have agreed to acquire shares in the name of Defendant B, who is a punishment, in the name of Defendant B), and therefore, it is necessary to prepare a document on the basis of the trust transfer of ownership.

② The instant share transfer agreement and the title trust agreement were prepared together in the process of the process of amending the articles of incorporation to use the Defendant Company’s corporate body for the instant trade, and, in addition to these documents, the underlying documents on the trust transfer of the ownership of the Defendant Company against the parties to the trade were not prepared separately.

③ At the time of the preparation of the instant share transfer contract, G Co., Ltd., the telegraph of the Defendant Co., Ltd., the telegraph of the Defendant Co., Ltd., was not engaged in any business since the closure of business on July 31, 2012, and all executives have resigned, and its assets were not owned by the company, and it seems that considerable expenses are not required for acquiring a dormant corporation. As such, if the necessity of acquiring the shares of the Defendant Co., Ltd.’s company pursuant to the instant partnership business is not necessary, it appears that there is no reason to accept the shares of the Defendant Co., Ltd., the said Defendant Co., Ltd., as above, when

④ There is no evidence to deem that the Plaintiff or E filed a tax return with the competent tax office regarding the transfer of the pertinent shares, or that H or Defendant B demanded the payment of the share transfer price.

⑤ From July 2015, following the amendment of the articles of incorporation, etc. of the Defendant Company, there was a dispute between the parties to the same business, including E and H, regarding embezzlement in the course of managing the Defendant Company and requesting mutual settlement. Around August 2015, the instant lawsuit claiming the cancellation of transfer of shares or the cancellation of title trust based on the existence of the instant share transfer agreement and the title trust agreement, is deemed to have been filed.

3) Taking into account the details and purpose of the preparation of the instant stock transfer agreement and the title trust agreement as seen above, considering the ownership of the pertinent shares between E, H and Defendant C as the actual party, and the part on the agreement on the remaining share purchase price except for the part under title trust with the Defendant B, which the ownership of the pertinent shares was transferred to H and Defendant C in trust, shall be deemed to constitute a false conspiracy only in the form of a formal agreement. As such, the Plaintiff cannot make a claim for a title trust based on the instant stock transfer agreement or the occurrence of the obligation to pay the share transfer price under the instant stock transfer agreement. On other premise, the Plaintiff cannot make a claim for a title trust based on the instant title trust agreement against the Defendants, seeking the confirmation of whether each shares listed in the separate list are owned by the Plaintiff and seeking a transfer of ownership against the Defendant Company and the Plaintiff’s conjunctive claim seeking a payment of the transfer price under the instant stock transfer agreement against the Defendant B, without merit

3. Conclusion

Therefore, the plaintiff's primary claim against the defendants and the conjunctive claim against the defendant B are all dismissed due to the lack of merit. Accordingly, the judgment of the court of first instance which accepted the plaintiff's primary claim against the defendants is unfair. Thus, the plaintiff's primary claim against the defendants is revoked and all of the plaintiff's primary claim against the defendants are dismissed. It is so decided as per Disposition by the assent of all.

Judges fixed-ranking of the presiding judge

Judges Kim Jong-jin

Judges Park Jae-chul

1) Of the preliminary claims stated by the Plaintiff in the application form for the modification of the claim and the cause of the claim of 2016, 11, 29, the part of the preliminary claims against Defendant C and Defendant D, as the same cause of the primary claim, is merely the same as that of the primary claim and only reduced the quantity of the primary claim, and thus, cannot be deemed a preliminary claim.

2) The holding of Defendant B and C’s shares is premised on the existence of a partnership relationship between E, H and Defendant C. In the event that the partnership relationship is terminated, either the Plaintiff or E may seek the return of the shares of the Defendant Company against the Defendants. However, as long as the Plaintiff did not assert it as the cause of the claim, it is not separately determined.

A person shall be appointed.