Whether the transfer of a company's business ship which mainly engages in the sea's passengers and cargo transportation constitutes a partial transfer of business

The Plaintiff Company is a company that engages in the maritime passenger and cargo transport business, and the vessel repair business. The instant vessel was a regular passenger vessel owned by the Plaintiff Company, which is engaged in leisure and completion between the vessel, and at the time of the sale of the instant vessel, the Plaintiff Company was only two vessels, and the vessel was sold at that time, and thereafter there was no charter for the above sea route thereafter, it is recognized that the above sea route business has been discontinued so far. Accordingly, the transfer of the instant vessel constitutes a transfer of all or part of the business and thus requires a special resolution of the general meeting of shareholders.

Article 374 of the Commercial Act

[Plaintiff-Appellee] 64Da569 decided Nov. 25, 1969 (Law No. 845, Supreme Court Decision No. 845, Supreme Court Decision No. 17No. 29, Supreme Court Decision No. 374(8)7, Supreme Court Decision No. 377)

Korea Shipping Corporation

Defendant 1 and one other

Gwangju District Court of the first instance (66A907, 976) 201

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked.

Claim against Defendant 1

On May 14, 1964, the defendant received from the plaintiff on May 14, 1964, the Gwangju District Court Full Registry No. 5, and implemented the procedure for registration of cancellation of ownership transfer registration based on the sale on the fifth day of the same month. The costs of lawsuit shall be borne by the defendant in both the first and second instances

Claim against Defendant 2

The defendant, on March 4, 1966, received the above vessel from the plaintiff on March 38, 196, implements the procedure for registration of cancellation of ownership transfer registration due to sale on February 20 of the same year, and delivers the vessel. The costs of lawsuit shall be borne by the defendant in both the first and second instances. The delivery of the above vessel may be provisionally executed.

The vessel listed in the Schedule was originally owned by the Plaintiff Company;

On May 5, 1964, Nonparty 1, the representative director of the Plaintiff Company, sells the above vessel to Defendant 1 as the representative of the Plaintiff Company, and on the grounds of this sale, there is no dispute between the Plaintiff and Defendant 1 as to the facts stated in the purport of the claim from Defendant 1 under the name of the Plaintiff Company, and as stated in the purport of the claim from Defendant 2 as to the above vessel, and there is no dispute between the Plaintiff and Defendant 2 as to the facts that Defendant 2 currently occupies the vessel.

The plaintiff company is the main business of marine cargo transport business, and the above vessel is the vessel of the plaintiff company, and the sale of the above vessel will result in the same business transfer. Thus, the sale of the plaintiff company's vessel without a special resolution of the general meeting of shareholders. Thus, this sale is null and void because the non-party 1, the representative of the plaintiff company, sells the above vessel to the defendant 1 without a special resolution of the above general meeting of shareholders. Therefore, the defendant 2's acquisition of the vessel from the non-party 1 is also null and void. Thus, the plaintiff company's sale of the above vessel to the defendant 1 without a special resolution of the general meeting of shareholders is not a special resolution of the above general meeting of shareholders, so it is hard to see that the above vessel's sale of the vessel is null and void because the non-party 2's sale of the vessel without a special resolution of the above general meeting of shareholders, and it is no other special resolution of the general meeting of shareholders to establish the plaintiff company's whole sale of the vessel as its main business and no other resolution of the plaintiff 2's evidence.

However, according to the above Gap evidence Nos. 3 and Eul evidence Nos. 1 without dispute for its establishment and the result of the verification by the court below, since the plaintiff company's total shareholders are 10,000 shareholders and the shares issued are 20,000 shares, 9 shareholders with 19,200 shares out of 10 shareholders were present on August 20, 1964 after the sale of the ship of this case, and the non-party 1, the representative director of the plaintiff company was present on the 19,200 shares out of 10 shareholders, and the non-party 1, the non-party 1, who was the representative director of the plaintiff company, sold 6,341,828 won with the plaintiff company's liabilities in the settlement of accounts, shall be deemed to have paid 2,494,294 won to the industrial bank, interest bank, the Industrial Bank of Korea, or any other company.

The plaintiff's attorney did not hold a general meeting on August 20, 1964, but argued that the minutes of the general meeting are merely prepared for the purpose of evading taxes by filing a report with the competent tax office having jurisdiction over the plaintiff's company on the fact that the debts are high to the plaintiff's company. However, the non-party 4's testimony (secondly), which seems to conform to this argument, cannot be trusted, and contrary to the plaintiff's intention, the above assertion is rejected because the above minutes were not proven to be fabricated by falsity, considering the plaintiff's transfer certificate.

Thus, as the holding of the general meeting of shareholders, there was ratification of the sale of the ship, and this ratification is interpreted as a special resolution of the general meeting of shareholders, so the defect sold by Nonparty 1 without a special resolution of the general meeting of shareholders is cured.

Therefore, since the sale of the Plaintiff Company’s main vessel is valid and lawful, the Plaintiff Company’s claim for cancellation of the registration of each transfer of ownership in the name of the Defendants on the premise that this disposition is null and void and the Plaintiff Company’s claim for delivery to Defendant 2, who occupies the ownership of the vessel under the premise that the ownership of the vessel is still in possession of the Plaintiff Company, shall be dismissed. Accordingly, the judgment of the first instance, which makes the conclusion,

Therefore, the appeal shall be dismissed, and the costs of lawsuit shall be decided as per Disposition in accordance with the principle of the losing party's burden.

Judges Kim Dong-chul (Presiding Justice)