[1] The validity of issuance of new shares by the third party allocation method, although there are no circumstances to deem that the purpose of capital financing is not consistent with the company's interest and it is reasonable to exclude shareholder's preemptive right to acquire new shares to achieve the purpose

[2] The degree of vindication of the requirements for admitting a provisional disposition affecting the effect of the new shares already issued

[3] The meaning of "a person who delegates voting rights" under Article 84-18 of the Enforcement Decree of the Securities and Exchange Act, which is a provision on the limitation of voting rights at the time of appointing an auditor, and whether the case where a person solicits an exercise of voting rights by proxy and exercises voting rights by proxy under Article 199 of the Securities and Exchange Act

[1] Article 418 of the Commercial Code provides, “(1) A shareholder shall have the right to be allocated new shares according to the number of shares he/she holds. ② A company may, notwithstanding the provisions of paragraph (1), allocate new shares to persons other than shareholders in accordance with the articles of incorporation: Provided, That in this case, it shall be limited to cases where it is necessary to achieve the managerial purpose of the company, such as the introduction of new technology, the improvement of financial structure, etc.," which explicitly states that the shareholder would take measures to grant preemptive rights to shareholders in principle in order to maintain control over the company that is proportional to the shareholder, it is reasonable to deem that there is a reasonable business necessity of the company, and that the provision is made to exclude shareholder’s preemptive rights to new shares only when the articles of incorporation provide for such measures. Therefore, the purpose of raising new shares is not only consistent with the interests of the company, but also to exclude shareholder’s preemptive rights to new shares in order to achieve that purpose, if the method of issuing new shares is remarkably unfair, such as the issuance of new shares by a third party.

[2] The provisional disposition that affects the validity of the new shares already issued by the debtor in provisional disposition shall be permitted only when it is clearly explained to the extent that the circumstance that the issuance of shares is remarkably unfair compared to the ordinary preservative measure, considering the fact that the right is ultimately the same as the right is ultimately satisfied, while the debtor in provisional disposition is likely to cause the difficulty in securing capital in the future as the existing shares are denied without any opportunity to see the dispute in the lawsuit on the merits.

[3] Article 191-11 of the Securities and Exchange Act and Article 84-18 of the Enforcement Decree of the same Act are prohibited from exercising voting rights in excess of the total number of shares issued by the largest shareholder and his/her specially related persons, when the number of shares held by them exceeds 3/100 of the total number of shares issued by the largest shareholder and the specially related persons, when appointing an auditor, including the shares held by them. Each of the above provisions aims at minimizing the influence of the largest shareholder in appointing an auditor of a listed corporation and reflecting the opinions of the minority shareholders to the maximum extent possible, thereby ensuring the transparent management of the listed corporation. As such, the term “person who has delegated voting rights” in this context refers to the case where a person who has delegated voting rights grants a blank delegation so that he/she can exercise voting rights according to the intent of the largest shareholder. It does not include cases where a person solicits the exercise of voting rights by proxy in accordance with the procedure stipulated in Article

[1] Articles 418(1) and (2), and 429 of the Commercial Act / [2] Articles 423 and 429 of the Commercial Act; Article 300 of the Civil Execution Act / [3] Articles 191-11 and 199 of the Securities and Exchange Act; Articles 84-18 and 85 of the Enforcement Decree of the Securities and Exchange Act

knife Russia (K only) Lustra (Law Firm Sejong, Attorneys Lee Byung-ju et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] 1 and 1 others (Attorney Hong-soo et al., Counsel for defendant-appellant)

1. The motion of this case is dismissed.

2. Litigation costs shall be borne by the applicant;

1. Until the judgment on the merits of the lawsuit demanding nullification of the issuance of new shares against Respondent Co., Ltd. becomes final and conclusive, Respondent Co., Ltd. shall not require Respondent Co., Ltd. to exercise voting rights to the shares listed in the separate sheet at the general meeting of shareholders held on April 29, 2008 and thereafter, and Respondent Co., Ltd shall not exercise voting rights to the shares listed in the separate sheet at the general meeting of shareholders held on April 29, 2008 and thereafter at the general meeting of shareholders held thereafter.

2. When a resolution on a case of appointment of an auditor of a proposal of the general meeting of shareholders held on April 29, 2008 is adopted, Respondent Co., Ltd. shall not allow the Respondent Co., Ltd. to exercise voting rights on the shares owned by a person who delegates voting rights to Respondent Co., Ltd.

3. An execution officer shall publicly notify the purport of the order under paragraphs (1) and (2) in a proper manner.

1. Determination as to paragraph 1 of the purport of the application

A. In light of the foregoing, Article 418 of the Commercial Act provides, “(1) A shareholder shall have the right to receive new shares in accordance with the number of shares he/she holds, notwithstanding the provisions of paragraph (1). (2) A company may allocate new shares to persons other than shareholders in accordance with its articles of incorporation: Provided, That in this case, it shall be limited to cases where it is necessary to achieve the managerial purpose of the company, such as the introduction of new shares and the improvement of financial structure, etc., provided that shareholders take the legislation granting preemptive rights to shareholders in principle in order to maintain control over the company proportional to the shareholder, it is reasonable to deem that there is a reasonable need for the management of the company, and that there is a provision to exclude shareholders from preemptive rights to new shares only in cases where the articles of incorporation stipulate it, taking into account the impact of the issuance of new shares on the shareholder’s previous control, the purpose of raising the company’s new shares is not consistent with the company’s interest, and where the method of issuing new shares is remarkably unfair, such as the issuance of new shares by a third party, it will be null and void only in the existing provisional disposition.

B. In full view of the following circumstances, the issuance of the shares in the separate sheet (hereinafter “instant shares”) on the respondent corporation Crocom Co., Ltd. (hereinafter “Crocom”) by the respondent cannot be deemed to have been issued in violation of the statutes or the articles of incorporation or in a remarkably unfair manner.

① 이 사건 주식 발행 당시 피신청인 지엔코가 이른바 경영권 분쟁 상황에 있었는지 여부를 살피건대, 기록상 신청인이 2008. 1. 21.경 피신청인 지엔코의 발행주식 총수 9,300,000주 중 281,400주(3.02%)를 보유하고 있었고, 2008. 3. 5.자로 1,562,166주로 전환할 수 있는 전환사채권을 보유하고 있었으며, 신청인에게 우호적인 세력인 신청외 아퀼라인캐피탈엘엘씨도 신청인과 동일한 조건의 전환사채권을 보유하고 있었던 사실, 신청인이 2007. 12. 3. 피신청인 지엔코의 대표이사 소외 1 등을 배임혐의로 고소하고, 2008. 1. 28. 소외 1 등에 대한 해임결의를 위한 임시주주총회의 소집을 청구하며, 같은 달 31. 소외 1 등에 대한 이사직무집행정지가처분을 신청한 사실, 반면 피신청인 지엔코의 주식 3,144,037주(33.8%)를 보유하고 있던 최대주주인 주식회사 더블류지에프코리아(이하 ‘더블류지에프’라고만 한다)는 그 주식을 담보로 주식회사 현대증권으로부터 63억 원의 대출을 받고 있어, 만기에 이를 변제하지 아니하면 그 주식이 임의로 처분될 가능성이 있었던 사실이 소명되기는 한다. 그러나 기록상 신청인은 2008. 1. 24. 증권거래법 제200조의2 에 의하여 금융감독위원회 및 한국증권선물거래소에 주식 등의 대량보유상황보고를 한 이래 현재까지 증권거래법 시행령 제86조의9 에 의한 보고서식(이른바 약식서식)을 사용하면서 같은 법 시행령 제86조의7 에 의한 경영권에 영향을 주기 위한 행위를 하지 않을 것을 확인한다고 보고한 바 있으며, 신청인이 이와 같이 보고한 이상 설령 내심으로 피신청인 지엔코의 경영권을 확보할 의사를 가지고 있다고 하더라도, 증권거래법 제200조의3 , 같은 법 시행령 제86조의10 에 의하여 정정공시를 한 날부터 일정 기간 동안 일정 지분에 대한 의결권을 행사할 수 없을 것으로 보이는 점, 이 사건 주식 발행 이후의 사정이기는 하지만 신청인은 2008. 4.경 보유하고 있던 피신청인 지엔코의 주식 470,000주를 매도하여 현재 보유한 주식은 255,400주에 불과하고, 보유하고 있는 전환사채권에 대한 전환청구를 하고 있지도 아니한 점 등에 비추어 보면, 신청인이 다른 목적을 위하여 피신청인 지엔코의 경영진에게 압박을 가하고 있다고 인정할 수 있음은 별론으로 하고, 피신청인 지엔코의 경영권을 취득하려는 목적을 가지고 있음을 인정하기는 어렵다.

② According to the records, it is proved that the respondent has the need to raise funds for the purpose of land expropriation deposit and construction costs of the secondary public cargo terminal among the stock companies, which are its subsidiary companies, and the respondent has paid 5,99,98,660 won (2,489,626 note x 2,410 won) from the respondent Ccom on February 15, 2008, and the respondent has lent 6 billion won to the secondary public cargo terminal by the resolution of the board of directors on February 15, 2008, the respondent's loan 5.5 billion won, 27 billion won on the same day, 27, 2008, 300 billion won on the same day, and 3.6 billion won on the same day on the same day on the same day on the same day on the same day on the same day on the same day on the stock issuance.

③ It is not explained that there is any defect in the board of directors’ resolution for the issuance of shares in this case, and the notice for convening a meeting of the board of directors on records. Even if there is a domestic defect, the issuance of new shares is equivalent to the execution of affairs of a stock company and so long as the representative director issues new shares in accordance with his authority, the issuance of new shares is valid. Even if there is no resolution of the board of directors concerning the issuance of new shares or there is a defect in the resolution of the board of directors, the effect of issuance of new shares merely is an internal decision making of the company (see Supreme Court Decision 2005Da77060, 77077 delivered on February

C. Therefore, Paragraph (1) of the purport of the application premised on the issuance of the instant shares is null and void is without merit due to lack of vindication of the right to be preserved.

2. Determination as to paragraph 2 of the purport of the application

A. Article 191-11 of the Securities and Exchange Act and Article 84-18 of the Enforcement Decree of the same Act include stocks owned by the largest shareholder or a person with special interest, who has delegated voting rights, to the largest shareholder and the person with special interest, when appointing auditors, and when the stocks owned by them exceed 3/100 of the total number of issued stocks, the voting rights are prohibited in excess. Therefore, whether the stocks entrusted by Respondent upon solicitation of the exercise of voting rights by Respondent are prohibited under the above provision (the Respondent refers to a person with special interest, which was the Respondent's largest shareholder as at the time of the date of the general meeting of shareholders held on April 29, 2008) and each of the above provisions are prepared to promote transparency in management in the appointment of a listed corporation by minimizing the influence of the largest shareholder and reflecting the opinions of the minority shareholder as much as possible, and thus, it does not include cases where the Respondent delegated voting rights according to Article 198 of the Enforcement Decree of the Securities and Exchange Act grants voting rights to the shareholder.

B. Therefore, the purport of Paragraph 2 of the application that assumes that it is illegal to allow Respondents to exercise voting rights by solicitation for exercising voting rights as proxy in the appointment of auditors is not justified due to lack of vindication of preserved rights.

3. Conclusion

Therefore, the application of this case is dismissed as it is without merit due to lack of vindication of the right to be preserved. It is so decided as per Disposition.

Judge Lee Dong-ri (Presiding Judge)