The scope of business transfer requiring a special resolution of the general meeting of stockholders

When a company is incorporated, if the articles of incorporation only provide for the purpose business and the facilities necessary for the ice manufacturing and freezing business, which are not registered, are only for the rational operation of the plaintiff company's fishery product processing business, the facilities are transferred to the company, and it cannot be said that the business requiring a special resolution of the general meeting of shareholders is transferred in whole or in part.

Article 374 of the Commercial Act

[Plaintiff-Appellee] 70Da520 decided May 12, 1970 (Law No. 8957, Supreme Court Decision No. 18 ② citizen 48, Supreme Court Decision No. 374(9)738, Supreme Court Decision No. 738)

Taesan Commercial Co., Ltd.

1,000,000

Seoul Central District Court (63A4107) of the first instance court

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

On January 20, 1962, No. 374 received on January 20, 1962, the transfer registration based on the sale, and the transfer registration based on the Korea Branch Co., Ltd. for the above real estate, the Korea Branch Co., Ltd. for the above real estate will implement the procedure of cancellation registration of ownership transfer based on the sale, No. 3777 of the above support, and the procedure of cancellation registration of ownership transfer based on the sale.

The Korean branch of Defendant Hyddd-D and Dictson Co., Ltd. shall deliver to the Plaintiff the movables listed in the attached Form 2.

On January 18, 1962, it is confirmed that the transfer contract under the special agreement for repurchase exists for the articles mentioned in the first and second list between the defendant Jung Heavy Industries Co., Ltd. and the plaintiff.

If the above claims are without merit, the defendants confirm that the contract exists that the plaintiff shall return the ownership to the plaintiff when full repayment of the bank obligations for the goods mentioned in the above 12 list on March 5, 1963.

The costs of lawsuit are assessed against the defendants, and provisional execution on the delivery part of the main purport of the above claim was sought.

On January 18, 1962, when the above defendant pays to the above defendant by June 30 of the year the amount equivalent to the principal and interest of the plaintiff's debt paid by the above defendant to the Korea Development Bank for the plaintiff between the plaintiff and the defendant Heavy Industries Co., Ltd. on January 18, 1962, as to the principal claim of the plaintiff, the real estate listed in the attached Table 1 and the movable property listed in the attached Table 2 are originally owned by the plaintiff, and is a freezing facility installed inside a freezing factory and its inside, and when the above defendant pays to the above defendant by June 30 of the year, after concluding a special contract for repurchase under the condition that it can be redeemed, the registration of ownership transfer for the above list 1 and the above defendant has been completed on January 20, 1962 on the ground that the above list 1 and the above list 1 were transferred for sale due to the above sale under the special contract between the above defendant and the defendant 1 and the defendant Daddddddddd-Y Co.

In light of the above legal principles, the Plaintiff’s transfer of the above list No. 1 and No. 2 to the Defendant, which caused the Plaintiff’s transfer of all or part of the Plaintiff’s business to the Defendant, the above contract is null and void since the Plaintiff did not make a special resolution at the general meeting of shareholders. As a result, to deem that a false stock company’s transfer of any property constitutes a transfer of all or part of the business as provided in Article 245 subparag. 1 of the former Commercial Act (Article 374 subparag. 1 of the Commercial Act), the transfer of the company’s business to another person or part of the company’s business should have the same result as the transfer of the company’s business to the Defendant. Thus, the Plaintiff’s transfer of the above list No. 1 and No. 1 and No. 2 without any dispute over the establishment of the Plaintiff company’s business by deeming that the above transfer of the company’s property to be an independent facility of the Plaintiff’s 1 and No. 2 without any legal basis is no longer known from the date of establishment of the Plaintiff’s business.

Next, we examine the plaintiff's first preliminary claim. The plaintiff argued that the period of repurchase has been extended by an agreement between the plaintiff and the defendant and that the period of repurchase continues to exist until now pursuant to the agreement between the plaintiff and the defendant. However, if the period of repurchase is fixed in the secondary contract for repurchase, it cannot be extended again. Thus, if the special contract was entered into at the first time, it is an invalid agreement as a sales contract for repurchase. If a new agreement was entered into later than the above period of repurchase, it can be deemed that the new contract was entered into not a sales contract for repurchase at the first time but a new contract for the extension of the period of repurchase, but it may not be deemed that only the period of repurchase was extended. In this case, the plaintiff and the defendant's contract between the plaintiff and the defendant, which was concluded on January 18, 1962, did not conflict between the parties, and the plaintiff's claim for repurchase until the above period of repurchase does not exist until the above period of repurchase, and therefore, the plaintiff's claim for redemption still remains invalid by the purport of the above contract for repurchase.

Next, we examine the second preliminary claim of the plaintiff. On March 5, 1963, the plaintiff and the defendants asserted that when the plaintiff paid the amount equivalent to the plaintiff's debt to the plaintiff's Korea Development Bank on behalf of the plaintiff on behalf of the plaintiff on March 5, 1963, the defendants agreed to return the plaintiff's debt to the plaintiff on the attached list Nos. 1 and 2. However, the testimony of the non-party witness of the court below on this point is insufficient as materials to recognize the new contents of the plaintiff's claim as it is. The Gap evidence No. 3 (Receipt) is a document before March 5, 1963, and the plaintiff's evidence No. 5-1, No. 5-2 (sale Certificate, Proxy's power of attorney) is a draft without the seal of the holder of the title deed, and there is no other evidence to prove that there was the above agreement between the plaintiff and the defendants. Accordingly, the plaintiff's assertion is not dismissed because it

If so, the conclusion of the original judgment dismissing the plaintiff's claim on the ground that all of the plaintiff's claim is groundless is justified, and the plaintiff's appeal is dismissed, and the costs of appeal shall be borne by the losing party to the plaintiff as per Disposition.

Justices Kim Jong-soo (Presiding Justice) and Kim Young-young Park