[1] Whether a malicious act is required as a subjective element of an unfair juristic act (affirmative)

[2] Whether a special resolution of the general meeting of shareholders is required in a case where the business is already discontinued or suspended at the time of transferring the business property which is the basis of the existence of the company (negative)

[3] Whether a legal act constitutes a juristic act contrary to social order in a case where coercion was used in the process of establishing a legal act (negative)

[4] Requirements for nullification of a juristic act by duress

[5] The case holding that the cancellation of emergency martial law constitutes termination of the state of coercion in a case where the declaration of intention was made in the state of coercion under emergency martial law implemented on May 1980

[1] The unfair legal act stipulated in Article 104 of the Civil Act is established only when there exists an objective imbalance between payment and consideration and a subjective transaction that loses such balance is conducted using gambling, rashness, or inexperience of the victimized party. Thus, even if the victimized party was in the state of gambling, rash, or in experience of the injured party, it does not constitute an unfair legal act in the absence of bad faith, i.e., intent to use such act, even though the injured party was in the state of gambling, rash, or in the state of rash experience of the injured party.

[2] A special resolution of the general meeting of shareholders is required in cases where the disposal of a company's business property, which is not itself, results in the same result as the transfer or discontinuation of the company's business in whole or in part. However, in cases where the company has already discontinued or discontinued its business at the time of disposal of the company's business property which is the foundation of existence, it cannot be said that the whole or part of its business has been discontinued or suspended only due to such disposal. Thus, a special resolution of the general meeting

[3] An act of anti-social order null and void under Article 103 of the Civil Act includes not only the case where the contents of rights and obligations, which are the object of a juristic act, violate good morals and other social order, but also the case where the content itself legally enforces it, or lacks social order conditions or monetary consideration to it, thereby keeping the nature of anti-social order, and the case where the motive of the juristic act indicated or known to the other party is anti-social order. However, if the illegal method, which is the coercion, was used in the process of establishing a juristic act, is not satisfied with the above requirements, it may not be deemed null and void as a juristic act of anti-social order, even though the content itself does not violate good morals and other social order.

[4] In order to invalidate a legal act as a defective declaration of intent by duress, it is required that the degree of coercion is extremely serious and the freedom of decision-making by the person who made the declaration of intent is completely deprived of the person who made the declaration of intent.

[5] The case holding that, in a case where a press organization engaged in a business transfer of property in a state of coercion under emergency martial law implemented on May 1980, the declaration of intent to cancel a juristic act is null and void after the termination of emergency martial law, since it was out of the status of coercion after January 21, 1981 where the order of constitutional law was restored, and the declaration of intent to cancel the juristic act is null and void.

[1] Article 104 of the Civil Act / [2] Articles 374 and 434 of the Commercial Act / [3] Articles 103 and 110 of the Civil Act / [4] Article 110 of the Civil Act / [5] Articles 110, 144 (1), and 146 of the Civil Act

[1] Supreme Court Decision 86Da563 delivered on September 13, 198 (Gong198, 1265) 91Da5907 delivered on July 9, 1991 (Gong1991, 2121), Supreme Court Decision 92Da84 delivered on May 26, 1992 (Gong1992, 207), Supreme Court Decision 92Da2937 delivered on October 23, 1992 (Gong1992, 329, 329) / [2] Supreme Court Decision 86Da2429 delivered on June 9, 1987 (Gong1987, 1937, 1949, 1949Da36497 delivered on February 14, 192) / [37, 297Da1963989 delivered on June 9, 192

Central Daily Co., Ltd. (Attorney Sun-ho et al., Counsel for defendant-appellant)

Korean Broadcasting System (Attorney Osung-hwan et al., Counsel for defendant-appellee)

Seoul High Court Decision 91Na67013 delivered on November 18, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

An unfair legal act stipulated in Article 104 of the Civil Act is established only where there exists a significant imbalance between payment and consideration and where a transaction which has lost such balance objectively takes place using scambling, rashness or experience of the victimized party. Thus, even if the injured party was in a state of gambling, rash or in experience of the injured party, the injured party does not constitute an unfair legal act in the absence of bad faith (see Supreme Court Decisions 86Da563, Sept. 13, 198; 92Da29337, Oct. 23, 1992).

The court below is justified in rejecting the plaintiff's assertion that the transfer contract of the property of this case was null and void as an unfair legal act on the ground that there is no evidence to support that the appraisal price of the Korea Appraisal Board and the consultation price between the plaintiff and the defendant, which form the basis for the conclusion of the contract for the transfer of the property of this case, are significantly less fair than the market price of the property of this case. In addition, there is no evidence to support that the defendant, in light of the circumstance of the conclusion of the contract for the transfer of the property of this case, cannot be found to have concluded the transfer contract of this case by taking advantage of the plaintiff's 1 or the non-party 2, who was the chairman of the Samsung Group, and there is no other evidence to support this otherwise, and there is no error of law by mistake of facts or misapprehension of legal principles due to violation

2. On the second ground for appeal

The transfer of all or part of the business which requires a special resolution of the general meeting of shareholders under Article 374 subparagraph 1 of the Commercial Act refers to the transfer of all or part of the business which is organized for a certain business purpose and function as an organic whole. Since the transfer of the whole or essential part of the business activity of the transferring company should be accompanied by the succession of the whole or essential part of the business activity of the transferring company, it does not constitute a simple transfer of the business property. However, even if the business operation of the transferring company is disposal of non-business property, if the disposition results in the same effect as the transfer or discontinuance of the whole or essential part of the business operation of the transferring company, it requires a special resolution of the general meeting of shareholders. However, if the company has already discontinued or suspended its business at the time of disposal of the business property which is the basis of the existence of the above company, it cannot be deemed that the whole or part of the business was discontinued or suspended only due to such disposition, and therefore it does not require a special resolution of the general meeting of shareholders (see Supreme Court Decision 86Da2428428, 196, 1984, 1964, 1984, 1964, 1964, 198.

As duly admitted by the court below, the plaintiff transferred all of the property of this case, such as real estate and machinery, etc. used by the Winter Broadcasting to the defendant Corporation after discontinuing the business related to the Winter Broadcasting among its business items, and the defendant Corporation also begins to broadcast with a radio station license newly obtained from the radio wave control station without succeeding the business activities from the Winter Broadcasting: Provided, That if the plaintiff acquired all of the property and facilities of the Winter Broadcasting, it is merely that the contract for the transfer of the property of this case was concluded to transfer the residual property of the Winter Broadcasting already closed, and it cannot be deemed that the plaintiff suspended or discontinued the broadcasting business due to that reason, it cannot be deemed that the contract for the transfer of the property of this case constitutes a transfer of all or important part of the business requiring a special resolution of the general meeting of shareholders under Article 374 subparagraph 1

In the end, the decision of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to a special resolution of the general meeting of shareholders under Article 374 subparagraph 1 of the Commercial Act, as pointed out by the theory of lawsuit.

In addition, the judgment of the court below that points out the theory of lawsuit (the special resolution for amendment of the articles of incorporation of the plaintiff includes the purport of approving or approving the transfer contract of the property of this case) is related to the additional decision, and as seen earlier, even if the judgment of the court below was just and just, it does not affect the conclusion of the judgment. Thus, all of the arguments are without merit.

3. On the third ground for appeal

An act of anti-social order, which is null and void under Article 103 of the Civil Act, shall not be deemed null and void as an act of anti-social order on the ground that the content of the right and duty which is the object of the juristic act goes against good morals and other social order, and even if the content itself does not go against the social order, it shall be legally enforced, or its content does not go against the social order, and even if it does not go against the social order, it shall include the case where the nature of anti-social order is displayed, or the motive of the juristic act known to the other party is anti-social order. If the illegal means of coercion is used in the process of establishing a juristic act, it shall not be deemed null and void as an act of anti-social order (see Supreme Court Decision 92Da7719, Nov. 27, 1992). Accordingly, the court below rejected the plaintiff's assertion that the act of transfer of the property in this case is null and void as a juristic act of anti-social order, and there is no ground for misapprehension of facts against the rules of evidence and the law.

4. On the fourth ground for appeal

The court below rejected the plaintiff's assertion that the transfer contract of the property of this case was concluded in a state where the freedom of decision-making was completely deprived at the time of conclusion of the contract for the transfer of the property of this case on the premise that the degree of coercion is extremely serious and it is not sufficient to fully deprive the plaintiff of the freedom of decision-making, and that the contract for the transfer of the property of this case was null and void since the contract for the transfer of the property of this case was completely deprived of the plaintiff's freedom of decision-making at the time of conclusion of the contract for the transfer of the property of this case. In light of the records, the above judgment of the court below is just and acceptable (see Supreme Court Decision 92Da7719 delivered on November 27, 192, 1992). In so doing, there is no error of law by mistake of facts or misunderstanding of legal principles

In addition, with respect to the plaintiff's assertion that the declaration of intention of the transfer contract of this case is revoked on the ground of coercion, the court below held that the plaintiff exceeded the constitutional order since the removal of emergency martial law that had been enforced nationwide and the recovery of constitutional order was made after January 21, 1981, and that the declaration of intent to cancel the transfer contract of this case that was made after the expiration of the exclusion period of three years thereafter is null and void since the right to cancel is extinguished (see Supreme Court Decisions 92Da8521 delivered on November 27, 1992; 92Da14632 delivered on February 23, 1993), and there is no error as to the theory of lawsuit. The arguments are without merit.

5. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)