Seoul Central District Court-2016-Gohap-5921 ( November 02, 2017)

Joint tort by the Defendants against the voluntary disposal of the instant shares cannot be recognized.

There is no joint tort committed by the Defendants against the issue of voluntary disposal of the shares of this case, and there is no damage to the Plaintiff.

Article 750 of the Civil Code [Definition of Unlawful Act]

2017Na207257 Claim for Delivery, etc. of Share Certificates

The heir of the largest Balbale Republic of Korea)

○○ Kim et al.

on December 22, 2016

on 13, 2018

1. Of the judgment of the court of first instance, the part against the Defendants in the judgment is modified as follows.

A. Of the Plaintiff’s lawsuit against the Defendants, the part of the claim amounting to KRW 6,357,162,020 is dismissed.

B. The plaintiff's remaining claims against the defendants are dismissed.

2. The plaintiff succeeding intervenor's claims against the defendants are all dismissed.

3. Of the total litigation costs, the part arising between the Plaintiff and the Defendants is the Plaintiff’s succeeding Intervenor and the Defendant

The part arising between them shall be borne by the Intervenor succeeding to the plaintiff respectively.

1. Purport of claim

A. The plaintiff

The Defendants jointly pay to the Plaintiff the amount of KRW 8,994,234,320 and KRW 5,950,00,000 among them, as to KRW 3,044,234,320 from June 28, 2016 to September 20, 2017, 5% per annum from July 4, 2016 to September 20, 2017, and 15% per annum from the day following the date of full payment.

B. The Intervenor succeeding the Plaintiff

The Defendants jointly pay 6,357,162,020 won to the Intervenor succeeding to the Plaintiff (hereinafter referred to as “Successor”) and 5,950,000 won among them from June 28, 2016, and 407,162,020 won from July 4, 2016 to September 20, 2017, 5% per annum from the date of delivery of a copy of the application for change of the purport and cause of the claim as of September 20, 2017, and 15% per annum from the next day to the date of full payment.

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) Status of parties;

1) AA (hereinafter referred to as “A”) is a corporation established on February 23, 2016 with capital of 10 million won and total number of 2000 shares issued and outstanding (in the amount of KRW 500,000 per share) as of February 23, 2016, and also is a representative of AA and the only in-house director who is the representative of AA and the only in-house director, and L△△△△ is a △△△△.

2) A corporation BB (hereinafter “BB”) is a corporation established on February 23, 2016 with capital of KRW 10 million, total number of issued and outstanding shares of KRW 2000,000 (per share amount of KRW 50,000), Defendant Kim Young-chul is the representative of BBB and the only inside director, and Defendant Kim Jong-○ is the head of Defendant Kim Young-soo.

3) On March 22, 2016, the Plaintiff is a person appointed as a director and a representative director ofCC Co., Ltd. (hereinafter “CC”) as well as an in-house director and representative director.

(b) Acquisition ofCC stocks issued;

1) On February 3, 2016, Da △△△△ concluded a share acquisition agreement with 1.71 billion won to acquire a registered common share of 80,000 won (500 won per share), which is a company’s own shares owned byCC, fromCC, and entered into the said agreement as a shareholder of 80,000 shares.

2) CCCC은 강◆◆에게 자사주인 기명식 보통주식 80,000주(1주당 금액 500원)를 양도하기로 하는 계약을 체결하였는데, 피고 김○○, CCCC, 강◆◆은 2016. 2. 4.피고 김○○가 강◆◆의 위 계약상 양수인의 지위를 인수하고, CCCC에 주식 양도대금으로 17억 1,000만 원을 지급하기고 하는 내용의 주식양수도계약을 체결하였고, 이에 따라 피고 김○○는 CCCC 주주명부에 위 80,000주의 주주로 기재되었다.

3) AA, BBBB, 김▲▲, 김▼▼, 주식회사 DDDDD(이하 'DDDDD'라 한다), 주식회사 EEEEEEEEE(이하 'EEEEEEEEE'라 한다)는 2016. 4.경 주식회사 FFFF(이하 ' FFFF'라 한다)로부터 CCCC 발행주식 1,328,600주를 합계20,257,600,000원에 양수하였고, 이에 따라 AA, BBBB는 CCCC 주주명부에 각700,000주, 204,300주의 주주로 기재되었다. 한편 BBBB는 2016. 5. 13. 합계 40,000주를 김◇◇ 등 제3자에게 매도하여 최종적으로 164,300주를 보유하게 되었다.

4) Meanwhile, on March 22, 2016,CC held a general meeting of shareholders to divide the old shares of KRW 500 per par value into new shares of KRW 100 per par value and decided to change the total number of issued shares from KRW 4,316,92 to KRW 21,584,960, and followed the procedures for share split. The shares held in its name (hereinafter “instant shares”) are as follows.

The current status of holding of shares of this case around May 2016

A holder

Number of Stocks Held

Division Before subdivision (State)

After subdivision (State)

D △△△△

80,000

400,000

○ Kim

80,000

400,000

AA

700,000

3,500,000

BBB

164,300

821,500

Total

1,024,300

5,121,500

(c) Disposition, etc. ofCC issued stocks;

1) On June 28, 2016, AA sold 3.2 billion won (3,200 won per share) to GGGGGG Co., Ltd. (hereinafter “GGGGG”), among the shares issued byCC held under its name.

2) On June 28, 2016, the Plaintiff expressed his/her intent to the effect that “A, BBB, △△△△△△, and Defendant Kim ○○, sent a certificate of content to the Defendants, and that “CC shares issued in the name of “A, BB, △△△△, and Defendant Kim○○” are owned by the Plaintiff, and thus, the Plaintiff shall confirm and confirm the actual share certificates of the said shares until July 4, 2016, and shall be deemed embezzlement if the said date does not confirm the actual share certificates by the said date.” Accordingly, the Defendants did not present to the Plaintiff the share certificates of the shares held in the name of BB or Defendant Kim○○, which were based on the said content certification, on July 4, 2016, which were based on the said content certification.

3) BB on July 7, 2016, sold 200,000 shares issued byCC to EE.

4) ▲▲가 보유하고 있던 CCCC 발행주식 중 321,273주는 ▲▲의 채권자인 김◇◇에 의해 압류되어, 2016. 11. 25.자 XX지방법원 2XXXXXXXXXX호, 2017. 2. 10. XX지방법원 2XXXXXXXX호 각 매각명령에 따라 매각되었다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-1 through 3, 2, 3, 5, 8, 9, evidence Nos. 10-1 through 6, Eul evidence Nos. 2, 18, 21, 22, 28 and 29, and the purport of the whole pleadings

2. Determination as to whether the part of the Plaintiff’s lawsuit against the Defendants, which claimed KRW 6,357,162,020, is lawful or not

Where a seizure and collection order has been issued for a claim, only the collection obligee may file a lawsuit for performance against the garnishee, and the obligor loses the standing to file a performance lawsuit against the claim subject to seizure (see, e.g., Supreme Court Decision 2007Da60417, Sept. 25, 2008). In cases where a claim is seized in accordance with the procedure for the disposition on default prescribed by the National Tax Collection Act and the obligor of the seized claim is notified of seizure, the head of a tax office shall exercise the right to collect the claim by subrogation of the obligee who is the defaulted taxpayer and the obligee who is the defaulted taxpayer cannot exercise the seized claim (see, e.g., Supreme Court Decisions 86Da2476, Apr. 12, 198; 2014Da67188, 2014Da67195, Mar. 12, 2015). In addition, where the garnishee has indicated the amount to be paid to the obligor as the seized claim, the subject matter of the relevant lawsuit and the collection order under the Act (see Supreme Court Decision 4014.

However, comprehensively taking account of the respective descriptions and arguments of Gap evidence Nos. 29 through 31, the director of the tax office having jurisdiction over the succeeding intervenor’s office attached the amount equivalent to the above amount of delinquent national taxes among the claims that the plaintiff is entitled to receive from the defendants in the lawsuit of this case pursuant to Article 41 of the National Tax Collection Act in order to collect the total amount of 6,357,162,020 won of national taxes, including global income tax, from the plaintiff on February 13, 2018. The attachment notice can be acknowledged to have been served on the defendants on February 20, 2018. Therefore, in light of the above legal principles, the plaintiff’s claim amount of 6,357,162,020 won among the lawsuit of this case against the defendants was rejected due to the above attachment under the National Tax Collection Act. Thus, this part of the lawsuit is unlawful.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiff and the successor intervenor

원고는 AA, BBBB, 라△△, 피고 김○○와 각 명의신탁약정을 체결하고 각 명의를 차용하여 이 사건 주식을 취득한 위 주식의 실질적 소유자이다. 그런데 피고들은 라△△, 나▽▽와 공모하여, 이 사건 주식 중 ▲▲ 앞으로 명의신탁된 100만 주를 원고의 동의 없이 제3자에게 임의로 처분하고, 원고가 나머지 주식에 대한 반환요구를 하였음에도 이를 거부함으로써 위 주식 중 BBBB 앞으로 명의신탁된 20만 주가 제3자에게 처분되도록 하고 AA 앞으로 명의신탁된 321,273주가 강제집행절차에서 매각되도록 하였다. 그렇다면 피고들의 이러한 행위는 명의신탁된 주식을 횡령한 것으로 공동불법행위를 구성하며, 원고는 이로 인하여 소유권을 상실한 주식의 시가 합계액인8,994,234,320원 상당의 손해를 입었으므로, 피고들은 원고 또는 원고의 권리를 승계한 승계참가인에게 손해배상금 8,994,234,320원과 이에 대한 지연손해금을 지급할 의무가 있다.

2) The Defendants

A) The instant shares are owned by A, BB, D, △△△△, and Defendant Kim○○, and do not constitute title trust by the Plaintiff.

B) Even if the instant shares were held in title trust by the Plaintiff, the act of disposal and refusal of return of the instant shares was conducted independently by Ra △△△△, and there is no fact that the Defendants participated therein, and thus, joint tort cannot be established in relation to the Defendants.

C) Also, the disposition of the instant shares was made voluntarily by the title trustee without the consent of the title truster, and there is no room to establish the bona fide acquisition by the third party. Thus, the above disposition becomes null and void. Thus, since the instant shares continue to exist as the Plaintiff owned, it cannot be deemed that the Plaintiff suffered property loss, the liability for damages arising from the tort cannot be established.

B. Determination

1) Whether title trust of the instant shares was held

In light of the following facts and circumstances, it is reasonable to recognize that the instant shares actually belong to the Plaintiff’s ownership in light of the evidence and the evidence set forth above, as well as the evidence set forth in Gap’s 4, 6, 14 through 19, Eul’s 3 through 5, 8 through 13, 23, 24, 29 through 33, and 45 through 49 (including each number; hereinafter the same shall apply). However, it is reasonable to recognize that the Plaintiff entrusted only the ownership of the shares to AA, BB, △△△, △△△△, and Defendant Kim ○○.

A) On April 4, 2016, 2016, △△△△△ and Defendant Kim Jong-chul are aware that this legal entity is the Plaintiff’s second-time corporation. The rights and authority of CC’s registered shares are the Plaintiff. Accordingly, the Plaintiff shall actively cooperate with the transfer and change of shares, transfer of shares, etc. of the following corporations, and if so, the surety shall not assert any rights and authority: Provided, That he shall transfer all rights except taxes, public charges, and other expenses.” On the same day, △△△△△△△ and Defendant Kim Jong-○ are aware that the Plaintiff is the Plaintiff’s second-time stocks held by △△△△△△△△△△△△△△△○ and Defendant Kim○○ are the Plaintiff. The rights and authority of CC’s registered shares will be transferred and transferred after the transfer of shares and transfer of shares, and all other rights and authorities shall not be claimed to the Plaintiff, except for all other rights and obligations.

B) On March 22, 2016, the Plaintiff, immediately after the acquisition of shares in the name of △△ and Defendant Kim○○, was conducted, and was appointed as the representative director of CC on March 22, 2016 when consultation on the acquisition of shares in the name of AA and BB was underway.

C) Defendant Kim ○, on May 13, 2016, reported and consented to the Plaintiff before selling 40,000 shares of the instant case, which were held in the name of BB, to third parties, including Kim △△, and reported to the Plaintiff before selling 1 million shares of the instant case, which were held in the name of AA on June 28, 2016, to the Plaintiff. Moreover, around July 8, 2016, Defendant Kim ○ and Defendant Kim ○ issued 30,000 share certificates of each of the instant shares, which were held in the name of AA and BBB, to the Plaintiff without receiving any benefit in return.

D) Although AA, BB, D △△△, and Defendant Kim ○, in preparing for the acquisition price of the instant shares in its name in order to acquire the instant shares, AA, BB, D △△△△, were either borrowed money in its name or jointly and severally guaranteed, they did not actually bear the acquisition price.

마) 이에 반하여 원고는 주식 양수대금으로 사용된 일부 차용금에 대한 연대보증을 하였을 뿐만 아니라 원고가 실질적으로 지배하던 법인인 주식회사 HHHH는 AA, BBBB, 김▲▲, 김▼▼, DDDDD, EEEEEEEEE가 2016. 4.경 FFFF로부터 주식 1,328,600주를 양수함에 있어 DDDDD가 지급하기로 한 계약금 20억 원을대신 지급하였고, DDDDD에게 추가로 자금을 송금하여 DDDDD가 위 자금 중 일부를 라△△, 피고 김○○에게 대여하여 이를 이 사건 주식 양수대금으로 사용하게하였다.

2) Determination as to the claim against Defendant Kim Jong-tae

A) In full view of the facts acknowledged above and the purport of the entire argument in Gap evidence No. 7, defendant Kim Young-chul received a written confirmation that he was the representative of BBB and the only in-house director, and on June 26, 2016 that "A shall be held liable within the limit of KRW 3 billion to prevent the shares of this case offered as security to creditors from being disposed of." The above written confirmation includes the contents that "A shall take over one million shares of this case from the shares of this case by a person designated by Kim Jong-△ or Kim Jong-△," and that "A shall take over the shares of this case," and it is recognized that the signature and seal of this case is affixed to the column of the above written confirmation, which is the representative of AA and BBB, and the signature and seal of the corporation, together with the signature of the defendant Kim Jong-tae, of the above written confirmation.

B) However, in light of the following facts and circumstances that can be acknowledged by comprehensively taking account of the aforementioned facts and facts, Defendant Kim Jong-tae did not recognize or predicted the act of embezzlement, such as the disposal of the instant shares in the name of AA and BB or the rejection of return to the Plaintiff, or the involvement in such act. Therefore, Defendant Kim Jong-tae did not bear liability for damages arising from a tort.

① Defendant Kim Jong-tae was appointed as the agent of BBB and the only internal director who is the representative of BBB. However, Defendant Kim Jong-○ was actually in contact with the Plaintiff at any time, including the storage and disposition of the instant shares, and Defendant Kim Jong-tae did not have any special contact with the Plaintiff, and did not take all of the business of the said company. Accordingly, Defendant Kim Jong-○ appears to have been the witness of the instant confirmation document.

② On June 25 to 26, 2016, prior to the disposal of the instant shares in the name of AA, the Plaintiff requested approval of the disposal of the said shares by sending text messages to the Plaintiff on or around June 25, 2016, prior to the disposal of the said shares, and the Plaintiff is recognized as having expressed his intent to refuse to send text messages to the Plaintiff, △△△△ and Defendant Kim ○○. However, such circumstance cannot be readily concluded that the instant text messages were sent to Defendant Kim Young-tae, and there is no ground to deem that Defendant Kim Jong-tae was predicted that the △△△△ and △△△△△△ would arbitrarily dispose of the shares in the name of AA

(3) There is no ground to deem that Defendant Kim ○, who was in charge of the business of BB, arbitrarily disposes of the shares in the name of BB, could have been predicted by Defendant Kim Jong-si, and it cannot be deemed that Defendant Kim Jong-tae delegated the business of the said company to Defendant Kim ○, by itself.

3) Determination as to the claim against Defendant Kim ○○

A) Shares in the name of AA

(1) At the time of the preparation of the instant confirmation document on June 26, 2016, Defendant Kim ○○ was present as a observer; on or around June 25, 2016 to and around 26, Do △△△△ requested the Plaintiff to approve the disposition of KRW 1 million of the instant shares by sending text messages to the Plaintiff; and the Plaintiff refused text messages to be sent to Defendant Kim ○○, along with Do △△△△△, to Defendant Kim○; however, on June 28, 2016, Do △△△△△△ sold one million of the instant shares to GGGGG on the following day.

However, in full view of the above facts and the evidence as seen earlier, Defendant Kim ○○, who is the birthee of Defendant Kim Jong-tae, only disposed of and managed only the shares in the name of BBB, and did not directly participate in the business affairs of AA or AA of a separate juristic person, or the disposal and management of shares in the name of AB. Furthermore, it cannot be recognized that Defendant Kim ○○ was involved in the act of disposal of shares in the process of receiving the Plaintiff’s text messages, which did not approve the disposal of the shares of this case by △△△△, and there is no evidence to deem that Defendant Kim ○ was aware of the fact of disposal of the shares in the process of disposing of the shares (or that there was a high possibility that △△△○ was no longer believed that the above text messages sent by the Plaintiff, as Defendant Kim ○○, would not proceed to the act of disposal of shares).

(2) In addition, in addition to the shares in the name of AA in the above one million states, the shares in the name of A, 321,273, which were not returned to the Plaintiff, have been sold in the course of compulsory execution. However, in light of the circumstances acknowledged in the above paragraph (1), it cannot be deemed that Defendant Kim ○○ participated in the embezzlement due to the refusal to return the shares.

(3) Furthermore, even if Defendant Kim ○ was aware of the act of embezzlement of shares in the name of △△△△, but did not take any measures, aiding and abetting by omission is recognized only when the person obligated to act did not take all measures to prevent the occurrence of the result and thereby facilitate the commission of the illegal act (see, e.g., Supreme Court Decision 2013Da91597, Mar. 27, 2014). In light of the circumstances acknowledged in the foregoing paragraph (1), it cannot be deemed that Defendant Kim ○ has a duty to act to prevent the illegal act of △△△△△, and thus, it cannot be deemed that Defendant Kim ○ did not control the embezzlement of △△△△△△△, thereby constituting a tort by aiding and abetting.

(4) Accordingly, either mother nor defendant Kim ○ does not bear liability for damages arising from a tort in relation to the disposal or rejection of the instant shares in the name of AA.

B) part of the BB’s shares

(1) Comprehensively taking account of the above facts and the evidence revealed earlier, Defendant Kim ○ may be recognized as having sold to EEEE without the Plaintiff’s explicit consent of 200,000 shares out of the above shares on July 7, 2016, and thus, Defendant Kim ○ may constitute embezzlement against the said shares 200,000 shares.

(2) However, in a case where a person was placed in trust with another person in relation to the acquisition of shares, etc., a person who is merely a nominal lender cannot be deemed a shareholder of the shares held in title trust, and thus, it is clear that the person who acquired the shares from an unentitled person is an unentitled person. Unless there are special circumstances, such as bona fide acquisition, the person who acquired the shares cannot lawfully acquire the shares, and thus, the shareholder's right of the nominal lender is not extinguished (see, e.g., Supreme Court Decision 2000Da6362

(3) In the instant case, the Plaintiff actually owned 200,000 shares of the instant case sold to the EEEE on July 7, 2016, but only entrusted the Plaintiff’s ownership in the name of the Plaintiff in the BB in the future, as seen earlier. Therefore, the EEE cannot acquire the ownership of the said shares, unless there are special circumstances, such as bona fide acquisition, by acquiring the said shares from a non-entitled person, by transfer of the said shares from BB.

However, the aforementioned facts and circumstances are as follows. ① At the time of the first instance trial, the Plaintiff voluntarily acquired the instant shares in the name of “EEEEEEB and AA” under the name of “EEGGG,” and the EEEEEEB and the Plaintiff asserted to the effect that the actual owner of the said shares was well aware of the fact. ② The above EEEB and DD, which were substantially controlled by the Plaintiff, could have been known to the Plaintiff at the time of the sale of the shares, and thus, it appears that the Plaintiff could have been aware that the Plaintiff and the Plaintiff would have been aware of the cost-sharing or actual right-holder at the time of the sale of the shares. ③ Since the Plaintiff was aware of the fact that the △△△△△△△△△△ was the first instance court’s acquisition of shares in the name of “EEEB and GGGG,” the Plaintiff could have been aware of the Plaintiff’s acquisition of the shares in the name of “EEB and the Plaintiff’s acquisition of the shares.”

(4) Thus, since the Plaintiff did not lose ownership due to the Plaintiff’s disposal of the instant shares 200,000 shares of BB with respect to the EEE, it cannot be deemed that the Plaintiff incurred any loss to the Plaintiff. Therefore, Defendant Kim○ does not bear any liability for damages arising from a tort regarding the instant shares disposal in the name of BBB.

4. Conclusion

Of the Plaintiff’s lawsuit against the Defendants, the part of the claim amounting to KRW 6,357,162,020 is unlawful, and thus, each of the remainder of the Plaintiff’s lawsuit against the Defendants and each claim against the Defendants by the Plaintiff’s succeeding intervenor should be dismissed. Thus, the part of the judgment of the court of first instance against the Defendants in its conclusion is unfair, and thus, the part of the judgment of the court of first instance against the Defendants in its judgment is modified as above.