In a case where Party A purchased Company B’s shares after the purchase of Company B, and Company B’s shares were sold to a third party, and Party B terminated the title trust, the case holding that the obligation to return Party B’s shares to a third party constitutes a kind of obligation and thus, it cannot be deemed impossible to perform the obligation to return Party B’s shares solely on the ground that Party B’s shares were not sold to a third party.

The case holding that the court below erred by misapprehending the legal principles on the ground that Eul's obligation to return Eul's shares constitutes a specific property obligation, not a specific property obligation, but a specific obligation, and merely because Eul's shares were sold to a third party and did not hold it, in a case where Eul's shares were held in title trust after Eul purchased Eul's shares to a third party, and Eul's shares were sold to a third party, and Eul terminated a title trust, considering that the shareholders' shares are shares to the same kind of shares of the same company with respect to the same company as the shares of the same company, and that Eul's shares are not specified in the share custody certificate issued to Eul, the judgment below erred by misapprehending the legal principles.

Articles 375 and 390 of the Civil Act

[Defendant-Appellee] Plaintiff 1 (Attorney Gyeong-dae, Counsel for defendant-appellee)

Defendant 1 and three others (Law Firm Rodd, Attorneys Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2013Na544 decided May 15, 2014

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

The lower court acknowledged that the Plaintiff purchased shares 2,000 shares from the Defendant (hereinafter “Haart”) and issued a certificate of custody stating the title trust to the Defendant and the fact that the Defendant kept the shares. The lower court rejected the Defendant’s assertion that the Plaintiff, who was aware of the purchase of shares from the Defendant, prepared a certificate of custody with a view to showing the Plaintiff’s husband’s husband, only because the Plaintiff and the Defendant knew of the purchase of shares from the Defendant.

In light of the relevant legal principles and records, the above judgment of the court below is acceptable, and since the date and time of stock purchase did not affect the above judgment, it is not erroneous even if the court below did not specify it, and the above judgment below did not err by omitting judgment or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

2. As to the fourth ground for appeal

The lower court determined that the Defendant’s obligation to return shares to the Plaintiff was impossible, on the ground that the instant shares were sold to a third party by the Defendant, and the Defendant did not hold the Hart shares any longer.

However, it is difficult to accept such judgment of the court below for the following reasons.

In light of the fact that a shareholder’s shares are shares held by the same company as an investor, and the same kind of shares of the same company is not important, and that the shares held by the defendant are in custody of 2,000 shares in the shares held by the same company, and that the shares held by the defendant are not specified in the shares held by the defendant, the obligation to return shares to the plaintiff constitutes a specific obligation, not a specific obligation. Therefore, barring special circumstances, such as that the defendant’s shares held by the defendant are sold to a third party and are not held by the defendant, it cannot be said that the obligation to return shares was impossible to perform.

Nevertheless, solely based on its reasoning, the lower court determined that the Defendant’s stock repayment obligation was impossible, and calculated damages and damages for delay on this premise. In so doing, the lower court erred by misapprehending the legal doctrine on impossibility of performing a kind of obligation, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)