[1] The meaning of "transfer of the whole or essential part of business" under Article 374 (1) 1 of the Commercial Code which requires a special resolution of the general meeting of shareholders

[2] The case holding that a special resolution of the general meeting of shareholders is necessary for the transfer of a patent since the transfer of a patent right brings the same result as the transfer or abolition of all or part of the company's business in case where a corporation whose main business is the receiving of a construction project using the patent right, and the patent right in question forms most portion

[1] The term "transfer of the whole or essential part of the business" under Article 374 (1) 1 of the Commercial Code, which requires a special resolution of the general meeting of shareholders, refers to a transfer of the whole or essential part of the business which is organized for a certain business purpose and functioned as an organic whole. Since it must be accompanied by the succession of the whole or essential part of the business activity of the transferring company by the transferring company, it does not constitute a simple transfer of the business property, but if the disposal of the business property results in the same result as the transfer or closure of the whole or part of the business of the transferring company, a special resolution of the general meeting of

[2] The case holding that the transfer of a patent right requires a special resolution of the general meeting of shareholders on the ground that the transfer of the patent right results in the same result as the transfer or abolition of all or part of the company's business, in a case where a corporation whose main business is an order for the transfer of a patent right using the patent right is the corporation

[1] Article 374 (1) 1 of the Commercial Act / [2] Article 374 (1) 1 of the Commercial Act

[1] Supreme Court Decision 86Da36062 decided Feb. 14, 1992 (Gong1992, 1028), Supreme Court Decision 93Da47615 decided May 10, 1994 (Gong1994, 1650), Supreme Court Decision 96Da54249, 54256 decided Apr. 8, 1997 (Gong197, 1391), Supreme Court Decision 95Da6885 decided Mar. 24, 1998 (Gong198, 1127) / [2] Supreme Court Decision 96Da54249, 54256 decided Apr. 8, 197 (Gong1997, 1391)

Universal Engineering Co., Ltd. (Attorney Park Jong-young, Counsel for the defendant-appellant)

Defendant

Seoul High Court Decision 2002Na69114 delivered on February 4, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Comprehensively taking account of the admitted evidence, the court below acknowledged that the non-party 1 and the non-party 2 were the representative director of the company on December 21, 199, and that the non-party 1 and the non-party 2 were the non-party 2, respectively, on February 25, 200, transferred the patent right of this case from the non-party 1 and the representative director of the company on March 2, 200, and made a transfer registration of the company on March 1, 200. The non-party 2 provided an explanation that the plaintiff company's shares will be registered on KOSDAQ at the end of May 20, that the non-party 1 will not be registered on the non-party 2, the non-party 1 and the non-party 2 will not be registered on the non-party 2's own share price of 00,000 won, and that the non-party 2 will not be registered on the non-party 1 and the defendant would not have made an offer to the plaintiff 2.

Then, the court below rejected the plaintiff's assertion that the transfer of the patent right of this case is a disposal of the plaintiff's business property, which results in the same effect as the transfer or abolition of all or part of the plaintiff's business, and thus, the transfer of the patent of this case is null and void since there was no special resolution of the general meeting of shareholders, and therefore, the defendant is obliged to implement the procedure of cancellation of the transfer registration made in the future for the defendant with respect to the patent of this case, on the ground that the transfer of the patent right of this case did not bring about the same result as the transfer

2. However, the lower court’s determination is difficult to accept.

Article 374 (1) 1 of the Commercial Act, which requires a special resolution of the general meeting of shareholders, refers to the transfer of the whole or essential part of the whole or essential part of the company which is organized and functioned as an organic whole for a certain business purpose. Since the transfer of the company's business operation by the transferee company should be accompanied by the succession of the whole or essential part of the transfer company's business operation, it does not constitute a simple transfer of the company's business property, but if the disposal of the company's business operation results in the same effect as the transfer or closure of the company's business operation, a special resolution of the general meeting of shareholders is required (see Supreme Court Decisions 96Da54249, 54256, Apr. 8, 1997; 95Da6885, Mar. 24, 1998, etc.).

According to the records, on June 10, 199, the non-party 1 established a private company, "the first cutting method applied for the patent for invention," "the patent of this case," "the patent of this case was registered as the patent of this case, but it was converted into a corporation on December 21, 1999 and established the plaintiff company, the purpose of which is the structure dismantling and blasting construction business, etc., by converting it into a corporation on December 21, 1999. The non-party 1 transferred the patent of this case to the plaintiff company to allow the plaintiff company to be designated as a venture business from the Small and Medium Business Administration and completed the registration of transfer to the plaintiff company on March 22, 200. Accordingly, the plaintiff company was designated as a venture business on March 22, 200. Since the plaintiff company was a small-scale company with five to six employees working at the Seoul Gangnam Office, the majority of the plaintiff company's assets or the transfer of the patent of this case to the extent that it would be necessary.

Nevertheless, the court below rejected the plaintiff's assertion on the ground that the transfer of the patent right of this case may not be deemed to cause the same result as the transfer or discontinuation of all or part of the business of the plaintiff company. It does not err in the misapprehension of legal principles as to the special resolution of the general meeting of shareholders under Article 374 of the Commercial Act, or in the misapprehension of facts against the rules of evidence, which affected the conclusion of the judgment. Accordingly, the ground of appeal assigning this error has merit

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)