Whether the shareholders who received the disguised payment of shares will be the same as the next shareholders.

The effect of the payment of shares cannot be denied even in the case of the so-called lump-sum payment of shares by withdrawing the shares immediately after the payment of shares was made in the form of a temporary loan in the establishment of a company and completing the procedures for the establishment of a company. Therefore, even if the shareholders paid shares in advance, even if the shares were paid in advance by the shareholders, it cannot be said that the shareholders were the same as the next shareholders who lent only the name of the shareholders in substance.

Article 295 of the Commercial Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellant-appellee)

[Judgment of the court below]

Busan High Court Order 93Ra16 dated November 4, 1993

The order of the court below is reversed and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

According to the reasoning of the order of the court below, the court below held that the plaintiff company supplied oil to the non-appellant 1 corporation and the non-appellant 3 corporation (hereinafter "the non-appellant 1") before the company was established on March 8, 198. The non-appellant 1, non-appellant 1, non-applicant 2 who actually operated the shipbuilding company and the non-appellant 3 et al. al. were 60,000,000 won and 60,000 won were paid as part of the purchase price to the non-appellant 8,000,000 won, and the non-appellant 70,000 won were 60,000 won and 70,000 won were 60,000,000 won were 30,000,000 won and 30,000,000 won were 5,000,000 won and 30,000,000 won were newly issued by the court auction.

However, according to the records, the Re-Appellant supplied oil with the oil seller before the incorporation of the other company as the oil seller and the company was unable to receive credit payment due to the non-performing 1,000 won due to the above non-performing 3,000 won as other creditors, and 27 million won as well as the above non-performing 3,000 won as the above-mentioned company's actual management principal, and then purchased the above company's factory building, site, and machinery from the above bank with the above bank's ownership over 2.7 million won by auction on December 31, 1987. The Re-Appellant concluded a contract to purchase the above company's factory building, site, and machinery from the above bank for 10 million won for the above five years and paid-in 105,000 won for the above company's establishment and 100,000 won for 50,000 won for the above company's establishment and 108,000 won for the above company's incorporation.

In addition, the effect of the payment of share capital cannot be denied even in the case of the constructive payment of share capital (see Supreme Court Decision 84Meu1823, 1824 delivered on January 29, 1985), since the person who received a temporary loan with the form of payment of share capital was to repay the borrowed money immediately after the company was established by taking the form of payment of share capital and the process for incorporation was completed (see Supreme Court Decision 84Meu1823, 1824 delivered on January 29, 1985).

Therefore, the court below should have determined whether the phrase "the second-name shareholder" under subparagraph 6-1 and 2 of the above confirmation document (the second-name shareholder) is the true meaning of the expression as it is or whether the second-name shareholder is the second-name shareholder because it did not pay the stock price. Further, the expenses for the incorporation of the company should be borne by the company after its incorporation as the corporate body of the company in the process of its incorporation because the promoters were to pay expenses for the establishment of the company (Articles 290 and 326 of the Commercial Act). The second-name shareholder cannot be determined as the second-name shareholder on the ground that the second-name shareholder was returned from the other company and the second-class shareholder was not determined as the second-class shareholder on the ground that the second-class shareholder was not paid for the establishment of the company (Article 290 and 326 of the Commercial Act). In other words, the court below erred by misapprehending the legal principles as to the payment of the stock price and the burden of the company's incorporation expenses, and by misunderstanding the value of evidence.

Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)