Plaintiff 1 and six others (Law Firm Daw, Attorney Kang Jong-soo, Counsel for the plaintiff-appellant)

Suwon Shipbuilding Marine Co., Ltd. and five others (Law Firm 2, Attorneys Shin Jae-min et al., Counsel for the plaintiff-appellant)

July 13, 2004

1. Defendant Treatment Heavy Industries Co., Ltd., Kim Jong-soo, Defendant 5, and Defendant 6 jointly and severally pay to each Plaintiff the amount of money, such as the amount indicated in the damages table in the attached Table 1> and each of the above amounts, calculated by 5% per annum from the date indicated in the attached table of damages damages in the attached table to July 27, 2004, and 20% per annum from the following day to the date of full payment.

2. The plaintiffs' remaining main and conjunctive claims against the defendant Treatment Heavy Industries Co., Ltd., Kim Jong-soo, defendant 5 and 6, the plaintiffs' main and conjunctive claims against the defendant Treatment Heavy Industries Co., Ltd., and the treatment comprehensive machinery Co., Ltd. are dismissed, respectively.

3. The costs of the lawsuit are assessed against each of the plaintiffs and the part arising between the defendant Treatment Heavy Industries Co., Ltd., Kim Woo, and between defendant 5 and 6. The remaining 40% are assessed against each of the plaintiffs, and the remaining 40% are assessed against each of the above defendants. The part arising between each of the plaintiffs and the defendant Treatment Heavy Marine Co., Ltd.,

4. Paragraph 1 can be provisionally executed.

Main and Preliminary, the Defendants jointly and severally do so to Plaintiff 1,098,167,295 won, 60,730,000 won to Plaintiff 2, 137,38,500 won to Plaintiff 3, 183,289,788 won to Plaintiff 4, 73,223,750 won to Plaintiff 5, 16,492,900 won to Plaintiff 6, 33,872,511 won to Plaintiff 7, and 33,872,511 won to Plaintiff 2, from the following day to the 30th day of March 10, 199; from the 15th day to the 9th day of December 27, 199; from the 3rd day to the 19th day of August 19, 209 to the 30th day of the above amount to the 30th day of August 19, 2001 to the above amount of Plaintiff 3.

1. Basic facts

A. Status of the parties

(1) The treatment Heavy Industries Co., Ltd. (hereinafter “Defendant treatment Heavy Industries Co., Ltd.”) and the Defendant treatment Heavy Industries Co., Ltd. (hereinafter “Defendant treatment Heavy Industries Co., Ltd.”) were established for the purpose of manufacturing, installing, and selling various kinds of machinery, apparatus, and their accessories for convenience. The treatment Heavy Industries Co., Ltd., Ltd. (hereinafter “Defendant treatment Heavy Industries Co., Ltd”) established each division and the Defendant treatment Heavy Industries Co., Ltd. (hereinafter “Defendant treatment Heavy Industries Co., Ltd.”) to run the shipbuilding business portion from the old treatment Heavy Industries through the corporate improvement process as seen below on October 23, 200.

(2) From February 28, 1998 to November 23, 1999; from March 25, 1995 to October 22, 200; from March 25, 1995 to October 22, 200; from March 29, 1996 to January 31, 200, Defendant 6 served as the representative director of each Gu Treatment Heavy Industries; and was written as the representative director in the corporate register.

(3) The plaintiffs are investors who traded the shares of the defendant Daewoo Heavy Industries (hereinafter "the shares of this case") through the open market as shown in the attached Form 3 â………………………………………………………………………………â…………………ââ…………âââ………âââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ

(b) Settlement of accounts by installments for the business year of the last 35 business year;

After the end of January 198, the old Heavy Industries prepared financial statements of KRW 9.47 billion for the 35 billion of its assets, KRW 9.7 billion of KRW 9.7 billion of KRW 5 billion of KRW 9.7 billion of KRW 476.7 billion of KRW 9.7 billion of KRW 9.7 billion of KRW 98 billion of its liabilities, and submitted financial statements of KRW 98 billion of KRW 98 billion of its total amount of KRW 69.7 billion of KRW 97 billion of its total amount of KRW 9.7 billion of KRW 97 billion of its total amount of its equity capital, and submitted financial statements of KRW 97 billion of KRW 97 billion of its total amount of KRW 97 billion of its total amount of KRW 97 billion of its total amount of KRW 97 billion of its total amount of KRW 99 billion of its total net income to KRW 300 million of its total amount of KRW 99 billion of its total net income to be published.

(c) Divided settlement of accounts for the business year of the last business year;

After the end of January 199, the old Heavy Industries prepared financial statements of 13.5 billion won; KRW 11.1 billion; KRW 11.175 billion; KRW 1.9 billion; KRW 1.9 billion in its liabilities; KRW 1.875.9 billion in its net income; KRW 1.98 billion in its net income; KRW 37 billion in its net income; KRW 5.3 billion in its net income; KRW 1.6 billion in its net income; KRW 37 billion in its net income; KRW 94 billion in its net income; KRW 1.5 billion in its net income; KRW 2.3 billion in its net income; KRW 96 billion in its net income; KRW 1.3 billion in its net income; and KRW 2.5 billion in its net income; KRW 3 billion in its net income; and KRW 1.5 billion in its net income for each category, including KRW 3 billion in its net income; and KRW 2.5 billion in its net income for each category, as described in the above paragraph.

(d)the publication of liquidity crisis and window dressing accounting facts of the Treatment Group;

(1) The Treatment Group had experienced difficulties in raising funds due to the situation of the national economic crisis of Nonparty IMF. On July 22, 1998, the Financial Supervisory Commission restricted the issuance limit of commercial papers (hereinafter “CP”) on July 22, 1998. On October 28, 1998, it restricted the issuance limit of large companies’ corporate bonds by setting the holding limit of financial institutions on corporate bonds issued by large companies. On October 29, 1998, in such a series of economic crisis, labor securities, a foreign financial company, were put on the Treatment Group with emergency level (hereinafter “Treatment Group”). On October 29, 1998, the Trade Group, a foreign financial company, distributed an English report to customers on the list of commercial papers (hereinafter “CP”). The Financial Supervisory Commission secured the possibility of the collapse of the company’s bonds through the maximum measures to restrict the issuance of the company bonds, and the Treatment Group was faced with serious risk of the company’s corporate bonds.

(2) On December 19, 1998, financial institutions affiliated with the Treatment-based Council of Major Claims concluded an agreement for sound management and financial restructuring of the treatment-based affiliated companies. Around January 1999, a domestic credit rating company adjusted and published the credit rating of the issuance of treatment-based corporate bonds to BB (B) from A to BB (B). On April 16, 1999, the Financial Supervisory Commission considered the Treatment Group as the "Infaith Group".

(3) On July 199, the liquidity shortage of the treatment group becomes serious. On July 19, 199, Defendant Kim Yong-woo offered as security the claim group an amount equivalent to KRW 10,134.5 billion, including the shares and real estate held by an affiliate, and reorganization of the treatment group into a specialized group in the vehicle sector. The creditor financial institutions announced "a plan to accelerate the restructuring of the treatment group and to implement specific plans to separate affiliate companies." The creditor financial institutions supported the treatment group with four trillion won in the form of the CP purchase and the acquisition of the company bonds, while the CP which returned to the maturity after this day came to extend the maturity of six months.

(4) On August 26, 199: (i) the company’s 199-100 billion Won or more was commenced for the company’s 7 billion Won or more; (ii) the firm’s 19-200 billion Won or more for the company’s 19-200 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-7 billion Won or more for the company’s 19-17 billion Won value of its total assets.

(5) Around the time when a newspaper report has been concentrated, i.e., the amount of 600 million won in the assets, i.e., the amount of 13.6 billion won in the assets, i.e., the amount of 12.5 billion won in the account book (1.7 billion won in the account book, 1.7 billion won in the actual account book, 11.6 billion won in the capital), the amount of 1.9 billion in the capital (an amount of 3.49 billion in the account book, 1.5 billion in the actual account book, 1.5 billion in the assets, i.e., the amount of 36 years in the account book, i. the amount of 9.3 billion in the liabilities, i.e. the amount of 9.9 billion in the account book, 3.4 billion in the previous account book, the amount of 1.4 billion in the account book and the amount of 2.4 billion in the capital evaluation method, which had been published after the investigation results.

(e) The trend of the share price of old treatment Heavy Industries (Evidence No. 12-2, No. 18, 33-2)

The share price of the old Heavy Industries was 18,80 won on December 26, 190, 191, 17, 100 won on December 26, 190, 191, 11,80 won on December 28, 1993, 12, 300 won on December 28, 1994, 8, 90 won on December 27, 195, 196, 190 won on December 27, 1996, 190, 190 won on December 5, 200, 197; 190 won on August 27, 196, 200, 190 won on August 4, 200, 197.

[Reasons for Recognition] Facts without dispute; Gap evidence Nos. 1 through 9 (including each branch number), 11-1 through 3, 4, 6 through 8, 10 through 14, 18, 21, 22, 13 through 17, 20-2, 21-1 through 3, 25-1 through 26, 27-1 through 5, 28, 31-2, 33-1 through 3, 4, 5, 10, 41-2, 43-2, 4, 45, 46-1 through 46, 17, 15-1, 46, 17, 15-1, 47, 17, 33-1 through 3, 38-4, 5, 38-1, 43-2, 43-2, 46-1, 46, 17, and 4

2. Judgment on the main defense of this case

A. Determination on the main defense against Defendant 6’s Defendant 4 and 5

Although the above defendants 4 and 5 merely are those without permission, the above plaintiffs' lawsuit should be dismissed. However, there is no evidence to prove that the above defendants are not dead, and this part of the above defendants' main safety defense is without merit.

B. Determination as to the main defense against the plaintiffs' primary claims by Defendant Treatment Shipbuilding, Defendant 5, and Kim Jong-woo

With respect to the Defendants’ primary claim for damages under the Securities and Exchange Act by false statements in their business report, etc. As to the Defendants’ primary claim for damages arising from the accounting of Daewoo Heavy Industries, the facts were widely known around October 198 or around July 199 with respect to the improvement of the corporate structure of the Treatment Group. Therefore, the Plaintiffs should also be deemed to have known that the separate accounting of the former Daewoo Heavy Industries was false at least 35 and 36 business report at around 19, as stated in the 199-2 annual business report, and that the Defendants were not aware of the facts that were 9 years prior to the lapse of 1-year exclusion period, and that the Defendants were not entitled to damages under Article 186-5 and 186-9 of the former Securities and Exchange Act. Thus, the Defendants’ claim for damages under the same provision should also be rejected as of October 24, 200.

C. Determination as to the main safety defense of Defendant Treatment Shipbuilding

The above defendant acquired assets from the old Daewoo Heavy Industries, subject to a special resolution of the general meeting of shareholders required under the Commercial Act and the procedure for protecting creditors, and bears only the obligation to the above defendant with respect to the property invested in the above defendant. Thus, the compensation obligation claimed by the plaintiffs is not the above defendant, but is not the party's qualification, and the above reason for the above defendant's assertion is merely the matter to be determined as the existence of the claim within the main text. Thus, this part of the above defendant's main

3. Determination as to the primary claim against Defendant Treatment Heavy Industries, Kim Jong-woo, Defendant 5 and 6

(a) Occurrence of liability for damages;

(1) Determination

㈎ 위 인정사실에 의하면, 구 대우중공업에 대한 제35기, 제36기 사업보고서에는 앞서 본 바와 같은 허위의 기재나 표시가 있고, 이는 투자자의 투자판단에 영향을 미칠 중요한 사항에 관한 것이며, 원고들은 제35기 사업보고서의 공시가 있었던 1998. 3. 31. 이후에 이 사건 주식들을 유통시장을 통하여 취득하였던 것이며, 증권거래법 제186조의5 에 의하여 준용되는 법 제14조 의 규정에 의하여 유가증권의 취득자가 주권상장법인 등에 대하여 사업보고서의 허위기재 등으로 인하여 입은 손해의 배상을 청구하는 경우에는 유가증권의 취득자는 법 제15조 제2항 의 규정에 따라 사업보고서의 허위기재 등과 손해발생 간의 인과관계의 존재에 관하여 입증할 필요가 없고, 주권상장법인 등이 책임을 면하기 위하여 이러한 인과관계의 부존재를 입증해야 하는 것이므로( 대법원 2002. 10. 11. 선고 2002다38521판결 참조), 위 서류들의 공시 후 공개시장에서 주식을 취득하였다가 주가가 하락함으로써 손해를 입은 원고들에게, 특별한 사정이 없는 한 피고 대우중공업은 제35기, 제36기 사업보고서의 제출자로서, 피고 김우중, 피고 5, 6은 위 사업보고서의 제출 당시의 구 대우중공업의 이사로서, 각각 증권거래법 제186조의 5 , 제14조 제1항 에 의하여 각 원고들이 입은 손해를 배상할 책임이 있다.

(2) Determination as to the assertion of Defendant Kim Jong-woo

Defendant Kim Yong-soo alleged that the company's window dressing accounting was conducted as a practice at the time, and thus, the company's responsibility should not be recognized. However, the above argument alone does not constitute a justifiable ground for exempting the above defendant from liability for damages. Thus, the above argument by the above defendant is without merit.

(3) Determination as to Defendant 5’s assertion

Defendant 5 asserted that, although he was employed as the representative director of the Kugu Heavy Industries, he was not in a position to grasp the financial situation because he was separately employed by the director in charge of finance and managed all the financial documents, etc., even if he was aware of this, he was merely a representative director who is employed and is not in a position to perform corrective acts against the will of the defendant Kim Jong-woo, and thus, he did not hold the above liability for damages. However, there is no evidence to prove that there is no negligence on the above defendant in relation to the preparation of the business report of the 35th and 36th business of the Kugu Heavy Heavy Industries, and there is no possibility to expect corrective acts contrary to the intention of the above defendant's intention. Thus, the above defendant's above defendant's assertion is without merit.

B. Scope of damages

(1) The trading period for the acquisition of a causal share

㈎ 당사자들의 주장

① Summary of the Plaintiffs’ assertion

(4) On September 15, 200, the plaintiffs asserted that the above separate accounting statements were made to the public prosecutor's office on the 20th day before they were officially announced by the Securities and Futures Commission, and that the above separate accounting statements were made on the 20th day before the above 20th day before they were known about the amount and items of the separate accounting. Thus, all of the plaintiffs' acquisition of the shares was made before the above separate accounting statements were made on the 20th day before the above 20th day before the above separate accounting statements were made. The plaintiffs asserted that "the plaintiffs purchased shares of the previous medical industry since the previous accounting statement was made on the 20th day after they were stated on the 20th day after they were stated on the 20th day after they were stated on the 20th day before the above separate accounting statement." The plaintiffs' assertion that the above separate accounting statement was made on the 10th day after the above 20th day after the previous accounting statement was made on the 10th day before the previous public prosecutor's statement.

2) Summary of the arguments by the Defendant Treatment Heavy Industries, Kim Woo, and Defendant 5 and 6

Since stock investment is always subject to risk, it is reasonable for an investor to determine whether to make an investment by taking into account the economic trend at the time of its responsibility, objective evaluation of the target company through newspapers, the Internet and other information collection channels, opinions of experts, etc., and not making an investment by reliance only on financial statements and stock investment in the past of the target company. In particular, in the case of Plaintiff 1, it is not deemed that the acquisition of the instant shares was made by reliance on the annual business report in which the shares are deferred over several times for a period from December 14, 1998 to January 11, 200, and the window dressing accounting fact of the old Daewoo Heavy Industries was disclosed to the market (the defendant Kim Jong-soo claimed that the time was October 19 through October 26, 1999).

㈏ 판단

However, on July 22, 1998, the Treatment Group was faced with liquidity crisis after IMF. The Financial Supervisory Commission imposed restrictions on the issuance of the CP and restrictions on the holding of corporate bonds against financial institutions on October 28, 1998. On October 29, 1998, labor stock companies, which are foreign financial companies, limited to their English reports to customers in the form of "the Treatment Group has an emergency level". On December 19, 1998, financial institutions affiliated with the Treatment Group concluded an agreement for the sound management and improvement of financial structure of the Treatment Group on December 19, 198, which were merely an affiliated company of the Treatment Group, were unable to recognize the credit rating of the issuing of the Treatment Group from A (BB) to BB (B) and the Treatment Group as an independent affiliate company of the Treatment Group's non-performance of corporate bonds for the same period as stated above. The Financial Supervisory Commission, on April 16, 1999, issued the Treatment Group's corporate bonds at the disposal rate of 197.

However, it is difficult to recognize that the annual average financial statements were 00 billion won or less than 9 billion won in the previous 1999-100 billion won in the previous 19-30 percent in the previous 19-2 accounting books because the facts of the previous 100 billion accounting for the company's 19-100 billion won in the previous 19-2 accounting books were clearly verified and widely known to the general public. The previous 200 billion won in the previous 19-2 accounting books were 100 billion won in the previous 19-2 accounting books and 300 billion won in the previous 19-100 billion won in the previous 19-2 accounting books and 9-100 billion won in the previous 19-2 accounting books and 9-1 billion won in the previous 19-2 accounting books and 9-2 billion won in the previous 19-100 billion won in the previous 19-2 accounting books and 19-100 billion won in the previous 1-2 accounting books and 10000 billion won in the previous 3-2 accounting books.

Ultimately, the damages for which the plaintiffs can seek shall be from March 1998 to November 4, 1999, when the results of the period of 35 and 36 period of the former Treatment Heavy Industries were announced, and in the absence of special circumstances, from October 25 to November 4, 1999, when there was a press report on the window dressing accounting in which the general public could have known about the window dressing accounting of the former Treatment Heavy Industries ( October 25, 1999 or October 27, 1999 in which the media report was concentrated), the plaintiffs of this case also came to know about the window dressing accounting from around October 25, 199 to around November 4, 199 when the official data of the Financial Supervisory Service was distributed. However, according to the specific circumstances of each plaintiffs, each plaintiffs can be individually determined during the period from October 25, 19 to November 4, 199.

① Plaintiff 1 acquired the instant shares on December 14, 1998 to September 29, 199 after acquiring the instant shares from December 14, 199 to September 29, 199, and on October 28, 199; November 17, 199; November 22, 199; and on December 8, 199; and on December 9, 199, the date when the media reports on the accounting of the treatment Heavy Industries continued to have been conducted on December 9, 199. As seen above, the Plaintiff did not know that the said shares were acquired on September 27, 1999 through the credit market, and that the said Plaintiff could have been aware of the fact that the shares were acquired on September 19, 197, based on the fact that the Plaintiff could not have been aware that the shares were acquired on September 19, 199 to the extent of 9 minutes of stock acquisition for reasons of 19 minutes of stock acquisition.

② The Plaintiff 2 acquired the instant shares from April 16, 1999 to August 13, 199, and sold all the shares from December 8, 199 to December 15, 199. All the acquired shares shall be included in the scope of compensation for damage.

③ In the case of Plaintiff 3, from July 14, 1999 to October 26, 1999, the shares of the Daewoo Heavy Industries were purchased several times, and on January 27, 200, all of the shares were sold. As such, in light of the date and time of reporting the window dressing accounts on the old Daewoo Heavy Industries, and that Plaintiff 3 purchased shares only until October 26, 1999 and did not purchase shares thereafter, the acquisition of the shares of Plaintiff 3 by October 26, 1999 seems to have been done without knowing the fact of window dressing accounting, all of the acquired shares of the above Plaintiff shall also be included in the scope of compensation for damages.

④ From April 21, 199 to September 8, 1999, Plaintiff 4 and 5 acquired the shares of this case only from April 21, 1999 to September 7, 199. The above Plaintiffs received shares from, or transferred them to, the account of Nonparty 1, a family member, or between the above Plaintiffs. By September 8, 1999, all the shares of this case (including the shares entered from Plaintiff 4’s account, but the price shall be based on the share price as at the time of Plaintiff 4’s entry as at the time of their entry as at the plaintiff 4’s request) acquired until September 8, 199 shall be included in the scope of compensation. (The above accounts do not appear to be the name account of one of the above plaintiffs. If they were entered or shipped into the account of one person, the price of the shares of this case should be determined without separately judging whether they were actually damaged, but the price of each of the above plaintiffs shall be calculated within the limit of 197 percent of the acquisition and delivery price.

⑤ In the case of Plaintiff 6, the instant shares were acquired from May 3, 1999 to July 29, 199, and such shares were sold in both September 1, 199 and September 9, 199. Thus, all of the instant shares acquired during the said period should be included in the scope of compensation for damages.

④ In the case of Plaintiff 7, the Plaintiff traded the instant shares using the borrowed account in the name of Nonparty 3. On February 11, 2000, the Plaintiff transferred the instant shares to the Plaintiff’s account in the name of the Plaintiff and managed them. From December 26, 1998 to March 26, 1999, the Plaintiff acquired the instant shares (the part of the Plaintiff’s account entered into and withdrawn from the account managed by the said Plaintiff does not constitute a new acquisition or disposition). Therefore, all the shares acquired by the said Plaintiff were purchased without recognizing that the said Plaintiff was a window dressing accounting, and thus, the damage incurred by the purchase and sale of the said shares is included in the scope of compensation, unless there are special circumstances.

(2) Whether there exists a causal relationship between the window dressing accounting of the old Daewoo Heavy Industries and the Plaintiff’s damages

㈎ 피고 대우중공업, 김우중, 피고 5, 6의 주장

1. Summary of the assertion by the Defendant Treatment Heavy Industries and Defendant 6

In order to recognize a causal relationship between the window dressing accounting of the old Daewoo Heavy Industries and the Plaintiff’s damage, it should be proved that the fact of window dressing accounting was known and the price of the old Daewoo Heavy Industries decreased. However, there is no proof by the Plaintiff on this, the Plaintiff’s claim should be dismissed.

2) Summary of the arguments by the Defendant Treatment Heavy Industries, Kim Woo, and Defendant 5 and 6

The share price is determined by the rules of supply and demand, taking into account various factors such as the current financial situation of the company, the size of the company, the future nature of the company, etc. In the market, the fact that the window dressing accounting had already been known to investors through the suit even before the fact of window dressing accounting of the previous Daewoo Heavy Industries was announced, and the treatment group had experienced a liquidity crisis, since since October 1998, the announcement of window dressing accounting had no impact on the share price of the previous treatment Heavy Industries. Thus, the Plaintiff’s loss is not caused by window dressing accounting, but by social and economic factors, and the Plaintiff’s market and market mismarket.

③ Summary of Defendant Kim Jong-woo’s assertion

In order for the Plaintiff to be deemed to have suffered loss from the window dressing accounting of the old Daewoo Heavy Industries, the acquisition of the shares shall be prior to April 1, 1998, which was after the disclosure of the business report containing the window dressing accounting, and the window dressing accounting was disclosed on October 29, 1999 (the above Defendant asserted that the window dressing accounting was transferred at the time of disclosure of the window dressing accounting, and thus, it does not constitute a confession as to the time of acquisition of shares through the window dressing accounting). The disposal of the shares shall be after October 29, 1999, for which the fact of disposal of the window dressing accounting of the company was commenced to be disclosed. Since the stock transaction of this case includes the part concerning the Plaintiffs’ loss of the Plaintiff disposed of prior to that, and the fact that the window dressing accounting of the previous company was made regardless of any way between the window dressing accounting of the previous company. Thus, even if any loss incurred to the Plaintiff, it cannot be acknowledged as a causal relationship.

㈏ 판단

According to the general principle of compensation for damages, the amount of compensation that can be claimed by the purchaser of securities on the ground of false disclosure is damages with proximate causal relation as damages due to special circumstances that the obligor knew or could have known. In general, the difference between the price of shares normally traded if the window dressing accounts have not been made, and the price of shares is the difference between the price of the actual shares acquired or the price of the share purchaser and the price of the share purchaser which reflects information on window dressing accounting. However, since the stock exchange’s centralized and large volume trading in the Stock Exchange is extremely variable nature determined by very diverse factors, such as the supply and demand of the quantity of shares inside the stock market and the various external conditions outside the stock market, it is not easy to prove the causal relationship by considering the decline caused by false disclosure of the share price, and it is practically difficult to impose the burden of proof on the purchaser of the securities in accordance with the general principle of compensation for damages, and thus, it is difficult to prove the causal relationship between the investor and the investor without the burden of proof in terms of statutory liability to compensate for damages.

The defendants argued that the loss from the window dressing accounting should be limited to the loss caused by the decline in the shares after the window dressing accounting is announced. Since the loss from the window dressing accounting should be limited to the loss caused by the window dressing accounting before the window dressing accounting is announced, the loss from the window dressing accounting is not realized only when the fact of the window dressing accounting was announced in the stock market, but it is continuously generated while the company's actual management situation has been reflected in the window dressing accounting differently from the window dressing accounting. Thus, even before the window dressing accounting is announced in the market, even before the window dressing accounting is announced in the window dressing accounting, the defendants' assertion that there is no causation between the window dressing accounting and the company's actual management situation is reflected in various indexes compared to the time of stock acquisition. In this case, even before the window dressing accounting is announced in the stock market, the defendants' assertion that there is no causation between the window dressing accounting and the company's actual management situation has been sold cannot be acknowledged.

㈐ 다만, 구체적으로 원고들 주장의 손해와 구 대우중공업의 사업보고서 사이에 인과관계가 부존재하는 부분이 있는지에 관하여 보건대, ㈑항에서 보는 바와 같은 원고 7의 1998. 12. 16.부터 1998. 12. 31.까지의 거래 내역을 제외한 부분에 있어서는, 이를 인정할 만한 증거가 없으므로 위 피고들의 각 주장은 원고 7의 위 199. 12. 16.부터 1998. 12. 31.까지의 거래 내역의 범위에서만 이유 있고, 나머지 범위에서는 이유 없다.

㈑ 원고 7은 별지 〈3〉 주식거래내역표 기재 중 위 원고 거래기재 부분과 같이 1998. 12. 16.부터 17.까지 사이에 이 사건 주식 39,440주를 매수하였다가 이를 모두 1998. 12. 17.부터 30.사이에 매도하여 주식 잔고가 0이 된 거래부분이 존재하며, 그 기간에 발생한 손해에 대해서도 그 배상을 구하고 있는데, 증권거래법 제15조 제2항 에 의하면 분식회계에 기초한 사업보고서가 발표된 후 주식을 매수하였다가 손해가 발생한 부분이 있다 하여도, 배상책임을 질 자가 청구권자가 입은 손해액의 전부 또는 일부가 사업설명서 등의 허위 기재·표시하거나 중요사항을 기재·표시하지 아니함으로써 발생한 것이 아님을 입증한 경우에는 그 부분에 대하여는 배상책임을 지지 아니하다고 규정하고 있으며, 이는 결국 손해청구권자가 주식투자로 인하여 입은 손해를 입었을 경우 원칙적으로 분식회계와 손해와의 인과관계를 청구권자가 입증할 필요는 없다는 법률상의 추정에 불과할 뿐, 배상의무자측이 그 손해가 분식회계로 회사의 재정상태에 관한 정보가 왜곡된 상태에서 주식을 취득하였다가 분식회계로 인한 회사의 재정상태의 악화가 현실화되어 주식을 매도하는 시점과 취득하는 시점에 있어서 증권거래시장에서 파악되는 회사의 실제 가치의 변동이 있어서 발생한 것이 아니라, 단지 주가의 다른 요인에 의한 단기변동 등에 불과함을 반대증거로서 입증한 경우에는 그 인과관계의 추정이 깨어져 청구권자에게 손해가 있었다 하여도 이를 배상할 의무는 없게 된다는 법리를 설시한 것인데, ㉠ 원고 7이 주장하는 1998. 12. 16.부터 17.사이에 매수하였다가(이 기간 중 매수횟수가 9회에 이른다), 1998. 12. 16.부터(1998. 12. 17.의 매도횟수는 3회에 이른다) 1998. 12. 30.까지에 걸쳐 매도한 위 부분은 실제 원고 7이 때로는 주식을 매도하면서 이득을 얻은 부분도 있으며, 위 주식의 거래는 이 사건 주식의 주가가 앞서 본 바와 같이 1998년 5월부터 12월까지 4,000원에서 6,000원 대를 계속 유지하다가 1998. 12. 10.경 일시적으로 7,250원까지 상승하였다가 1999. 1. 13.까지 6,000원 대를 유지하다가 다시 1999. 1. 13.부터 4월경까지 4,000원에서 6,000원 대를 유지하는 가운데 발생한 것으로, 위 주가변동의 추이 및 원고 7이 위 주식을 매수, 매도하였던 기간이 단기간이었으며, 그 매수, 매입에 있어서도 동일한 날에 오히려 고가로 매도한 경우도 있었던 점, 위 기간 중 구 대우중공업의 경영상태에 관하여 1999년 3월에 발표되었던 분식회계에 기반을 둔 새로운 내용의 자료가 존재하였던 것도 아닌 점, 구 대우중공업의 주가가 지속적으로 하락한 것은 1999년 4월 이후이며, 그 이전까지는 일정 가격대를 유지하면서 상승과 하락이 반복되어 왔던 점, 1998. 12. 16.부터 1998. 12. 30.까지 사이에 분식회계로 인한 경영정보의 왜곡 상태가 악화되었거나, 경영정보의 왜곡으로 인하여 회사경영이 악화되었음에도 이에 관한 정보가 이전에 알려지지 않았던 것임이 밝혀졌다고는 보이지 않은 점 등에 비추어 비록 위 원고에게 위 기간 중 짧은 기간 동안 많은 거래를 하는 와중에 일시 손해도 발생하였다 하더라도, 이 부분 위 원고 주장의 손해는 분식회계로 인한 경영정보의 왜곡에 의한 손해가 아니라, 일시적 가격 상승과 가격 하락에 있어 원고가 투자과정에 있어 다른 요인에 의해 손해를 입은 것에 불과하다가 판단되므로, 위 원고의 위 1998. 12. 16.부터 1998. 12. 17.까지 이 사건 주식을 취득하였다가 1998. 12. 30.까지 모두 처분하는 과정에서 발생한 손실은 위 피고들이 배상해야 할 손해의 범위에 포함되지 않는다.

(3) Method of calculating damages

㈎ 당사자들의 주장

① Summary of the Plaintiff’s assertion

For the purpose of the specification of the “securities concerned” under Article 15(1) of the Securities and Exchange Act, the losses must be calculated by specifying the purchase price of the stocks corresponding thereto by the overall average of the prices and the average of the average of the different and same prices each time when the Plaintiff sells the stocks (the Plaintiff only maintains the average of the average of the different and same prices in calculating the final damages when the Plaintiff asserted

2) Summary of the arguments by the Defendant Treatment Heavy Industries, Kim Woo, and Defendant 5 and 6

Since the average of the prices claimed by the plaintiffs are the valuation methods of inventory assets in corporate accounting, they cannot be used as a way to specify the "securities concerned" under the Securities and Exchange Act, and in order for the plaintiff to claim compensation for damages pursuant to Article 15 of the Securities and Exchange Act, the difference between the purchase price and sale price of the same stocks shall be claimed as damages by individually specifying when and at any time the same time the difference between the purchase price and sale price of the stocks so purchased. Since the plaintiffs do not specify the "securities concerned" at all, the plaintiffs' claims shall be dismissed.

㈏ 판단

Article 15 of the Securities and Exchange Act provides that the amount of compensation to be paid by the person liable for damage shall be the amount obtained by deducting the disposal price if the person liable for damage disposes of the securities in question before the closing of argument in the acquisition of the securities concerned. However, under the current securities depository deposit settlement system, when the Korea Securities Depository deposits specific securities, the specific securities cannot be specified by mixing them with other securities of the same kind in the current situation, and the seller or purchaser cannot specify the securities that are the object of sale, and only the type, item, and quantity of the securities are designated and traded by designating only the type, item, and quantity of the securities. The purchaser of the securities cannot specify the securities he/she acquired.

Meanwhile, the overall average and the average of the different and same prices are one of the methods of determining the unit price of inventory assets in corporate accounting, and the overall average of the different and same prices is based on the assumption that the total purchase amount during the period of the basic inventory amount is divided by the unit cost per unit and the goods purchased during a certain period are mixed and sold. The average of the different and same prices is calculated by dividing the inventory amount by the inventory amount in the account book by the number of inventory assets each time the inventory assets are acquired, and the average of the average acquisition value calculated by the average of the inventory value is calculated by using the average of the inventory value as the evaluation value of the assets. This method of accounting cannot

On the other hand, requiring that the securities be specified strictly according to the above defendants' assertion and specify the purchase price and sale price of the securities corresponding thereto should be dismissed by the purport of Article 15 of the Securities and Exchange Act, which is the statutory amount of damages for the protection of investors, so the court can calculate the amount of damages by interpreting the above provision in a combined purpose. This is also possible by deeming the parties' intent to dispose of the stocks first acquired among the stocks held by the parties to the disposal of the stocks (However, as for the credit transaction details of plaintiffs 1, the acquisition date of the stocks sold in relation to each sale is specified, so it shall be calculated according to the specific transaction details).

㈐ 손해액 산정의 방법

Therefore, in calculating the specific amount of damages as seen earlier, the damages suffered by each plaintiffs due to false entry, etc. in the business report of the Daewoo Heavy Industries are damages caused by the shares acquired until October 27, 1999, and thus, the “securities concerned” is specified as the shares acquired by the plaintiffs from March 31, 1998 to October 27, 199. In the case of plaintiffs 2, 3, and 6, the difference between the total purchase amount and the total sale amount entered in the attached Table 3, the attached Form 3, but in the case of plaintiffs 1, 4, 5, and 7, it is necessary to individually review the specific shares by the prior entry method and the total sale amount of the shares distributed after division.

㈑ 원고 1

Of the shares 24,830 shares purchased on January 19, 199, 100 shares of this case, 10,000 shares were sold credit on April 19, 199. In the case of the sale of credit as above, the date of acquisition of the shares is specified. As such, the damages arising from the part of the credit sale made by Plaintiff 1 are separately claimed, and the damages arising from the part of cash sale other than the sale of credit shall be claimed by the method of prior purchase and the said damages shall be added up.

Specifically, the transaction details of the part sold by the said Plaintiff are as indicated on the table of 1 credit sale, ① 10,00 won sold on April 19, 199, and KRW 47,20,00, and the acquisition value is 143,463,900 won at the time of acquisition on January 19, 199, KRW 140,24,830, KRW 578,453, KRW 100, KRW 969, KRW 200, KRW 296, KRW 90, KRW 90, KRW 200, KRW 969, KRW 90, KRW 90, KRW 106, KRW 296, KRW 90, KRW 90, KRW 96, KRW 900, KRW 96, KRW 196, KRW 500, KRW 96, KRW 196, KRW 196, KRW 96,00.

또한 ① 위 원고가 1998. 12. 14.부터 1999. 10. 27.까지 취득한 주식 중에 신용매도 이외의 방법으로 처분한 주식의 합계는 별지 〈4-2〉 원고 1 현금매도일람표 기재와 같이 266,290주이며( = ㉠ 1998. 12. 14.부터 1999. 10. 27.까지 취득한 주식 중 모두 신용매도된 1999. 8. 18. 매수분을 제외한 모든 주식의 합계 - ㉡ 1999. 1. 19. 신용매수 취득분 24,830주 중 신용매도된 10,000주 - ㉢ 1999. 8. 19. 신용매수 취득분 10,000주 중 신용매도된 100주 - ㉣ 1999. 8. 20. 신용매수 취득분 4,000주 중 신용매도된 100주 ), ② 위 주식들의 취득가액의 합계는 1,088,520,097원 { = ㉠ 1,146,778,550원 (1998. 12. 14.부터 1999. 10. 27.까지 취득한 주식 중 모두 신용매도된 1999. 8. 18. 매수분을 제외한 모든 주식의 취득액 합계) - ㉡ 57,778,453원 (1999. 4. 19. 신용매도된 1999. 1. 19.자로 취득한 위 10,000주의 취득가액 ) - ㉢ 253,500원 (1999. 11. 5. 신용매도된 1999. 8. 19.자로 취득한 위 100주의 취득가액 ) - ㉣ 226,500원 (1999. 11. 5. 신용매도된 1999. 8. 20.자로 취득한 위 100주의 취득가액 ) }이며, ③ 그 주식들은 1999. 11. 5.부터 2000. 3. 10에 걸쳐 모두 매각되었는데, 그 구체적 내역은 ㉠ 1999. 11. 5.부터 2000. 3. 8.까지에 걸쳐 106,190주만을 남기고 모두 매각 또는 처분되고, ㉡ 위 106,190주는 2000. 3. 10. 660원에 88,090주가, 665원에 18,100 주1) 주 가 매각되었으므로, ㉢ 그 처분가액을 모두 합산하면 171,198,400원 ( = 222,500원 + 24,600,000원 + 76,200,000원 + 58,139,400원 + 29,053,850원 + 665원X18,100주 )이어서, ④ 1999. 10. 27.까지 위 원고가 취득한 주식 중 현금매도하여 생긴 손해액은 917,321,697원 ( = 총취득가액 1,088,520,097원 - 총처분가액 171,198,400원 )이다(위 원고가 1999. 10. 28. 이후에 추가로 매수한 부분은 〈별지 4-2〉 중 (C) 부분과 같이 73,810주이며, 이 부분은 665원에 25,590주가, 670원에 43,640주가, 675원에 4,580주가 매각되었는데 이 부분의 손해배상의 범위에 속하지 않는다).

Ultimately, the total sum of damages arising from the sale of shares acquired until October 27, 1999 is KRW 91,969,150 ( = 74,647,453 + Cash sale + KRW 917,321,697).

㈒ 원고 4의 경우

The above plaintiff purchased from April 21, 1999 to September 7, 1999 KRW 58,195,50, and disposed of KRW 15,500 among them in KRW 32,882,50, and the remaining 3,800 shares were merged with KRW 5,80 shares subsequently acquired with KRW 10,686,30, and the 3,800 shares of KRW 3,80 of the above remaining shares were disposed of in KRW 4,29,94 (=10,686,300, KRW 380, KRW 380 of the above remaining shares = KRW 10,94, KRW 380, KRW 380, KRW 380, KRW 95, KRW 195, KRW 300, KRW 985, KRW 900, KRW 95, KRW 195, KRW 295, KRW 909, KRW 195, KRW 3095, KRW 195,2909.

In addition, the above plaintiff purchased 104,510 shares from January 29, 199 to September 30, 199 as shown in the attached Table 5-2> from January 29, 199 to KRW 261,53,150, (10 shares among them were disposed of in KRW 76,417,950, and (2) shares were merged with 33,160 shares subsequently acquired with 33,70 shares, and the total amount of KRW 33,70 shares was disposed of in KRW 44,808,910. Since the above disposition of KRW 540 shares from January 29, 199 to September 30, 199 to KRW 261,53,60 (=4,808,910 + X540 ±3,703,941,940).

Therefore, the total amount of damages of the above plaintiff is KRW 205,50,200, and the above plaintiff claims KRW 183,289,78 as the amount of damages. Thus, the above plaintiff's damages are acknowledged within the scope of KRW 183,289,788 according to the above plaintiff's claim 2).

㈓ 원고 5의 경우

The amount of damages equivalent to KRW 5,800,841,00, which was acquired from April 21, 1999 to September 7, 199 as indicated in the attached Table 6-1> (1) the amount of damages shall be KRW 24,82,00,00; and (2) the amount of damages shall be KRW 64,958,60,000, which was acquired from April 20, 199 to September 7, 199; and (3) the amount of damages shall be the sum of KRW 24,82,00,00; and (4) the amount of damages shall be the sum of KRW 64,958,600,000, which was acquired from April 20, 199 to September 21, 199; and (4) the amount of damages shall be the sum of KRW 75,305,716,705,3705,375,75,700.

㈔ 원고 7의 경우

In the case of Plaintiff 7, the part purchased and sold from December 16, 1998 to December 31, 1999, which was decided to exclude the scope of damages, is as shown in the list of Plaintiff 7 transaction details in attached Form 7. Since the part which Plaintiff 7 received and delivered between Nonparty 3’s borrowed account, or one’s own substitute securities, and the same securities account cannot be viewed as a transaction. Thus, the sum of the purchase amount and sales amount of the remaining transaction is calculated by calculating the total amount of damages, 14, 160 purchase amount: 71,193,40 billion won acquired from January 15, 199 to March 22, 199: 2,909; 14, 14, 75, 107, 1005, 405, 294, 205, 205, 209, 305, 2905, 209.

(4) Negligence offsetting and limitation of liability

㈎ 다만, 앞에서 인정한 사실에 의하면 각 원고들의 투자에 있어 구 대우중공업에 대한 자금사정이나 재무상태에 문제가 있다는 사정이 어느 정도 알려졌음에도 불구하고 무모하게 구 대우중공업의 주식을 취득한 면이 있다고 할 것이고, 특히 발행시장에서의 주식취득에 비해 유통시장에서의 주식취득에 있어서는 사업보고서 등의 공시 이외에도 여러 가지 정보를 투자자가 취합하여 투자하는 것이 통상적이므로, 이러한 정보취득 및 정보분석에 따른 투자에 있어 각 원고들에게도 과실이 있었다 할 것이고, 분식회계 사실의 공표 이후에도 주식의 처분을 하지 않고 보유함으로써 손해가 확대된 경우도 존재하므로, 이러한 원고들의 과실은 손해의 발생 내지 손해확대에 있어 한 원인이 되었으므로, 이를 피고들이 배상해야 할 책임액 산정에 있어 이를 고려하기로 하되, 피고들의 책임을 40%로 제한하기로 한다.

㈏ 이에 대하여 원고들은 피고들의 분식회계는 고의의 불법행위이며, 이로 인하여 원고들에게 발생한 손해에 대해서는 과실상계를 할 수 없다고 다툰다.

(1) On the other hand, the court shall consider the liability for damages and the amount thereof when the victim is found to be negligent, and even if the obligor does not assert the victim's negligence, the court shall examine and determine it ex officio if it is recognized as negligent by the litigation data even in cases where the obligor is found to have been negligent by the litigation data. In such judgment, it shall be decided in accordance with the fair or good faith principle by considering all circumstances as to the degree of the tortfeasor's intent, the degree of negligence, and the victim's occurrence of the illegal act and the expansion of the damages. Since the current Civil Act does not distinguish the cases caused by the tortfeasor's intentional act in offsetting negligence and by the tortfeasor's negligence in the comparative negligence, it shall be reasonable to consider comparative negligence in the compensation for damages. However, in light of the overall circumstances, it shall be reasonable to view that the scope of damages cannot be limited in cases where it is not reasonable to limit the scope of damages in accordance with the fair or good faith principle.

② Such legal doctrine is consistent with the principle of fairness in a case where, even if a damage was caused intentionally due to an intentional injury, the perpetrator caused an injury to the victim (Supreme Court Decision 66Da1811, Nov. 22, 1966) or where an intentional purchase or sale of shares was conducted in excess of the scope of full-time sale or purchase (Supreme Court Decision 2001Da2129, Jan. 24, 2003) and property damage was incurred due to a tort, but it is unreasonable for the victim to compensate the whole tortfeasor only because the tortfeasor is responsible for the occurrence and expansion of the damage, limitation of the tortfeasor's liability through comparative negligence is consistent with the principle of fairness. However, like the Supreme Court precedents cited by the plaintiffs (Supreme Court Decision 200Da13900, Sept. 29, 200), the perpetrator obtains profit on his own by taking advantage of the victim's own care, and it does not accord with the principle of fairness in a case where a person asserts that part of the victim's liability was attributable to the victim's own interest.

④ Therefore, as in the instant case, there is no act of acquisition using harmful acts against the perpetrator, and it is evident that the victim’s negligence, etc. has caused or expanded damages, and in the absence of any special circumstances to deny comparative negligence, the court would accord with the intent of offsetting the amount of damages by negligence, which is fair or fair sharing of damages, in light of the overall circumstances. Therefore, the Plaintiffs’ assertion on this part is without merit.

(5) Sub-committee

Therefore, with regard to the above money and each of the above money as stated in the damages amount table in the attached table of damages damages in the attached table to the plaintiffs jointly and severally, the above Defendants are obligated to pay damages for delay at the rate of 5% per annum under the Civil Act until July 27, 2004, which is the sentencing date of this decision, and 20% per annum under the Act on Special Cases concerning the Promotion of Legal Proceedings, etc., from the following day to the day of full payment.

4. Determination as to the conjunctive claim against Defendant Daewoo Heavy Industries, Kim Jong-woo, Defendant 5, and Defendant 6

Even if not recognized as liability against the Defendants under the Securities and Exchange Act, the Plaintiffs asserted that the financial status of the designated company in a stock transaction is one of the most important factors for the formation of the share price, and that the audit report prepared after the audit of the financial statements of the designated company is the most objective material for revealing the accurate financial status of the designated company, which has a critical influence on the formation of the share price by offering, publishing, and publishing the false financial statements and audit reports recorded in the business report, and that the Plaintiffs who trusted and invested in the audit report, the Defendant Treatment Heavy Industries is liable for damages based on Articles 750 and 760 of the Civil Act regarding the illegal acts of the representative director or the illegal acts of employees, and that the directors of the company are jointly and severally liable for damages to the third party when they neglected their duties due to bad faith or gross negligence.

On October 27, 199, the part of the plaintiffs' acquisition of the shares of this case by October 27, 199 is identical to the determination of the main claim as to the above main claim. If the plaintiffs' acquisition of the shares of this case after October 27, 1999 is viewed as to the shares of this case, the plaintiffs and general persons including the plaintiffs of this case, as seen above, information on the window dressing accounting of the Treatment Group including the former Treatment Heavy Industries has already been provided at the latest on October 27, 199. Thus, the shares of this case that the above plaintiffs acquired after the above plaintiffs acquired the financial statements of the former Treatment Heavy Industries rather than acquired the financial statements of the former Treatment Heavy Industries, it is nothing more than acquired by the independent judgment that the shares of the former Treatment Heavy Industries were judged to be lower than the legitimate value. Thus, it is difficult to recognize the plaintiffs' losses caused by the acquisition of shares of this case and the conjunctive causal relationship between the defendants' accounts and the window dressing accounting of the above plaintiffs without any justifiable reason.

5. Determination as to the claim on Defendant’s processed ships and integrated machines

A. Joint and several claims between the company to be newly incorporated through division and the surviving company

(1) The plaintiffs are companies incorporated after the division from the old Heavy Industries, and there was no provision in the division plan as to liability for damages caused by false statements, etc. in the business report of the old Daewoo Heavy Industries. Thus, the above defendants are jointly and severally with the defendant Daewoo Heavy Industries, a surviving company, pursuant to Article 530-9 (1) of the Commercial Act, and are primarily liable for damages inflicted on the plaintiff due to false statements, etc. in the business report of the old Daewoo Heavy Industries, a company prior to the division, pursuant to Articles 750 and 760 of the Civil Act, pursuant to Articles 750 and 760 of the Commercial Act, the Civil Act is liable for damages incurred by the plaintiff due to such false statements, etc., and even if the defendants had gone through the procedure by the creditor, each plaintiff was not proved to be the creditor, so if the defendant side knew that the victims were the plaintiffs and the plaintiffs, it cannot be asserted that such procedures were not implemented.

(2) As to this, the defendant Daewoo Heavy Industries's comprehensive machines did not bear liability for damages caused by false statements in the business report of the former Daewoo Heavy Industries, etc., on the grounds that they received assets of each shipbuilding sector and the comprehensive machinery sector according to the division plan according to the company division procedure under the Commercial Act, and acquired the liabilities of the former Daewoo Heavy Industries within the scope of the real value of the above assets.

(b) Fact of recognition;

[Grounds for recognition] The descriptions of Eul evidence 1, 2, Eul evidence 3-1 to 3, Eul evidence 4, 5, Eul evidence 7, Eul evidence 4-1 to 4, Eul evidence 5 and 6, Eul evidence 5, and the purport of the whole pleadings

(1) After the IMF, the company improvement work was commenced on August 26, 1999 with respect to the company affiliates of the Treatment Group including the former Treatment Heavy Industries. On January 29, 2000, the Korea Development Bank, the Korea Treatment Heavy Industries, the Korea Development Bank, the Korea Treatment Heavy Industries, the Corporation Treatment, and the Defendant Kim Yong-soo did not dispose of the old Treatment Heavy Industries which could not be repaid liabilities through bankruptcy procedures, but did not dispose of the old Treatment Heavy Industries, through the process of corporate improvement so that the former Treatment Heavy Industries's financial structure and management control structure can be improved by building up the old Treatment Heavy Industries's financial structure and management control structure, and entered into an agreement for corporate improvement work with the aim of separating the shipbuilding business sector and the general machinery sector operated by the former Treatment Heavy Industries as the shareholder of the newly incorporated company into a separate company, respectively, by means of human division.

(2) In accordance with the above agreement, at the temporary general meeting of shareholders of the Daewoo Heavy Industries held on June 27, 200, the company shall be divided into the shareholders of the newly incorporated company. ① The company surviving a division shall be a listed corporation. ② The basic date of division shall be August 31, 199; ② The number and the number of shares in the division shall be calculated on the basic date of division; ③ the shares owned by each shareholder shall be divided on the basis of the date preceding the date of the registration of the division; ③ the assets, liabilities, and capital of the newly incorporated company shall be determined by the method of determining the scale of the liabilities to be succeeded or taken over by the newly incorporated company after the first determination of the assets and capital to be transferred by the investment; ④ The newly incorporated company shall be established by a special resolution of the general meeting of shareholders under Article 530-3(2) of the Commercial Act; ④ The newly incorporated company shall bear only its liabilities (including liabilities) out of the newly incorporated company, and ④ the newly incorporated company shall be closely related to each of its liabilities within the scope of succession to the newly incorporated company.

(3) On June 28, 200, the old Treatment Heavy Industries announced the creditor's presentation and presentation of the old share certificates at the Korea Daily, East Asia, and Shipbuilding. On October 23, 2000, the registration of division was made for the Defendant Treatment Heavy and Treatment Integrated Machinery.

(4) According to the division plan, the basic date of division shall be August 31, 199, but the obligation with respect to the invested property shall be succeeded based on the amount of obligation as of August 25, 199, and the obligation newly borrowed after August 25, 199 shall be deemed to have been performed by each company (division and newly incorporated company) after division. The division balance sheet was also drawn up as of August 31, 199.

(5) Under the former Treatment Heavy Industries based on August 31, 199, since it was not possible to specifically recognize the existence of the plaintiffs' claims, there was no individual peremptory notice on the plaintiffs' claims. The plaintiffs did not raise any objection against the creditors in the division of the company in the former Treatment Heavy Industries.

C. Determination

According to the above facts of recognition, although the defendant Treatment Heavy Industries' shipbuilding and the integrated machinery sector were newly established separately from the shipbuilding division of the former Daewoo Heavy Industries's shipbuilding division, in the division plan, the newly established company bears only the liabilities related to the invested assets, and the division plan decided not to succeed to the obligations that are not directly related to the business of the newly established company as the overseas debts not reflected in the balance sheet, except as otherwise provided, and the above division plan was approved through the special resolution of the general meeting of shareholders, and it can be recognized that the establishment of the defendant Treatment Heavy and the integrated machinery was made through the creditor protection procedure such as the notice of the submission by the creditor. Thus, in this case without any evidence to find otherwise that the liability for damages caused by false statements, etc. in the business report of the former Daewoo Heavy Industries is the liabilities with respect to the newly established company's assets, or that there is no direct relation with the business of the newly established company, notwithstanding the provisions of the division plan, it cannot be deemed that the defendant Treatment Heavy and the consolidated Machinery are jointly and severally liable to the plaintiff under the Civil Act or the Securities and Exchange Act.

B. The assertion and determination that the creditor protection procedure was not implemented properly

(1) Summary of the plaintiffs' assertion

The plaintiffs should go through the creditor protection procedure, and they could not raise an objection in the creditor protection procedure because they did not know that they were window dressing accounting, and they did not individually notify the plaintiffs. Thus, the above defendants cannot set up against the plaintiffs the validity of company division.

(2) Determination

㈎ 회사분할에 있어서 채권자보호는 합병의 경우보다 더 중요한 문제로서, 합병의 경우 포괄승계의 결과 채무자의 재산이 그대로 유지되지만, 분할에 있어서는 분할계약이 정하는 바에 따라 임의적으로 양수회사에의 이전이 가능하므로 채권자의 입장에서는 변제가능성에 대한 위험도가 합병의 경우보다 증가하기 때문이다.

㈏ 특히 이 사건 분식회계로 인한 손해배상 채무의 경우 회사분할이 있기 전에 이미 성립하였다 할 것이지만, 회사분할 이전에는 구체적인 채권자와 책임의 내용, 책임의 존부에 관하여 분할 당사 회사가 이를 인식하지 못하여 당해 채무가 추상적인 잠재적 채무로 존속하는 것이므로, 대차대조표 등의 작성에 있어 그 채무의 범위 및 귀속 여부에 대하여 규정하기도 곤란한 채무라 할 것이다. 이렇게 장래 일정한 조건의 성취 및 우발적 상황에 따라 비로소 정식의 책임관계가 발생하는 채무를 통상의 채무와 구별하여 우발적 채무라 할 때, 피분할 회사가 잠재적 채무 자체의 발생사실을 알고 있어 장래에 현실화될 채무의 책임내용과 채권자의 존재를 명확하게 인식하고 있어 당해 채무가 ‘구체적이고 잠재적인 형태로 존속하는 채무’가 있을 수 있으며, 이 사건과 같이 채무자인 피분할회사가 잠재적 채무 자체의 발생가능성은 인식할 여지가 있으나, 장래에 현실화될 채무의 책임내용과 채권자의 존재를 인식하지 못하여 당해 채무가 ‘추상적이고 잠재적인 채무’의 형태로 존속하다가, 분할 이후 권리침해의 사실을 알게 된 채권자의 권리행사에 의하여 현실적 채무로 확정되는 유형이 존재할 수 있다.

㈐ 결국, 피분할회사의 우발채무도 분할 이후 일반적인 채권자와 동일한 법적 지위를 취득하게 되는데, 연대책임의 배제를 이유로 이러한 우발채무에 대하여 귀책사유 없는 채권자로 하여금 책임재산이 현저히 부족한 일방 회사에 대해서만 이행청구를 강제하게 하여 채권만족의 기회를 박탈하는 것은 통상적인 확정채무의 채권자와 비교하여 신의칙상 형평성을 해칠 수 있으므로, 채권자가 이의제출을 할 수 있는 기회가 보장되어 있지 않아서, 채권자가 이의제출을 하지 않았던 점에 관하여 채권자에게 귀책사유가 없는 경우라면, 이러한 우발채무에 대하여는 분할 당시 회사의 연대책임을 배제하는 약정이 효력을 미치지 않는 것으로 해석하여야 할 것이다.

㈑ 그러나 현행 상법 규정에서는 분할회사가 출자받은 재산에 대해서만 채무를 부담하는 것으로 정할 수 있으며, 이러한 경우 채권자의 보호절차는 1월 이상의 공고 및 회사가 인식하고 있는 채권자에 대한 최고로 규정되어 있으므로, 위와 같은 채권자 보호절차를 회사가 이행한 경우에는 채권자가 연대채무를 구할 수는 없는 것이므로, 현행 상법 규정의 해석 범위 내에서 채권자 보호를 위한 연대책임 배제 규정의 한계를 파악한다면 이는 채권자에게 채권자 보호절차에서 인정되는 이의절차를 이행하지 않음에 있어 채권자에게 귀책사유가 인정되지 않는 경우로 한정되어야 할 것이며, 결국 채무자가 채권자의 존재를 인식하고 있음에도 채권자에게 개별적인 최고를 하지 않아서 채권자가 이의절차를 행하지 않은 경우 또는 채권자가 채권자 보호절차가 행하여질 무렵에는 자신의 채권이 존재하는지에 관하여 전혀 알 수 없는 상태여서, 공고가 있었다 하여도 채권자로서 이의절차에 참가하여 권리를 행사하지 못한 점에 대하여 채권자에게 그 책임이 존재하지 않는 경우라 할 것이고, 손해배상 채권의 채권자에게 있어서는 불법행위 및 그로 인한 손해의 발생, 불법행위자를 인식할 수 없는 경우라 할 것이다.

㈒ 돌이켜 이 사건에 관하여 보건대, 비록 원고들이 증권거래법 등 관련법률을 통하여 인과관계 및 손해액 등의 적극적 입증 없이도 피고들에게 손해배상을 구할 수 있음을 현실적으로 인식하지 못하였다 하여도 앞에서 본 바와 같이 원고들은 적어도 1999년 10월 말 무렵에는 구 대우중공업이 분식 회계를 하였다는 사실, 주식의 가치하락으로 인하여 손해가 발생하였다는 사실(아직 주식을 매도하지 아니하여, 구체적인 손해액이 추후 확정된 경우가 있다 하여도 일응 손해의 발생은 있었다고 볼 것이다)은 그 구체적인 내역이 확정되지 않았다 하여도 잠재적인 손해배상채권의 존재에 관하여는 이를 인식할 수 있었다 할 것이며, 채권자이의절차는 그로부터 8개월 후인 2000. 6. 28.부터 2000. 7. 28.까지에 걸쳐 이루어졌으므로, 결국 위 원고들이 채권자이의절차에 참가하지 않은 점에 관하여 아무런 귀책사유가 없다고 보기는 어려우므로, 이 부분 원고들의 주장은 이유 없다.

C. The assertion and determination that it is an undivided debt by nature

(1) Summary of the plaintiffs' assertion

The Plaintiffs did not consent to the resolution on the division of the above company and the apportionment of obligations, and since the liability for damages against the Plaintiffs due to false entries, etc. in the business report of the old Daewoo Heavy Industries is a debt of which division is impossible due to its nature, it is necessary to succeed to the Defendant

(2) Determination

On the other hand, as seen above, as long as the old Treatment Heavy Industries has completed the corporate division procedure in accordance with the legitimate division plan through a special resolution of the general meeting of shareholders and the procedures for the protection of creditors, the circumstance that the Plaintiffs did not consent to the corporate division does not affect any of the scope of the succession of the obligations of the company division and the defendant treatment mediation and treatment comprehensive machinery, and the claims of the Plaintiffs cannot be deemed impossible due to their nature as damages claim, and therefore, the above assertion by the Plaintiffs is without merit.

C. The good faith argument and judgment

(1) Summary of the plaintiffs' assertion

Since the former Treatment Heavy Industries divided the company with a view to evading its obligation, it is not allowed under the good faith to deny liability for damages to the plaintiffs due to false entries, etc. in the business report of the former Treatment Heavy Industries.

(2) Determination

In light of the above, there is no evidence to acknowledge that the former Treatment Heavy Industries divided the company into the company for the purpose of evading its obligation, and the Defendant Treatment Heavy Industries and the former Treatment Heavy Machinery were newly installed. Rather, as seen earlier, the above assertion by the Plaintiffs is without merit, since the Defendant Treatment Heavy Industries divided it into the form of personal division through a creditor financial institution agreement for the prompt normalization of the former Treatment Heavy Industries.

6. Conclusion

Therefore, each of the plaintiffs' primary claims against the defendant Daewoo Heavy Industries, Kim Jong-woo, and 5 and 6 is justified within the scope of the above recognition, and each of them is accepted. The plaintiff's remaining primary claims against the above defendants and preliminary claims, the primary and preliminary claims against the defendant Lee Jong-soo, and the conjunctive claims against the above defendants are without merit, and they are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Hwang Han-sik (Presiding Judge)

Note 1) Of the 43,690 Shares sold in KRW 665,10, 18,100 is the shares acquired before October 27, 199, and 25,590 shares after October 28, 199.

2) On January 31, 200, the above Plaintiff received 5,800 shares from Plaintiff 5 on January 31, 200, and sold them at a lower price than the acquisition value after the corporate division (at least the number of the above Plaintiff’s shares divided into treatment comprehensive machinery and treatment shipbuilding shares, and at 4,025 won in case of treatment shipbuilding, and at the average sale price calculated, at a higher price than the above acquisition price). This court reflected that the above shares acquired on January 31, 200 were excluded from the scope of compensation for damages, as seen earlier, the Plaintiff included the part of acquisition and sale of the above shares in the calculation of damages, and eventually, the amount of total damages reduced as much as the amount of profit.