[1] In a case where shares are subscribed for shares under the name of another person with the validity of the so-called lump-sum payment for shares and the consent of other person and the share price is paid, a person who is to become a shareholder as a de facto subscriber (i.e., a borrowed person who

[2] Whether Article 332 (2) of the Commercial Act, which imposes joint liability on the payment of shares, applies to the case of a lump sum payment (negative), and the person who is liable to pay the liability for the repayment of shares with the lump sum payment (=in fact, the person who is a nominal shareholder)

[1] Even in the case of the so-called lump sum payment of the share capital with temporary loan as a result of the incorporation of a stock company and the withdrawal of the share capital and repayment of the loan, the validity of the payment of the share capital cannot be denied. Therefore, in the case of the so-called lump sum payment of the share capital, it shall be deemed that the obligation of subscription price or the shareholder to pay the share capital has been terminated. Meanwhile, in the case of the subscription of shares with the consent of the other party and the payment of the share capital is made under the name of the other party, only the person who actually accepted the shares and actually paid the

[2] Article 332 (2) of the Commercial Code, which provides that both the nominal lender and the nominal lender shall be liable for the payment of the stock price before the payment of the stock price is made at the request of the company, does not apply to the lump sum payment of the stock price which has already become effective. Further, it can be viewed that the lump sum payment of the stock price has been made with temporary loan and shareholders' share price has been paid in advance, and even if the shareholders are liable for the repayment of the stock price that has been paid in advance to the company even after the expiration of the payment of the stock price, the obligation of the repayment of the stock price is merely the obligation of the nominal lender, the nominal lender, and it cannot be deemed the obligation of the nominal lender, who cannot be a shareholder.

[1] Articles 295 and 332 (2) of the Commercial Act / [2] Articles 295 and 332 (2) of the Commercial Act

[1] Supreme Court Decision 74Da804 delivered on September 23, 1975, Supreme Court Decision 97Da50619 delivered on April 10, 1998 (Gong1998Sang, 1286), Supreme Court Decision 97Da20649 Delivered on December 23, 1998 (Gong199Sang, 211)

Park Young-young (Law Firm Busan, Attorney Choi Sung-ju, Counsel for the plaintiff-appellant)

static fever

Busan High Court Decision 2001Na13570 delivered on April 19, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Judgment on the first point (the defendant's obligation to repay shares)

Article 332 (2) of the Commercial Code provides that "any person who has subscribed to shares in his name with the consent of another person shall be jointly and severally liable with the other person." This is a provision imposing joint liability for the payment of share capital on both the nominal lender who has created the nominal lender and the external appearance before completing the payment of share capital, and therefore the above provision shall not apply to the case where the payment of share capital is completed.

In the case of the so-called lump-sum payment for temporary loan with a loan out of the form of payment for the stock price at the time of the incorporation of a stock company, the validity of the payment for the stock price shall not be denied even in the case of the so-called lump-sum payment for the loan to repay the loan by withdrawing the payment for the loan (see Supreme Court Decision 97Da20649 delivered on December 23, 1998). Meanwhile, in the case where the share price is paid by investing the shares in the name with the consent of the other party in acquiring the shares, only the person who actually takes over the shares and pays the payment for the shares shall be the actual shareholder, and the name lender shall not be a shareholder (see Supreme Court Decision 74Da804 delivered on September 23, 1975, Supreme Court Decision 97Da50619 delivered on April 10, 198, etc.).

Therefore, Article 332 (2) of the Commercial Act, which imposes joint liability on both the nominal lender and nominal borrower prior to the payment of the stock price at the request of the company's capital adequacy, does not apply to the lump sum payment of the stock price which has already become effective, and it can be viewed that the lump sum payment of the stock price has already been made by the shareholders with temporary loan, and even after the expiration of the payment of the stock price, the shareholders have the obligation to repay the stock price paid in subrogation to the company. Therefore, even if the shareholders have the obligation to pay the stock price paid in subrogation to the company, such obligation to repay the stock price is merely the actual nominal borrower, but it cannot be said that the nominal lender bears the obligation to pay the stock price to the company.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and rejected the defendant's above obligation to pay shares to the non-party corporation (hereinafter "non-party corporation") since the defendant did not pay 100 million won of shares to the acquired shares, and even if the defendant is a nominal shareholder who leased the shareholder's name, according to Article 332 (2) of the Commercial Act, even though the defendant is a nominal shareholder, the person who consented to acquire shares under his own name is jointly and severally liable to pay shares to the non-party corporation. Since the plaintiff was fully paid 90 million won among the plaintiff, the defendant is liable to pay the above amount to the plaintiff, since the non-party 1 and the non-party 2 are not the defendant's obligation to pay shares to the non-party company since the defendant was fully paid the shares including the shares acquired by other subscribers including the defendant, the defendant's obligation to pay the shares to the non-party company is extinguished because the defendant's obligation to pay the shares to the non-party company is not included in the obligation to pay the non-party company.

In light of the above legal principles and the records, the above recognition and judgment of the court below are acceptable, and there are no errors in the misapprehension of legal principles as to the probative value of the disposal document, the allocation of burden of proof, or the obligation to repay shares, as otherwise alleged in the ground of appeal.

2. Judgment on the second point (the point of liability against a third party by a director)

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that "the defendant, as a director of the non-party company, had the non-party company, such as the plaintiff et al. deceiving the plaintiff by deceiving the plaintiff as a company with capital of one billion won although it was not paid in capital due to the fictitious payment of the stock price, and caused damage to the plaintiff by neglecting the non-party company's duty to prevent damage to the plaintiff by preventing the non-party company from causing damage to the plaintiff, as a representative director, and by aiding and abetting the non-party company from causing damage to the plaintiff." Thus, the court below rejected the plaintiff's assertion that "the non-party company is liable to compensate the plaintiff for damage pursuant to Article 401 (b) of the Commercial Act and Article 750 of the Civil Act, in collusion with the non-party 1 and the non-party 2, etc., as a director of the non-party company, the non-party company's non-party company's non-party company's non-party company's duty of supervision, including the representative director, etc.

Examining the relevant evidence in light of the records, the above recognition and judgment of the court below are acceptable, and there is no error of law by misunderstanding facts, or by misapprehending the legal principles as to directors' liability for damages to third parties or general tort liability, as otherwise alleged in the ground of appeal.

3. Judgment on the third point (the director's liability against the company)

According to the reasoning of the judgment of the court below, the court below rejected the judgment of the court below on the ground that the defendant's claim for damages on behalf of the non-party company on behalf of the non-party company, claiming that "the non-party company caused damage to the non-party company by neglecting the duty to make the non-party company's capital adequacy by having the same subscribers as the non-party company's director pay the share capital, and therefore, he did not have a duty to pay the share price to the non-party company, and there is no evidence to prove that the defendant violated the duty to monitor the non-party company's business performance even though he knew that the non-party 1 and the non-party 2's capital was actually lost due to the constructive payment of share price."

Examining the relevant evidence in light of the records, the above recognition and judgment of the court below is acceptable, and there is no error of law by misunderstanding facts or by misapprehending the legal principles as to the directors' liability for damages against the company, as otherwise alleged in the ground of appeal.

4. Conclusion

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 on the bench.

Justices Shin Shin-chul (Presiding Justice)