[1] The probative value of a final judgment on related civil cases

[2] The method of acquiring possession of share certificates and the elements for recognizing the possession of share certificates as the requirement for bona fide acquisition by transfer of right to request a return

[3] The time when the existence of bad faith or gross negligence in the bona fide acquisition of stock certificates is decided (=the time of acquisition of stock certificates) and the meaning of gross negligence

[4] The case denying bona fide acquisition of share certificates on the ground that the transferor transferred the share certificates held by the transferor to a third party upon entrustment of custody from the owner and the transferee concurrently holds the position of the representative director of the third party (stock company) and met the requirements for setting up against the transfer of nominative claims, the transferor was holding possession and acquisition of share certificates as the requirements for bona fide acquisition, but there was gross negligence due to the transferor's gross negligence in performing the duty of care required for the transaction at the time of acquisition

[5] The meaning and nature of ratification of an act of unauthorized Representation

[1] In a civil trial, even though it is not bound by the facts established in the judgment of other civil cases, etc., the facts established in the relevant civil case already established shall be valuable evidence unless there are special circumstances, and it shall not be rejected without reasonable grounds.

[2] The method of acquiring possession of share certificates is, in addition to the actual delivery (delivery), simplified delivery and transfer of right to request a return, and in case where the transferor keeps the share certificates entrusted by the owner to a third party, he/she obtained possession of share certificates, which are the requirements necessary for bona fide acquisition of share certificates by transfer of right to request a return, the transferor must transfer his/her right to request a return to the third party to the transferee, and

[3] If the acquisition of share certificates is caused by bad faith or gross negligence, the bona fide acquisition is not recognized (Article 359 of the Commercial Act, Article 21 of the Check Act), and the existence of bad faith or gross negligence here shall be determined based on the time of acquisition of share certificates, and the gross negligence refers to the lack of the duty of care required for the transaction.

[4] The case denying bona fide acquisition of share certificates on the ground that the transferor transferred the share certificates held by the transferor to a third party with the custody entrusted by the owner, and the transferee concurrently holds the position of the representative director of the third party (stock company) and met the requirements for setting up against the transfer of nominative claims, the transferor was holding possession and acquisition of share certificates as the requirements for bona fide acquisition, but there was gross negligence that the transferor was grossly lacking the duty of care required for the transaction at the time of acquisition.

[5] Ratification of an act of unauthorized representation is a sole act with knowledge of the act of unauthorized representation and with knowledge of the act of unauthorized representation, to vest the effect of such act in itself.

[1] Article 187 of the Civil Procedure Act / [2] Articles 190, 249, and 450 of the Civil Act, Article 359 of the Commercial Act, Article 21 of the Check Act / [3] Article 359 of the Commercial Act, Article 21 of the Check Act / [4] Articles 190, 249, and 450 of the Civil Act, Article 359 of the Commercial Act, Article 21 of the Check Act / [5] Articles 130 and 132 of the Civil Act

[1] Supreme Court Decision 94Da47292 delivered on June 29, 1995 (Gong1995Ha, 2527), Supreme Court Decision 94Da52768 delivered on October 12, 1995 (Gong1995Ha, 3728), Supreme Court Decision 97Da49053 delivered on February 24, 1998 (Gong1998Sang, 853) / [2] Supreme Court Decision 77Da1872 delivered on January 17, 197 (Gong1978, 10607), Supreme Court Decision 80Da2530 delivered on August 20, 198 (Gong1981, 14290), Supreme Court Decision 97Da490989 delivered on June 29, 199 (Gong1981, 14290)

Plaintiff (Attorney Lee Jong-sung et al., Counsel for the plaintiff-appellant)

AC Cement Industry Co., Ltd. (Law Firm White, Attorneys Yellow-ryon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na16243 delivered on September 7, 1999

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

The grounds of appeal and supplementary grounds of appeal are examined together.

With respect to the first and second points

The court below acknowledged the following facts: (a) the merger process of the Co., Ltd. (hereinafter referred to as Co., Ltd. as Co., Ltd. (hereinafter referred to as Co., Ltd.) after the merger and the construction process of the public golf course, the Plaintiff and Non-Party 1's involvement degree, etc.; and (b) Non-Party 1, as Co., Ltd.'s stock certificates were issued on April 20, 1990, owned 25,500 shares (51%) among Non-Party 50,00 shares (51%) among Non-Party Co., Ltd.'s total shares and 24,500 shares (49%) in consultation with the Plaintiff on April 20, 190, the court below held that the Plaintiff divided the share certificates of Non-Party 1 to 51,00 shares in proportion to each number of shares; and (c) the above Non-Party 1 did not have any disaster, such as a change in the list of shareholders at the time of the merger.

In this situation, as of September 1993, the Defendant Company: (a) renounced all of the shares owned by Nonparty 1 and vice president of Nonparty 2 as of September 1993; (b) lost ownership by giving up all of the shares owned by the Plaintiff to Nonparty 2; and (c) did not so, the Plaintiff did not actually participated in the management of the golf course until around 1993; (d) as the Plaintiff did not have any particular property value, there was no concern that the non-party company would be subject to compulsory execution on its own property as joint and several surety of the non-party company’s debt; (b) on the first day of September 1993, it comprehensively delegated the right to dispose of shares owned by the Plaintiff to Nonparty 2 by issuing Chapter 51,00 shares equivalent to 25,50 shares owned by the Plaintiff to the non-party 2, who was the representative director of the non-party company and the non-party 2 was the representative director of the non-party 1 and the Defendant did not have any obligation to transfer shares to the Plaintiff 2505%.

The court below, as to this defense, did not directly participate in the golf course operation from May 9, 1987 to March 196 after the plaintiff resigned from the representative director of the non-party company. The number of visitors to the golf course began to decline since around 1992, and the government's credit management regulations were amended in around 1993, and the plaintiff was informed of the non-party 2 of the payment of loans several times from the Daegu Bank which is the bank of the bank. On September 1993, the court below rejected the defendant's reasonable objection to the purport that since September 1993, the plaintiff delivered the non-party 2 of the 500 shares owned by the plaintiff, it is difficult to conclude that the plaintiff renounced the shares owned by the non-party 2 or delegated the right to dispose of shares to the non-party 2 with the right to dispose of the shares, and there is no evidence to acknowledge otherwise. Rather, the plaintiff did not accept the plaintiff's reasonable objection to the purport that the non-party 2 offered the share certificates as security to the non-party 2.

In light of the records, the recognition and judgment of the court below is just, and even if there are circumstances that the plaintiff delivered the document with the plaintiff's personal seal affixed to the blank to the non-party 2 after the above free transfer agreement, it does not change the above fact-finding. Thus, the court below did not err in the misapprehension of legal principles as to the presumption of facts and the letter of blank delegation beyond the limit of the principle of free evaluation of evidence, or in the misapprehension of legal principles as to the presumption of facts

In addition, in a civil trial, even though it is not bound by the facts recognized in the judgment of other civil cases, etc., the facts which have been recognized in the already established related civil cases cannot be rejected without reasonable grounds (see, e.g., Supreme Court Decisions 94Da47292, Jun. 29, 195; 97Da49053, Feb. 24, 1998).

However, the decision of the Daegu District Court 96Gahap30872 delivered on February 27, 1997, which is cited by the appellant, was not an issue of whether or not the plaintiff owns 51% or more of the shares of the non-party company, but an issue of whether or not the plaintiff is a shareholder holding 5% or more of the shares of the non-party company. In addition, the plaintiff did not oppose the non-party company that has 51% share ownership based on the shareholders' total book. The plaintiff did not find that the plaintiff's 51% share ownership is not 51% but 50% of the share ownership ratio in relation with the non-party 1. In addition, the decision of the Seoul District Court 96Gadan12017 delivered on July 4, 197 was reversed by the appellate court of Seoul District Court 97No5860 delivered on December 17, 199. Thus, even if the court below recognized the plaintiff's share ownership ratio in this case as 51%, it did not violate the purport of the judgment.

We cannot accept this assertion in the grounds of appeal.

On the third ground for appeal

Although the non-party 2 did not have the right to comprehensively dispose of the shares owned by the plaintiff, the non-party 3 had justifiable grounds to believe that the non-party 2 had the right to gratuitously transfer the shares of this case, the court below rejected the non-party 1's representative director or the non-party 1's representative director's and the non-party 2's representative director's act of collecting 600 million won from the defendant on September 28, 1993 as collateral, each monetary loan agreement prepared by the non-party company after borrowing 60 million won from the defendant company as collateral, with the seal impression of the plaintiff, the non-party 3 did not have the right to gratuitously transfer 10% of shares to the non-party 3. The non-party 3's act of collecting 10% of the shares of this case's non-party 2's personal intent to acquire the shares of this case without any justifiable reason to believe that the non-party 3 had the right to gratuitously transfer the shares of this case's non-party 3's personal intent.

As shown in the record, in light of the value of the object of free transfer, the mutual relationship between the plaintiff, the non-party 1, the non-party 2, and the non-party 3, the non-party 2 merely possessed only share certificates and did not have any document or real authority to deem that the disposal authority exists, the possibility of confirmation against the plaintiff, the formation of a loan for consumption of money, the circumstances of a share transfer agreement, the preparation of a cash loan contract and a special agreement, etc., it cannot be said that the non-party 3 has any justifiable reason to believe that the non-party 2 has the authority to transfer the shares owned by the plaintiff without compensation, and there is no error in the misapprehension of legal principles as to expressive representation

We cannot accept the allegation of this point in the grounds of appeal.

Concerning No. 4

In addition, the court below did not accept the defendant's bona fide acquisition defense against the defendant's defense that the non-party 2 acquired possession of the share certificate against the defendant by the method of transferring the right to claim the return of the share certificate against the non-party 3 to the non-party 3, and thus the non-party 3 could not respond to the plaintiff's claim for the return of the share certificate. The non-party 3 acquired possession of the share certificate against the non-party 10% of the shares owned by the plaintiff, and even if the non-party 3 acquired possession, the non-party 3 did not

The method of acquiring possession of share certificates is not only a simple delivery (delivery) but also a transfer of right to request a return, and in cases where the transferor keeps the share certificates entrusted with custody by the owner to a third party, if he/she intends to obtain possession of share certificates, which are the requirements necessary for bona fide acquisition of share certificates by transfer of right to request a return, the transferor shall transfer his/her right to request a return to the transferee to the third party, and meet the requirements for setting up against the transfer of nominative claim (see Supreme Court Decision 97Da48906, Jan. 2

In other words, on October 15, 1993, Nonparty 2 and Nonparty 3 agreed to transfer 10% of the total number of shares of the shareholders offered to the defendant company as collateral at the time the repayment of principal and interest on the defendant company was completed, to Nonparty 3, respectively, of the shares of the shareholders offered to the defendant company as collateral. The agreement is interpreted to the effect that the right to claim the return of share certificates is transferred to Nonparty 3 on the condition of suspending the termination of repayment of principal and interest. In fact, the transfer of the right to claim the return of share certificates became effective upon the fulfillment of the suspension condition on June 17, 1996 when the non-party company repaid all principal and interest, and the non-party 3, the transferee, concurrently holds the status of the representative director of the defendant company, the non-party 2 can be deemed to have satisfied the requirements for the return of share certificates, and thus, it can be deemed that the non-party 2 satisfied the conditional transfer requirements for the acquisition of share certificates on June 17, 1996.

Therefore, the judgment of the court below that the court below did not acquire possession is erroneous in the misapprehension of legal principles as to the acquisition of possession, which is the requirement of bona fide acquisition.

However, if the acquisition of share certificates is caused by bad faith or gross negligence, the bona fide acquisition is not recognized (Article 359 of the Commercial Act, Article 21 of the Check Act). Here, the existence of bad faith or gross negligence is determined based on the time of acquisition of share certificates, and gross negligence is a lack of duty of care required in transactions.

In light of the following circumstances revealed by the reasoning of the judgment of the court below and the record, i.e., whether Nonparty 2 was authorized to transfer 10% of the Plaintiff’s shares at the time of the transfer of shares free of charge on October 15, 1993, Nonparty 3 merely listened to Nonparty 2’s horse and did not have any evidentiary documents proving the Plaintiff’s power to dispose of shares, but made an oral transfer of shares free of charge on September 28, 1993; Nonparty 3, as the representative director of the Defendant company, was in the position of Nonparty 1’s company’s share ownership at the time of the transfer of shares free of charge, was found to have been 9% of the total amount of the Plaintiff’s share ownership at the time of Nonparty 1’s transfer of shares at the time of Nonparty 2’s purchase of shares without charge, and the Plaintiff and Nonparty 1, the representative director of Nonparty 2, who was a corporation, was 9% of the Plaintiff’s share ownership and 15% of the Plaintiff’s share ownership.

Therefore, the decision of the court below that the non-party 3 had a gross negligence in the possession and acquisition of share certificates is correct. Therefore, the decision of the court below is not affected by the decision, and the decision of the court below is not erroneous in the misapprehension of legal principles as to the gross negligence in the bona fide acquisition of share certificates, which affected the decision.

The argument of this point in the grounds of appeal is not accepted.

Concerning the fifth point

Ratification of an act of unauthorized representation is a single act with knowledge of the act of unauthorized representation and to vest the effect of such act in his/her own (see Supreme Court Decision 95Da28090 delivered on November 14, 1995).

The defendant asserts that the plaintiff prepared a blank delegation letter to the non-party 2 around December 1993 and did not participate in the management of the non-party company until March 1996, and therefore there was an implied ratification on the non-party 2's act of transferring shares free of charge. However, the record reveals that the plaintiff was aware that he was aware of the non-party 2's act of transferring shares free of charge after March 1996, and therefore, the plaintiff's act cannot be viewed as an act of ratification as an unauthorized representative.

In the same purport, the recognition and decision of the court below that rejected the assertion for ratification of the act of unauthorized representation is just, and there is no error of misconception of facts or omission of judgment in violation of the rules of evidence.

We cannot accept the allegation of this point in the grounds of appeal.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)