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(영문) 전주지방법원 2018.01.19 2017가합1430
감자무효확인의 소
Text

It is confirmed that the capital reduction made by the defendant on August 27, 2016 is null and void.

Costs of lawsuit shall be borne by the defendant.

Reasons

The plaintiff is the defendant's shareholder who owns 171,400 shares issued by the defendant, and the defendant is a corporation with the purpose of manufacturing medical devices.

On July 18, 2016, the Defendant held a temporary general meeting for capital reduction (hereinafter “instant general meeting of shareholders”), and passed a resolution to reduce the capital of the following contents with the consent of 400,000 share of 571,400 shares and with the consent of 571,400 shares issued:

1. Of the capital of the defendant company 2,857,00,000,000 won, the amount of KRW 857,000 shall be KRW 2,00,000,000; or

2. The reduction of the capital shall be made by means of a free retirement of 400,000 shares of common shares of 5,000 won per share at a rate of 400,000 shares and making the total number of shares issued.

3. The reduction shall be made in equal terms from the total number of shares currently owned by each shareholder in the manner of such reduction of capital;

On August 27, 2016, the Defendant made the reduction of capital (hereinafter referred to as “instant reduction of capital”) in accordance with the resolution of the above general meeting of shareholders upon the expiration of the period for raising an objection by creditors. On September 12, 2016, the Defendant completed the registration of modification on the number of issued stocks and the total amount of capital following the instant reduction of capital.

【The ground for recognition of the Plaintiff’s assertion of the absence of dispute, Gap’s 3, 4, and Eul’s 1 (including additional numbers), the Plaintiff’s assertion of the whole purport of pleading, and the Plaintiff’s assertion of the whole purport of pleading, the instant capital reduction is invalid for the following reasons.

(1) The defendant did not go through the procedures for protecting creditors pursuant to the main sentence of Article 439 (2) and Article 232 of the Commercial Act.

② Since the Defendant’s capital reduction is aimed at excluding the Plaintiff’s shareholder status, it violates the principle of shareholder equality.

③ There was no resolution of the general meeting of shareholders of the instant case for the reduction of capital, even if there was no resolution of the board of directors for the convocation of the said general meeting, and there was a defect that there was no notification of the convocation to the Plaintiff, who is a shareholder.

However, the resolution of the general meeting of shareholders of this case is as follows.

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