Plaintiff (Law Firm Jins, Attorneys Kim U-American et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] Small and Medium Enterprises (Law Firm Democratic, Attorney Shin Sung-sung, Counsel for defendant-appellee)

October 18, 2017

Seoul Eastern District Court Decision 2015Kahap598 Decided January 24, 2017

1. The part concerning the conjunctive claim in the first instance judgment shall be revoked.

2. The defendant shall implement the procedure for transferring the shares in the attached list to the plaintiff.

3. The plaintiff's appeal as to the main claim is dismissed.

4. All costs of the lawsuit are borne by the Defendant.

The judgment of the first instance is revoked. In the first instance, it is confirmed that the shares in the attached list are owned by the plaintiff. It is preliminary, as set forth in paragraph (2).

1. Basic facts

A. The Defendant is a stock company with the main business of manufacturing and selling clothes, and the Plaintiff was working as the representative director of the Defendant before resignation on May 15, 2014, while holding 85% of the Defendant’s shares together with Nonparty 1, and actually operating the Defendant.

B. The Plaintiff, around 2004, established the Cheongdodong Corporation (hereinafter “instant Limited Corporation”) as the Defendant’s subsidiary in which the Defendant invested 100% of the shares in the Defendant’s 100% of the shares (as of the closing date of the instant case, the Defendant owns shares in the attached list corresponding to 100% of the shares in the instant Limited Corporation).

C. On April 29, 2014, the Plaintiff and Nonparty 1 transferred the Defendant’s management rights and all shares held by the Plaintiff and the Plaintiff’s wife to Nonparty 2, etc. between Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 (hereinafter “Nonindicted 2, etc.”) and entered into a contract for management rights and share acquisition that the instant limited company shall enter into a subsequent consultation between the contracting parties upon consultation (Evidence 2, hereinafter “instant contract for transfer of management rights”).

D. On April 29, 2014, the day when the Plaintiff, Nonparty 1, and Nonparty 2 entered into the instant transfer contract with respect to the instant limited liability company (Evidence 3, hereinafter “instant transfer contract”).

The transfer of Chinese subsidiaries (long-term investment securities on the statement of financial position on December 31, 2013) and the time of transfer of Chinese subsidiaries (long-term investment securities on the statement of financial position on December 31, 2013; hereinafter the same shall apply) and the time of “B (long-term 2 et al.; hereinafter the same shall apply)” shall be transferred to “A (non-party 1; hereinafter the same shall apply)” by April 30, 2014, to “B” the ownership of the Chinese subsidiary owned by the Defendant (hereinafter the “instant Limited Corporation”). The payment principle of Article 2 (2) shall be deemed to have already been paid after consultation between “A” and

E. According to the instant management right transfer contract, Nonparty 2, etc. entered in the Defendant’s register of shareholders, and on May 15, 2014, the Plaintiff resigned from the Defendant’s representative director, Nonparty 4 and Nonparty 3 was appointed as the Defendant’s joint representative director and internal director, and thereafter Nonparty 2 was appointed as the Defendant’s representative director on September 11, 2014.

F. On September 18, 2014, the Plaintiff entered into a share acquisition agreement (Evidence A 4; hereinafter “the second transfer agreement”) with the Defendant regarding the criteria for calculating the amount relating to the sale of shares in the instant limited company, its payment method, specific procedure for share transfer, etc. as follows.

Article 2.(Standards for Calculation of Shares) of the Table contained in the main sentence. 100% of the investment shares of the instant Limited Corporation established in the Cheongdo 2002, "A (name of the defendant; hereinafter the same shall apply)" and "B (name of the plaintiff; hereinafter the same shall apply)" shall be conducted on an agreement and shall be sold to "B" as soon as possible, and on the basis of the appraised value, "B" shall be sold [2.5 billion won calculated under Article 4 (2.986 billion won + 57.5 billion won + 1.5 billion won in total (4.5 billion won in value)." (1.5 billion won in value of the instant shares shall be subtracted from the proceeds of sale; 2.5 billion won in value of the instant shares shall be calculated at the same time as "the date of sale," and 3.5 billion won in value of the instant shares shall be sold to "the date of sale," and 4.5 billion won in value of the instant shares shall be disposed at the same time as "4."

【Ground for recognition” without a dispute, Gap evidence Nos. 1 through 4 (the defendant alleged that Gap evidence No. 3 was forged, but there is no dispute over the part that the next seal of the name of the non-party No. 2, etc. was affixed with the seals of the non-party No. 2, etc., and there is no other evidence to prove that the above document was forged. Therefore, the evidence No. 3 is recognized to have been forged)'

2. Summary of the cause of the claim;

Since the Plaintiff fulfilled all the terms and conditions for the payment of the purchase price stipulated in the second transfer contract of this case, the Defendant is obligated to transfer to the Plaintiff the shares in the separate sheet owned by the Plaintiff regarding the instant limited company. However, the instant limited liability company did not issue share certificates differently from the stock company under the Commercial Act, thereby owning an enterprise by acquiring an investor’s name and holding shares. Therefore, the most appropriate method to acquire the Plaintiff’s name is that the shares in the separate sheet in the Plaintiff and the Defendant were owned by the Plaintiff and the Defendant, and based on the judgment of confirmation that the shares in the separate sheet

Therefore, the Plaintiff primarily seeks to confirm that the shares in the attached list corresponding to the shares in the instant limited company are the Plaintiff, and if the benefits of confirmation are not recognized, the Plaintiff seeks to implement the transfer procedure for the shares in the attached list.

3. Judgment as to the main claim

In the instant lawsuit, the Plaintiff filed a claim to implement the procedure to transfer shares in the separate sheet in the instant lawsuit, and the Plaintiff may directly achieve the purpose of the instant claim for performance of performance. In addition, even if the Plaintiff’s claim is based on the Plaintiff’s claim, the Plaintiff’s confirmation of “share in the separate sheet” between the Plaintiff and the Defendant cannot acquire shares in the separate sheet, and the said judgment is merely a significant evidence to obtain a judgment on performance of change of name from the Chinese court. In light of this, the Plaintiff’s confirmation judgment cannot be deemed the most effective and appropriate means to remove any risks and unrefluents existing in the Plaintiff’s legal status. Accordingly, the Plaintiff’s primary claim part in the instant lawsuit is unlawful as there is no benefit of confirmation (see, e.g., Supreme Court Decisions 93Da4089, Nov. 22, 1994; 2005Da41153, Jul. 10, 2008).

4. Judgment on the conjunctive claim

A. Determination on the main defense of this case

1) The assertion of violation of international jurisdiction

A) Summary of the argument

The limited liability corporation of this case is established in accordance with the Chinese law and its principal office is in China. Accordingly, the change of investor's name should also be made in China, and the Chinese law is the governing law. Accordingly, the international jurisdiction of the Chinese court is not the Republic of Korea but the Chinese court in this case, and the lawsuit of this case is unlawful.

B) Determination

(1) Article 2(1) of the Private International Act provides that “where a party to a lawsuit or a case in dispute is substantially related to the Republic of Korea, the court has the international jurisdiction. In this case, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction in determining the existence or absence of substantial relation.” Article 2(2) provides that “the court shall consider the jurisdiction provisions of domestic law, and shall take into account the existence or absence of international jurisdiction, and shall fully consider the special nature of international jurisdiction in light of the purport of the provision of Article 2(1).” Therefore, international jurisdiction shall be determined in accordance with the basic ideology of ensuring fairness, propriety, and appropriateness, speed, and economy between the parties to the lawsuit as well as personal interests, such as equity, convenience, and predictability of the parties to the lawsuit, and the appropriateness, prompt, efficiency, and effectiveness of the judgment, etc. of the court and the State’s interests, such as the appropriateness, etc. of the judgment, shall be considered together with an individual case, and whether there is a need to protect any of these diverse interests shall be determined reasonably based on objective relationship between the parties’s and actual relations with the case in dispute (see, etc.

(2) According to the following circumstances, it is reasonable to view that the parties to the instant case and the case in dispute are having international jurisdiction over the instant case, given that the parties to the instant case and the case in dispute are substantially related to the Republic of Korea. Accordingly, the Defendant’s assertion on this part is without merit.

(A) The Plaintiff is a person having a domicile in the Republic of Korea, and the Defendant is a stock company with its head office in the Republic of Korea, and thus, the jurisdiction is recognized in the Republic of Korea court.

(B) On September 1, 2014, concluded between the Plaintiff and the Defendant, the share acquisition agreement was concluded in the Republic of Korea as a national, and most of the parties involved in the conclusion of the said agreement were nationals of the Republic of Korea, and there is no inconvenience for the court of the Republic of Korea to conduct an examination on the instant case.

(C) The Plaintiff and the Defendant did not conclude any specific agreement on international jurisdiction.

(ii) argument as to the standing to sue;

The defendant asserts that the management right transfer contract of this case and the contract of this case No. 1 are not the defendant but the non-party 2, etc., so the lawsuit of this case is unlawful since it is against the non-party 2, etc. However, since the defendant's standing to be the defendant in the performance lawsuit is replaced by the plaintiff's own claim, the plaintiff's standing to be the defendant has the standing to be the defendant (refer to Supreme Court Decision 95Da18451 delivered on November 28, 1995, etc.). Accordingly, the defendant'

3) The assertion that there is no benefit of lawsuit is unlawful.

A) Summary of the argument

Since shares in the attached list can be changed in the name only after judgment is obtained from China, there is no benefit to the lawsuit in the Republic of Korea.

B) Determination

If a judgment ordering the implementation of transfer procedures for shares in the attached list in the Republic of Korea becomes final and conclusive, there is a benefit in litigation because the judgment is likely to be approved and executed in China, and the defendant's assertion cannot be accepted. The reasons are as follows.

(1) Article 265 of the Civil Procedure Act of China provides that "If a judgment or adjudication which has become effective by a foreign court, which has become a legal effect, requires the approval and enforcement of the Chinese People's Court, the parties may apply for the approval and enforcement to the Civil Court of China, which is of the Chinese jurisdiction, and a foreign court may apply for the approval and enforcement to the People's Court in accordance with the provisions of international treaties or the principles of reciprocity in which the State and China have entered into or participated in, and in accordance with, the rules of international treaties or the principles of reciprocity." Article 266 of the same Act provides that "The People's Court shall not grant the approval and enforcement to the People's Court in cases where the adjudication or adjudication becomes effective by a foreign court which has made an application or a claim for the approval and enforcement, and the adjudication becomes effective in accordance with international treaties or the principles of reciprocity in which China has entered into or participated in, and if necessary, it shall grant the relevant provisions of this Act with the execution clause."

(2) The requirements for recognition of a foreign judgment prescribed in the Civil Procedure Act of China are similar to those prescribed in Article 217 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Execution Act. Thus, it can be deemed that there exists a mutual guarantee or mutual benefit relationship between Korea and China as to the validity of the judgment of the other country.

(3) It cannot be deemed that the judgment ordering the implementation of the transfer procedure with respect to the shares in the attached list violates the basic principles or national sovereignty, safety, and social public interests of the Chinese law.

4) The assertion that the prohibition of double lawsuit is against the principle

A) Summary of the argument

As the Plaintiff filed a lawsuit identical to the instant conjunctive claim in China, the instant conjunctive claim constitutes a duplicate suit and is unlawful.

B) Determination

The duplicate lawsuit is a case where a previous suit is filed at the same time as the previous suit is pending in the court (Article 259 of the Civil Procedure Act). However, according to the evidence Nos. 3, 4-1, 2, and 18 of the evidence Nos. 4-1, 2, and 18 of the Civil Procedure Act, the plaintiff filed a lawsuit against the defendant on August 10, 2015 against China for the performance of the transfer procedure with respect to the share in the attached list, and was sentenced to a judgment against the civil petition of the first instance court, which is a legal ground for the first instance of October 24, 2015, and the appeal was dismissed by the appellate court of March 1, 2017 and the final trial of the People's Republic of China, which is the final trial of China, and the judgment becomes final and conclusive (hereinafter referred to as the "instant Chinese judgment"). Accordingly, the defendant's assertion that the previous suit in China is pending in the previous suit is without merit.

5) The assertion regarding res judicata

A) Summary of the argument

Since the Chinese court dismissed the plaintiff's claim in the lawsuit of this case and its judgment became final and conclusive, the lawsuit of this case has res judicata effect on the above Chinese judgment. Therefore, the lawsuit of this case is unlawful as it conflicts with the final and conclusive judgment.

B) Determination

(1) Whether res judicata effect takes place on the Chinese judgment of this case

(A) If a final and conclusive judgment of a foreign court satisfies the requirements for approval under Article 217 of the Civil Procedure Act, filing a new lawsuit with a Korean court would conflict with res judicata of the final and conclusive judgment of a foreign court.

(B) However, in light of the following circumstances acknowledged by the evidence as seen earlier and the purport of the entire pleadings, the instant Chinese judgment satisfies the requirements for approval under Article 217 of the Civil Procedure Act and its validity is recognized, and thus, res judicata takes effect.

① The instant limited company is a company established in China in accordance with the law of China, its principal office is also in China, and the change of ownership as to shares in the separate sheet should also be made in China. As such, the international jurisdiction of the instant case is also acknowledged in the Chinese court (Article 217(1)1 of the Civil Procedure Act).

② The Plaintiff appointed an attorney-at-law in the first instance trial and the appellate trial proceedings of the instant Chinese lawsuit (Article 2(2)2 of the same Act).

③ It is difficult to deem that approving the instant Chinese judgment violated the good morals and other social order of the Republic of Korea (Article 36(1)3 of the same Act).

④ As seen earlier, as between Korea and China, mutual guarantee can be deemed to exist with respect to the validity of the judgment of the other country (Article 16(1)4 of the same Act).

(2) Whether the instant lawsuit has res judicata effect

(A) In general, when a judgment becomes final and conclusive, a court or a party cannot make a judgment or assertion contrary to the final and conclusive judgment, but such final and conclusive judgment becomes effective on the basis of the time of closing of arguments at the trial court, which is the standard time, and thus, it does not affect the res judicata effect of the final and conclusive judgment until a new ground arises (see Supreme Court Decision 98Da7001, Jul. 10, 1998)

(B) According to the above evidence, the Chinese judgment in this case dismissed the Plaintiff’s claim on the ground that the Plaintiff did not perform its duty to revaluated the stocks of the limited company in this case pursuant to the transfer contract in this case, and recognized the fact that the judgment became final and conclusive. However, after the judgment became final and conclusive, the Plaintiff applied for appraisal to the court in this case to conduct a revaluation of the equity value of the limited company in this case, and completed an appraisal business report. Thus, in this lawsuit in this case, since the Plaintiff performed the duty to repurchase the stocks of the limited company in this case after the judgment became final and conclusive, the res judicata effect of the judgment in this case does not extend to the lawsuit in this case. Accordingly, this part of the Defendant’s claim

B. Judgment on the merits

1) Determination as to the cause of claim

A) As to the specific conditions and procedures for the transfer of shares of the instant limited company, the instant transfer contract provides that “i.e., the Plaintiff is obligated to perform its obligations under Article 4(2) through (4) above to the Defendant, and (ii) in the event that shares of the instant limited company are revaluated in accordance with Article 4(1) and at least 5 billion won and at least 30% of the shares of the instant limited company, the Plaintiff is obligated to pay the following amount.” The Defendant is obligated to transfer the name of shares of the instant limited company to the Plaintiff or the Plaintiff designated after the Plaintiff performed the said obligations (see Articles 3 and 4 of the instant transfer contract, referring to the Plaintiff’s assertion that the transfer contract of the instant limited company was concluded formally, but there is no evidence to acknowledge it). Therefore, the Plaintiff’s performance of its obligations under Article 4(2) through (4) above and payment of the shares of the instant limited company should first be made in the name of the Defendant prior to the performance of its obligations under paragraph (1) above.

B) However, according to the following circumstances, which are acknowledged as comprehensively considering the statement No. 23 and the purport of the entire pleadings as a result of Nonparty 8’s appraisal, the Plaintiff is deemed to have fulfilled all of the above prior performance obligations or satisfied the prerequisite. Therefore, the Defendant is obligated to implement the procedure to transfer the shares in the attached list corresponding to the shares of the instant limited company to the Plaintiff.

(A) The obligation to re-assessment of shares and to pay the difference under section 4(1) of the above contract

The Plaintiff filed an appraisal to conduct a revaluation of stock value with respect to 100% of the investment shares of the instant limited company and accordingly, the valuation of the instant limited company shares was conducted. According to the appraisal business report prepared by Nonparty 8 of the first instance trial, the net asset value of the instant limited company as of June 30, 2017 was KRW 5,829,63,071 (the shareholders’ shares in the debt table + KRW 2,559,501,501,861 + the amount of real estate appraisal adjustment + KRW 5,732,102,386 – the amount of debt adjustment 2,461,941,176). Accordingly, the Plaintiff did not have any additional amount to be paid to the Defendant, and thus, there was no difference between KRW 5,600,000 and KRW 30%.

(B) Obligations to succeed to obligations under Article 4(2) of the above contract

At the same time as the above contract was concluded, the Plaintiff agreed to succeed to all obligations of the limited company in this case, and the Plaintiff’s succession to the obligations of the limited company in this case does not require additional procedures except the Plaintiff’s expression of intent of succession to the obligations under the above contract (the Plaintiff’s obligations under the Chinese Commercial Code are borne by the investors, so the Plaintiff’s transfer of investment shares is also a transfer of obligations, and thus, the Plaintiff’s separate procedures for the succession to the obligations is not necessary, and the Defendant appears not to dispute this part). Accordingly, it is determined that upon the conclusion of the above contract, the Plaintiff fulfilled its duty to succeed to

On the other hand, the Defendant asserts that the amount of the liabilities borne by the instant limited company after the date of the conclusion of the above contract is changed and that the difference should be paid additionally. However, according to Articles 2 and 4 of the transfer contract of this case, the Plaintiff’s limited liability company’s liabilities that the Plaintiff succeeded to is determined as KRW 16,48,188,188 (the 11,100,000,000 Chinese Bank Loan People’s Loan + the 5,488,188,188, China People’s Bank Loaning China), or KRW 2,986,00,000,000,000,000,000,000,0000,000,000,000,000,000

(C) The duty to waive the provisional collection under Article 4(3) of the above contract

According to Article 4(3) of the above contract, at the same time as the above contract was concluded, the Plaintiff agreed with the Defendant to offset KRW 570 million from the purchase price, and to waive the remainder of the claim. According to the above set-off agreement, the amount of KRW 570 million from among the above provisional deposit claims was extinguished on an equal basis with the purchase price claim. In addition, the act of the other party, such as the waiver of the claim, becomes effective when it reaches the other party, whose right is directly affected by the declaration of intention (see Supreme Court Decision 94Da40734 delivered on December 23, 1994, etc.). Accordingly, upon the conclusion of the above contract, the Plaintiff’s waiver of the claim against the Defendant became effective.

As to this, the defendant asserts that the non-party 9 shall be the debtor, and the third debtor shall be the defendant, and the seizure and assignment order of KRW 800 million against the plaintiff's defendant is confirmed, and since the above assignment order was confirmed, the plaintiff shall pay the above KRW 80 million additionally, but the plaintiff shall perform the obligations under the second assignment contract of this case.

However, according to the evidence Nos. 20 and 21 (including each number), Nonparty 9 received an order for the attachment and assignment of claims against the Defendant on October 31, 2014, and the above assignment order became final and conclusive on November 20, 2014. As seen earlier, as seen earlier, there are circumstances after the offset against the claim and the effect of the waiver of the claim. Accordingly, the Plaintiff cannot be deemed to have failed to perform his/her obligations under Article 4(3) of the Assignment Contract of this case on the ground that it cannot be deemed that the Plaintiff did not perform its obligations under Article 4(3) of the Second Assignment Contract of this case. Accordingly, the Defendant’s above assertion is rejected.

(D) Obligation to resolve provisional attachment under section 4(4) of the above contract

According to Article 4(4) of the above Agreement, the Plaintiff calculated the sales price of 3,572 square meters in the warehouse site owned by the Plaintiff at KRW 1.5 billion, and transferred the purchase price to the Defendant, and had the Defendant cancelled the provisional attachment of KRW 500 million in the amount of credit established on the said real estate. However, in full view of the purport of the entire pleadings in evidence No. 23, it is reasonable to view the Plaintiff’s obligation under Article 4(4) as to the warehouse and its site located in the Defendant, including the above land owned by the Plaintiff, as the Defendant’s creditor, for the warehouse and its site located in Suwon District Court No. 2014, Oct. 20, 2014.

As to this, the defendant asserts that even if the registration of provisional seizure was cancelled during the compulsory auction procedure, the cause still remains, and thus, the plaintiff cannot be deemed to have fulfilled the obligation under Article 4 (4). However, as long as the claim for the above provisional seizure is a claim against the plaintiff's individual, and the above land owned by the plaintiff was already sold during the compulsory auction procedure, this does not affect the defendant. Accordingly, the defendant's assertion cannot be accepted.

2) Judgment on the defendant's assertion

A) The assertion that the sales contract for the instant limited construction was not concluded

(1) Summary of the argument

In light of the contents of the management right transfer contract (No. 2) and the transfer contract (No. 4) of this case, this is merely a pre-sale agreement for the Plaintiff to sell the limited company of this case to the Plaintiff, and the sales contract was not concluded.

(2) Determination

A sales contract is established by an agreement between the parties on the transfer of the property right by the seller and the payment of the price to the other party under the agreement to transfer the property right by the other party. In this case, the object and the price for the sale are not necessarily to be determined specifically at the time of the conclusion of the contract, but are sufficient if there are methods and standards to specify it later (see, e.g., Supreme Court Decisions 92Da4947, Jun. 8, 1993; 2005Da39594, Nov. 24, 2006).

Comprehensively taking account of the aforementioned facts and the overall purport of the pleadings in the statement in Gap evidence Nos. 2 and 4, the plaintiff and the defendant specified the subject-matter of sale as 100% of the investment shares of the limited company by concluding the management right transfer contract of this case, the transfer contract of this case, and the transfer contract of this case in order. The method of payment of the purchase price was specified in detail. Therefore, it is reasonable to view that the sales contract for the limited company of this case was concluded. The defendant's above assertion is without merit.

B) The assertion that such invalidation is void without the approval of the board of directors

(1) Summary of the argument

The Plaintiff had the status as the Defendant’s director at the time of concluding the instant management right transfer agreement and the first transfer agreement, and the Plaintiff’s agreement with Nonparty 2, etc. to purchase the instant limited liability company, which is the Defendant’s subsidiary, constitutes an act of self-transaction by directors under Article 398 of the Commercial Act, and must obtain approval from the board of directors. Nevertheless, the Plaintiff did not obtain approval from the board of directors.

(2) Determination

(A) According to the overall purport of evidence Nos. 1 and 3, the Plaintiff was working as the representative director at the time of entering into the instant management right transfer contract and the instant first transfer contract, and each of the above contracts constitutes an act that may conflict with the Plaintiff and the Defendant with the purport of selling the instant limited liability company owned by the Defendant 100% shares to the Plaintiff, and it is recognized that there was no approval of the board of directors at the time of entering into each of the above contracts.

(B) However, according to the above evidence and evidence evidence No. 5, the plaintiff, after entering into the management right transfer contract of this case and the first transfer contract of this case, has resigned from the defendant's representative director and held office as the defendant's representative director and director after acquiring shares from the plaintiff. After that, the plaintiff and the defendant concluded the second transfer contract of this case which set forth specific sale conditions, such as the method of payment for the limited-liability construction contract of this case. At that time, the non-party 2, the non-party 7, the defendant's director, the non-party 4, and the non-party 3, who were the defendant's representative director, were re-verification of the intention to sell the limited-liability construction of this case by entering into the second transfer contract of this case with the plaintiff and the first transfer contract of management right of this case without the defendant's board of directors' approval. Thus, even if the plaintiff entered into the second transfer contract of this case and the first transfer contract of this case without the defendant's board of directors, the plaintiff and the defendant'

C) The assertion that it is invalid without a special resolution of the general meeting of shareholders

(1) Summary of the argument

In order for the Defendant to sell the instant limited construction work, which is its subsidiary company, a special resolution of the general meeting of shareholders is required pursuant to Article 374(1)1 of the Commercial Act. Nevertheless, the Defendant’s sale of the instant limited construction work to the Plaintiff is null and void, since the Defendant did not undergo a special resolution of the general

(2) Determination

(A) Even if the disposal of a company’s business property, other than its own business, results in the same result as the transfer or abolition of the company’s business in whole or in part, a special resolution of the general meeting of shareholders under Article 374(1)1 of the Commercial Act is required (see, e.g., Supreme Court Decision 2014Da6404, Sept. 4, 2014).

(B) In light of the following circumstances acknowledged by the purport of Gap evidence 10, Eul evidence 12 and 16 and all the arguments, the defendant's act of selling all the shares of the limited company of this case to the plaintiff can be deemed as an act of disposing of the property for business which requires a special resolution of the general meeting of shareholders pursuant to Article 374 (1) 1 of the Commercial Act.

① According to the Defendant’s financial statements in the year 2012 and 2013, the Defendant’s total assets are KRW 16,758,487,246, and among them, the book value of the instant limited company is KRW 4,493,790,000, which accounts for approximately 1/4 of the Defendant’s assets. At the time of entering into the instant transfer contract, the Defendant was de facto insolvency due to the aggravation of management status, but the Defendant was the share of the instant limited company that has substantial property value among the Defendant’s assets.

② The Defendant, whose main business is the manufacturing and selling of the clothing, requires a manufacturing factory of the clothing. If there is no manufacturing factory in China of the above limited liability company in charge of the manufacturing of the clothing, it seems that the Defendant’s operation would be enormously interrupted. Therefore, selling the entire shares of the limited liability company in the instant case constitutes a disposal of the Defendant’s business property that results in the same result as transferring or discontinuing all or part of the Defendant’s business.

(C) However, according to the overall purport of evidence Nos. 4, 5, and 24, the Defendant’s shareholder as of May 27, 2014, which was at the time of the conclusion of the instant transfer contract, was Nonparty 3 (42,00 shares, 21%) Nonparty 4, Nonparty 2, Nonparty 5, Nonparty 6 (each 32,00 shares, 16%) and Nonparty 7 (30,000 shares, 15%) but the remaining shareholders, except Nonparty 6, directly enter into the instant transfer contract and actively cooperate for the completion of the implementation thereof, and it is recognized that the Defendant’s shareholder, as of May 27, 2014, was delegated the power of representation with respect to the authentication of the said certificate.

(D) If so, a shareholder who holds shares above the special resolution requirement of the general meeting of shareholders as stipulated in Article 434 of the Commercial Act (84% if the shares of the remaining shareholders except for the non-party 6 are combined) is deemed to have consented to the conclusion of the transfer contract of this case. Thus, the defendant's assertion that the above contract is null and void on the ground of a defect in the special resolution of the general meeting of shareholders is not allowed against the good faith principle (see Supreme Court Decision 2001Da14085 delivered on March 28, 2003). Therefore, this part

D) The assertion that the second transfer contract of this case was implicitly rescinded

(1) Summary of the argument

The Plaintiff arbitrarily sold part of the property of the instant limited liability corporation, and filed a criminal complaint against the Defendant’s representative director and directors, or filed an application for the suspension of execution of duties, and asserted that the instant contract for the transfer of management rights was null and void or revoked. This is an attitude that does not continue to maintain a sales contract for the instant limited liability corporation entered into with the Defendant, and the Defendant does not continue to exist, and thus, the said contract was implicitly rescinded.

(2) Determination

However, the above circumstances alleged by the Defendant alone cannot be deemed to have implicitly rescinded the agreement on the second transfer contract of this case. The Defendant’s above assertion cannot be accepted.

E) The assertion that the second transfer contract of this case is null and void as an anti-social act

(1) Summary of the argument

The second transfer contract of this case is not only a fraudulent act in relation to the creditors of the defendant, but also an act of causing property damage to the defendant in violation of his duties for the purpose of acquiring his property interest, and thus constitutes an act of occupational breach of trust and thus null and void.

(2) Determination

However, the revocation of a fraudulent act can be claimed by means of filing a lawsuit with the court, and cannot be asserted as a means of attack and defense (see Supreme Court Decision 95Da8393, Jul. 25, 1995, etc.). In addition, at the time of the second transfer contract of this case, the plaintiff was not the representative director of the defendant, as well as at the time of the second transfer contract of this case, the plaintiff must calculate the value of limited liability corporation of this case to KRW 5056,000,000,000,000 as seen earlier, and as seen earlier, the plaintiff shall take over an amount equivalent to the value of the limited liability corporation of this case, waives claims or real estate shares, and additionally pay the amount equivalent to 30% of the share value to the plaintiff, and thus, it is difficult to view that the damage to the defendant's property is caused to the defendant. There is no evidence to acknowledge that the second transfer contract

F) The assertion that it violates the principle of good faith or the principle of good faith.

(1) Summary of the argument

The plaintiff asserts that the transfer contract of management right of this case was cancelled or cancelled in a separate lawsuit, but the claim of this case is contrary to the principle of good faith or the principle of good faith.

(2) Determination

As seen earlier, the content of the sale of the instant limited company was embodied through the instant transfer contract, the instant transfer contract, and the instant transfer contract. However, the instant transfer contract is separate between the parties to the instant transfer contract and the parties to the instant transfer contract, and where the instant transfer contract becomes null and void or cancelled, it cannot be deemed that the instant transfer contract becomes null and void or cancelled. Therefore, even if the Plaintiff asserted the cancellation or cancellation of the said transfer contract, claiming the performance under the instant transfer contract cannot be deemed as contrary to the principle of good faith or the principle of good faith. Accordingly, the Defendant’s assertion cannot be accepted.

G) The assertion that it is invalid due to a false conspiracy, violation of Article 103 or 104 of the Civil Act

(1) Summary of the argument

The instant limited company is a company established by investing approximately KRW 4.5 billion, and the Plaintiff actually purchased the instant limited company in KRW 1.5 billion. As such, the instant transfer contract constitutes a false conspiracy, or an act contrary to the good morals and other social order under Article 103 of the Civil Act, or an unfair legal act under Article 104 of the Civil Act, and thus, is null and void.

(2) Determination

However, according to Article 2 of the transfer contract of this case, since the plaintiff shall pay at least KRW 5 billion to the defendant for the purchase price of the limited-liability company of this case, such as provisional deposit claims and real estate located in the Leecheon Logistics Complex, the plaintiff shall not be deemed to have actually paid only KRW 1.5 billion. Unlike the case where the second transfer contract of this case constitutes false representation of conspiracy, it shall not be deemed that the second transfer contract of this case constitutes a false representation of conspiracy under Article 103 of the Civil Act, or an unfair juristic act under Article 104 of the Civil Act. Therefore, the defendant's above assertion is without merit.

H) The assertion that the sales contract for the instant limited construction was cancelled or cancelled

(1) Summary of the argument

The Plaintiff arbitrarily sold part of the assets of the instant limited company and embezzled the proceeds therefrom. The act of disposing of the subject matter of sale before the completion of the consultation on the purchase price constitutes grounds for cancellation or cancellation of the sale contract, and thus, the Defendant cancels or cancels the sales contract for the instant limited company.

(2) Determination

However, according to Gap evidence Nos. 27 and Eul evidence Nos. 18, the plaintiff holds the authority to dispose of the assets of the limited company of this case as a legal representative and actual manager of the limited company of this case, and the contract of the second transfer of this case does not prohibit the disposal of the assets of the limited company of this case or prescribe them as grounds for cancellation of the contract. In addition, although the limited company of this case sold a factory building on December 10, 2014, it is deemed that the liabilities of the limited company of this case after the sale of this case decreased (see evidence No. 26-1 and 2 of the evidence No. 26), the above sales proceeds are used in the operation of the limited company of this case, and there is no evidence to acknowledge that the plaintiff embezzled the sales proceeds. Accordingly, the defendant's above assertion is rejected.

4. Conclusion

Therefore, the part of the lawsuit in this case is inappropriate, and thus, the plaintiff's conjunctive claim should be accepted for the plaintiff's conjunctive claim. Since the judgment of the court of first instance is inappropriate for the conclusion of the conjunctive claim, the part of the judgment of the court of first instance concerning the conjunctive claim in the judgment of the court of first instance should be revoked, order the defendant to transfer the shares in the separate sheet to the defendant, and the appeal against the plaintiff'

[Attachment]

Judges Gisung (Presiding Judge)