Limited Liability Company Acting on Board Power

Seog Electricity Co., Ltd. (Attorneys Choi Han-hwan et al., Counsel for the plaintiff-appellant)

April 1, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

A notary public shall be prohibited from compulsory execution based on an executory exemplification granted on January 3, 2014 by Nonparty 1, a notary public with respect to the deed of debt repayment (Quasi-Loan for Consumption) contract (hereinafter referred to as "notarial deed of this case") No. 945, 2012, which was executed by a notary public on January 3, 2014.

1. Basic facts

A. On July 3, 2012, the Defendant drafted and issued the instant notarial deed stating that “The Madon Market will pay KRW 520 million to the Defendant the amount of the goods payment obligation at the Madon Market,” which was issued by the Madon Co., Ltd. (hereinafter “Madon City”).

B. On October 11, 2012, the Defendant filed an application for grant of succession grant on the ground that Magyp City was merged with the Plaintiff, and Nonparty 1, the attorney-at-law in charge of notary public, granted the Defendant a successor execution clause to perform compulsory execution against the Plaintiff on January 3, 2014.

[Ground for recognition] Unsatisfy

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

① Even if the Plaintiff was merged with the Gwangju District Court, the Plaintiff’s representative director was not the general successor of the Gwangju District Court. ② In the lawsuit for nullification of merger by split and merger between the Plaintiff and the Gwangju District Court, which Nonparty 2 filed against the Plaintiff and the Gwangju District Court on April 23, 2013, the said court rendered a judgment that “A merger between the Plaintiff and the Gwangju District Court on October 11, 2012” was null and void, and the said judgment became final and conclusive on May 14, 2013, the Plaintiff is not in the position of successor to the obligation under the instant notarial deed against the Defendant at the Gwangju District Court. Accordingly, compulsory execution based on the instant notarial deed shall not be permitted.

B. Determination

First of all, as to the Plaintiff’s assertion, the Plaintiff completed the registration of a merger of the Madon city on October 11, 2012, Article 603 of the Commercial Act applies mutatis mutandis. Article 234 of the same Act provides that “The surviving company after the merger takes effect by registering the merger at the place of its principal office,” and Article 235 of the same Act provides that “the surviving company after the merger shall succeed to the rights and obligations of the extinguished company due to the merger.” Thus, the Plaintiff shall be deemed to have succeeded to the obligations under the notarial deed of this case at the time of the merger registration. Therefore, the Plaintiff’s above assertion is without merit.”

Next, there is no dispute between the parties as to the plaintiff's assertion that the judgment of nullification of a merger as alleged by the plaintiff, which became final and conclusive on May 14, 2013. Meanwhile, Article 238 of the Commercial Act which applies mutatis mutandis under Article 603 of the same Act provides that "where the judgment invalidating a merger becomes final and conclusive, the registration of alteration of the company surviving a merger, recovery registration of the company extinguished due to a merger, and registration of dissolution of the company incorporated due to a merger shall be completed," and Article 34 of the same Act provides that "the matters to be registered under this Act shall be registered in the commercial register of the court having jurisdiction over the location of the place of business at the request of the parties," and Article 37 (1) of the same Act provides that "the third party's bad faith or gross negligence shall be presumed to have been established in good faith, and thus, the plaintiff shall not assert or prove that the above third party's bad faith or gross negligence should be asserted in the certified copy of the register of the plaintiff's execution clause.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Ansan