Plaintiff (Attorney Lee Jin-hee, Counsel for the plaintiff-appellant)

Osan ○ Passenger Transport Co., Ltd. (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

March 24, 2017

Suwon District Court Decision 2012Da32092 Decided October 16, 2014

Suwon District Court Decision 2014Na43820 Decided October 30, 2015

Supreme Court Decision 2015Da71795 Decided March 24, 2016

1. The part of judgment of the court of first instance against the plaintiff regarding the part of implementing the transfer procedure of shares shall be revoked;

The defendant shall implement a transfer procedure to change the name of shareholders on the list of shareholders as to the shares listed in the attached list to the plaintiff.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of the lawsuit (the sum of the first instance court, the first instance court, the final appeal, and the first instance court after remand) shall be five minutes, and one of which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The shares in the attached list shall be confirmed as a shareholder by the Plaintiff. The Defendant shall pay 500,000 won per day to the Plaintiff from the date of the pronouncement of the instant judgment until the transfer of entry procedures are implemented.

1. Judgment on the Plaintiff’s claim for confirmation of shareholder status of this case

(a) Relevant legal principles;

In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of rights. The benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment from the defendant in order to eliminate the Plaintiff’s rights or legal status in danger, apprehension and danger. Thus, filing a lawsuit for confirmation even though it is possible to file a lawsuit for performance, there is no benefit of confirmation (see, e.g., Supreme Court Decision 2004Da36215, Jul. 14, 2005).

B. Determination

Examining the instant case in accordance with the aforementioned legal doctrine, the Plaintiff may claim and prove that he/she is the shareholder of the shares listed in the separate sheet issued by the Defendant Company and file a claim for change of entry in the name of the Defendant Company sufficiently against the Defendant Company. As such, obtaining a confirmation judgment against the Defendant Company cannot be deemed the most effective and appropriate means to eliminate the anxiety and risk existing in the rights or legal status alleged by the Plaintiff. Furthermore, as long as the Plaintiff seeks implementation of the transfer procedure on the premise that the Defendant Company is the shareholder of the shares listed in the separate sheet as follows, the Plaintiff does not have a benefit to seek confirmation against the Defendant Company as the shareholder of the shares listed in the separate sheet. Accordingly, the part of the instant claim for confirmation should be dismissed, but in this case where only the Plaintiff appealed, the Plaintiff’s appeal is dismissed without cancelling the first instance judgment on this part

2. Determination on the Plaintiff’s transfer of title to the Defendant Company

(a) Basic facts;

1) Nonparty 2 (former name “△△△△△△△”; hereinafter “Nonindicted 2”) is the representative director of the Defendant Company from February 18, 2005 to that date, and Nonparty 1 owned 2,000 shares issued by the Defendant Company as of February 18, 2005 (Defendant Company’s 10% shares issued by the Defendant Company).

2) On February 18, 2005, Nonparty 2 entered into an agreement with Nonparty 1 to transfer 4,260 shares listed in the attached list of the issuance of the Defendant Company owned by Nonparty 2 (hereinafter “instant shares”) to Nonparty 1.

3) On December 31, 2008, the details of changes in shares on the statement of changes in shares as of December 31, 2008 are as follows.

On December 31, 2008, as of December 31, 2008, Nonparty 2 (△△△△), 10,260,260, Nonparty 5, 2,000 8,260, 100, 100, 260, Nonparty 70, Nonparty 702-06, 5,740 05,740, 740 Nonparty 6, 02,00 Nonparty 0 2,000,000 Nonparty 1’s spouse 2,000,000

Note 1) Spouse

4) On October 27, 2009, Nonparty 1 and Nonparty 2, Nonparty 2, Nonparty 5, Nonparty 6, and the Defendant Company (the representative director Nonparty 2) made conciliation with respect to the case of demurrer against distribution under this court’s 2009Gahap16523, Nonparty 1 withdraw the entire part other than the claim based on the stock ownership agreement on February 18, 2005. ② Nonparty 5’s shares, 4,260 out of Nonparty 5’s shares, confirm that Nonparty 1 is a shareholder. ③ The Defendant Company is Nonparty 1’s 4,260 shares, and the transfer of ownership is carried out in the future of Nonparty 1.”

5) On January 18, 2010, the Plaintiff entered into a contract with Nonparty 1 to be transferred from Nonparty 1 (hereinafter “instant share transfer contract”). On February 19, 2010, Nonparty 1 notified the Defendant Company of the transfer of the instant shares, and the Defendant Company received the following notice.

6) Meanwhile, on March 22, 2009, Nonparty 1 prepared a performance contract with Nonparty 4 on the business profit related to the shares of the Defendant Company owned by Nonparty 1, and the main contents are as follows.

A performance contract for the ticket business interest contained in the main text;

The Schedule Contents contained in the main text: 10% (2,00 shares) =(2,00 shares) owned by the “A” (hereinafter the same shall apply)” in the State of ○○ Passenger Transport (hereinafter the same) = (m) 3. “A” is transferred or taken over to “B (hereinafter the same shall apply) according to the procedures of 10% of the shares in the terms of this contract (hereinafter the same shall apply) and the right to acquire shares and the right to acquire shares at the same time (attached 3: It is established when the transfer or acquisition is conducted in accordance with the National Tax Service Form 2). 4. “A” in the event of transfer of shares (21.3%) from “B” (hereinafter the same shall apply), the “B” shall immediately transfer 5.65% of the shares of “A” to “B”.

[Ground of recognition] Facts without dispute, Gap 1 through 4, 16 evidence (including each number), Eul 4 and 8 evidence, non-party 4's testimony and the purport of the whole pleadings

B. Parties’ assertion

1) Summary of the Plaintiff’s assertion

Since the Plaintiff received the instant shares from Nonparty 1, a shareholder of the Defendant Company, in accordance with the instant share transfer agreement, the Defendant Company is obligated to implement the transfer procedure in the name of the Plaintiff on the instant shares.

2) The defendant's argument

In relation to the shares of this case as follows, since all or part of the shares of this case were transferred from Nonparty 2 to Nonparty 1 again to Nonparty 4 and Nonparty 2, the Plaintiff’s request for change of entry of this case is unreasonable.

A) On February 18, 2008, Nonparty 2 transferred the instant shares to Nonparty 1 in accordance with the agreement on February 18, 2005. At the time, Nonparty 2, the representative director of the Defendant Company, was notified of the transfer of shares, or consented to the transfer of the instant shares according to Nonparty 2’s intention, the representative director, pursuant to the certificate (Evidence B No. 8) dated February 18, 2005. Ultimately, the instant shares were owned by Nonparty 1 and Nonparty 2, not by October 27, 2009, but by Nonparty 1 on February 18, 2008, which was concluded between Nonparty 1 and Nonparty 2.

B) On March 22, 2009, the non-party 1, who was assigned the shares of this case, entered into a performance contract with the non-party 4 on the part of March 22, 2009, to transfer 1,130 shares out of the shares of this case to the non-party 4. The non-party 2, the representative director of the defendant company, approved the transfer agreement with the non-party 1 and the non-party 4 on March 22, 2009 on the above 1,130 shares around January 25, 2010. Accordingly, the non-party 1 owned shares at the time of transferring the shares of this case to the plaintiff on January 18, 2010 only 3,130 shares (4,260 shares - 1,130 shares).

C) Meanwhile, since the instant shares were already provisionally seized by Nonparty 2 at the time of the instant share transfer contract, the Plaintiff’s acquisition of the instant shares is null and void as it goes against the validity of provisional seizure. In addition, as the instant shares were transferred to Nonparty 2 on November 10, 2014 in accordance with the special cash order, the Plaintiff cannot ultimately seek against the Defendant Company the implementation of the transfer procedure against the said 2,425 shares.

C. Determination

1) Determination as to the time of acquisition of the instant shares by Nonparty 1

We examine whether the point at which Nonparty 1 acquired the shares of this case was the date of February 18, 2008, or whether it was October 27, 2009, which is the date of establishment of mediation, as alleged by the Plaintiff, as alleged by the Defendant.

According to the statement in Eul evidence No. 8, the fact that the non-party 2 prepared one copy of the agreement on the shares of the defendant company with the non-party 1 on February 18, 2005, the non-party 2 agreed that the shares of the defendant company held by the non-party 1 are 2,000 shares (10% shares issued by the defendant company) and the shares held by the non-party 2 are 10,260 shares (51.3% shares issued by the defendant company) and the shares held by the non-party 2 are 10,260 shares (51.3% shares issued by the defendant company), the non-party 1 held 6,260 shares (31.3% shares issued by the defendant company) as of February 18, 2008 between the above parties, and the non-party 2 agreed to hold 6,00 shares issued by the defendant company, respectively.

However, in full view of the overall purport of evidence Nos. 3, 5, and 16 of the defendant company's evidence and the whole arguments, the following facts can be acknowledged: ① on December 31, 2008, the defendant company's 10,260 shares of the defendant company owned by the non-party 2 were entirely transferred to the non-party 5 and the non-party 6 under the statement of changes in shares as of December 31, 2008; ② the number of shares of the non-party 1 was the same as at the time of 2005, and ③ the non-party 1 filed a lawsuit of demurrer to the distribution with the court No. 2009, 16523; ③ the non-party 2 asserted the non-party 2's non-performance of the obligation to transfer shares as of February 18, 2008 and the false share transfer on October 27, 2009.

Meanwhile, conciliation has the same effect as a settlement in the court (Article 29 of the Judicial Conciliation of Civil Disputes Act). Since a settlement in the court has the same effect as a final and conclusive judgment and has the same effect as a settlement in the court, if a settlement is made, the relationship of rights and obligations based on the previous legal relations is extinguished. Thus, if a settlement is made between the parties, the relationship of rights and obligations based on the previous legal relations shall be extinguished, and a new relationship of rights and obligations arising from the content of conciliation shall be established (see Supreme Court Decision 2005Da32814, Jun. 29, 2006).

Therefore, examining the case in accordance with the above legal principles, the evidence alone submitted by the defendant company is insufficient to recognize that the non-party 1 acquired the shares of this case from the non-party 2 on February 18, 2008, and there is no other evidence to recognize otherwise. Rather, it is reasonable to deem that the non-party 1, who did not acquire the shares of this case due to the non-party 2's failure to perform the above contractual obligations, acquired the shares of this case after October 27, 2009, which is the date of establishment of mediation.

2) Whether 1,130 shares of the instant shares were already transferred to Nonparty 4

The assertion that Nonparty 1 transferred 1,130 shares of the shares of this case to Nonparty 4 on March 22, 2009 is premised on Nonparty 1’s receipt of the shares of this case from Nonparty 2 on February 18, 2008. As seen earlier, Nonparty 1 acquired the shares of this case on October 27, 2009, and thus, this part of the defendant’s assertion is without merit.

Although it is deemed that Nonparty 1 transferred the instant shares acquired from Nonparty 2 to Nonparty 4 in the future, this constitutes a case where Nonparty 1 transferred 1,130 shares out of the instant shares to Nonparty 4 in duplicate, but the Plaintiff takes priority over Nonparty 4 in accordance with the principle of double transfer of claims as examined below. Therefore, the Defendant’s above assertion is without merit.

A) In a case where a double transfer of shares prior to the issuance of share certificates is at issue, the order between the dual assignees is in principle determined by the time when the notice of transfer with the fixed date reaches the company or after the date of consent with the fixed date in the case of double transfer of nominative claims (see Supreme Court Decision 2005Da45537, Sept. 14, 2006, etc.).

B) In full view of the overall purport of the statements and arguments in Gap evidence 2 (including provisional number), 5 and Eul evidence Nos. 5, the fact that the non-party 1 notified the defendant company of the fact of transfer of the shares of this case on February 19, 2010, and that the notice reached the defendant company on February 20, 2010, the following day,

C) In addition to the above facts of recognition, the above written certification was prepared on February 25, 2010, which is the time after Nonparty 1’s notice of transfer of the instant shares, and the Defendant Company asserted that the date when the said written performance contract was prepared was actually prepared on January 25, 2010. However, there is no special circumstance that the said written certification should be prepared at the end of one month thereafter, and there is no identification card attached to the above written certification. While the identification card attached to the above written certification was an identification card with the name of “non-party 2”, the name after the name, and the parties were written as “△△△” on January 15, 2010 attached to the above written certification, it is reasonable to view that the above written performance contract was prepared on January 25, 2010, which was prior to the notice of transfer of the instant shares between Nonparty 2 and Nonparty 4, and there is no other evidence to acknowledge that it reached the fixed date of acquisition or transfer of the Defendant Company’s shares.

3) The heating relationship between Nonparty 2’s decision of provisional seizure of shares and the Plaintiff’s acquisition of shares of this case

According to the statements in Eul evidence 1 through 3 and 12, the following facts are as follows: ① the non-party 2 was ordered to provisional seizure of shares of this case owned by the non-party 1 as the claim subject to seizure on October 7, 2009; ② the order of seizure of shares to transfer the shares to provisional seizure on July 25, 2012 to the provisional seizure on July 25, 2012; ③ the order of seizure on shares is issued on November 10, 2014 by the order of special cash (transfer order) of this court 2013TT9237, which is held by the non-party 1 to the non-party 2,425 shares of the non-party 2,425 shares of the non-party 1 to the non-party 2.

However, comprehensively taking account of the overall purport of the statements and arguments set forth in Gap evidence Nos. 3, 16, 17, 20, and 21 (including various numbers), it can be acknowledged that non-party Nos. 2 continues to hold the shares of this case, which were attached claims under the non-party No. 2 and non-party No. 5 and non-party No. 6, on October 7, 2009, prior to October 27, 2009, when the conciliation of this case was completed.

Therefore, the decision of provisional seizure of the above shares was made before Nonparty 1 received the shares of this case from Nonparty 2, and the claim for provisional seizure was nonexistent. Thus, it is not effective in itself, and based on this, the order of seizure of shares and special cash (transfer order) on July 25, 2012 also does not affect the validity of the shares of this case. Ultimately, the plaintiff received the shares of this case lawfully from Nonparty 1, regardless of whether to issue a provisional seizure order of shares of Nonparty 2.

4) Sub-committee

Therefore, the Plaintiff is the actual shareholder who acquired the shares of the Defendant Company under the instant stock transfer agreement on January 18, 2010. Therefore, the Defendant Company is obligated to implement the transfer procedure to change the name of the shareholder on the shareholder registry to the Plaintiff.

3. Determination on the Plaintiff’s claim for monetary payment against the Defendant

A. Relevant legal principles

In order to guarantee effective enforcement of the judgment ordering an obligation to act in the military unit, even if the enforcement title is established in light of the time of the closing of argument in the judgment procedure, it is clear that the obligor is not likely to arbitrarily perform his/her obligation, and the obligor has been given an opportunity to sufficiently present the validity of the decision of indirect compulsory performance in the judgment procedure. In cases where the amount of reasonable compensation can be calculated by the order under Article 261 of the Civil Execution Act, the judgment procedure may also be subject to indirect compulsory performance that orders the obligor to compensate for certain damages in cases where the obligor fails to perform his/her obligation in the future (see Supreme Court Decision 2013Da50367, Nov. 28, 2013).

B. Determination

Examining the instant case in accordance with the aforementioned legal principles, the Plaintiff sought indirect enforcement as stated in the purport of the instant judgment in preparation for a case where the Defendant fails to perform the procedures for share transfer even after the issuance of the instant judgment. However, it is difficult to conclude that the Defendant refused to perform the procedures for share transfer against Nonparty 1 and the Plaintiff before the instant lawsuit was filed, and that it is difficult to conclude that the Plaintiff would not perform the procedures for share transfer even after the instant judgment became final and conclusive, and that “the Plaintiff cannot assert the status of a transferee against the Defendant Company” in the first and second instances of the instant lawsuit for claim confirmation, etc. of shareholder rights filed on April 25, 2012, the Plaintiff lost the Plaintiff on the ground that “the Plaintiff cannot assert the status of a transferee against the Defendant Company,” which was reversed at the final and conclusive trial on March 24, 2017. In the instant proceedings, it is difficult to see that the Plaintiff’s indirect compulsory enforcement of the instant judgment was given sufficient opportunity to the Defendant. Therefore, it is difficult to deem that the Plaintiff’s indirect compulsory enforcement of the instant judgment is unnecessary.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiff's appeal is accepted, and the part against the plaintiff as to the execution of the transfer of shares in the judgment of the court of first instance as to the part of the transfer of shares is revoked, and the total costs of the lawsuit are five minutes after adding it to the first instance court, the first instance court prior to the remand, the final appeal, and the first instance court after the remand, and the first instance court

[Attachment]

Judges Lee Jong-soo (Presiding Judge) (Presiding Judge)

1) The spouse of 02-06 under the detailed statement on the change of stocks refers to the spouse of the major shareholder himself/herself, parents, siblings, siblings, grandchildren, and grandparents. Although it is unclear in the record, Nonparty 7 is the spouse of the deceased Nonparty 8, who is between Nonparty 1 and the Dong branch, and Nonparty 2 and Nonparty 7 are in their own relationship, and the spouse of 02-06 is the deceased Nonparty 8 (the inheritance of Nonparty 7).

2) On June 24, 2016, the Defendant withdrawn all the previous arguments related to the notification of the transfer to the Defendant Company and its arrival with respect to the transfer of the instant shares as a preparatory document prepared by the Defendant on June 24, 2016.