[1] Scope of the creative effect of a judicial compromise, and whether such legal relationship is equally applicable to a conciliation under the Judicial Conciliation of Civil Disputes Act (affirmative)

[2] The method of interpreting a juristic act in a case where the objective meaning is not clearly revealed by the parties’ language and text, and whether such a legal principle is likewise applicable to a case where there is a dispute as to the interpretation of the conciliation clause after the conciliation was concluded between the parties (affirmative)

[3] In a case where the transfer of shares before the issuance of share certificates takes place six months after the incorporation of the company, whether the transferee of shares can solely file a transfer claim against the company (affirmative in principle)

[4] The case holding that the court below erred by misapprehending the legal principles, which determined that Byung acquired the above shares on the date of the transfer agreement prior to the provisional seizure of shares, and that Byung acquired the above shares before the provisional seizure of shares, in case where Eul had a provisional seizure order upon Eul's application and notified Eul of the transfer of the above shares, and the provisional seizure order was issued upon Eul's application, and the provisional seizure order was delivered to Eul was delivered to Eul, and the provisional seizure order was delivered to Eul, and the provisional seizure order was transferred to Eul. After the provisional seizure was established, Eul had been entered in the register of shareholders as if Eul transferred the above shares to Byung, and Byung had been entered in the register of shareholders as if Byung had been transferred to Byung, Byung filed a lawsuit against Byung, Eul, etc. seeking confirmation of Eul's shares as a shareholder of the above shares.

[1] A settlement in the court has the same effect as a final and conclusive judgment (Article 220 of the Civil Procedure Act), and if a settlement in the private law takes its original effect (Article 732 of the Civil Act), the relationship of rights and obligations based on the previous legal relationship shall be extinguished. However, the extent of the original effect of a settlement shall be limited to the matters agreed by the parties to confirm and confirm each other by mutual concession, and it shall not take effect with respect to any matters that are not different by the parties or which are understood under the premise of a settlement. Such legal relationship likewise applies to conciliation under the Judicial Conciliation of Civil Disputes Act, which is recognized as having the same effect as a settlement in the court.

[2] Interpretation of a juristic act is clearly established by a party’s objective meaning given to the act of expression. In a case where the objective meaning is not clearly revealed by the party’s language and text, it shall be reasonably interpreted in accordance with logical and empirical rules, social common sense and transaction norms so that it conforms to the ideology of justice and equity, by comprehensively taking into account the contents of the language and text, motive and background of the juristic act, the purpose and genuine intent of the party to be achieved by the juristic act, transaction practices, etc., and such legal doctrine likewise applies to a case where there is a dispute as to the interpretation of the conciliation clause after

[3] If the transfer of shares before the issuance of share certificates takes place six months after the incorporation of the company, the transferee of shares can unilaterally prove that he/she acquired shares without the need for the transferor's cooperation and then request the change of entry into the company.

[4] Where an agreement was concluded between Gap corporation's representative director Eul and Byung on transfer of Gap corporation's shares which were issued before the issuance of the share certificates (hereinafter "transfer agreement"), but after which Byung had been registered in the register of shareholders as if Byung transferred the above shares to Byung, mediation was concluded due to Byung's filing a lawsuit against Byung, Eul, etc. for confirmation as shareholders of Byung's shares, and " Byung's confirmation as shareholders of the above shares" and " Byung's transfer of the above shares was notified by entering into a contract to acquire the above shares from Byung, and the provisional attachment order was issued by Eul, and the provisional attachment order was delivered to Eul corporation which was the third party debtor Eul, and the provisional attachment order was delivered to Byung after the provisional attachment order became effective after the provisional attachment order became effective, the court below erred in the misapprehension of legal principles as to the remaining shares acquired by Byung's transfer of the above shares, and thus, it should be interpreted that Byung's transfer of the above shares was effective after the provisional attachment order became effective only before Byung's issuance of the above shares.

[1] Article 732 of the Civil Act, Article 220 of the Civil Procedure Act, Article 29 of the Judicial Conciliation of Civil Disputes / [2] Article 105 of the Civil Act, Article 28 of the Judicial Conciliation of Civil Disputes Act / [3] Articles 335(3), 336(1), and 337(1) of the Commercial Act / [4] Articles 105 and 732 of the Civil Act, Article 220 of the Civil Procedure Act, Articles 28 and 29 of the Judicial Conciliation of Civil Disputes Act, Articles 335(3), 336(1), and 337(1) of the Commercial Act

[1] Supreme Court Decision 99Da17319 Decided April 27, 2001 (Gong2001Sang, 1227) / [2] Supreme Court Decision 2009Da31550 Decided September 10, 2009 (Gong2017Sang, 1093) Decided April 26, 2017 / [3] Supreme Court Decision 99Da67529 Decided March 23, 200 (Gong2000Sang, 1032) (Gong2005Da4537 Decided September 14, 2006)

Plaintiff (Attorney Lee Jin-hee, Counsel for the plaintiff-appellant)

Osan Military Passenger Transport Co., Ltd. (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Supreme Court Decision 2015Da71795 Decided March 24, 2016

Suwon District Court Decision 2016Na5969 decided May 12, 2017

The part of the judgment of the court below against the defendant regarding the claim for the transfer of ownership to 2,425 shares listed in the separate sheet among 4,260 shares is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. A settlement in the court has the same effect as a final and conclusive judgment (Article 220 of the Civil Procedure Act), and if a settlement in the private law takes effect (Article 732 of the Civil Act), the relationship of rights and obligations based on the previous legal relationship is extinguished. However, the extent of effect on the creation of a settlement shall be limited to the matters agreed by the parties to confirm and confirm each other by mutual concession, and it shall not take effect with respect to matters that have not been proved by the parties or which have not been understood on the premise of the settlement (see Supreme Court Decision 9Da17319, Apr. 27, 2001). Such legal relationship likewise applies to conciliation under the Judicial Conciliation of Civil Disputes Act, the same effect as that of a judicial compromise is recognized by Article 29 of the Judicial Conciliation of Civil Disputes Act.

Meanwhile, the interpretation of a juristic act is to clearly confirm the objective meaning that the parties gave to the act of representation. In a case where the objective meaning is not clearly revealed by the language and text expressed by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, common sense of society and transaction norms so that it conforms to the ideology of justice and equity, by comprehensively taking into account the contents of the language and text, the motive and circumstances leading up to the juristic act, the purpose and genuine intent to be achieved by the said juristic act, transaction practices, etc. In a case where there is a dispute as to the interpretation of the pertinent adjustment clause after the parties to the lawsuit reached mediation (see Supreme Court Decision 2009Da31550, Sept. 10, 2009).

In addition, if the transfer of shares before the issuance of share certificates takes place six months after the company's incorporation, the transferee of shares can independently prove that he/she acquired shares without the transferor's cooperation, barring any special circumstances (see, e.g., Supreme Court Decisions 9Da67529, Mar. 23, 2000; 2005Da45537, Sept. 14, 2006).

2. Based on its stated reasoning, the lower court determined that, on the grounds that Nonparty 1 acquired 4,260 shares listed in the separate sheet only on October 27, 2009, which was the date on which the conciliation was concluded, Nonparty 1 was obligated to implement the transfer procedure to change the name of the shareholder on the shareholder registry to the Plaintiff who acquired 4,260 shares from Nonparty 1, on October 7, 2009, which was issued upon Nonparty 2’s request, prior to the conclusion of the conciliation, on the premise that Nonparty 1 owned 4,260 shares, and the provisional attachment order of shares on October 7, 2009, which was issued on July 25, 2012 based on the said provisional attachment order, did not have any effect as to the above shares 4,260 shares, and thus, the Defendant was obligated to implement the transfer procedure to change the name of the shareholder on the shareholder registry.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

1) Nonparty 2 is the representative director of the Defendant from February 18, 2005 to the date of February 18, 2005, and Nonparty 1 owned 2,000 shares issued by the Defendant as of February 18, 2005.

2) On February 18, 2005, Nonparty 2 entered into an agreement with Nonparty 1 and Nonparty 2 to hold 4,260 shares listed in the separate sheet among the shares issued by the Defendant 10,260 shares issued by Nonparty 2, and Nonparty 1 as of February 18, 2008. Nonparty 3, who represented Nonparty 2 and Nonparty 1, was certified by a notary public under the same agreement with the Dongwon General Law Firm on February 18, 2005.

3) On March 22, 2009, prior to the conclusion of mediation, Nonparty 1 entered into an agreement with Nonparty 4 and Nonparty 1 to immediately transfer 2,00 shares issued by the Defendant, which were previously owned by Nonparty 1, to Nonparty 4.

4) Nonparty 1 filed a lawsuit against Nonparty 2, Nonparty 5, Nonparty 6, and the Defendant on the following grounds, against Nonparty 2, Nonparty 5, Nonparty 6, and the Defendant: (a) verifying that the shares issued by the Defendant were shareholders of 6,260 shares (including shares issued by the Defendant, which were previously owned by Nonparty 1); and (b) claiming for the implementation of transfer procedures on the register of shareholders in the name of shareholders against the Defendant regarding 4,260 shares issued by the Defendant; and (c) claiming for the payment of KRW 100 million and delay damages against the Defendant and Nonparty 2 ( Suwon District Court 209Da16523).

A) On February 18, 2005, Nonparty 2 entered 10,00 shares out of 10,260 shares issued by the Defendant, which were owned by Nonparty 2, in collusion with Nonparty 5 and Nonparty 6, without any intention to donate or transfer the shares, as if they were transferred in the register of shareholders. Nonparty 2 falsely transferred 4,260 shares out of 10,260 shares issued by the Defendant, which were owned by Nonparty 2, to Nonparty 6. By entering the remaining 8,260 shares in the register of shareholders as if they were transferred to Nonparty 5, Nonparty 2’s shares issued by the Defendant, which were owned by Nonparty 2, 10,260 shares, to Nonparty 1.

B) Nonparty 1 requested Nonparty 2 to transfer 4,260 shares issued by the Defendant to Nonparty 1 and transfer the name of change in the register of shareholders, but Nonparty 2 did not dispute Nonparty 1’s shareholder rights and did not implement the request even at the time.

C) The Defendant is obligated to implement the transfer procedure on the register of shareholders in the name of Nonparty 1 on the part of Nonparty 5 and Nonparty 6 on the 4,260 shares issued by the Defendant that are the shareholders.

D) Nonparty 1 held 2,00 shares issued by the Defendant prior to the conclusion of the agreement on February 18, 2005, and acquired 4,260 shares issued by the Defendant in addition to the validity of the agreement on February 18, 2008 after February 18, 2008. Thus, Nonparty 1 and Nonparty 2, the representative director of the Defendant and Nonparty 2, were required to receive 227,001,60 shares issued by the Defendant during the period of stock ownership, and did not distribute the said amount to Nonparty 1, the shareholder, by neglecting their duties in bad faith or gross negligence. Accordingly, pursuant to Articles 401, 389(3), and 210 of the Commercial Act, the Defendant and Nonparty 2 are jointly and severally liable to compensate for the said amount of KRW 227,01,600,000, and Nonparty 1 and Nonparty 2, a part of the amount of KRW 100,000,00.

5) On October 27, 2009, the following mediation (hereinafter “instant mediation”) was established in the said lawsuit.

A) On February 18, 2005, Nonparty 1 completely withdraws the part other than the claim under the agreement of February 18, 2005. Nonparty 2, Nonparty 5, Nonparty 6, and the Defendant agree thereto.

B) Nonparty 1 confirms that Nonparty 1 is a shareholder with respect to 4,260 shares listed in the separate sheet among Nonparty 5’s shares.

C) The Defendant shall implement the transfer procedure for Nonparty 1 with respect to Nonparty 4,260 shares listed in the separate sheet among the shares owned by Nonparty 5.

D) Nonparty 1 waives the remainder of the claims under the agreement of February 18, 2005.

6) Meanwhile, on October 7, 2009, Nonparty 2 received a provisional attachment decision (No. 2009 businesshap31) against Nonparty 1 as the right to preserve the consolation money claim against Nonparty 4,260 shares listed in the separate sheet, and the said decision was served on October 13, 2009 against the Defendant, who is the garnishee, and on July 25, 2012, the Suwon District Court Decision No. 2009Dhap666 decided on July 25, 2012 (U.S. District Court No. 2015497) to transfer the provisional attachment against Nonparty 1 as the principal attachment (U.S. District Court No. 2015497). On November 10, 2014, Nonparty 2 received a provisional attachment order against Nonparty 231 (U.S. District Court) in lieu of the claimed amount of KRW 4,260,425 shares out of the above 4,627,1227

7) On January 18, 2010, the Plaintiff entered into a contract with Nonparty 1 and Nonparty 1 to acquire 4,260 shares listed in the separate sheet. On February 19, 2010, Nonparty 1 notified the Defendant of the transfer of the above shares 4,260 shares by mail verifying the contents of the transfer, and the Defendant received the above notification on the following day.

B. Examining the above facts in light of the legal principles as seen earlier, the following can be arranged.

The conciliation provisions of this case merely state that Nonparty 1 is a shareholder with respect to 4,260 shares listed in the separate sheet among the shares owned by Nonparty 5. Since Nonparty 1 does not state any grounds for acquiring the above shares, the content of the above stock acquisition should be reasonably interpreted in accordance with logical and empirical rules, general common sense, and transaction norms so that it conforms to the ideology of social justice and equity, comprehensively takes into account the motive and background leading up to the conciliation of this case, the purpose and genuine intent that Nonparty 1, Nonparty 5, and Nonparty 2, etc. achieved through the conciliation of this case.

Since the conciliation clause of this case provides that the non-party 1 shall withdraw the entire part other than the claim under the agreement of February 18, 2005, the agreement of February 18, 2005 is sufficient to regard the non-party 1, the non-party 5, the non-party 2, and the defendant as the premise of the conciliation of this case. The transfer of the non-party 4,260 shares in the separate agreement of February 18, 2005 takes effect only with the non-party 2 and the non-party 1's declaration of intent. Thus, it is reasonable to view that the non-party 1 acquired 4,260 shares in the separate agreement of February 18, 2008 pursuant to the non-party 1's agreement of February 18, 2005, the non-party 1 stated the non-party 2's list of shares as the non-party 5's shares in the separate agreement of February 6, 2005.

Therefore, it is reasonable to view that Nonparty 1 had already held 4,260 shares listed in the separate sheet at the time of the decision on provisional seizure of shares upon Nonparty 2’s request. Therefore, the provisional seizure of shares has the effect on the above 4,260 shares. Therefore, the Plaintiff, who acquired 4,260 shares from Nonparty 1 after the decision on provisional seizure of shares, cannot oppose Nonparty 2, the provisional seizure obligee.

However, the provisional attachment and the provisional attachment against 1,835 shares excluding 2,425 shares out of 4,260 shares listed in the separate sheet 4,260 shares in the provisional attachment and list 2,425 shares in the separate sheet excluding 2,425 shares in the separate sheet 4,260 shares subject to the provisional attachment and the provisional attachment with respect to the right to be preserved after the provisional attachment and the provisional attachment with respect to 1,835 shares in the above remaining shares shall become invalid. Thus, the prohibition of disposal by the above provisional attachment shall become extinct.

C. Nevertheless, Nonparty 1, who acquired 4,260 shares listed in the separate sheet only through the conciliation in this case, denied the validity of the decision on provisional seizure of shares issued before the conciliation in this case. The court below accepted the Plaintiff’s claim for the transfer of ownership to the remaining 2,425 shares out of 4,260 shares, other than 1,835 shares out of 4,260 shares, on the ground that the Plaintiff lawfully acquired 4,260 shares that do not have the effect of the decision on provisional seizure of shares. The court below erred by misapprehending the legal principles as to the scope of the creative effect of the conciliation in this case, which affected the conclusion of the judgment.

4. The Defendant appealed against the part of the lower judgment against the Defendant, but the part of the lower judgment against the Defendant regarding the claim for implementation of transfer procedures with respect to 1,835 shares out of 4,260 shares listed in the separate sheet, did not state the grounds for appeal, and did not state the grounds for objection in the appellate brief.

5. Therefore, the part of the judgment of the court below against the defendant regarding the claim for the transfer of ownership to 2,425 shares out of 4,260 shares listed in the separate sheet shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining grounds of appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices

[Attachment] List: omitted

Justices Kim Jae-hyung (Presiding Justice)