Whether a special resolution of the general meeting of shareholders is required for a company to assume liabilities in excess of its capital amount.

The execution of a contract by which a company bears obligations in excess of its capital amount does not constitute an act requiring a special resolution of the general meeting of shareholders under Article 374 of the Commercial Act

Article 374 of the Commercial Act

[Judgment of the court below]

[Defendant, Appellee] Defendant 1 et al., Counsel for defendant-appellee-appellant

Daegu High Court Decision 76Na369 delivered on April 20, 1977

The appeal shall be dismissed. The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal on the summary of the defendant's attorney (the supplemental appellate brief for the defendant's attorney Han-chul was submitted after the deadline for submitting the appellate brief, and it is judged only to the extent it supplements the above grounds of appeal).

With respect to No. 1:

The court below acknowledged the fact that the defendant assumes the obligation of 101,471,00 won as the principal and interest together with the agreed interest amounting to 76,50,000 won that the plaintiff lent to the non-party Korean Corporation of Diplomatic through seven times from March 1968 to June 10, 1969, as stated in its reasoning, the court below recognized the fact that the defendant assumes the obligation of 101,471,00 won as the total of the agreed interest amounts to the non-party Korean loans over seven times as of July 30, 1969. The court below reviewed the macro evidence after comparing it with the records, and conducted the fact-finding and its fact-finding of the case, and there is no error of law by misconceptioning the facts by misunderstanding the rules of evidence, such as the theory of lawsuit.

With respect to the second ground:

In this paper, the court below held that the plaintiff was entitled to receive KRW 101,471,00 as compensation for the transfer of shares from the non-party 1, the representative director of the above Korea Aluminium corporation, instead of transferring the shares of the above company that the plaintiff acquired by investing in the non-party 4 corporation without compensation to the non-party 1, the non-party 1, who is the representative director of the above Korea Aluminium corporation, and the defendant company prepared the above evidence No. 4 (written confirmation) to the purport that the above company will take over the above stock compensation obligation, but the date of preparation of the above evidence No. 4 was Nov. 30, 1969. The plaintiff's transfer of the shares to the Korea Development Bank was about 2 years later than 1971.8.27 years later than 1971. The plaintiff's transfer of the shares to the Korea Development Bank was contrary to the rule of experience, and thus, the court below'

However, according to the reasoning of the judgment below, the defendant did not take over the above loan obligations against the plaintiff of Korea aluminium Co., Ltd., which is not the claimant's acquisition of compensation obligations due to stock transfer, but it was known that the defendant acquired the above loan obligations (the records show that the non-party 1, the representative director of the above Korea aluminium Co., Ltd., which the plaintiff acquired as security, provided the above loan obligations as security to the Korea Development Bank without the plaintiff's consent, later, with the non-party 1, who was his own son, was a major shareholder and the representative director, and was established by himself, and had the non-party 2 or the quasi-party company, the defendant company, which was the defendant company, take over the above loan obligations against the plaintiff, and then, he did not accept the above loan obligations against the plaintiff, and it was impossible to understand that the above defendant Co., Ltd., Ltd., which was the representative director of the above Korea aluminium Co., Ltd., Ltd., which was held as security in the above loan bonds, at the time of this case's shares were transferred to the defendant 2.

With respect to the third point:

According to the above Gap evidence, even if the defendant's assumption of the obligation of this case is acknowledged, it was agreed to determine the repayment period and the amount of the obligation of this case through consultation between the parties in the future, but there was no consultation about the repayment period and the amount of the obligation of this case yet, and the date of the payment has yet to arrived yet, but the court below ordered the full amount of the obligation of this case to be paid in lump sum without sufficient deliberation as to this point, but it was not sufficient for the court below to make an incomplete deliberation due to the exercise of the right of explanation, or an unlawful interpretation of the contents of the above evidence No. 4 is committed.

According to the evidence evidence No. 4, the defendant's total amount to be repaid is 101,471,00 won when he assumes the obligation of this case. However, although it is acknowledged that the defendant agreed to pay in lump sum the subscription amount to the defendant as to the repayment period and the amount (the amount to be paid in installments) in the future, the court below judged that the defendant is liable to pay in lump sum the subscription amount to the defendant as to this point, but the court below did not explain the reasons leading to such judgment, but the defendant did not accept the above assumption of obligation as mentioned above, and reported the bond payment pursuant to the emergency order for economic stability and growth of the above claim as of August 9, 1972 (hereinafter referred to as the "emergency order") because the defendant did not have an obligation to pay in lump sum the above subscription amount to the defendant's company bonds, the defendant did not have an obligation to pay in lump sum the subscription amount to the defendant's company bonds for which the defendant did not have an obligation to pay in accordance with the above order to pay in the first time without any justifiable reason.

With respect to the fourth point:

The issue is that the defendant assumes the obligation in excess of the total capital amount of the defendant company by accepting the obligation in this case, and such act of assuming the obligation is effective after the special resolution of the general meeting of shareholders in accordance with Article 374 of the Commercial Act, and the defendant takes effect in accepting the obligation in this case. Thus, the act of accepting the obligation in accordance with Article 374 of the Commercial Act is null and void. However, the act of taking the special resolution of the general meeting of shareholders is an act of transferring the whole or important part of the company's business, leasing the whole business or entrusting the management of the company, or transferring the whole or almost all of the company's assets or almost all of the company's assets to another person, and it does not constitute an act of entering into the contract of bearing the obligation in excess of the amount of the capital, and it is not appropriate in this case because the judgment of the legitimate judgment of the court below is against the judgment of the company's own or almost all of the company's whole assets, and the judgment

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

Justices Ahn Byung-soo (Presiding Justice) (Presiding Justice)