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(영문) 서울중앙지방법원 2017.11.03 2016가합544134
신주발행무효
Text

1. The plaintiff C's lawsuit shall be dismissed.

2. The plaintiff A, B, and D's claims are dismissed, respectively.

3. The costs of lawsuit are assessed against the plaintiffs.

Reasons

1. The following facts do not conflict between the Parties:

F and Plaintiff A are the defendant representative director, and Plaintiff B is the auditor and Plaintiff D are in-house directors.

Plaintiff

C is the finding of the plaintiff B.

1. Kinds and number of new and outstanding shares: 260,000 registered ordinary shares; and

2. Par value per share: 5,000 won;

3. Issuance value of new stocks per stock: 5,000 won;

4. Method of issuing new stocks and allotment thereof: A company shall allocate new stocks according to the ratio of shares held to shareholders listed on the base register of shareholders on June 21, 2016;

Provided, That where an existing shareholder waives all or part of the subscription for new stocks, it may be allocated to another shareholder or a third party.

On June 21, 2016, the Defendant decided to hold a board of directors to issue new shares (the same as the shares listed in the attached list; hereinafter referred to as “instant new shares”) with the following contents:

C. On July 6, 2016, the Defendant allocated the entirety of the instant new shares to F, a representative director and shareholder, and F paid the purchase price of new shares by offsetting the purchase price of the new shares with the Defendant’s bonds. The Defendant subscribed the instant new shares on July 7, 2016.

2. Determination

A. The gist of the plaintiffs' assertion is that the issuance of new shares of this case is null and void, since the defendant violated the plaintiffs' preemptive rights by allocating the new shares of this case to F only based on the false shareholder registry excluded from the plaintiffs.

B. Prior issues: (a) whether the Plaintiffs are the Defendant’s shareholders; (b) whether the Plaintiffs are the Plaintiffs’ shareholder; (c) whether the Plaintiff acquired 10,000 shares from F around June 2015; and (d) around September 2015, the Plaintiff acquired 2,000 shares of the new shares issued by the Defendant.

B) Plaintiff B: around June 2015, KRW 10,00 among the new shares issued by the Defendant, and KRW 2,000 among the new shares issued by the Defendant around September 2015, Plaintiff C: around September 2015, Plaintiff D acquired KRW 6,00 shares from F around June 2015, respectively. Plaintiff D acquired KRW 17,00 shares from Plaintiff A and D, respectively.

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