쉰들러 홀딩 아게(소송대리인 변호사 김수형 외 3인)

Hyundai Elevator Co., Ltd. (Law Firm Sejong, Attorneys Han Man-man et al., Counsel for the defendant-appellant)

Suwon District Court Order 201Bu2 dated April 9, 2012

1. The petitioner's appeal is dismissed;

2. Costs of appeal shall be borne by the applicant;

The decision of the first instance court shall be revoked. The applicant shall be allowed to peruse and copy the minutes, etc. of the board of directors listed in the attached list at the principal office of the case principal company within business hours (including, if necessary, duplication to electronic devices, such as photographs, computer diskettes, and U.S. S. S. Meglass) (the applicant changed the purport of the application in the trial).

1. Basic facts

In full view of the overall purport of records and examinations, the following facts can be acknowledged:

(a) Status of a party;

1) The principal of the case

The principal of the case is a securities market listed corporation that is engaged in the transportation machinery such as elevators, escalators, and ice workshops, the highest-tech facilities such as logistics automation facilities, screen screen, parking equipment, etc., and the manufacture, sale, installation, maintenance and repair business of products in the related fields since its establishment in 1984, and the total number of issued stocks as of January 18, 2013 are 12,032,513 shares.

2) The applicant

신청인은 스위스에 본사를 두고 있는 에스컬레이터·엘리베이터 제조업체인 쉰들러 그룹의 모회사로서, 2013. 1. 18. 기준 사건본인의 발행 주식 총수의 35%에 해당하는 4,221,380주를 보유하고 있는 주주이다[이 사건 제1심 공동신청인인 쉰들러 도이치란트 게엠베하(Schindler Deutschland GmbH)는 2012. 5. 21. 보유하고 있던 사건본인 지분 26.8%에 해당하는 주식을 신청인에게 전부 양도하였다].

B. A derivatives contract with the principal of the case

1) Current status

On November 29, 2006, the principal of the case determines on April 8, 2014, an amount calculated by multiplying the purchase price of modern merchant stocks by a certain rate of fluctuation (3.72% per annum as of November 22, 2012) shall be paid at the end of each quarter in an amount calculated by multiplying the purchase price of the aforesaid stocks of KON Capital with KON Capital by 2 million common stocks, base price 25,698 won, maturity 200, and maturity 200,000,0000,000,000,000 won, if any, are to be paid to KON Capital, and a loss is to be incurred in comparison with the base price and maturity price, and a certain amount of cash security is to be provided, but the stock swap contract with the joint exercise of voting rights is to be concluded, and the purchase price has been to be extended to the other party to the transaction by the maturity of the contract in the form of Hyundai Capital Loss.

The principal of the case maintains management rights by securing voting rights to maintain modern commercial vessels as its subsidiary through the conclusion of such derivatives contract, which ultimately seeks to secure management rights for the entire modern group, and the major status of the derivatives contract is as follows: [The minutes, etc. of the relevant board of directors: paragraphs (1) and (2)-b (e) through (4) of the attached Table]

8. 2. 1: 40. 2. 5- 4. 2. 4. 7. 1: 0. 2,00 - 25 0. 42. 42. 7. 5 - 0. 42. 42. 5 0. 7. 42. 5 - 0. 42. 5 0. 42. 42. 8,000 - 46. 5 0. 44. 7. 20,000 - 46. 5 0. 20. 44. 8, 2014 - " 40. 5 0. 5 20,000 - 44. 9. 8, 2014

* The stock swap contract No. 12 was terminated on January 7, 2013, and the derivatives contract was newly concluded with the following contents as to the part of the underlying assets. The principal of the case purchased the remaining 390,724 at his own funds:

5.39% of the stocks swap of the base price, the rate, the rate, the rate, the rate, the rate, the rate, the rate, the rate, the rate, the rate, and the stock swap of the other party to a transaction included in the main sentence, on January 7, 201, 203. 5.39% of the 5.39% of the stock swap of Mezz-type securities at 5.39% on January 7, 2014.

* The call option purchase contract No. 16 was announced on December 12, 2012 by the contracting party to the market.

(ii) transaction profit and loss and valuation profit and loss arising from a derivatives contract;

The principal of the case recorded the following derivatives transaction profit and loss and valuation profit and loss through the aforesaid derivatives contract (a period less than 00,000 won):

- 37.663,64.7 billion won - 30.665 billion won - 5.21 billion won - 9.5 billion won 9.57 billion won - 6.22 billion won - 8.4 billion won - 8.44.42 billion won - 28.666 billion won - 8.6.47 billion won 2.6.47 billion won 26.6.7 billion won 2.141.26.6 billion won ,767.5 billion won - 21.1.29 billion won 9.4666 billion won - 31.469 billion won ,469,4697.3 billion won - 4.5 billion won,469369 billion won , 3.85 billion won,563.88 billion won, which is included in the main sentence.

3) Effect on the principal of the case

A) Among the above figures, appraised losses and valuation profits are appraised by the difference between the price as of the appraisal base date of modern merchant stocks, which are underlying assets of derivatives contract, and there is no cash entry based on the above appraised losses or appraised profits, and actual losses and profits are realized at the maturity stipulated in the contract. However, as seen earlier, the principal of the case agreed to compensate the other party for losses incurred by the price fluctuation in modern merchant lines under most derivatives contracts signed by the principal of the case. Thus, the principal of the case bears all risks resulting from the price fluctuation.

B) Meanwhile, among the above figures, transaction losses are the sum of service fees and options paid by the principal to the contracting party due to derivatives contract (for example, the principal of this case entered into a contract with the principal of this case or the principal of this case and the case, for a given period, have an option to request cash settlement of the difference between the disposal price and the acquisition price by using the underlying asset of 3,01,789 shares of modern merchant stock) as of January 9, 2008, and as of February 1, 2008, the transaction losses amounting to 26.82,2780,000 won and the difference settlement option contract with the same contents as the contract with the execution of the contract with the principal of this case, which is actual losses paid by the principal of this case. This constitutes actual losses.

C. Participation in acquiring Hyundai Construction Co., Ltd. by the principal of the case

(i)the background;

From the beginning of 2010, the Hyundai Group, to which the principal of the case belongs, expressed its intention to acquire Hyundai Construction Co., Ltd. (hereinafter referred to as "Modern Construction"). Around May 19, 2010, the Hyundai Construction Group published the press that it will resume the process of selling modern construction, and announced the public announcement to sell 38,879,000 shares (34.88% of the total number of issued shares) out of the shares of modern construction on September 24, 2010. The Hyundai Group also declared that it will participate in the acquisition of modern construction around September 27, 2010. Since then, a competitive relationship was formed between the Hyundai Group and the Hyundai Primary Group regarding the acquisition of modern construction.

2) Designation of a person eligible for preferential negotiations with modern group consortiums

On November 15, 2010, the principal of the case constituted a consensus of the Hyundai Group, together with modern commercial lines, Hyundai MM, Hyundai Securities, Yangyang Comprehensive Financial Securities, and HMF Finance. Hyundai Group consortium was designated as the priority negotiation subject for the acquisition of modern construction on November 16, 2010, by presenting 5,510 billion won as the acquisition price, and paid 27,55 billion won as the bid bond. The principal of the case was to bear about 5% of the total acquisition price in the event that modern group consortium takes over modern construction. [Article 2(a) of the attached Table 2 of the [Attachment Table 2]

3) Paid-in capital increase and the derivatives contract of the principal of the case.

At the end of each quarter, Hyundai Group consortium, which is the day of Hyundai Group consortium, offered capital increase to raise funds for Hyundai Construction. As a result, 4,133,405 shares were generated, and 1,830,000 shares were allocated to NH Nong Securities Co., Ltd., and 2,303,405 shares were allocated to each third party, instead of 2,303,405 shares. The principal of this case, as indicated in the table Nos. 9, 12 and 9, 2.5% of the annual amount of 7.5% of the purchase price of the above shares applying base price, shall be paid to the contracting party at the end of each quarter, and all profits and losses arising from the comparison of base price and maturity price with the share swap contract with the content that reverts to the principal of this case. [The minutes, etc. of the board of directors: the minutes, etc. of the board of directors’ meeting]

4) Loss of the status of a person subject to preferential bargaining by a modern group consortium

After that, on December 2010, the Haman Group consortium lost the status of a preferred bidder for the acceptance of modern construction because it failed to comply with the request of the Hyundai Construction Credit Guarantee Board to clarify the source of the acquisition price and the plan for raising the acquisition price, and was confiscated 2,75.5 billion won.

D. Conclusion of a service contract with Hyundai U.N. corporation of the case principal

1) The current status of Hyundai U.N. corporation

Hyundai United Nations Co., Ltd., a system integration company in the modern group (hereinafter “Mona”), is a company that mainly engages in system consultation, software development, supply, etc. As of 2008, the size of the company was KRW 85 billion and KRW 7.3 billion per net profit as of 2008.

On the other hand, on August 1, 201, 201, Hyundai U.S.: (a) divided the part of the information technology project on August 1, 201, and established Hyundai U.S. Co., Ltd. (hereinafter “Mona”) and changed the trade name of the surviving corporation into the Hyundai Global Co., Ltd. (hereinafter “Mona”). On December 31, 201, 86.84% of the total number of shares issued by the Hyundai UN and the Hyundai Global Co., Ltd. (hereinafter “Mona”), after division, is owned by Nonparty 1, 1 president of Hyundai Group, Nonparty 2, and Hyundai Co., Ltd.

2) A service contract with the instant principal

The principal of this case entered into a service contract of KRW 1.172 billion with Hyundai UN in 2005, KRW 2.618 billion in 2006, KRW 2.663 billion in 2007, KRW 4008, KRW 8.1 million in 2009, KRW 3.327 billion in 2009, KRW 4.656 billion in 2010. In addition, the principal of this case entered into a service contract of KRW 2.222,9710, KRW 269,2828,000 in 201 with Hyundai UN in 201 after division. [Attachment List of the Board of Directors]

E. Applicant’s request for perusal and copy of the minutes of the board of directors and rejection of the principal of the case

1) The applicant sent four letters to the principal of the instant case, including July 6, 201 and August 29, 2011, to the principal of the instant case, and the principal of the instant case reports damage to derivatives transaction, etc. regardless of the elevator and escalator business. On the ground that there is doubt that the principal of the instant case was not performing any unreasonable act such as concluding a contract, etc. solely for the benefit of a specific shareholder, the applicant demanded the principal of the instant case to provide the minutes of the board of directors related to the data related to the transaction of derivatives, the participation in the acquisition of modern construction, the service transaction with Hyundai U.S.

2) Accordingly, the principal of the case sent a letter to the applicant, including September 29, 201, and the data requested by the applicant does not fall under the subject of a request for perusal and copying for confidentiality. Many parts are already made public, and materials related to the acceptance of modern construction are related to the lawsuit in progress, and the applicant refused to provide the data on the ground that they are related to the lawsuit in progress, and expressed his/her intention to directly communicate and discuss with the applicant on November 23, 201. The applicant filed the instant application on November 30, 201.

2. Judgment on the petitioner's assertion

A. Summary of the assertion

1) The right to request perusal and copy of the minutes of the board of directors’ meeting under the Commercial Act is granted to shareholders to exercise the right to supervise management. Therefore, in principle, it should be allowed. It should be viewed that the company may refuse to peruse and copy the minutes only when they fall under the abuse of shareholder rights by exceptionally

As seen earlier, by a derivatives contract concluded to maintain management rights for modern merchant lines, regardless of the elevator business of the principal of the instant case, to maintain control over all affiliates of the major shareholder and its affiliates of the Hyundai Group, the principal of the instant case suffers losses equivalent to the annual amount of commission and suffered losses equivalent to the financial cost due to the provision of a large amount of cash security to maintain the said contract, as well as the risk of massive losses due to price fluctuation by bearing the obligation to compensate the principal of the instant case for the total amount of losses incurred when the price falls at the maturity of the contract. Although the instant principal of the instant case causes enormous losses to the principal of the instant case through a derivatives contract and is likely to cause losses in the future, the directors of the instant principal of the instant case extend the derivatives contract or enter into a new contract without performing the duty of care.

In addition, the principal of this case has participated in the acquisition of modern construction without ability to raise funds and has suffered a big loss, which constitutes a breach of duties of the principal of this case, and a large-scale service contract entered into with Hyundai United Nations constitutes an unfair support act against an affiliate prohibited by the Monopoly Regulation and Fair Trade Act.

2) In light of all the circumstances, it is doubtful that the principal of the case was at risk of loss or concluded a service contract only for the benefit of a specific shareholder, and that the applicant who is the shareholder of the principal of the case needs to inspect the management status of the principal of the case. Accordingly, in order to ensure effectiveness in exercising the right as a shareholder, the applicant filed a request for perusal and copy of the minutes, etc. of the board of directors listed in the attached list related to the transaction in question with the principal of the case, but the principal of the case rejected the request as seen earlier. Accordingly, the applicant sought permission for perusal and copy of the minutes

(b) Request for inspection and copying of the minutes of the board of directors and application for permission;

A shareholder may request an inspection or reproduction of the minutes of the board of directors within business hours, and the company may refuse such request, stating the reasons therefor, and in such cases, a shareholder may inspect or copy the minutes of the board of directors with permission from the court (Article 391-3(3) and (4) of the Commercial Act). In applying for permission for inspection or reproduction of the minutes of the board of directors to the court, the shareholder shall clearly explain that the inspection or reproduction of the minutes of the board of directors

C. Determination

A) Section 1-A (including relevant documents, such as attached documents and contracts submitted to the board of directors for review of the approval or approval of the board of directors; hereinafter the same shall apply) of the attached list 1-A

Pursuant to Article 391-3(3) of the Commercial Act, it is clear that the director's record is a director's record of the board of directors who is allowed to make a request for inspection and copying to shareholders. Therefore, it is reasonable to view that the part in the above subparagraph, which the applicant seeks, goes beyond the scope of the minutes of the board

(B) A list of directors of the board of directors related to derivatives trading (attached Schedule 1, 2-2, 2-2, 2-5, 4)

According to the above facts, it is reasonable to view that the principal of the case, regardless of its principal business purpose, has entered into a derivatives contract using modern merchant stocks as an underlying asset in order to secure the right to manage the whole group of the modern group and has suffered enormous loss in trading derivatives to maintain this contract (However, it is difficult to deny that the principal of the case, through a derivatives contract, remains a large-scale company belonging to an enterprise group called Hyundai Group, and thus gains intangible profits.) Therefore, there is a prima facie proof that the applicant needs to peruse and copy the minutes of the board of directors in order to confirm whether he/she is responsible for the director's responsibility. The principal of the case, barring special circumstances, is obliged to comply with the applicant's request for perusal and copy of the minutes of the board of directors.

C) Minutes, etc. of the board of directors related to the acceptance of modern construction (attached Form 2-A(A)

According to the facts acknowledged above, in light of the fact that the Hyundai Group consortium fails to comply with the request of the Hyundai Construction Credit Guarantee Company to explain the source of the acquisition price and the plan for raising the acquisition price, thereby losing the status of the subject of preferential bargaining for the modern construction acquisition, the principal of the case may be deemed to have participated in the modern construction acquisition without sufficient financial resources. Therefore, the fact that the applicant needs to peruse and copy the minutes of the board of directors to confirm the existence of the director's responsibility for it, and the principal of the case has the duty to comply with the applicant's request for perusal and copy of the minutes of the board of directors, barring special circumstances.

D) The minutes, etc. of the board of directors related to the modern global corporation before and after the division (attached Form 3)

According to the records, the modern securities trade union reported a service contract with the principal of the case and the modern UN Convention before division as an act of unfair assistance to affiliates, and as a result of the investigation conducted by the Fair Trade Commission on November 2009, it is proved that it made a decision of non-guilty on the charge of November 2009.

Therefore, it is reasonable to see that the applicant needs to peruse and copy the minutes of the board of directors' meeting in order to hold the applicant accountable for the director's responsibility.

D. Sub-committee

Therefore, barring special circumstances, the principal of the case is obligated to respond to the applicant's request for perusal and copy of the minutes of the board of directors (excluding the part inside of the title in attached Table 1(a)) listed in attached Tables 1, 2, and 4(4).

3. Judgment on the argument of the principal of the case

A. Summary of the assertion

The purpose of the applicant's application is not for the interest of the principal of the case, but for the purpose of taking over the elevator business division from the principal of the case or securing the favorable status in the negotiation process. Therefore, the principal of the case cannot respond to it.

(b) Criteria for allowing shareholders to request perusal or reproduction of the minutes of the board of directors;

In a case where a shareholder’s request for inspection or copy of the minutes of the board of directors prescribed in Article 391-3(3) of the Commercial Act is made, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection or copy is unjust shall be determined by comprehensively taking into account all the circumstances, such as the background leading to the exercise of the right, the purpose of the exercise, and the existence of bad faith. In particular, it shall be deemed that the exercise of shareholder’s right to inspection or copy is unfair for lack of justifiable purpose when it is likely that the exercise of shareholder’s right would impair the company’s business, joint interest of shareholders, or when the shareholder exercises the acquired information as a competitor of the company, or when the shareholder exercises it at an excessively unfavorable time (see Supreme Court Order 2003Ma1575, Dec.

(c) Fact of recognition;

In full view of the overall purport of records and examinations, the following facts can be acknowledged:

1) 쉰들러 그룹의 국내 엘리베이터 시장 진출 및 그 후의 실적

세계 엘리베이터 시장의 1위 업체는 미국의 오티스이고, 쉰들러 그룹이 2위이며, 독일에 본사를 둔 티센크루프·일본의 미쓰비시·핀란드의 코네가 그 뒤를 잇고 있다. 쉰들러 그룹은 지주회사에 해당하는 신청인을 정점으로 120여 개의 계열회사로 구성되어 있고, 세계적으로 1,000개가 넘는 지사를 두고 있다.

국내 엘리베이터 설치 대수는 2010년 기준 약 42만 대로, 중국·일본에 이어 세계 3위이다. 1988년 서울올림픽 이후 위 5대 엘리베이터 업체들이 자회사 설립 등을 통하여 국내 시장에 진출하고자 하였고, 쉰들러 그룹도 1989. 6. 21. 국내 지사를 설립하였다. 1998년 외환위기 이후 1999년에 미국의 오티스가 국내 1위 업체이던 LG산전의 엘리베이터 사업부문을 인수하였고, 2003년에는 쉰들러 그룹이 국내 4위 업체이던 주식회사 중앙엘리베이터와 합작하여 이름을 주식회사 쉰들러중앙엘리베이터(2005. 1. 20. 상호가 쉰들러엘리베이터로 변경됨)로 변경하였으며, 독일의 티센크루프도 국내 3위 업체이던 동양엘리베이터를 인수하였고, 2004년에는 핀란드의 코네가 국내의 수림엘리베이터를 인수하였다. 한편 사건본인은 2000년대 중반까지 20% 초반의 시장점유율을 기록하다가 2006년 24.5%, 2007년 29.5%로 시장점유율을 확대하여 국내 1위 업체로 올라섰다.

그 후 2010년 기준 국내 엘리베이터 시장의 점유율은 사건본인이 42.4%, 오티스가 20.1%, 티센크루프가 12.7%인데, 쉰들러 그룹은 2007년에 중앙엘리베이터와 결별한 후 독자적인 사업을 전개하고 있으나 국내 엘리베이터 시장점유율은 2% 정도에 불과하다.

2) Conclusion and cancellation of a letter of intent between the applicant and the principal of the case, etc.

In 204, the applicant and the major shareholder of the principal of the case and the major shareholder of the principal of the case were divided into a new corporation for the elevator and Esplate business division of the principal of the case, and the applicant entered into a letter of intent that the applicant should acquire the right of management of the new corporation.

The conclusion of this letter of intent by the principal of the case and his major shareholder was because it was necessary to raise funds to oppose the hostile merger and acquisition City/Do by the KCC which has held shares issued by the principal of the case. However, the principal of the case agreed to cancel the above letter of intent by the applicant of the case and the major shareholder of the principal of the case around October 2005, after success in the defense of management right.

The letter of rescission of the above letter of intent stipulates that if the principal of the case desires to separate the elevator business division in the later time, the principal of the case shall notify it as soon as possible to the applicant.

3) Acquisition of the applicant’s shares in the instant case

A) Acquisition of shares from KCC in 2006

신청인은 2006. 3.경 장외에서 주식회사 KCC 등으로부터 사건본인의 주식 1,821,892주(당시 기준으로 발행한 주식 총수의 약 25.54%)를 1,493억 9,514만여 원에 취득하였고, 매입 목적을 ‘경영참가’로 밝혔다. 그런데 2006년에 신청인 등의 국내 지사(주식회사 쉰들러엘리베이터)는 자본금 22억 200만 원, 연간매출액 512억 원 남짓이었으나, 당기순손실이 43억 원이 넘었다.

B) Acquisition of shares in the process of acquiring modern construction

앞서 본 바와 같이 현대건설 채권단이 2010. 5. 19. 현대건설 매각 작업을 재개하겠다고 공표하였고, 현대그룹 컨소시엄이 2010. 11. 15. 위 입찰에 참여하여 2010. 11. 16. 우선협상대상자로 지정되었다가, 2010. 12. 하순경 우선협상대상자의 지위를 잃었다. 그런데, 신청인과 쉰들러 도이치란트 게엠베하(Schindler Deutschland GmbH)(이하 양자를 합쳐 ‘신청인 등’이라 한다)는 2010. 5.경 사건본인의 주식 19,900주를 8억 5,000만여 원에, 2010. 9.경부터 2010. 12. 경까지 사건본인의 주식 695,121주를 585억 6,400만여 원에, 2011. 2.경 사건본인의 주식 1,040,835주를 840억 9,900만 여원에 각 취득하였다.

(C) the acquisition of shares in the public notice of valuation losses due to derivatives contracts;

Around May 6, 2011, the principal of the case published the first quarter derivatives assessment loss of approximately KRW 54.8 billion in 201, and around August 19, 2011, the second quarter derivatives appraisal loss of KRW 40.8 billion in 2011, respectively, and the applicant purchased KRW 178,470 shares of the principal of the case from the end of June to September 2011 to the end of September 201.

4) The applicant's proposal for division and acceptance of elevator division for the case principal

On August 2010, the applicant sent a proposal to the respondent (hereinafter referred to as “Razarding proposal”) through Lazarding Asia (Lazarding L.) as his/her agent. In the 2nd page of Lad proposal, the applicant clearly recommends the applicant to accept the entire elevator business of the principal of the case, but this proposal is not accepted by the principal of the case, so it is clearly stated that the applicant proposes the division of the elevator business division.

In Dar’s proposal, “The elevator business division among the businesses of the principal in the case is divided into a separate subsidiary, and the applicant, etc. acquires 49% of its equity interest. The new subsidiary assumes that the newly established subsidiary takes over approximately KRW 150 billion’s debt, the applicant is willing to pay KRW 21 billion to the principal of the case. However, since the applicant, etc. holds 26.2% of the equity interest of the principal of the case, the applicant, etc. in the newly established subsidiary holds 62.4% of the equity interest of the principal of the case (26.2% of the equity interest of the principal of the case x 51% of the applicant, etc. x 49% of the equity interest of the principal of the case x 49% of the applicant, etc.) and intends to enter into an agreement on the governance structure reflecting such agreement. The above agreement includes the rights of the applicant, etc. who may appoint three of five directors of the newly established subsidiary. If the newly established subsidiary is paid KRW 21 billion, the Hyundai Group’s participation in the tender.

On August 19, 2010, the principal of the case sent a letter that explicitly expresses his intention of refusal to the Radar on the following day after he received the Rad's proposal.

On September 30, 2010, the applicant sent to the principal of the case a letter containing the purport that “the two shareholders of the principal of this case must only observe our interest,” and the applicant purchased shares of the principal of this case as stated in Section 3(b). In addition, on November 25, 2010, the applicant sent a letter to the principal of this case a letter stating that the principal of this case was selected as the priority negotiation subject of modern construction acceptance.

5) Demanding the applicant to submit data

The applicant sent the letter to the principal of the case four times from July 201 to November 201 of the same year, and the principal of the case requested the submission of the data related to the transaction of derivatives, etc. while reporting losses due to the transaction of derivatives, etc. regardless of the elevator and Esplate business.

The principal of the case refused to provide data on the grounds that the applicant has already been disclosed, and expressed his/her intention to directly discuss the applicant by sending his/her letter on November 23, 201. However, the applicant filed the instant application on November 30, 201.

D. Determination

앞서 인정한 사실과 기록 및 심문 전체의 취지를 종합하여 알 수 있는 다음의 사정, 즉 ① 신청인은 2004년 사건본인 등과 사이에 사건본인의 엘리베이터 사업 부문을 분리하고 신청인이 그 경영권을 취득하고자 한다는 의향서를 체결하였고, 2005. 10. 경 위 의향서를 해제하면서도 추후 사건본인이 엘리베이터 사업 부문 분리 시 신청인 측에 이를 통지하도록 한 점, ② 신청인은 세계 2위의 엘리베이터 생산업체로서 2003년 국내 시장에 진출하여 중앙엘리베이터를 인수하였으나 괄목할 만한 성과를 내지 못하고 있었는데, 그러한 상황에서 위 의향서 해제 직후인 2006. 3.경 위 인수회사가 아닌 사건본인의 주식 25.54%를 취득하는 데에 막대한 자금을 투여한 점, ③ 특히 2010년 이후 사건본인이 파생상품 계약에 따라 평가손실을 입었다거나 현대건설의 인수에 참여하였다는 등의 사실을 알았음에도 계속하여 사건본인의 주식을 대량으로 매집하여 35%에 이르는 지분을 확보한 점, ④ 위와 같은 사건본인의 주식 취득을 위한 거액의 자금 투자에 반하여, 자신의 국내 자회사인 주식회사 쉰들러엘리베이터에 신규 투자한 금액은 약 37억 원에 불과하였다는 점, ⑤ 신청인이 사건본인에게 보낸 라자드 제안서에 현대상선 경영권의 확보 및 현대건설의 인수를 돕겠다는 의사를 표시한 점에 비추어 신청인은 사건본인에게 있어서 현대상선 경영의 지배가 가지는 의미가 크고 그 때문에 사건본인이 앞서 본 파생상품계약 체결 등의 방법으로 현대상선의 경영권을 유지하고 있다는 것을 비롯하여, 사건본인의 사정을 소상하게 파악하여 온 것으로 보이는 점, ⑥ 그러한 사건본인의 사정을 감안하여 사건본인에게 현대상선 경영권의 확보를 도와주는 대신 엘리베이터 사업 부문을 인수하고자 한다는 등의 취지를 담은 라자드 제안서를 보내기도 한 점, ⑦ 사건본인이 위 제안을 거절하자, 신청인은 곧바로 사건본인 주식 매집을 시작하여 단숨에 약 1,640억 원을 투입하여 사건본인에 대한 지분율을 10% 가까이 높은 약 35%에 근접하게 끌어올리는 한편 위 파생상품계약 등의 정당성을 문제삼으면서 사건본인에게 이와 관련한 상세한 자료의 제공을 요구하고, 이 사건 신청을 제기하기에 이른 점, ⑧ 이 사건 신청의 주된 대상이 파생상품계약에 관한 이사회 의사록인데, 사건본인이 체결한 파생상품계약의 내용 및 그로 인한 손익 등은 그 주된 내용이 비교적 상세히 공시되고 있으므로, 이사회 의사록을 열람하지 않더라도 그 내용을 쉽게 파악할 수 있는 점, ⑨ 사건본인의 최대주주 및 그 특수관계인과 우리사주조합이 사건본인 발행주식의 50% 이상을 소유하고 있다는 점에서 신청인이 단독으로 사건본인을 적대적으로 인수·합병하는 것은 곤란하지만, 신청인은 2011. 1. 이후 사건본인 발행 주식의 33.34% 이상의 지분율을 유지하고 있는바, 사건본인이 영업양도나 회사분할을 통하여 엘리베이터 사업부를 분할하여 제3자에게 매각하려면 상법 제374조 , 제530조의3 제2항 , 제434조 에 의하여 주주총회 특별결의가 필요하여 반드시 신청인의 동의를 받아야 하는 상황이 된 점 등을 종합적으로 고려하여 보면, 신청인은 주주로서 사건본인의 경영을 감독하기 위하여 별지 목록 기재 이사회 의사록 등에 대한 열람·등사를 청구하는 것이 아니라, 주주라는 지위를 내세워 사건본인을 압박함으로써 사건본인으로부터 엘리베이터 사업 부문을 인수하거나 그와 관련하여 협상하는 과정에서 보다 유리한 지위를 점하기 위하여 위 이사회 의사록 등에 대한 열람·등사를 청구하는 것으로 보인다.

Therefore, it is reasonable to view that the applicant's exercise of the right to peruse and copy the case is unfair, and therefore, the principal of the case can refuse it. The principal of the case pointing this out has merit, and the applicant's request is therefore groundless.

4. Conclusion

Therefore, the applicant's request shall be dismissed as it is without merit, and the decision of the court of first instance shall be just and it shall be dismissed as it is, and it shall be so decided as per Disposition.

[Attachment List omitted]

Judges Lee Sang-sung (Presiding Judge)