(영문) 서울고등법원 2015.10.7.선고 2015나2004199 판결

1) Defendant ADD Construction Co., Ltd. permits Defendant AS Construction Co., Ltd to peruse and copy (including photographing and copying computer files) only within business hours at the head office or its storage place of Defendant ASD Construction Co., Ltd.;

2) Defendant Samsung C&T Co., Ltd permits perusal and copying (including shooting and copying of computer files) only within business hours at the head office or the storage place of Defendant Samsung C&T Co., Ltd., in the list of shareholders listed in attached Table 1 List 2.

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

2. Five minutes of the total costs of the lawsuit are assessed against the Plaintiff, and the remainder is assessed against the Defendants, respectively.

Purport of claim and appeal

1. Purport of claim and incidental appeal

The judgment of the court of first instance is modified as follows. A. Defendant A. A. The company permitted the perusal and copying (including photographing and copying of computer files) of the list of shareholders listed in the attached Table 2 List No. 1 at the head office or the storage place of Defendant AS. Construction Co., Ltd., and B. The merged Samsung C&T Co., Ltd. (1101-002975) allowed the perusal and copying (including photographing and copying of computer files) of the list of shareholders listed in the attached Table No. 2 List No. 2 within business hours at the head office or the storage place of the Defendant Samsung C&T Co., Ltd. (including copying and copying of computer files) (the Plaintiff’s appeal was filed only by the Defendants, and extended and reduced the purport of the claim as above, and with respect to the part expanded from the trial of the above claim, the Plaintiff’s incidental appeal is deemed to have been filed (see Supreme Court Decision 97Da3066, Feb. 25, 200).

2. Purport of appeal

Each part of the judgment of the court of first instance against the Defendants shall be revoked, and each of the plaintiff's claims corresponding to the revocation shall be dismissed.

Reasons

1. Facts of recognition;

This Court's explanation is the same as the corresponding part of the reasoning of the judgment of the court of first instance, in addition to the following cases. Thus, this Court's explanation is accepted by the main sentence of Article 420 of the Civil Procedure Act.

The first instance court's decision of the first instance court, "Defendant Samsung C&T Co., Ltd. (hereinafter "Defendant Samsung C&T")" in the third instance court's decision, "T&T." in the third instance court's decision, "T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T. and C.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.T.

○ The fourth [Attachment 2] of the judgment of the first instance court is as follows.

A person shall be appointed.

○ From 5th to 10th, the first instance court held the roster of beneficial shareholders prepared as of April 24, 2014 in the case of Defendant C&S construction, and held the roster of beneficial shareholders prepared as of December 31, 2013 in the case of Defendant C&T construction,” and held the roster of beneficial shareholders as of December 31, 2014 in the case of Defendant C&S construction, and held the roster of beneficial shareholders prepared as of December 31, 2014 in the case of Samsung C&T construction.

○ Part 5, No. 11 of the judgment of the first instance court, "No. 1 through 9 of the first instance court" is "Seoul High Court 2015Na2004199, Gap evidence No. 1 through 9 of the Seoul High Court 2015Na2005, and Gap evidence No. 1 through 10 of the same court 2015Na205."

2. The parties' assertion

A. The plaintiff's assertion

Since management, including directors of Samsung C&S and Samsung C&T (hereinafter “the Defendants prior to the merger”), participated in the bid collusion for each of the above construction works and inflicted damages equivalent to the penalty surcharges on the Defendants prior to the merger, shareholders of the Defendants prior to the merger may file a shareholder representative lawsuit against the said management. For this purpose, it is necessary to grasp the current status of shareholders of the Defendants prior to the merger. Therefore, the Plaintiff, a shareholder of the Defendants prior to the merger, who is a shareholder of the Defendants prior to the merger, filed a request for perusal and copying of the shareholders’ list under the Commercial Act and the beneficial shareholders’ list under the Capital Markets Act, currently held against the Defendants prior to the merger.

B. The Defendants 1’ assertion

1) Unlike the Commercial Act, there is no provision recognizing a right to peruse and copy the roster of beneficial shareholders, and the purpose and procedure for the preparation of the roster of beneficial shareholders under the Commercial Act and the roster of beneficial shareholders under the Capital Markets Act are different. A beneficial shareholder listed in the roster of beneficial shareholders is not reflected in the current status of shareholders as at the time of filing a lawsuit necessary for shareholder representation as a shareholder based on the closing period or base date, and thus, it is unreasonable to apply the provisions of the Commercial Act to the

2) Considering the ordinary trading volume of shares issued by the Defendants prior to the merger, most of the beneficial shareholders on the actual shareholders registry requesting perusal and copying of the Plaintiff is no longer shareholders of the Defendants prior to the merger, and thus, the actual shareholders registry containing personal information of many past shareholders, who are not shareholders, is merely the shareholders registry of the previous shareholders and cannot be subject to perusal and copying of the shares.

3) The Plaintiff filed a claim for inspection and copy of this case for the purpose of soliciting a shareholder derivative suit. Since the Defendants filed a revocation suit against the Fair Trade Commission’s disposition of imposition of a penalty surcharge against the Defendants prior to the merger and the relevant lawsuit continue to exist, it is unclear whether the damages corresponding to the said penalty surcharge have occurred to the Defendants prior to the merger, not to secure or exercise the rights of shareholders, but to file a shareholder derivative suit for political purposes, and even without filing a claim for inspection and copy of this case, the Plaintiff may invite shareholders necessary for filing a shareholder derivative suit by other means. Thus, the legitimate purpose of the claim for inspection and copy is not recognized.

4) The list of beneficial shareholders under the Capital Markets Act contains a large number of personal information of shareholders or persons, other than shareholders, so if such inspection and copying are allowed, such personal information can be abused, and the said personal information is in violation of the Personal Information Protection Act prohibiting the provision of personal information to third parties.

5) If a beneficial shareholder registry is permitted under the Capital Markets Act, the scope should be limited to the information available to the shareholder registry pursuant to the Commercial Act. Therefore, electronic mail addresses should be excluded from the scope of perusal and copying.

3. Determination as to the request for perusal and copying of the register of shareholders under Article 396(1) of the Commercial Act

Article 396(1) of the Commercial Act provides that a director of a corporation shall keep the company’s list in its principal office. Article 396(2) of the same Act provides that a shareholder may request the inspection or copying of the company’s list at any time during business hours. In cases where a shareholder makes a request for inspection or copying of the company’s list pursuant to Article 396(2) of the Commercial Act, the company cannot reject such request unless there are special circumstances, such as the absence of justifiable purpose, and in such cases, the burden of proving that there is no justifiable purpose (see, e.g., Supreme Court Decision 2008Da37193, Jul. 22

In light of the fact that the Plaintiff is a shareholder holding the Defendants’ shares prior to the merger as seen earlier, barring any special circumstance, the Plaintiff may request for perusal and copying of the list of shareholders listed in the attached Table 1-A of the attached Table 1-2 of the attached Table 1-A of the Samsung C&T in accordance with Article 396 of the Commercial Act. However, in light of the fact that Article 396(1) of the Commercial Act and the exercise of the rights by shareholders have an inherent limitation that cannot be exercised in a way that seriously impedes the company’s operation, it is reasonable to view that perusal and copying of the above list of shareholders is permitted only within business hours at the head office of the Defendants prior to the merger or the place of storage of the documents thereof.

As to this, the Defendants asserted that the Plaintiff’s claim for inspection and copy of the Plaintiff’s above claim is not justified. However, in light of the circumstances examined in Section 4.c. (2) above, it is insufficient to acknowledge that the Defendants’ claim for inspection and copy of the Plaintiff’s shareholder registry was unfair due to the lack of legitimate purpose, and there is no other evidence to acknowledge otherwise.

Therefore, the plaintiff's claim as to the register of shareholders under Article 396 (1) of the Commercial Act by the Defendants prior to merger is justified, and the defendants' claim as to this is without merit.

4. Determination as to the perusal and copying of the list of de facto shareholders under the Capital Markets Act

(a) Whether a request for inspection and copying of the roster of beneficial shareholders is recognized;

1) Issues

Shareholders and creditors may request perusal or reproduction of the minutes of the general meeting of shareholders, the stockholders' list, and the bond register at any time during business hours pursuant to Article 396 (2) of the Commercial Act.

Article 316(1) of the Capital Markets Act provides that an issuer of stock certificates or a transfer agent who is notified of the matters regarding beneficial shareholders by the Securities Depository shall prepare and keep a roster of beneficial shareholders containing information about beneficial shareholders (Article 316(1)). However, the Capital Markets Act does not explicitly provide that shareholders, etc. may request inspection and copying of the roster of beneficial shareholders.

Therefore, it is a problem whether the right to peruse and copy the list of beneficial shareholders under the Capital Markets Act can be recognized by analogy of Article 396(2) of the Commercial Act concerning the right to request perusal and copy of the list of beneficial shareholders.

2) Whether the right to inspect and copy the roster of beneficial shareholders can be recognized

Whether to recognize the right to peruse and copy the roster of beneficial shareholders shall be determined by applying Article 396(2) of the Commercial Act, considering the purpose and function of recognizing the right to claim perusal and copy of the roster of beneficial shareholders under the Commercial Act, whether it is necessary to recognize the right to claim perusal and copy of the roster of beneficial shareholders, the meaning and effect of entry in the roster of beneficial shareholders, etc.

A) The purpose and function of recognizing the right to claim perusal and copy of the register of shareholders under the Commercial Act

The purpose of Article 396(2) of the Commercial Act, which allows shareholders to peruse or copy the register of shareholders along with the minutes of the general meeting of shareholders, is to protect the interests of the company by indirectly monitoring the institutions of the company at the same time and at the same time. In addition, this provision also functions to prevent the abuse of shareholders' rights by allowing minority shareholders to jointly exercise shareholders' rights or recommend to exercise voting rights by proxy with other shareholders. The right to peruse and copy the register of shareholders is recognized regardless of the number of shares owned by the shareholders. This can be seen as aimed at the above purpose and function.

B) The need to recognize the right to request perusal and copying of the roster of beneficial shareholders

In the case of a stock-listed corporation, it is necessary to protect shareholders and monitor the corporation’s agencies or prevent abuse of shareholders’ rights by controlling shareholders. However, in the case of a stock-listed corporation, the register of shareholders under the Commercial Act uses the alternative settlement system via the Securities Depository, and thus does not function as a register of shareholders indicating the current status of stockholding as it is de facto dissipated. If shareholders’ access to the list of beneficial shareholders prepared to supplement the functions of the register of shareholders is not permitted, the legislative purpose of Article 396(2) of the Commercial Act recognizing the shareholder’s right to request perusal and copying of the register of beneficial shareholders cannot be achieved. Therefore, it is necessary to

C) The effect of entry in the register of beneficial shareholders, such as the effect of entry in the register of beneficial shareholders, has the same effect as entry in the register of beneficial shareholders under the Commercial Act (Article 316(2) of the Capital Markets Act). The effect of entry in the register of beneficial shareholders is the same as entry in the register of beneficial shareholders under the Commercial Act (Article 316(2) of the same Act). The effect of entry in the register of beneficial shareholders is that the register of beneficial shareholders has the same effect as entry in the register of beneficial shareholders under the Commercial Act. Therefore, a beneficial shareholder may exercise rights as a shareholder under the Commercial Act, in principle, with respect to the matters other than entry in the register of beneficial shareholders in the register of beneficial shareholders in the name of a company with respect to deposited stock certificates (Article 314(2) and (3) of the same Act). In light of the substance of the register of beneficial shareholders, a beneficial shareholder may exercise rights as mentioned above, namely, the same or similar entry in the register of beneficial shareholders in the register of beneficial shareholders.

D) Sub-committee

In addition to the above circumstances, Article 315(2) of the Capital Markets Act provides that a beneficial shareholder may exercise the right to peruse and copy the roster of shareholders under Article 396(2) of the Commercial Act. If a beneficial shareholder is unable to make a request for perusal and copy of the roster of beneficial shareholders, a shareholder on the registry of beneficial shareholders may peruse and copy the roster of beneficial shareholders under the said Commercial Act. However, even if the beneficial shareholder cannot peruse and copy the roster of beneficial shareholders, a shareholder on the registry of beneficial shareholders may also be deemed as having expressed his/her intention to deal equally with the beneficial shareholder registry under the Capital Markets Act and the register of beneficial shareholders under the Commercial Act. On the other hand, the proviso to Article 315(2) of the Capital Markets Act provides that, with respect to the share certificates registered in the name of the Securities Depository, a beneficial shareholder may exercise his/her rights as a shareholder, and it does not affect the right to request perusal and copy of the roster of beneficial shareholders merely because it does not affect the right to request perusal and copy of the roster of beneficial shareholders.

However, in practice, according to the Securities Depository's "Regulations on Deposit Business of Securities, etc." and "Regulations on the Implementation of Deposit Business of Securities, etc." prepared by the Securities Depository, the roster of beneficial shareholders includes a number of information about beneficial shareholders in addition to the matters set forth in the items of Article 352 (1) of the Commercial Act, and if such information is disclosed, it is not likely to be an issue in terms of protecting the privacy of individuals. However, this seems to be sufficiently resolved by properly limiting the allowable scope of perusal and copying of the roster of beneficial shareholders.

Therefore, as seen earlier in various circumstances, it is difficult to find reasons to treat differently the list of shareholders under the Commercial Act and the list of beneficial shareholders under the Financial Investment Services and Capital Markets Act as to whether to grant access to and copy of a claim for inspection and copy of a claim for inspection and copy of a claim, and it can also be resolved by different methods such as the protection of personal information derived from perusal and copy of the list of beneficial shareholders. Thus, it is reasonable to deem that Defendant AS Construction, which was prepared and kept under the Financial Investment Services and Capital Markets Act as of December 31, 2014, is permitted to peruse and copy the list of beneficial shareholders as of June 11, 2015 (hereinafter “actual shareholder registry of this case”) through analogical application of Article 396(2) of the Commercial Act to the beneficial shareholder registry prepared and kept by Samsung C&T as of December 31, 2015.

(b) Extent of the recognition of claims for inspection and copying of the roster of beneficial shareholders;

1) Matters to be entered in the register of shareholders under the Commercial Act in the register of shareholders and the register of beneficial shareholders are the names and addresses of shareholders, the types and numbers of shares held by each shareholder, and the serial number of each shareholder when a shareholder has issued share certificates, and the date of acquisition of each share certificate (Article 352(2) and (1) of the Commercial Act). On the other hand, the register of beneficial shareholders under the Financial Investment Services and Capital Markets Act provides that "actual shareholder number, the name, resident registration number and address of the beneficial shareholder, the electronic mail address of the beneficial shareholder (limited to the case where the electronic mail address exists), the type and number of shares by beneficial shareholder, the date of notification of beneficial shareholder, the name and address of the relevant full-time agent, the foreigner's nationality and other matters necessary for the management of the beneficial shareholder if the beneficial shareholder is a foreigner (Article 315(3) of the Financial Investment Services and Capital Markets Act provides that "the name and address of the relevant foreigner, the type of shares, and the date of deposit of securities, etc." under Article 43(2).

2) Scope of perusal and copying of the entries in the roster of beneficial shareholders

A) On the other hand, in preparation for each entry in the register of beneficial shareholders under the Commercial Act and the register of beneficial shareholders under the Financial Investment Services and Capital Markets Act, the part which can be said to be almost identical in its meaning is the name and address of the beneficial shareholder, the type and number of shares by each beneficial shareholder, and the remaining entry except the name and address of the beneficial shareholder, the type and number of shares by beneficial shareholder under the Financial Investment Services and Capital Markets Act, and the name and address of the beneficial shareholder, especially the resident registration number of the beneficial shareholder or the name and address of the permanent agent, etc., should be protected as personal information. Therefore, barring any special circumstance, the Defendants should allow the Plaintiff to peruse and copy the part of the entry “the name and address of the beneficial shareholder, the type and number of shares by beneficial shareholder

B) The Plaintiff asserts that the Plaintiff and the receiver are shareholders of the Defendants prior to the merger, and that the Plaintiff’s use of information obtained through perusal and copying for other purposes than soliciting shareholders’ derivative suit is punished under the Personal Information Protection Act, in full view of the following: (a) as long as the address of the beneficial shareholder, including the Plaintiff’s document, where mail is to be sent, is included in the scope of perusal and copying, the e-mail address, which is the means of communication which has already been sent in our society, should also be included in the subject of perusal and copying of the e-mail address, as long as the “the address of the beneficial shareholder, such as the Plaintiff’s document, etc., where mail is to be sent, is included in the scope of perusal and copying. The Defendants prior to the merger asserted that even if the perusal and copying of the e-mail address is permitted, the scope should be limited to the information

In light of the above, even if the Plaintiff’s right to peruse and copy the register of beneficial shareholders is recognized, it is based on Article 396(2) of the Commercial Act’s analogical application. As such, it is not appropriate to allow perusal and copy of matters not entered in the register of beneficial shareholders under the Commercial Act. In this context, entry in the register of beneficial shareholders under the Capital Markets Act is “name and address, type and number of shares,” and e-mail addresses are items to be entered in the register of beneficial shareholders if there is e-mail address in accordance with the business regulations of the Korea Securities Depository, and e-mail addresses fall under the entry in the register of beneficial shareholders under the Commercial Act (Article 392-2 of the Enforcement Decree of the Commercial Act) but are clearly excluded from the subject of perusal and copy of the electronic register (Article 11(2) of the Commercial Act). Therefore, it is difficult to expand interpretation of the scope of the right to claim perusal of the register of beneficial shareholders on the ground that e-mail is a means for communication for less cost.

It is reasonable to deem that it cannot be seen as impossible.

C. Determination as to the defendants' assertion

1) Considering that the beneficial shareholder registry of this case is not permissible to be perused and copied as it was the past; 1) the trading volume of shares issued by the Defendants prior to the merger can exceed the total number of shares issued in several months, it cannot be readily concluded that beneficial shareholders listed in the beneficial shareholder registry of this case are not currently the Defendants’ beneficial shareholders prior to the merger; 2) based on the facts and evidence acknowledged earlier, etc., the most recent among the beneficial shareholder registry prepared and kept by the Defendants prior to the merger is recognized as the beneficial shareholder registry of this case; 3) whether the Defendants meet the requirements for filing a shareholder representative suit of this case can be determined by the determination of whether the shareholders themselves are the shareholder registry of this case; 3) even if the evidence submitted by the Defendants up to the trial of this case and the circumstances of its assertion were considered, it is reasonable to accept the Plaintiff’s claim for perusal and copy of the beneficial shareholder registry of this case as stated in Article 26(2) of the Commercial Act, and the Plaintiff’s claim for perusal and copy of this case’s claim of this case can not be accepted.

In addition, the existence of the above unfair purpose should be determined individually according to the specific circumstances where the request for inspection and copying of the register of beneficial shareholders was made. ① The Plaintiff’s request for inspection and copying of the register of beneficial shareholders is not for itself, but for other beneficial shareholders, it is difficult to view it as irrelevant to the protection of the interests of the company and shareholders. ② The Plaintiff actually filed a shareholder representative lawsuit against the directors of other construction companies that were imposed by the Fair Trade Commission, which judged that they should contain the Defendants prior to the merger. ③ Although the Defendants filed a suit seeking revocation of the above disposition of imposition of the penalty surcharge by the Fair Trade Commission, some of them are subject to the final judgment against which the Defendants already lost, it is difficult to conclude that the preparation and solicitation of the shareholder representative lawsuit for this reason was merely based on the Plaintiff’s subjective belief, and ④ in the list of beneficial shareholders, it is difficult to readily conclude that the Defendants’ request for inspection and copying of the same were for inspection and copying of the same as the Plaintiff’s allegation that there was no practical benefit from the Plaintiff’s request for inspection and copying of the same.

3) In practice, the list of beneficial shareholders includes a large number of information about beneficial shareholders in addition to the matters set forth in the subparagraphs of Article 352(1) of the Commercial Act, and if such information is disclosed, it is likely that the violation of the Personal Information Protection Act may be at issue, as argued by the Defendants.

However, according to Articles 15(1)2 and 17(1)2 of the Personal Information Protection Act, a personal information manager shall use the collected personal information or provide it to a third party within the scope of the purpose of collection, in cases where there are special provisions in Acts or inevitable circumstances to comply with statutory obligations. Article 396 of the Commercial Act recognizes a shareholder’s right to access and copy the shareholder’s roster, and Article 396 of the Commercial Act recognizes a shareholder’s right to access and copy through analogical application of Article 396 of the Commercial Act to the extent that such access and copy is permitted within a certain scope. Thus, the Defendants cannot refuse the perusal and copy of the shareholder’s roster based on the Personal Information Protection Act. In addition, the scope of the scope of access and copy of the shareholder’s beneficial shareholder registry itself is restricted, and the same can be resolved to some extent as argued by the Defendants through the observance of the duty to protect personal information protection under the Personal Information Protection Act and the punishment of a third party against access and copy’s personal information.

Ultimately, in full view of the above circumstances, the necessity of the Defendants’ request for inspection and copying of shareholders on the roster of beneficial shareholders, etc., even if considering the evidence submitted by the Defendants up to the trial and the circumstances of its assertion, it is reasonable to deem that the Defendants cannot refuse the Plaintiff’s request for inspection and copying of the names and addresses of beneficial shareholders, and the kind and number of shares of each beneficial shareholder on the ground of the Personal Information Protection Act. This part of the Defendants’ assertion based on a different premise is without merit.

D. Sub-determination

Therefore, the plaintiff's request for inspection and copying of the beneficial shareholder list of this case is justified within the scope of the above recognition.

5. Conclusion

Thus, the plaintiff's claim of this case extended and reduced in the trial shall be accepted within the scope of the above recognition. Therefore, the judgment of the court of first instance shall be modified as ordered.

Judges

presiding judge, senior judge and senior judicial officer

Judges Kim Dong-dong

Judges Kang Jae-sung

Note tin

1) Samsung C&T (11011-0002975) that was initially the Defendant at issue was the Defendant of the instant case on September 15, 2015, after the closing of argument in the instant case.

Busan Co., Ltd. (11011-0015762, trade name before the change: Ilmmo Co., Ltd.) and Defendant Samsung C&T Co., Ltd.

(11011-015762) taken over the proceedings of this case on September 22, 2015; hereinafter referred to as “the proceedings”), the Defendant AS Construction Division and the litigant.

one of the defendants Samsung C&T Co., Ltd.

심급 사건

-서울중앙지방법원 2014.12.11.선고 2014가합525955,525962

서울고등법원 2015.10.7.선고 2015나2004199

-대법원 2017.11.14.선고 2015다246780

참조조문

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-개인정보 보호법 제15조 제1항 제2호

-개인정보 보호법 제17조 제1항 제2호

-민사소송법 제420조

-상법

-상법 제352조 제1항