[1] In the case of a company division under Article 530-9 (2) of the Commercial Code, in a case where a company division fails to implement an individual maximum notice procedure to known creditors among the procedures for creditor protection under paragraph (4) of the same Article, whether Article 530-9 (1) of the Commercial Code shall apply (affirmative)

[2] Whether a short-term period of exclusion against a lawsuit seeking nullification of corporate division shall apply mutatis mutandis to a claim for the performance of joint and several liability under Article 530-9(1) of the Commercial Act (negative)

[1] In the case of a corporate division, in principle, the Commercial Act provides that the divided company and the newly incorporated company shall be held jointly and severally liable for the entire debt of the company prior to the division (Article 530-9(1) of the Commercial Act), and exceptions thereto shall be excluded by a resolution of division (Article 530-9(2) of the Commercial Act). In such a case, the procedures for protecting creditors, including individual peremptory notices to creditors known to creditors (Article 527-5(1) of the Commercial Act and Article 527-9(2) of the Commercial Act), etc. In light of the foregoing, even if the resolution of division was adopted as a resolution of division that only the debt of the divided company has been borne by the newly incorporated company among the debt of the divided company pursuant to Article 530-9(2) of the Commercial Act, if there is a defect in failing to submit an objection to creditors known in the creditor protection procedure provided for in paragraph (4) of the same Article, the newly incorporated company and the newly incorporated company pursuant to paragraph (1) of the same Article shall be jointly and severally liable with the divided company.

[2] There is no ground to interpret that the short-term exclusion period of a lawsuit seeking nullification of corporate division, which is stipulated in order to ensure the prompt confirmation of corporate division for legal stability, shall apply mutatis mutandis to the case of joint and several liability in accordance with Article 530-9(1) of the Commercial Act.

[1] Articles 527-5 and 530-9 (1), (2), and (4) of the Commercial Act / [2] Articles 529 (2) and 530-9 (1) of the Commercial Act

Lee Jin-young

1. The term “public interest” means the public interest or private interest or the public interest or private interest or private interest;

Changwon District Court Decision 2003Gahap151 delivered on August 1, 2003

March 10, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 140,000,000 won with 25% interest per annum from the day following the service of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the corresponding plaintiff's claim is dismissed.

1. Basic facts

The following facts may be acknowledged in the absence of dispute between the parties to this court, or in full view of the whole purport of pleadings in the statements in Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 1, 2, 3-1, 9-4, Eul evidence Nos. 13, 14-1 through 4, Eul evidence Nos. 15-1, 2, 16, 17-1 through 3, Eul evidence Nos. 18-1, 2, 18-2.

A. The Korea-U.S. Comprehensive Construction Co., Ltd. (hereinafter referred to as the “Korea-U.S. Comprehensive Construction”) is a company established for the purpose of housing construction business and civil engineering business, and the shareholders have 14 or more persons including the above questions, holding 84.702% of the issued and outstanding shares, and has a representative director. The rest of the shareholders also have a friendly relationship, such as an abnormal response.

B. On December 31, 1997, Han Jong-ju applied for composition in the branch of Changwon District Court, and the above court decided the commencement of composition on May 26, 1998, and decided August 3 of the same year to authorize composition.

C. Han-Jin case: (a) under a credit guarantee from the Korea Credit Guarantee Fund; (b) the Plaintiff took out a loan of KRW 1 billion from the Korea Credit Guarantee Fund; and (c) the Plaintiff jointly and severally guaranteed the liability for indemnity against the Korea Credit Guarantee Fund; (b) on May 8, 1998, the Korea-U.S. Credit Guarantee Fund paid a security deposit to the Korea-U.S. Bank; and (c) on November 25, 1998, the Plaintiff made an agreement on November 30, 1999 to make a installment payment of KRW 200 million on seven occasions from November 30, 2002 to November 30, 2002; and (d) on November 30, 1998, the Plaintiff paid KRW 200 million on behalf of the Korea-U.S. Credit Guarantee Fund; and (e) on the other hand, the Plaintiff received KRW 300 million on May 6, 2000 from Han-Jin case.

D. On April 26, 200, after the resolution of the general meeting of shareholders on April 28, 200 approved the split-off registration and the establishment registration of the Defendant Company, the newly incorporated company (which was the Hanyang Construction Company at the time of the split-off, but was the Hanyang Construction Company on February 27, 2001; January 14, 2002; and June 25, 2002; the mutual name was changed in order as of June 25, 2002) was completed.

E. According to the Han-Class Division Plan, the defendant company's capital is KRW 2,500,000,000, and the shares issued by the defendant company are distributed according to the ratio of shares in the single-class shareholders (so, the above ratio of shares held by the defendant company is the same, and the representative director also becomes an ideal), the defendant company's objective business is the civil engineering and construction business, and the defendant company acquires the construction facilities, such as temporary materials held by Han-Class. On the other hand, the defendant company to be established by the division bears only the liability for the invested property among the single-class obligations divided, the amount is equal to the amount of the invested property as KRW 5,67,36,208, and the remaining obligations against the plaintiff et al. are not borne.

F. On May 10, 200, Han Jong case, through a daily construction and Gannam-do Residents' Day, which was a daily newspaper on May 10, 200, established the defendant company by dividing Han Jong case at the general meeting of shareholders on April 26, 200, and the defendant company made a resolution to pay only the obligations on the invested property among Han Jong case's obligations. Accordingly, the interested party who has an objection to this issue submitted his opinion not later than June 15, 200, but did not individually notify the creditors including the plaintiff et al. of their objection.

G. On August 1, 2002, Hanwon District Court rendered a decision of revocation of composition in the Jinwon District Court's Jinju branch.

2. Judgment on the parties' arguments

A. As to the effect of a peremptory defect in the procedure of filing an objection

(1) The plaintiff's assertion

According to Articles 530-9(4) and 527-5(1) of the Commercial Act at the time of the division of this case, if there is an objection to the resolution of the general meeting of shareholders against the plaintiff, who is a creditor, known within two weeks from the date of the resolution of the general meeting of shareholders as to the division of this case, the case did not execute the resolution within a period of not less than one month. Thus, the above resolution of division provided that the defendant company shall bear only the liability for the property invested in one case out of the first class debt divided under Article 530-9(2) of the Commercial Act. Accordingly, pursuant to Article 530-9(1) of the Commercial Act, the defendant company shall be jointly and severally liable to pay the above amount of KRW 140 million remaining after subtracting the above amount of KRW 60 million paid to the plaintiff out of the agreed amount of KRW 25, 1998.

(2) The defendant's assertion

The Commercial Act does not provide for any provision that the company may enforce joint and several liability when it does not go through the above highest procedure in corporate division. ② The lawsuit for invalidation of corporate division is required to become final and conclusive early in complicated disputes, such as new bonds created after division, and new bonds that may cause damage to the obligor or interested parties, which may cause damage to the party in arrears, and thus, includes creditors who have not approved division from registration of division (Articles 530-11, 529 of the Commercial Act). The lawsuit in this case is unlawful, even if a creditor who knows in corporate division did not raise a peremptory notice to file an objection to the filing of the lawsuit (Articles 530-11, 529 of the Commercial Act) in accordance with the purport of the Commercial Act and the purport of the above Commercial Act, it is the ground for filing the lawsuit for invalidation of corporate division, and it does not constitute a ground for the lawsuit for invalidation of corporate division,

(3) Determination

However, in light of the above legal principles, the Commercial Act provides that the company shall be held jointly and severally liable for the entire debt of the company prior to the division for the protection of creditors of the company prior to the division (Article 530-9(1)), as an exception to the above provision, it would be assumed that if the above protection procedures are not taken, it would be assumed that the company will return to the creditors including the above individual peremptory notice (Article 527-5(1)). (2) It would be complicated with several procedures required by the Commercial Act and there would be many interested parties, and it would be more likely that the company will be held jointly and severally for the sake of the protection of creditors of the company prior to the division. (4) It would be more likely that the company would be held liable for damages prior to and after the division to the effect that the company would not be held liable for damages prior to and after the division. (4) It would be more likely that the company would be held liable for damages prior to and after the division to the effect that the creditors would not be held liable for damages prior to the merger (Article 52).

B. As to the argument that the exclusion period expired

(1) The defendant asserts that, in light of the purport that the exclusion period of a lawsuit over the invalidation of corporate division is limited to six months, even if the newly incorporated company is jointly and severally liable, the exclusion period should also be interpreted as six months, and that the lawsuit in this case filed after six months from the above registration of division is unlawful.

(2) However, as seen above, there is no ground to interpret that the short-term exclusion period of a lawsuit seeking nullification of corporate division, which is stipulated in order to ensure the prompt confirmation of corporate division for legal stability, shall apply mutatis mutandis to the case of joint and several liability execution. Therefore, the defendant's above assertion is without

C. As to the assertion that the plaintiff is a guarantor of the company and is not subject to notification

The defendant's assertion that the guarantor of the company, such as the plaintiff, in the division of the company, is not subject to individual peremptory notice for raising an objection, even if the above peremptory notice was not given, there is no procedural defect. However, as alleged by the defendant, even if the guarantor is interpreted not subject to individual peremptory notice, the plaintiff is the creditor of the fixed contract that has already been subrogated for the debt of joint and several liability at the time of the division of the company and has already been paid the amount, and thus,

D. As to the allegation that the Plaintiff accepted the division by waiving the right to raise an objection

(1) The defendant did not raise an objection within that period even if the plaintiff had been well aware of the corporate division due to the above circumstances, such as receiving a part of the agreed money on May 6, 2000 and June 27, 200, immediately after the date of the division resolution, etc., since he continued residing in the Jinju, which is the location of the Han-gu branch, and viewed the above newspaper as a public announcement. The plaintiff asserted that the plaintiff's right to raise an objection constitutes a case where the company division is approved.

(2) However, it is not sufficient to acknowledge that the Plaintiff was aware of the corporate division before the expiration of the period for raising an objection by only the descriptions of the evidence Nos. 19-1 through 7 of the evidence No. 19-7, and there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 140,000,000 won and the amount of delay damages at each rate of 5% per annum from January 24, 2003 to May 31, 2003, which is the day following the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the full payment date under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judge 5-2 (Presiding Judge)