(영문) 수원지방법원 2010.8.13.선고 2008가합14483 판결

The defendants shall pay to each plaintiff 348,557,072 won and 188,727,372 won per annum from January 8, 2007 to the service date of a duplicate of the complaint of this case, 20% per annum from the next day to the day of complete payment, 159,829,700 won per annum from January 8, 2007 to the service date of the application for amendment of the purport of this case, and 5% per annum from the next day to the day of full payment, and 20% per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. The Plaintiff was listed on the KOSDAQ market in May 2002 and around 2007, when it mainly engaged in the manufacture and sale of the telecommunications parts, electronic parts, etc. of the E Co., Ltd. (the Defendant Co., Ltd. prior to the change of the trade name, the trade name was changed to F Co., Ltd., Ltd., 7, 11, 2007, and “G Co., Ltd. B” as of February 11, 2010, and the current medical device manufacture, import, and sales business are for its main business purposes; hereinafter “Defendant Co., Ltd.”). From October 2005, the Plaintiff began to enter into the stocks of the Defendant Co., Ltd. with the belief that there was a market price adjustment by operational personnel.

B. 1) On April 21, 2006, the Defendant Company held a board of directors meeting to make a resolution for capital increase and made a public announcement of the following securities registration statement and prospectus on the electronic publication website or the Defendant Company’s principal office.

○ It is expected to undertake a new project (in the case of semiconductor projects, radar projects, RFID projects, and RFID projects (Rodi-Frequcy I), through capital increase with new stocks.

○ Funds is a plan to use new facility funds, operating funds (sponsive projects for information and communications, wireless hardware projects for information and communications, and components for information and communications as public use equipment projects).

○ 피고 회사는 IR-Lasertinfrared laser, 적외선 레이저)를 개발완료 단계에 있고, 이를 (주)LTS, (주)엘씨스에 우선 공급할 계획이며, 7월부터는 (주)한광옵토, (주)코 닉시스템, (주)SLD, (주)신호포토웨이브, TRS, LORZE, 에쎌테크, 영원테크, 참엔지 니어링, LaserPix 등에 공급할 계획이며, Green-Laser는 개발 초기 단계에 있다.

2) In addition, the Defendant Company made an electronic publication of the following contents under the title of “H” on May 18, 2006:

○ Information subject to fair publication: A plan for the release of domestically produced products from razers luminous sources;

○ Date of the release of products of the content of the fair disclosure information: May 24, 2006

- The description of the product: Malaysia has solid, gaseous, liquid, liquid, and semiconductor radar, but our country's domesticized radar is ND: YG-Yittrium Amint (ND: YG-Yittrium) Malaysia as a solid dial dial dial dial dial dial dial dial dial dial dial dial dicult. (m)

-The expected effects (the meaning of domesticization): A brief processing facility industry and technology, such as semiconductors and CDs, will be replaced by domesticization with those dependent on the import of the entire amount of the rash emitting machine, in the future.

3) After that, on May 24, 2006, the Defendant Company held a corporate briefing session with the aim of "J" for investors, media organizations, and industry-related persons, etc. on the Internet hotel on May 24, 2006. In this regard, on May 24, 2006, the Defendant Company expressed that 'E Rade PSS State' was developed in K News, 'E Mad Sod Sod Sod Sod Sod Sod Sod Sod'(Dad Sod'(Dad Sod') in its own development for the first time on the 2nd day of production and sale, 'the plan to look at the production and sale', 'the plan to improve the performance of 'E', 'the success in the production of Rad Sod', Mad', Mad', Mad'(S 206, 18th day of July 28, 2006, 'the domestic products', 'the products of Da 200.

C.1) Meanwhile, the Defendant Company’s share price was KRW 1,00 or KRW 1,40 per share from the closing price to April, 200, and maintained KRW 1,000 per share following the publication of capital increase as stated in the above B-1,75 won on May 18, 2006, which was the first day of the issuance of new shares, and became KRW 1,00,000 per share from June 21, 2006, which was the first day of the issuance of new shares, but the entry of KRW 1,015, and KRW 2,00 on June 22, 2006, which was the first day of the publication of capital increase as stated in the above B-1,775 won, was made up of KRW 1,00 per share, and KRW 1,000 per share from June 21, 206, and KRW 200 on June 29, 2006, respectively.

2) On March 14, 2007, the Defendant Company publicly announced that the shareholders’ general meeting for capital reduction that combines 20 shares of the general share into 1 share was scheduled to be held on April 26, 2007. The shares of the Defendant Company were designated as management issues on March 21, 2007.

D. 1) On June 13, 2006, the starting date of the subscription for the issuance of new shares, the Plaintiff subscribed to the issuance of new shares of the Defendant Company (314,000 shares) and paid the total of KRW 318,161,50 per share to KRW 1,050 per share, and acquired KRW 303,01 shares of new shares on June 22, 2006. In addition, the Plaintiff purchased 500,000 shares of the Defendant Company for 14 occasions between June 20, 206 and July 14, 2006 at the price of KRW 1,310 through KRW 600 per share.

2) Meanwhile, from July 19, 2006 to January 8, 2007, the Plaintiff sold 803,011 share (303,01 share of oil and 500,000 share of market purchase) over 13 occasions to 565 won per share of 13 occasions.

E. Defendant C and D were registered directors of the Defendant Company at the time when the Plaintiff acquired new shares or traded shares of the Defendant Company. Defendant C and C were employed as the representative director of the Defendant Company from August 5, 2005 to February 16, 2007, and Defendant D were employed as the representative director of the Defendant Company from March 30, 2005 to May 20, 207, and were signed or sealed by the director in charge of reporting, the officer in charge of reporting, the officer in charge of preparing the report, and the person in charge of preparing the report on securities.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Gap evidence 12 through 15, Gap evidence 21 to 23, Eul evidence 2 (including each number, hereinafter the same), the purport of the whole pleadings

2. Summary of the cause of the claim;

A. As to Defendant C and D

1) The Defendants: (a) did not intend to invest capital increase in the Rayer-related business; (b) did not participate in the domestic development of the Rayer machinery or Rayer-ray machine; and (c) did not enter into or prepare for a contract for the supply of goods to Ray machinery, etc., but publicly announced or disseminated false facts as if the Defendant Company invested capital increase in the business related to Rayer-related business and participated in the development of related technology.

2) The Plaintiff purchased new shares of the Defendant Company or shares in the market by falling under the above Defendants’ network or unfair business performance. The Defendants’ deception was revealed, and the Defendant Company’s average purchase price and average sale price of shares fall due to the lower price of the shares as follows.

A) Paid-in capital increase: 188,727,372 won (=318,161,550 won per share) in total, which was acquired at KRW 318,161 (1,050 per share) and sold to a total of KRW 129,434,178 (16 won per share average of average of KRW 427.16 won);

(b) Market transaction share: 159,829,70 won (=372,982,982,540 won -213,152,840 won per share) after purchasing a total of 49,00 won (average of 747.46 won per share) and selling a total of 213,152,840 won (average of 427.16 won per share)

3) Therefore, the Defendants are liable to each of the Plaintiff for tort liability under Article 750 of the Civil Act (the liability for damages under Article 401 of the Commercial Act, and the Plaintiff, even if a nominal director of Defendant DO was not a nominal director of Defendant DO, should be liable as long as he/she voluntarily admitted the use of his/her name. This appears to the purport of imposing liability under Article 401 of the Commercial Act for compensating for damages to a third party in cases where a director neglected his/her duties in bad faith or gross negligence and causes damages to a third party). The Defendants are liable to pay damages (i.e., KRW 18,727,372 + KRW 159,829,700) and delay damages therefrom.

B. As to the Defendant Company

The Defendant Company is jointly and severally liable with Defendant C and D to compensate the Plaintiff for the damages set forth in Article 389(3) and Article 210 of the Commercial Act, inasmuch as Defendant C and D, a representative director or director, caused damages to the Plaintiff by unlawful or unfair business practices as seen above.

3. Judgment on the main defense of this case

The defendants asserted that the claim in this case was unlawful as it was filed with the exclusion period of "one year from the date when they became aware of the relevant fact" under Article 16 of the former Securities and Exchange Act (amended by Act No. 8625 of Aug. 3, 2007). However, each claim in this case to be filed by the plaintiff against the defendants is subject to tort liability under the Civil Act or liability for damages under the Commercial Act. Thus, the defendants' principal safety defense is without merit.

4. Determination as to the cause of claim

(a) Publication or dissemination of false information;

1) Facts of recognition

The following facts are acknowledged in light of Gap evidence Nos. 1, 5, Eul evidence Nos. 6 (Ga No. 4), 7 (Ga No. 3), 9, Gap evidence No. 10 (Ga No. 5-1), Gap evidence No. 11, Gap evidence No. 36, 39, and the overall purport of oral pleadings. The following facts are found in light of Gap evidence Nos. 27, 30, 37, Eul evidence No. 6-3, Eul evidence No. 12 through 26, Eul evidence No. 2, and 4, and the whole purport of oral pleadings, and it is insufficient to reverse each of the statements No. 6-3, Eul evidence No. 12 through 26, Eul evidence No. 4.

(A) Around December 2005, the Defendant Company started the development and sales of Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad Rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad rad nad nad 206 and had been recorded in a continuous record since around June 2003. Moreover, it did not have any specific and objective circumstance between the Defendant Company and the other company to supply domestic products as well as its domestic products as possible domestic products.

(B) Nevertheless, as recognized in Section 1-b, Defendant C announced the securities registration statement and the business name list "for the purpose of completing the development of the International R-Laser, the Defendant Company plans to preferentially supply them to (ju), LTS, (ju), ELS, (ju), SSD, (ju) signal Potototobs, TTRS, LOR ZE, LORE, Hexec, KerPix, LerPx, etc." The Defendant C announced that "for the purpose of selling and selling 80 products of the Republic of Korea, it is expected that the Defendant Company will substitute 20 products of the Republic of Korea, which had been dependent on the income expected to be released from around May 24, 2006, and that the Defendant Company would have obtained 80 products of the Republic of Korea before the filing of the indictment with the Seoul High Court for the purpose of selling and selling 20 products of the Defendant Company's 190 representative director and the senior managing director of the Defendant Company (the Defendant Company 202).

2) Determination

(A)(1) According to the above facts, it is recognized that Defendant C intentionally publicly announced or disseminated false facts that are different from, or significantly exaggerated to, objective facts about the content and level of the Defendant Company’s Radr development, and plans for the relevant business activities.

(2) Meanwhile, comprehensively taking account of the overall purport of the arguments in the statement No. 18, No. 18, Eul, and No. 3, it is recognized that Defendant D received a certain amount of money from the Defendant Company and merely lent the name of director to the Defendant Company. It is insufficient to recognize that Defendant C participated in, or aided or aided and abetting the aforementioned deception by being aware of, the fact that the aforementioned statement, etc. was signed and sealed by the person in charge of preparation of the securities statement, etc. as seen earlier, and there is no other evidence to acknowledge it. However, as long as Defendant (i) consented to the appointment of the director of the Defendant Company as the director of the Defendant Company and signed and sealed by the person in charge of the public disclosure documents, the fact that the content of the relevant document was entirely discovered due to the failure to perform his duties constitutes a

(B) The Plaintiff asserted that the Defendants had deceptiond on the plan for using capital increase with capital, and accordingly, the Plaintiff invested KRW 7 billion out of KRW 10,072.317,150 in the company’s capital increase with KRW 10,072.8% of the capital increase with KRW 97.8% of the capital increase with KRW 10,000,000 to KRW 6,7,9,9,39, Eul’s capital increase with KRW 36,37, Eul’s capital increase with KRW 6-3,26, and Eul’s capital increase with KRW 32,26, and Eul’s capital increase with KRW 30,00,00, it appears that the Defendants did not appear to have any other evidence to acknowledge that the Defendants had been actually engaged in the above P&M’s capital increase with the first time in light of the following circumstances, namely, the fact that the Defendants did not appear to have been able to find otherwise from the date of entry into the P&M’s investment and development.

(A) The Plaintiff asserted that the Plaintiff made a false statement in the half-yearly report of August 14, 2006 and the quarterly report of November 14, 2006. However, as long as the time when the Plaintiff purchased the Defendant Company’s shares is prior to the publication of each of the above reports as seen earlier, the Plaintiff purchased the Defendant Company’s shares with the belief of the above disclosure. As such, it cannot be deemed that the Plaintiff purchased the Defendant Company’s shares. Accordingly, without examining whether the above disclosure was false or not, this part of the claim is without merit).

B. Connection and amount of damages

(1) Difference between false disclosure, etc. and acquisition of shares

According to the statements in Gap evidence Nos. 24 and 29, the plaintiff believed the information that there is a market price adjustment by the operating force and appears to have been continuously purchased shares despite the plaintiff's participation in the issue of new shares issued by the defendant company or the price drop. However, the securities registration statement, prospectus, and fair disclosure are all important factors that assess the value of the target company and form the share price. In addition to the voice information, the plaintiff as a general manager conducts the market price adjustment by the operating force, the contents publicly announced by the defendant company or the representative director's interview with the media, etc. are also considered as the main material of the investment judgment, and the defendant company's business is conducting or purchasing new shares as publicly announced by the defendant company. Since it is believed that the share price is formed based on the above point, there is causation between the aforementioned false disclosure and the plaintiff's acquisition of shares.

(2) Difference between false disclosure, etc. and damage caused by stock price decline

According to the general principles of compensation for damages, where an investor intends to claim compensation for damages caused by false disclosure or false accusation, the acquirer of shares must assert and prove the causal relationship between the intentional act of the obligor to compensate for damages, the existence of damages, etc., and the amount of damages. There is no evidence to acknowledge the existence of the aforementioned false disclosure, etc. as to whether the damages caused by the Plaintiff’s stock price had been affected by the Plaintiff’s stock price. Therefore, it is difficult to conclude that the causal relationship between the false disclosure, etc. and the damages caused by the price fluctuation was proven (i.e., the following circumstances acknowledged by the evidence mentioned above and the evidence No. 16-1 and No. 16-20, 14 June 14, 2006 (the next day of June 13, 2006, which is the date of the issuance of new shares). From 00 billion won, it appears that the Defendant company’s stock price had been 50 billion won or more than the 20-year capital increase in the market.

3) Damages

Furthermore, even if the aforementioned false disclosure, etc. was revealed and affected the stock price decline of the Defendant Company, the price of shares formed through a concentrated and mass transaction at the Stock Exchange has a extremely variable nature that is determined by very diverse factors, such as demand and supply of the quantity of shares inside the stock market and various external conditions in the stock market. In this case, in light of the fact that the Plaintiff traded the Defendant Company’s shares during the period of trading the shares, the difference between the total purchase and the total purchase of shares cannot be calculated as damages, as alleged by the Plaintiff, in light of the following: (a) the difference between the total purchase price of shares and the total purchase amount is reduced by 9.1% during the period of trading the Defendant Company’s shares; and (b) the involvement of the operating force and the suspicion of embezzlement, as alleged by the Plaintiff, in addition to the false disclosure as to technology development and the distribution of false information, etc.

Accordingly, the plaintiff's claim against the defendant C and D cannot be accepted as there is no proof of causation or amount of damages between the false disclosure, etc. recognized earlier and the plaintiff's damage. The name of the defendant company seeking this premise is also without merit without further need.

5. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.