Whether the establishment of a pledge on shares before the issuance of share certificates is possible (affirmative) and the method of establishing such pledge

Although Article 338(1) of the Commercial Act provides that a share certificate shall be issued when it comes to a pledge for a registered share issued, it is reasonable to interpret that the transfer of shares before the issuance of the share certificate is recognized, and there is no legal provision prohibiting the offering of collateral prior to the issuance of the share certificate. However, it is reasonable to interpret that a share certificate falls under the case of the registered shares issued, and therefore, the pledge can be established by the method of transferring the right, rather than the provision of Article 338(1) of the Commercial Act, rather than by Article 346 of the Civil Act, which is the general principle of establishing the pledge right.

Articles 345 and 346 of the Civil Act, Article 338(1) of the Commercial Act

Special Appeal (Attorney Park Jong-ho, Counsel for the defendant-appellant)

Daegu District Court Order 98Ma1395 dated February 18, 1998

The special appeal is dismissed.

The grounds of special appeal are examined.

1. On the first ground for appeal

Since the transfer of shares before the issuance of share certificates is recognized and there is no legal provision prohibiting the offering of collateral prior to the issuance of share certificates, it is possible to create a pledge on shares prior to the issuance of share certificates. However, Article 338(1) of the Commercial Act provides that a share certificate should be issued when the subject matter of a pledge is the registered shares for which the share certificates are issued, it is reasonable to interpret that the provision corresponding to the case of the registered shares for which the share certificates are issued. Therefore, the ownership of shares prior to the issuance of share certificates can be established by the method of transfer of the rights, instead of the provision of Article 338(1) of the Commercial Act, by the general principle of establishing the pledge rights. Furthermore, according to the records, the court below did not err in its determination as to the assertion that the share certificates prior to the issuance of share certificates are not legitimate pledgee. However, even if so, it cannot be viewed that such judgment has affected the conclusion of the judgment.

2. On the second ground for appeal

According to the records, the court below is just to assess the shares of this case as KRW 4,713 per share in consideration of such circumstances, and there is no error of law as pointed out in the grounds for special appeal. The argument is without merit. It is without merit. It is so decided as per Disposition by the assent of all participating parties.

3. On the third ground for appeal

First of all, the special appellant cannot find out the same defense as the theory of lawsuit or a trace of the offset. In addition, there is also a lack of evidence to acknowledge that the applicant, the obligee, has obtained the satisfaction of the claim by disposing of the oral gift right claimed by the special appellant as a collateral. Therefore, there is no error of law such as the theory of lawsuit in the order of the court below. There is no reason to argue.

4. Conclusion

Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)