2013 Gohap5223 Revocation, etc. of approval for change in the consortiums or shares

A

1. B construction works;

2. The taking over of lawsuit for the C stock company;

receiver D of a rehabilitation company C

3. E company.

4. Fran Stock Company.

5. G stock company.

March 20, 2014

April 10, 2014

1. All of the Plaintiff’s lawsuits against the Defendants are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The Defendants confirmed that the shares of “H development project” are 20% of HND Co., Ltd., 40% of the manager D of the rehabilitation company C Co., Ltd., the lawsuit of the Defendant C Co., Ltd., and 40% of the Defendant G Co., Ltd., and confirmed that the manager of the business is HND Co., Ltd.

1. Basic facts

A. Defendant B ordered “H development project” (hereinafter “instant project”) and selected PD Co., Ltd. (hereinafter “PD”) and C Co., Ltd. (hereinafter “Nonindicted Co., Ltd.), and (hereinafter “Defendant C Co., Ltd. (hereinafter “Defendant C”) as administrator D of the Defendant Rehabilitation Co., Ltd. (hereinafter “Defendant C”) during the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court

B. On March 29, 2010, Defendant B entered into a concession agreement on the instant project with the said project implementer that constituted the consortium (hereinafter “instant consortium”). At the time, the instant project manager was the Nonparty Company, and the shares in the instant project (hereinafter “instant shares”) were owned by Nonparty B, Korea Development Corporation, and Defendant C owned 40% each of the instant shares, and Defendant C owned 20% each of the instant shares. The instant concession agreement provides for the amendment of the project implementer as follows:

Article 10 (Designation of Project Implementer) (1) Defendant B Corporation shall designate the instant consortium which has entered into this Agreement in accordance with the guidelines for public offering of project proposal, etc. as a project operator.The project operator under paragraph (1) shall not, in principle, change its members since the project operator is jointly and severally liable for the joint implementation of the project in this case. However, if it is difficult to participate in the project due to the default of its members or investors, or if it is inevitable for the smooth implementation of project

In accordance with paragraph (2), if a private executor intends to change his/her constituent members or investors, he/she shall, without delay, submit all documents necessary for such change to the defendant B and obtain prior approval therefor.

C. On February 1, 2011, with the approval of Defendant B Corporation, Maw Development Co., Ltd. secedes from the instant consortium, and succeeded to the ownership of AD Construction Co., Ltd. on April 29, 201 with the approval of the Defendant B Corporation. Since then, A Co., Ltd. secedes from the instant consortium and joined the Defendant G Co., Ltd. (hereinafter “Defendant G”), and the competent manager of the instant project was changed from Nonparty Co., Ltd. to Defendant C., and the instant shares were changed to 40% by Defendant C, G, and Nonparty Co., Ltd. to hold 20%.

D. On May 21, 2012, a non-party company, a representative director of which was a former representative director, held a board of directors with the attendance of two directors from among three directors on May 21, 2012, and passed a resolution on the transfer of 15% of the instant shares owned by the non-party company with the consent of

Accordingly, around May 2012, Nonparty Company transferred 15% of the instant shares to Defendant C. At that time, Defendant G left the instant consortium and Defendant E Co., Ltd (hereinafter “Defendant E”) and F Co., Ltd (hereinafter “Defendant F”) decided to participate in the instant consortium.

E. Accordingly, on May 23, 2012, the non-party company, the defendant C, E, and F filed an application for approval on the change in the share of this case (hereinafter referred to as the "application of this case") with the purport that the non-party company, the non-party company, the non-party company, the non-party company, the pre-existing 20% to 5%, the pre-existing 40% to 55% from the pre-existing 40% to the non-party company, and the defendant F shall own 15%, respectively.

F. On June 1, 2012, Defendant B approved the instant application (hereinafter “instant approval”).

[Reasons for Recognition] Facts without dispute, Gap evidence 2, Eul evidence Nos. 1 through 8 (including branch numbers for those with additional numbers), the purport of the whole pleadings

2. The Plaintiff’s cause of claim ① The non-party company is the sole business of the instant business. As such, the transfer of the instant shares by the non-party company falls under the grounds prescribed in each subparagraph of Article 374(1) of the Commercial Act and requires a special resolution of the shareholders’ meeting. Nevertheless, the J, etc. taking the management rights of the non-party company without going through the shareholders’ meeting and following a resolution of the board of directors comprised of directors appointed by non-legal shareholders, and the instant application was transferred to the non-party company. In addition, the Defendant

Therefore, since the application of this case is null and void and the approval of this case is unlawful, the plaintiff is a shareholder and has a benefit to confirm that the share ratio of the project operator of this case is the share ratio before the application

As Defendant C refers to the manager of the instant business, selling in lots or performing construction works, the debt of Nonparty C may be increased. Accordingly, it is apparent that the Plaintiff’s shareholder’s right, which is the largest shareholder of Nonparty C, would be infringed. As such, the Plaintiff is a shareholder of the instant business, who is a non-party company.

3. Determination on the legitimacy of the instant lawsuit

A. Defendant C, E, and F are merely the Plaintiff’s shareholders and do not have the right to sue to institute the instant lawsuit. Therefore, Defendant C, E, and F asserted that the instant lawsuit is unlawful. In a lawsuit for confirmation, since a person who has the interest to confirm the relevant claim has the standing to sue, we examine whether the Plaintiff has the interest to confirm or standing to sue (I will examine the Defendants’ lawsuit ex officio).

B. A lawsuit for confirmation is not necessarily limited to a legal relationship between the parties, but can be subject to the legal relationship between one of the parties and a third party or between third parties, but in order to have the interest in confirmation of such legal relationship, the risk in existence in the claimant’s rights or legal status should be caused according to the legal relationship, and in order to remove the risk or non-disclosure, it is necessary to immediately confirm the legal relationship by the confirmation judgment aimed at confirming the legal relationship, and it should be the most effective and appropriate means (see, e.g., Supreme Court Decision 2010Da51413, Oct. 28, 2010). First, we examine whether the Plaintiff can bring the instant lawsuit in the position of the shareholder of the non-party company.

A shareholder of a stock company has an interest in the management of the company as a shareholder of the company. However, the company's property relationship only has a real, economic, or general abstract interest, and cannot be deemed as having a specific or legal interest in the company, and the company's business can only affect the company's business through a resolution of the general meeting of shareholders or by the shareholder's supervisory authority without participating in the company's management. Thus, the shareholder can only file a lawsuit against the director to maintain the company's act by exercising the right to maintain the director's act or enforce the company's liability through a representative lawsuit, and may not assert the invalidity of the contract that the company entered into by participating in the transaction, transaction, or transaction with a third party (see, e.g., Supreme Court Decisions 200Ma7839, Feb. 28, 2001; 2010Da51413, Oct. 28, 2010).

In light of the above legal principles, the Plaintiff asserted as the shareholder of the non-party company merely denies the validity of the change of equity shares of the non-party company to the business of this case, and there is no interest in seeking confirmation of the shares of this case or seeking confirmation as to whether the business manager of this case is the non-party company. Thus, the lawsuit

D. In addition, even if the alteration of equity shares by the non-party company on the instant business is null and void, the scope of res judicata is limited to the Plaintiff and the Defendants, which are the parties, and it does not affect the non-party company, and thus, the instant lawsuit brought by the non-party company without excluding the non-party company cannot be deemed as a valid

4. Conclusion

Therefore, since the plaintiff's lawsuit against the defendants is unlawful, all of the lawsuits are dismissed. It is so decided as per Disposition.

The presiding judge, deputy judge and assistant judge.

Judges Lee private-public;

Judge Choi Jin-hun