Plaintiff (Law Firm Jeong, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 Co., Ltd. and one other (Law Firm LLC, Attorneys Ha Man-young et al., Counsel for the defendant-appellant)

October 31, 2008

Busan District Court Decision 2005Gahap13908, 2006Gahap19125 decided Feb. 15, 2008

1. The remainder of the part against the plaintiff of the first instance judgment, including a claim extended and modified in the trial, excluding the dismissed part of the lawsuit, shall be modified as follows:

A. Of the instant lawsuit against Defendant 2, the part of the lawsuit seeking confirmation of shareholder rights regarding the shares listed in the attached Table 2 List 2 shall be dismissed.

B. Defendant 2 confirms that the shareholder of the shares listed in attached Table 1 is the Plaintiff.

C. Defendant 1 Co., Ltd will implement a transfer procedure to change the name of shareholders on the register of shareholders to the Plaintiff with respect to the shares listed in attached Tables 1 and 2 to the Plaintiff.

D. The plaintiff's remaining claims against the defendants are dismissed.

2. 40% of the total litigation costs arising between the Plaintiff and the Defendants shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

1. Purport of claim

Defendant 2 confirmed that each of the shares listed in [Attachment 2] 1 and 2 is owned by the Plaintiff. Defendant 1 Co., Ltd. implemented a transfer procedure by changing the name of the shareholder on the register of shareholders into the name of the Plaintiff with respect to each shares listed in [Attachment 2] list 1 and 2 (the Plaintiff extended the purport of the claim against Defendant 2 in the trial and added the claim seeking implementation of the transfer procedure to Defendant 1 Co., Ltd.).

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance other than the dismissed part of the lawsuit shall be revoked. The defendants confirm that the plaintiff owns 841,891 shares out of the total outstanding shares of defendant 1 corporation (the plaintiff filed an appeal as to 921,631 shares, but the plaintiff withdrawn an appeal as to 79,740 shares dismissed in the judgment of the court of first instance while modifying the purport of the appeal, and excluded the above part from the scope of the judgment).

1. Basic facts

① Defendant 1 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) was incorporated on June 26, 1964 by the deceased Nonparty 1 (hereinafter “the deceased”). Before the deceased died on November 4, 1982, the total number of shares issued by the Defendant Co., Ltd. was 7,516,00. The deceased, a major shareholder, owned the total number of shares issued by the Defendant Co., Ltd. before the deceased died on November 4, 1982, the total number of shares issued by the Defendant Co., Ltd. was 7,516,00. The Plaintiff, a major shareholder, 48,958 shares; Defendant 2, a South son, 1,450,268 shares; Nonparty 3, a South son, 980,91 shares; Nonparty 2 and Nonparty 4, respectively, Nonparty 32,55 shares totaled 4,872,873 shares, and Nonparty 5, including Nonparty 5, who held the deceased’s trust.

② On July 20, 1982, the Deceased, who was in the line of work, prepared a testament to dispose of the property on July 20, 1982, and died on November 4, 1982. While the testament had not been opened to the public, the list of shareholders of the Defendant Company was organized in proportion to the share of the Defendant Company in the name of the deceased (6/23 shares in inheritance), Defendant 2 (6/23 shares in inheritance), Nonparty 3 (4/23 shares in inheritance), Nonparty 2, 6, 7 (name after the opening of name: ○○○○, and 23/23 shares in inheritance), Nonparty 4 (4/23 shares in inheritance), and the share list of the Defendant Company was jointly inherited in proportion to the share of inheritance under the name of the deceased.

③ On December 1984, the Plaintiff, who was in the custody of a will, was accused of a criminal complaint against Nonparty 3 on charges of larceny, concealment of documents, etc. Around December 1984, six of the co-inheritors, except for Nonparty 2, including the Plaintiff, Defendant 2, Nonparty 3, 4, 6, and 7, were gathered, and agreed on January 10, 1985 to recognize the validity of the will and distribute the legacy in accordance with the same. Accordingly, the will was disclosed to the public, and the contents relating to this case are as follows.

- All the shares in the name of the defendant 2 and the non-party 3 are owned by himself, and shares in the name of the non-party 1 corporation are additionally distributed to the non-party 1 corporation. The shares in the non-party 2 and the non-party 3 are 60%.

- Voluntarily (Non-party 8) shares

It is well prepared with the help of the arbitr who delegates all the property under his own name, as well as all the property under his own name, and with the help of the arbitr, and this property is used as a subsidy to a person who has difficulties in living in the arbitr over the arb and living in the arb.

B. The property of B is all shares, real estate, securities, national and public bonds, membership, cash, etc. (the share in the name of B).

If this property is to be borne for the protection of this property, I would like to allocate it to the public.

④ Defendant 2, among the shares 1,887,546 shares which the Deceased had been in custody of the Seo-gu Busan District Treasury located in the Seo-gu, Busan District (hereinafter the parcel number omitted), was in custody after taking the share certificates corresponding to 271,228 shares (this dispute arises as to whether the time of taking the share certificates was after the deceased’s death, and whether the deceased’s consent was obtained. Nonparty 3 testified that the above Defendant would have taken the share certificates upon the deceased’s consent before the deceased’s death). After the agreement on January 10, 1985, Defendant 2 lost the said shares, who was demanded by the Plaintiff to return the share certificates at the above 271,228 shares.

⑤ Defendant 2 and Nonparty 3 purchased all shares (271,28 shares) of his father lost on January 1, 1986 under Defendant 2’s responsibility. Re-issuance of shares (271,228 shares) to the Plaintiff; Nonparty 3’s shares (the total sum of Nonparty 90,91 shares in Nonparty 3’s name and the total sum of shares of Nonparty 9,10,066,200 shares (the total sum of shares of Nonparty 9,643,127 shares in title trust exceeds 40% of the shares in the will) out of the shares in title trust; Defendant 2 purchased shares in the name of Nonparty 3 and Nonparty 328,91 shares and shares in the name of Nonparty 3; the total sum of shares in the name of Nonparty 3 and shares in the name of Nonparty 328,296,198; the Plaintiff purchased shares in the name of Nonparty 289,281 shares in the name of the deceased; the total sum of shares in the name of Defendant 28169,2986.

④ Even after the will of the defendant company was made public, the heir’s list of shareholders of the defendant company maintained that the heir jointly inherited the shares in accordance with the statutory inheritance ratio. On the premise of this, the consolidation took place on January 11, 1987 due to the change of the par value (500 Won 5,000), on June 21, 1994 (188,000 shares), free capital increase (3,317,409 shares), on September 16, 202 (3,317,409 shares), on December 25, 2003 (60,000 shares), on December 26, 2004 (60,000 shares), on December 26, 2004 (60,000 shares), on the condition that the shares were transferred to Nonparty 29, 207, 3196 shares shares shares shares shares were transferred to Nonparty 29, 207, 294 shares shares shares shares shares were transferred to Nonparty 284, 2967, 208.

[Ground of recognition] In the absence of dispute, Gap evidence 1-1, 2, 8-1 through 47, Gap evidence 9-12-9 through 13, Gap 22-1, Gap 23, 26, Eul evidence 27, Eul evidence 13-1 through 3, Eul evidence 13-23-5 through 8, Eul evidence 23-11, 28 through 34, Eul evidence 24, and 25, non-party 3's testimony, whole purport of oral argument

2. Determination on this safety defense

(a) Illegal modification of a lawsuit;

The Plaintiff filed a claim against the Defendants for the issuance of share certificates of 50,000 shares of the Defendant Company on March 27, 2007, and filed a claim for the change of ownership under the name of the Plaintiff and Nonparty 3 on the said shares after changing the lawsuit on March 27, 2007. On December 18, 2007, the Plaintiff filed a claim for the confirmation of shareholder rights of 32.62% of shares of the Defendant Company by changing the lawsuit on January 18, 2008, but filed a claim for the confirmation of shareholder rights of 27.08% of shares of the Defendant Company by changing the lawsuit on January 18, 2008. The Defendants asserted that the above change of the lawsuit by the Plaintiff is unlawful because it intended to intentionally delay the litigation procedure without the identity of the claim.

In light of the records, each of the above claims of the plaintiff is merely a different method of resolution in disputes concerning the same living facts or economic interests, which are premised on the fact that the plaintiff acquired all of the shares of this case according to a will letter, and thus it cannot be deemed that the modification of the purport of the claim and the cause of the claim is a modification to the basis of the claim, and since most of the previous litigation data can be used for the deliberation of the new claim, it cannot be deemed that the delay in the litigation procedure is significant.

(b) Defects in standing to be a party;

On the premise that the Plaintiff received a testamentary gift of the entire shares of this case in accordance with the will or acquired a shareholder's right by means of an inheritance agreement or a transfer of inherited shares, Defendant 2 asserts that this part of the lawsuit against Defendant 2 is unlawful, inasmuch as the instant shares were jointly inherited by all inheritors, including himself/herself, that there was an interest in the attribution of shareholder's rights, and that this part of the lawsuit against himself/herself is not unlawful.

However, solely on the fact that the shares of this case were jointly inherited property to the inheritor, the lawsuit on the attribution of the shareholder's rights cannot be necessarily filed against all co-inheritors who are co-inheritors who are co-inheritors of inherited property. Rather, in a case where there is a dispute over the attribution of the shares, such as this case, the inheritor who claimed the acquisition of the shareholder's rights has a legal interest in seeking confirmation of the attribution of the shareholder's rights against the inheritor who actively contests such a claim. Thus, the above assertion

(c) Unauthorized representation;

The Defendants asserted that the lawsuit in this case should be dismissed as a lawsuit brought by an unauthorized representative, since Nonparty 3, who is not the Plaintiff, but the attorney appointed at will by Nonparty 3 without being delegated by the Plaintiff.

However, there is no evidence to prove the defendants' assertion, and rather, according to each letter of delegation submitted by the plaintiff to the trial court and the certificate of personal seal impression issued by the plaintiff, the plaintiff can legitimately delegate a lawsuit. Thus, the above assertion by the defendants is without merit.

3. Whether the part demanding confirmation of the shareholder's rights on the shares held by the defendant 2 is legitimate

The plaintiff asserts that he owns approximately 1,442,517 shares ( approximately 42.17% of the total shares issued by the defendant company) out of 3,421,009 shares issued by the defendant company and filed a claim against the defendant 2 for confirmation of shareholders' rights as to 348,682 shares out of the shares issued by the defendant company, and this is examined ex officio.

A lawsuit for confirmation is recognized when the plaintiff's legal status is unstable and dangerous, and it is recognized that it is the most effective and appropriate means to eliminate such apprehension and danger, and even though it is possible to bring a lawsuit for confirmation to claim performance, it is not a final solution of a dispute, and therefore there is no benefit of confirmation.

As to the instant case, even if the Plaintiff obtained the confirmation of the shareholders’ rights against Defendant 2 against the said 348,682 shares, seeking the confirmation cannot be deemed an effective and appropriate means to secure the legal status of the Plaintiff as long as the said judgment cannot affect the Defendant Company. Moreover, in this case, the Plaintiff claims against the Defendant Company for the implementation of the transfer of shareholders with respect to the said shares. Accordingly, it is apparent that the purpose of the claim for confirmation can be achieved directly, and thus, the said claim is unlawful as there is no benefit of confirmation.

4. Judgment on the merits

A. Claim against Defendant 2

(1) Acquisition of shares by testamentary gift:

(A) The plaintiff's assertion

As a result, Defendant 2 acquired the shares of this case by testamentary gift to the Plaintiff, on the premise that Defendant 2, on the list of shareholders, additionally owned shares according to the inheritance shares among the shares of this case, and the capital increase was made, Defendant 2,856,91 shares as shareholders of 2,89. However, on the premise that the Plaintiff acquired the shares of this case, if calculating the shares held by the Plaintiff and Defendant 2, the Plaintiff is the actual shareholders of 1,442,517 shares issued by the Defendant Company, and Defendant 2 is the actual shareholders of 1,842,896 shares issued by the Defendant Company, and Defendant 2 is the actual shareholders of 1,014,095 shares (2,856,91-1,842,896 shares) out of the shares held by Defendant 2 on the list of shareholders. Accordingly, Defendant 2 is disputing this. Thus, Defendant 2 is seeking confirmation of the shareholder rights against Defendant 2.

(B) Determination

Articles 1065 through 1070 of the Civil Act stipulate strictly the method of a will with the intention to clarify the truth of the testator and prevent legal disputes and confusion arising therefrom. Thus, a will contrary to the statutory requirements and methods cannot be null and void even if it conforms to the authentic will of the testator. In case of a will to be made by a written document, the testator shall write his full text, date, address, and name, and affix his seal on it. A will without the seal of the testator shall not be effective as a will by a written document (see Supreme Court Decision 2006Da12848, Oct. 25, 2007, etc.).

With respect to this case, there is no dispute between the parties as to the facts that there is no seal or seal of the deceased in the above testament book prepared by the Health Team and the deceased's own pen. According to the above legal principle, the will book has no effect as a will. Thus, this part of the plaintiff's assertion is without merit without examining the remaining

On January 10, 1985, the plaintiff asserted that since all co-inheritors of the deceased agreed to distribute the inherited property according to the contents of the will of this case, the defect without affixing a seal on the will of this case was cured. However, the requirements of a will pursuant to the self-certificate under the Civil Act are absolute requirements, and if the requirements are not met, they are invalid as a will, and it is not recognized to recover the defect. Thus, the plaintiff's assertion is without merit.

(2) Acquisition of shares by agreement on division of inherited property

Next, the plaintiff asserts that the plaintiff acquired the shares of this case by the agreement on the division of inherited property since the co-inheritors of the deceased agreed to divide the inherited property in accordance with the will on January 10, 1985.

The agreement on the division of inherited property requires the consent of all co-inheritors. However, the fact that one of the co-inheritors did not participate in the agreement on January 10, 1985 is as seen earlier. Thus, the plaintiff's assertion that the above agreement is an agreement on the division of inherited property is without merit.

(c) Acquisition of shares by transfer of inheritance shares;

(A) Agreement on transfer of inheritance shares

Finally, the plaintiff asserts that the agreement of January 10, 1985 was effective as an agreement by at least the co-inheritors to waive their inheritance shares and to transfer to the plaintiff. Accordingly, the plaintiff acquired the shares of this case.

On January 10, 1985, the remaining co-inheritors except the non-party 2, among the co-inheritors of the deceased, agreed to divide the inherited property according to the contents of the will book. According to the will book, the plaintiff is to acquire all shares of this case corresponding to the shares in the name of the deceased, and the fact that the plaintiff currently occupies all the share certificates of this case is as seen earlier.

Thus, the plaintiff acquired the ownership of 1,313,076 shares of the remaining co-inheritors [1,887,546 shares-492,403 shares (the plaintiff's inheritance shares)-82,067 shares (the non-party 2's inheritance shares)), excluding the inheritance shares of the plaintiff and the non-party 2 who did not participate in the above agreement, by the agreement of January 10, 1985 and the delivery of share certificates.

(B) Determination as to the defendants' assertion

I. I. L. Implic consent

The Defendants asserted, after the agreement on January 10, 1985, that the instant shares were jointly inherited by the heir, that the instant shares were jointly reverted to the heir, by failing to exercise shareholder rights pursuant to the above agreement, by failing to raise any objection as to the dividend made in proportion to the number of shares on the register of shareholders around May 16, 200, without requiring the Plaintiff to perform the implementation pursuant to the above agreement, such as transfer of entry, etc.

According to each statement of evidence Nos. 12 through 15 (including both paper numbers) of the deceased, the plaintiff, after the deceased's death, did not participate in the management of the company by delivering a seal to the defendant 2, and the defendant company, around May 16, 200, deposited KRW 5,123,430 as dividends to the passbook in the name of the plaintiff. However, in full view of the facts acknowledged above, Gap evidence No. 5-1 and evidence Nos. 1 and 21-3, the defendant company, in fact, was one company of the deceased, and operated by the deceased while keeping the seals of other shareholders. The defendant 2, who was immediately before the deceased's death, took office as the representative director of the company on October 27, 198, and operated the company with the seal affixed by the representative director of the deceased as stated on the register of shareholders, and the plaintiff demanded the plaintiff to purchase the shares from the defendant 2 to the above company on May 28, 2018.

In full view of the above facts, it is reasonable to deem that the Plaintiff delivered the seal to Defendant 2, the representative director, for the convenience of the management of the company, according to the practices at the time of the deceased’s survival. Furthermore, such circumstance alone does not readily mean that the Plaintiff implicitly consented to the reversion of the shares of this case to co-inheritors by inheritance shares. Rather, the Plaintiff exercised its rights by continuously occupying the share certificates of this case after the deceased’s death or by acquiring possession of the shares brought about by Defendant 2. In addition, in purchasing Nonparty 3’s shares, it can be deemed that the shares equivalent to the shares of the deceased’s shares will be attributed to the Plaintiff and were excluded from the sale subject to the sale, and therefore, the Defendants’ assertion that the Plaintiff implied or impliedly consented to the reversion of the shares

Minister of Agriculture and Forestry extinctive prescription

Next, the Defendants asserted that, in order for the Plaintiff to claim the confirmation of the shareholders' rights of the instant shares and the performance of change of holders against Defendant 2, ownership of the shares should be acquired by acquiring share certificates from the remaining co-inheritors, and that there is no Plaintiff’s possession of share certificates. Thus, the Plaintiff has only a claim with the claim, and that the claim with the claim with the claim with the lapse of 10 years from January 10, 1985, which was agreed among co-inheritors, became extinct by prescription.

On January 10, 1985, the Plaintiff had already occupied the share certificates of the remaining 1,616,318 shares except for the share certificates of 271,228 shares, which were possessed by Defendant 2, and Defendant 2 had lost all the share certificates upon the Plaintiff’s demand for return of the above 271,228 share certificates, and had re-issued the share certificates of the 271,228 share certificates. Since the Plaintiff currently occupies all the share certificates of the instant case, the share certificates of the above 1,616,318 share certificates are possessed by a simplified delivery method, and the remaining 271,228 share certificates are re-issued by Defendant 2, who was the representative director of the Defendant company, and eventually acquired the entire share certificates of the instant case. Accordingly, there is no reason to assert otherwise under the presumption that the Plaintiff acquired only the claim of the claim of claim against the Plaintiff.

The prescriptive acquisition;

In addition, the Defendants asserted that the Plaintiff’s claim is unjustifiable since Defendant 2 occupied all the share certificates of this case and acquired prescription. However, it is not sufficient to recognize the Plaintiff’s claim on the sole basis of the evidence No. 17 and No. 18-1 and No. 36, and there is no other evidence to acknowledge it. Rather, the fact that the Plaintiff occupied the entire share certificates of this case is recognized as seen earlier. Therefore, the Defendants’ claim is without merit.

Doz. Lapse of sovereignty

Finally, the Defendants asserted that the shares of this case were inherited to the Plaintiff and the co-inheritors, including Defendant 2, according to their statutory shares in inheritance before the will is made public, and thus the share certificates of this case become null and void. Thus, the Defendants asserted that the Plaintiff occupied the said share certificates,

However, the share certificates can only be invalidated by the merger, retirement, conversion, or public summons procedure, and since the shares of this case were jointly inherited according to the statutory share shares, the shareholders' rights of the shares of this case cannot be deemed to be invalidated due to the extinguishment of shareholders' rights of the shares of this case. Thus,

(C) The status of changes in the Plaintiff’s shares due to increase or decrease of capital

Furthermore, under the premise that the Plaintiff acquired ownership of 1,313,076 shares among the shares of this case, the shares actually owned by the Plaintiff, Defendant 2, Nonparty 2, Nonparty 4, and 12 are as indicated in the attached Table 4 (the changes on November 4, 1982, once the deceased died, once the shares of the deceased were distributed to co-inheritors according to their statutory shares in inheritance. The changes on January 10, 1985 shall be deemed to have acquired all the shares of the inheritance shares of Defendant 2, Nonparty 3, 4, 6, and 7 on the same day by deeming that the Plaintiff acquired all the shares of the inheritance shares of Defendant 2, Nonparty 3, 4, 6, and 7, and the changes on May 28, 1986 shall be based on the agreement with Nonparty 3 that Defendant 2 acquired part of the shares of Nonparty 3 and the shares of title trustee according to the agreement with Nonparty 3).

As to this, the Plaintiff asserted that the reduction of capital on June 21, 1994 was null and void since the capital reduction was unilaterally made by the Defendants without notifying the Plaintiff.

The defendant company reduced its capital from KRW 3.758 billion to KRW 2.8 billion, and the defendant company reduced its capital on June 21, 1994. However, considering the overall purport of arguments as stated above, Eul's 12, 13 (including each number), and Eul's 23 evidence 15 to 25, the defendant company conducted the business of the defendant company by using seals which the deceased was in custody as delegated by the defendant company's shareholders at the time of the deceased's survival. After the deceased's death, the defendant company handled the business of the defendant company by keeping the seals of the shareholders of the defendant company as before and after the deceased's death, other shareholders, including the plaintiff, etc., and the defendant company held a board of directors' meeting on March 18, 1994 and notified the defendant company of the resolution to convene a temporary shareholders' meeting on March 194, 194.

According to the above facts, since capital reduction was made after the resolution of the board of directors and the resolution of the general meeting of shareholders adopted by the shareholders of the defendant company with the general delegation of the shareholders of the defendant company, it cannot be deemed that the plaintiff did not receive a notice of the convocation of the general meeting of shareholders or there was some defects in the capital reduction procedure. In the event of some defects in the capital reduction procedure, the shareholders can assert the defects only by filing a lawsuit seeking nullification of the capital reduction within six months from the date of the registration of alteration due to the capital reduction. The plaintiff is a person who did not file a lawsuit within six months from June 29, 194, the registration of alteration was made. Thus, the plaintiff's above assertion is without merit.

(4) The theory of lawsuit

Therefore, the Plaintiff is a shareholder of 876,764 share among the common shares of the Defendant Company. Defendant 2 is a shareholder of 2,358,834 share. Even if Defendant 2 stated in the shareholder registry that Defendant 2 holds 2,856,91 share, it does not recognize the establishment effect in the shareholder registry. Thus, 498,157 share shares (2,856,991-2,358,834 share) are shares owned by the Plaintiff. Since Defendant 2 is dissatisfied with this, the Plaintiff has a benefit to seek confirmation.

B. Claim against the Defendant Company

According to the above facts, 88,210 shares listed in the name of the defendant company on the register of shareholders, 89,343 shares out of 38,210 shares (69,579 shares held by the non-party 4 prior to the death of the deceased + 19,764 shares held by the non-party 4) are shareholders of 298,867 shares. The plaintiff is the plaintiff. The defendant company's acquisition of shares from the non-party 6,7, etc., which was already acquired by the non-party 6 and the non-party 7, cannot exclude the plaintiff's right to acquire shares and can not acquire shares legitimately. Thus, the defendant company is obligated to implement the transfer procedure to change the shareholder on the register of shareholders as to the above 298,867 shares and the above 498,157 shares to

5. Conclusion

Therefore, among the plaintiff's lawsuit of this case, the part of the plaintiff's claim for the confirmation of the shareholder's rights as to shares 348,682 shares in the name of the defendant company against the defendant 2 is dismissed, and the remaining claims against the defendants against the defendants are accepted within the above recognition scope and they are dismissed due to the lack of reasons. Thus, the plaintiff's appeal and the claim extension and alteration are to be modified as above in the judgment of the court of first instance, and it is so decided as per Disposition.

[Attachment 1, 2, 3, and 4]

Judges Lee Sung-won (Presiding Judge)