(a) Where share certificates are issued before the enforcement of the proviso of Article 335 (2) of the Commercial Act, and are issued to any person other than the transferee prior to such issuance;

B. Resolution of issuance of new shares by the non-existent board of directors and whether Article 429 of the Commercial Act is applied (negative)

A. In a case where share certificates are already issued and share certificates are issued to persons other than the transferee prior to the issuance of share certificates before the enforcement of the proviso of Article 335(2) of the Commercial Act, there is no room to regard the transfer of shares prior to the issuance of share certificates as valid by applying Article 6

B. A resolution to amend the articles of incorporation as to the total number of shares to be issued and a resolution to appoint directors is adopted at a temporary general meeting of shareholders held by persons, other than shareholders, without the attendance of shareholders. If the appointed directors were to appoint representative director and to issue new shares at the board of directors held by the board of directors, the board of directors is merely a non-existent board of directors composed of directors appointed at the non-existent general meeting of shareholders, and the representative director appointed by the board of directors also is appointed at the non-existent board of directors, and the issuance of new shares by a resolution of the board of directors is made by a non-existent resolution by the non-voting person and a person who is not authorized to represent the company, and the issuance of new shares by the resolution of the board of directors cannot be deemed non-existent because the procedural and substantive defects of the issuance are extremely serious. Thus, the shareholders of the company may file a lawsuit against the resolution of the board of directors on the issuance of

(a) Article 335(2) of the Commercial Act, Article 6 of the Addenda to the Commercial Act;

A. Supreme Court Decision 87Do798 delivered on June 27, 1989

Plaintiff 1 and two others, Counsel for the plaintiff-appellant and one other, Counsel for the plaintiff-appellant-appellee)

Attorney Park Il-young et al., Counsel for the defendant-appellant

Daegu High Court Decision 87Na240 delivered on July 24, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the violation of the rules of evidence and the mistake of facts:

According to the reasoning of the judgment below, the court below acknowledged the above 1972.37 shares of the defendant company as 0.0 billion won and accepted 20,000 shares which were issued at the time of incorporation with 00 shares each as 20,000 shares (5,00 won per share) since the above 1972.37 shares were transferred to the non-party 20,000 shares, and the non-party 6 shares were transferred to the non-party 20,000 shares, and the non-party 3 and 7 (hereinafter referred to as the "original shareholders") were transferred to the non-party 20,000 shares were transferred to the non-party 20,000 shares, and the non-party 1 and the non-party 2 were transferred to the non-party 20,000 shares which were then transferred to the Korea Assets Management Corporation prior to its incorporation, and the non-party 2 and the non-party 2 were divided to 30,0000,00 shares.

2. As to the misapprehension of legal principles under Article 335(2) of the Commercial Act and Article 6 of the Addenda:

According to the reasoning of the judgment of the court below, the plaintiff 3, the original shareholders of the plaintiff 1, 5, was deemed to have been transferred to the non-party 2. The transfer of the shares above 1, 5, 300, 100, 200, 200, 200, 200, 30, 100, 100, 200, 200, 200, 200, 30, 100, 100, 100, 100, 100, 100, 100, 100, 100, 100, 100, 100, 100, 100,000, 10,000, 10,000,00,000,00,00,00,00,00,00,00,00,00.

Article 335 (2) of the current Commercial Act (amended by Act No. 3724 of Apr. 10, 1984, the enforcement date of the same year) provides that "the transfer of shares before the issuance of share certificates shall not be effective against the company". The transfer of shares before the issuance of share certificates was made after the lapse of a reasonable time, even if it is sufficient for the company to issue share certificates and it was made after the reasonable time, the transfer of shares before the issuance of share certificates was invalid against the company (Article 78Da1793, Mar. 11, 1980).

However, the proviso of Article 335 (2) of the current Commercial Act provides that "this shall not apply when six months have elapsed after the date of incorporation or the date of payment of new shares," and Article 6 of the Addenda of the same Act provides that "the amended provisions of the proviso of Article 335 (2) shall apply to the transfer of shares without the issuance of share certificates before the enforcement of this Act" as transitional measures concerning the transfer of shares before the issuance of share certificates. However, as in the facts of the above case, if the above revised provisions have already been issued before the enforcement of the above revised provisions and share certificates have been delivered to persons other than the transferee of shares before the issuance of share certificates (this case, as seen earlier, after the issuance of share certificates to the original shareholders before the enforcement of the revised Commercial Act), it shall be deemed that the transfer of shares before the issuance of share certificates is valid (see Supreme Court Decision 87Do798 delivered on June 27, 198), and the above non-party 5, who merely takes over the original shares, is not justified in the misapprehension of legal principles as it is justified.

3. As to the misapprehension of legal principles as to the benefit of confirmation and the litigation over invalidity of issuance of new shares

According to the reasoning of the judgment below, the above non-party 5, who was transferred by the plaintiff 2 to the non-party 1 on July 20, 1985, 1985, which was 00 after the amendment of the Commercial Act, to the above non-party 10 shareholders' general shareholders' meeting. The above non-party 5, who was transferred to the non-party 2 on August 30, 1973, is 20,00 original shares of the defendant company, and is 1 shareholders of the defendant company retrospectively at the time of the above transfer under the proviso of Article 335 (2) of the revised Commercial Act and Article 6 of the Addenda, and each of the above non-party 1 shareholders' general shareholders' meetings as of April 24, 1980 and Oct. 26, 1982, who was assigned to the non-party 10 shareholders' general shareholders' meeting to the above non-party 20 shareholders' above 90 shareholders' general shareholders' general shareholders' meeting. The above non-party 2, 985, respectively,

Article 429 of the Commercial Code provides that "the invalidity of issuance of new shares may be asserted only by a lawsuit within six months from the date of issuance of new shares only by shareholders, directors or auditors." Thus, even if there is a defect in cancellation or invalidation in the resolution of the board of directors or shareholders' general meeting to issue new shares, the lawsuit can be asserted only by a lawsuit for invalidity of issuance of new shares after the issuance of new shares takes effect.

However, the provisional shareholders' meeting of August 31, 1985, as stated in the judgment of the court below, notified the plaintiffs who are shareholders of the defendant company as shareholders, or acquired shares from the above non-party 5 (the non-party 5 is not shareholders) and the non-party 10 and the non-party 11, etc. who are not shareholders without their attendance and hold the shares. Thus, the above non-party 10 and the non-party 5, etc. who are not shareholders can not be seen as holding a resolution of amendment of the articles of incorporation or a resolution of appointing the above non-party 5, etc. regarding the total number of shares to be issued at the same general meeting. Thus, the non-existence of the board of directors' resolution of the above non-existence of a general shareholders' meeting as to the issuance of new shares is the non-existence of a suit as to the issuance of new shares by the above non-existence of a general shareholders' meeting as to the non-existence of the above resolution of the board of directors' general shareholders' meeting. Thus, the plaintiffs cannot be viewed as the above resolution of the above non-existence of new shares resolution of the defendant company.

Ultimately, the court below's decision that the court below did not have all the resolution to amend the articles of incorporation as to the total number of scheduled shares issued by the general meeting of shareholders of the defendant company on August 31, 1985 and the issuance of new shares by the board of directors on the same date is somewhat insufficient, but its conclusion is just

The issue is groundless.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won