A. In the case of incorporation of a company, although the procedure for public offering of new shares was taken place, whether the promoters, who subscribed for most of the shares prior to public offering of shares, and subscribed for shares from the general public in form, acquire shares under the name of another person, shall be deemed as promotion of incorporation (affirmative)

B. The statement that recognizes the legal relationship or legal effect which is the premise of the principle of pleading and the subject matter of lawsuit.

C. The case holding that the judgment of the court below which found the lack of the inaugural general meeting as a defect in the promotion procedure of incorporation in light of the above legal principle as seen above "B" was not erroneous in the misapprehension of legal principle of pleading.

A. Although the company has been incorporated by the public offering procedure, if the promoters subscribed most of the shares prior to the public offering of shares and subscribed shares from the general public in the form of the public, if the promoters subscribed shares by taking advantage of the name of another person, the nominal purchaser would become the subscribers, and ultimately, the incorporation of the company would result in the acceptance of all the shares by promoters.

B. In light of the principle of pleading, the court cannot determine the facts that the parties did not assert, but the statement that recognizes the relation of right or legal effect, which is the premise of the subject matter of a lawsuit, is the right confession, and thus the objective substance of the claim is the same as that of the claim, the court may render a judgment by legitimate interpretation of the law on the substantive relation of right asserted as the cause of the claim

C. The case holding that, although the plaintiff asserted in the complaint that the establishment of the defendant company was not held at the inaugural general meeting on the premise that the establishment of the defendant company was not held at the general meeting, the establishment of the defendant company was made by the preparatory documents, etc., but the procedure of the establishment of the defendant company was taken for the purpose of convenience, if it was established in a manner that is contrary to good morals and other social order, mandatory regulations, or the essence of the corporation, and that the establishment is void as a matter of course, in light of the above legal principles, if the court below asserted that the ground for invalidation of the establishment of the defendant company was not sufficient to hold the above inaugural general meeting, it did not constitute an error of law by misapprehending the legal principles of the principle of pleading, since it judged

(a) Articles 295 and 328(b) of the Commercial Act; Article 188(b) of the Civil Procedure Act;

B. Supreme Court Decision 78Da1992 delivered on June 12, 1979 (Gong1979, 12061) 79Da62 delivered on June 9, 1981 (Gong1981, 13985) 80Da851 delivered on April 27, 1982 (Gong1982,555)

Plaintiff

Enzy Industrial Company

Defendant Intervenor’s Intervenor’s regular winning of the Defendant

Supreme Court Decision 89Meu15199 Decided May 11, 1990

Seoul High Court Decision 90Na21775 delivered on July 26, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant and the defendant joining the defendant.

The grounds of appeal by the Defendant and the Intervenor (the grounds of appeal are supplemental to the extent of supplement) are examined.

1. As to the grounds of appeal Nos. 1, 3, 4, and 5

1) According to the records, the court below held that the non-party 1 and the non-party 2 contributed 10,00,000 won to establish a stock company by investing the three mining rights of this case between the non-party 1 and the non-party 2, and the non-party 2 decided to establish the non-party 3, the non-party 3, the non-party 1, the non-party 5, the non-party 1, and the non-party 6, respectively, as promoters, while carrying out the business of establishing the company at the non-party 2, the non-party 4, the non-party 5, the non-party 1, and the non-party 6, as promoters, will select the method of establishing the company, and the promoters will accept shares as stated in its reasoning, on the ground that the non-party 7's public offering of shares was not in violation of the rules of incorporation, and therefore, the court below's decision that the non-party 2, the non-party 1 and the non-party 2's promoters's general meeting was found to be null and void.

2) Furthermore, the court below rejected all the defendant's defense that the plaintiff's claim is not permissible under the principle of good faith because it violates the principle of good faith, and the defendant's argument that the establishment of the company is invalid because the defect which caused nullification of the establishment of the company is cured. Thus, the court below's judgment that the plaintiff, a director of the company, filed a lawsuit in this case while he was in operation as a director, cannot be viewed as an act contrary to the abuse of rights or the principle of good faith, and it cannot be viewed as an act contrary to the principle of good faith, and that the lawsuit in this case cannot be permitted under the principle of good faith shall include the judgment of the court below as to the argument that the lawsuit in this case is against the abuse of rights, the principle of good faith, the argument that the defect in the procedure for the incorporation of the defendant company in this case is not supplemented, and the establishment of the company can not be invalidated without any further determination on the records. Thus, the judgment below is just and there is no error of law such as misunderstanding of legal principles, omission of reasoning

2. As to ground of appeal No. 2

Even if the court cannot determine on the basis of facts that the parties did not assert in the principle of pleading, the court may render a judgment by legitimate interpretation of the law on the substantive legal relationship asserted as the cause of the plaintiff's claim, as long as the objective substance of the claim is deemed identical, since the statement recognizing the relationship of rights or the legal effect which is the premise of the subject matter of lawsuit is bound by the court as the right confession.

According to the records, in this case, the plaintiff alleged that the inaugural general meeting was not held in the procedure for the establishment of the defendant company under the premise that the establishment of the defendant company of this case was a public offering, but on the other hand, according to the plaintiff's legal brief, etc. on February 20, 198 and September 19, 198, the establishment of the defendant company should be originally incorporated by the promotion of incorporation, but the plaintiff has taken the procedure for the establishment of a public offering for convenience, although the establishment of the defendant company should be made by the promotion of the original promotion of incorporation. The plaintiff's claim of this case is a corporation incorporated in violation of the law of good customs and other social order and the nature of the corporation, and supplements the cause of the claim that the establishment is null and void by the law, and at the same time, the plaintiff's claim of this case is sought to nullify the establishment of the defendant company as one of the grounds for nullification, but at the same time, the defect as the substance of the promotion of the incorporation is also asserted as the grounds for nullification.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)