2012Na39266 Compensation for damages

E

1. Stock company F;

2. G:

Seoul Central District Court Decision 2011Gahap59082 Decided April 6, 2012

August 26, 2014

October 31, 2014

1.The judgment of the first instance, including the claims of the plaintiffs (appointed parties) and designated parties expanded and reduced in the trial, shall be modified as follows:

A. The Defendants jointly and severally pay to the Plaintiff (Appointed Party), KRW 205,00, KRW 17,249,435, KRW 2,925,00 to the Appointor D, and KRW 2,925,00 to October 31, 2014, 5% per annum from March 7, 2002 to October 31, 2014, and 20% per annum from the next day to the date of full payment.

B. Each of the remaining claims of the Plaintiff (Appointed Party) and the Appointeds are dismissed.

2. Of the total litigation costs, 70% is borne by the Plaintiff (Appointed Party), and 30% is borne by the Defendants, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendants jointly and severally pay 1,340,00 won to the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") and 47,145,080 won to the Appointed B, 10,000 won to the Appointed D, and 10,800,000 won per annum from March 7, 2002 to the date of delivery of a copy of the complaint of this case, and 5% per annum from the next day to the date of full payment (the plaintiff and the Appointed B extended the interest rate of the damages and the damages for delay, and the interest rate of the portion of the damages for delay and the damages for delay has been reduced).

2. Purport of appeal

The judgment of the court of first instance is revoked. The defendants jointly and severally pay to the plaintiff 1,30,000 won to the designated parties B, 46,201,350 won to D, 10,800,000 won to the designated parties, and 5% per annum from March 7, 2002 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the date of full payment (the purport of the appeal was reduced within the extent of the appeal by reducing the purport of the claim as above in the case of the plaintiff and the designated parties).

1. Basic facts

A. The relationship between the parties

1) Defendant F Co., Ltd. (the trade name was changed from M Co., Ltd to HL Co., Ltd. to F Co., Ltd. on April 27, 2001, and October 24, 2002; hereinafter referred to as “Defendant Co., Ltd.”) was registered in the Association brokerage market (former KOSDAQ) around 194, as a corporation established for the purpose of investing in, financing for business starters.

2) On February 26, 2001, Defendant G purchased approximately 760,00 shares of the Defendant Company (an amount equivalent to approximately 20% of the total issued shares) under the name of Pucomer N, etc. established in the United States. From April 27, 2001, Defendant G was in office as a director or representative director of the Defendant Company, and retired from office on September 6, 2001, the representative director, and the director on September 28, 2001. From September 6, 2001, I registered the Defendant Company as the representative director in the form of the Defendant Company, registered the Company as the representative director during the period from September 6, 2001 to March 2002, and controlled the Defendant Company’s business affairs, such as financial management.

3) The Plaintiff and the designated parties acquire the shares of the Defendant Company and were in the position of shareholders.

B. False disclosure, embezzlement, false disclosure, etc. related to the issue of capital increase by Defendant G

1) The defendant G made a false public announcement on the issue of capital increase under the pretext of raising operating funds equivalent to 35,950,000,000 won in total on September 18, 2001, May 8, 2001; May 28, 2001; June 26, 2001; and on September 4, 2001, the defendant G made a false public announcement on the subject of allocation of capital increase through capital increase through information and communication, biotechnology, and Internet (content); and the normally established overseas corporation expects the value of future profits of the defendant company; and participates in capital increase through a third party allocation method; and falsely announces the subject of allocation of capital increase through capital increase; and as if it is a plan to invest in the stocks of the type of business of information and communication, biotechnology, and Internet (content); the second public announcement made on May 28, 2001; the second public announcement made on May 28, 2001; the second public announcement made on the same date; and the second public announcement;

(ii) Embezzlements;

Defendant G intended to use it for the purpose of returning investment proceeds to the investors of Nonparty G Co., Ltd. (hereinafter “K”), which he operated. From May 22, 2001 to October 5, 2001, Defendant G offered capital increase in an amount equivalent to KRW 35,950,000 on four occasions during the period from the time when it offered capital increase to a third party, etc. to October 5, 2001, and embezzled capital increase in excess of KRW 31,910,638,421, which was kept on duty for Defendant Company for approximately 21 occasions from July 30, 201 to October 26, 201 (hereinafter “the embezzlement of this case”).

3) Market price manipulation G was conducted from December 12, 200 to December 10, 2001 in order to sell high price shares acquired through capital increase with the Defendant Company’s shares held in the name of N, etc. in the process of acquiring the management right of the Defendant Company, etc., such as trading, conspiracy trading, high price purchase orders, false purchase orders, and high price fraudulent sale orders (hereinafter “market price manipulation”).

A) Negotiated trading

Around 200, December 12, 12, 12:51:15, the Defendant G purchased 10,000 shares of the Defendant Company through the K Securities account opened in the EL branch, and around 12:51:25 on the same day, the Defendant G made an order to sell 10,000 shares of the Defendant Company through the K account opened in the EL branch and sell the same amount and 7,449 shares at the same price from November 30, 201 to November 30, 2001 to make the most sale orders, 13,36,292 shares, and orders to purchase and sell EL branch and/or 13,981,40 shares, among which EL branch and 13,027,781 shares, thereby causing a change in the market price or causing a change in the market price of the Defendant Company’s shares to become aware of the price.

(B) high-priced purchases

Defendant G purchased 21,50 shares of Defendant G from 3,280 won to 3,280 won with the immediately preceding price and the other 3,410 won with the status of 3,280 won per share via the K Securities account opened in the Samsung Securities Association at around 11:43:40, December 13, 200, and ordered 21,550 won with the order of 3,280 won with the former and the other 3,340 won to enter into an order of 698,3,350 won with 150 shares and 3,33,370 won with the above 1,01 shares, 3,390 won, 3,390 won with the former 3,400 won with the former 3,49,3400 won with the former 3,400 won with the former 3,410,716,290 won with the latter 3,201.4.20

C) At around 10:03:52 on February 13, 2001, Defendant G submitted a false order for purchase at KRW 35,456,03 through the same method between November 30, 201 and November 30, 2001 and submitted a false order for purchase at KRW 35,456,032 on a total amount of 473 occasions from the time of submitting an order for purchase to November 30, 201 in order to make the purchase price of KRW 20,00,00, the purchase price of the Defendant Company’s shares through a securities account opened in the LK Bank Securities Business Book, without intent to purchase the outstanding shares of the Defendant Company.

D) Around 09:07:06 on December 7, 2000, Defendant G submitted an order for false sale of high-price 192,600 shares of Defendant G from December 6, 200 to November 11, 200 by submitting an order for false sale of 32 times in the same manner, and submitted an order for false sale of 192,600 shares of Defendant G from December 6, 200 to December 11, 200, to mislead or cause a change in the market price, as the sale price of Defendant Company’s shares became active, by increasing the sales price without intent to sell 3,00 shares.

4) On February 14, 2002, Defendant G false public disclosure of the report of 2/4/4/4/4/4 of the business year 2001, prepared a quarterly report of Defendant G on February 14, 2001 (from April 1, 2001 to April 12, 2001) and submitted it to the Financial Supervisory Commission. The facts are as follows: (a) the above Defendant embezzled approximately KRW 31.9 billion out of the capital increase through capital increase with capital increase with capital increase as above, thereby concealing such contents through a window dressing account; (b) the Defendant Company did not have invested in eight companies, such as Medton, but did not have invested in eight companies, such as Medton, and (c) the above quarterly report made a false public disclosure of material facts such as investing KRW 17,950,000,000, thereby making a false public disclosure (hereinafter referred to as “the case’s false disclosure”).

5) Criminal case results against Defendant G

Defendant G was charged with the facts charged, such as embezzlement of funds, false publication related to capital increase increase, false quarterly report, etc., and on April 17, 2008, the first instance court (Seoul Central District Court 2007 High Court 2007Da1408) sentenced to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), fabrication of private documents, uttering of investigation documents, and violation of the Securities and Exchange Act, and sentenced to 10 years of imprisonment and fine of 15,00,000 won. On February 5, 2009, the appellate court (Seoul High Court 2008No143, 2000,000,000 won) sentenced to 7 years of imprisonment and fine of 10,000,000 won, and on May 28, 2009, sentenced to the dismissal of Defendant G’s stocks by the lower court (Seoul High Court 2009Do146, Apr. 6, 2009).

1) The defendant company's share price of 20.1 to 8,90 Won on the basis of the closing price of 201.20 won on the 20th 2nd 3rd 2nd 1st 6th 6th 2nd 1st 20th 2nd 3th 1st 200th 2nd 3th 20th 2nd 3th 1st 20th 2nd 3th 1st 20th 3th 1st 20th 3th 20th 1st 20th 3th 1st 20th 3th 1st 20th 3th 1st 20th 1st 3th 200th 2nd 3th 1st 3th 200th 2nd 3th 3th 206th 2nd 3th 200th 2nd 3th 206th 3th 3th 20th 20th 3th 20th 3th 20th 20th 3th 3th 20th 2

A) On March 7, 2002, the Korea Securities and Futures Exchange (hereinafter referred to as the “Exchange”) requested the Defendant Company to make an inquiry by setting the response deadline as of March 8, 2002 with respect to the theory of suspension of business activities (the specific details that can explain whether the Defendant Company’s main office is normally engaged in business activities and the specific details that can explain whether the Defendant Company’s main office is normally engaged in business activities) and the substantial suspicion of the investment company’s substance (including specific details that can prove the substance of the invested company after November 1, 201, financial statements, and certified copies of the register, etc.) and suspended trading of stocks by the date of the inquiry’s response.

B) After that, the Exchange, on March 16, 2002, designated the Defendant Company as an unfaithd public disclosure corporation on the ground that the Defendant Company was unable to make an inquiry within the time limit set under the above A, and at the same time, designated the Defendant Company as an item of investment share of the Defendant Company on the ground that it was habitually unfaithful public disclosure or breach of duty to report.

C) On June 11, 2002, the Defendant Company publicly announced that “The total amount equivalent to KRW 30,752,630,113 of the former representative director I and former management’s embezzlement loss was reflected in special losses, and related to this, the Seoul District Prosecutors’ Office was under investigation.”

D) On June 21, 2002, the Exchange designated a common share of the Defendant Company as a management issue on the grounds that there was a ground for cancellation of registration (limited opinion on restriction on scope of audit) against the Defendant Company. From March 7, 2002, the period of suspension of stock transaction, which was determined as the date of reply to the inquiry, was changed to the expiration date of the period of revocation of registration or the date of decision on objection.

E) On July 8, 2002, by the KOSDAQ Committee, the objection against the cancellation decision of the Defendant Company was dismissed. Accordingly, the Defendant Company was decided to cancel the registration on the following day after the completion date of the liquidation transaction through the period of the liquidation from July 9, 2002 to July 30, 2002, and the reason for designating the management issue, "at least 50% of the capital erosion rate," was added in the process of the cancellation of the registration.

F) The shares of the Defendant Company were cancelled on July 2002 after the end of the year.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 9, 15 through 21, Eul evidence 8, 9, Eul evidence 17, and the purport of the whole pleadings

2. Determination on this safety defense

A. Main safety defense of the Defendant Company

The Defendant Company asserted that the Plaintiff owned the Defendant Company’s shares in the damages claim case 5,685 note 201Gau19253, support 201Gau8591 and support 2011Gau8591, and 29,000 note 29,00 shares in the damages claim case. The Defendant Company filed several lawsuits identical to this case against the Defendant Company. Since the Defendant Company’s delisting, it was sentenced that the Plaintiff was the representative of the minority shareholder group, and was sentenced to eight months of imprisonment with labor due to attempted crimes of public conflict and occupational embezzlement. Since the Plaintiff’s former and incumbent representative director and executive officer of the Defendant Company interfered with the management of the Defendant Company, the Plaintiff’s lawsuit against the Defendant Company is unlawful as it solely violates the principle of good faith and was brought against the Defendant Company’s interest in its management.

According to the evidence Nos. 2 and 7, the plaintiff filed each lawsuit by asserting that he/she had acquired the shares of the defendant company against the defendant company and incurred losses due to the defendant G's illegal act. Meanwhile, considering the overall purport of arguments in the evidence Nos. 8, 9, 2, 2, 6, and 7, the above case No. 19253 was terminated by the plaintiff's withdrawal of the lawsuit on January 9, 2012, the plaintiff held 41,362 shares of the defendant company in the same securities account, 16,00 shares in the future deposit account, 3,685 shares, and 11,00 shares in the same securities account under the name of the plaintiff's mother-do, and the plaintiff did not constitute an abuse of the defendant's securities and the defendant's claim for damages based on the total amount of securities and future investment securities held in the representative director and the 57,362 shares in each of the above facts, and thus, it cannot be viewed that the plaintiff did not constitute an abuse of the defendant's securities and the above lawsuit.

B. Defendant G’s principal safety defense

1) Defenses against the appointed party D

Defendant G filed an application for compensation in Defendant G’s criminal case (Seoul High Court 2008No143, 2008No1759 (combined)). However, the application was rejected. The instant lawsuit against the Defendant G by the Appointed was a cause of claim as alleged at the time of the application for compensation. Thus, Defendant G asserted to the purport that it is unlawful.

In the event that an application for compensation is not lawful, in the event that the application for compensation is deemed groundless, the court shall reject the application for compensation by its ruling (Article 32(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings). In the trial dismissing the application for compensation, an applicant for compensation cannot make the same application for compensation again (Article 32(3) of the same Act), but the applicant for compensation cannot make the same application for compensation by means of civil procedure or other procedures, and even if the applicant for compensation was dismissed in the above criminal case, even if the applicant for compensation in the appointed party D’s application for compensation was dismissed in the above criminal case, the lawsuit in the instant case by the designated party D is not unlawful, and therefore, the aforementioned defense by Defendant

2) Defense against the plaintiff

Defendant G brought a lawsuit against Defendant G on March 15, 201 against the Plaintiff for damages claim against the Defendant G, which was the High Government District Court 2011, and the said support 201Gahap8591, on August 19, 2011, again brought a lawsuit for damages claim of August 19, 2011. The Plaintiff’s lawsuit of this case constitutes a overlapping lawsuit as the same content as that of each of the above lawsuits, and thus, the Plaintiff’s lawsuit of this case is in violation of the principle of prohibition of double lawsuit, and thus, is unlawful.

According to the evidence evidence Nos. 1, 6, and 7, the plaintiff filed each of the above lawsuits by asserting that the plaintiff acquired the shares of the defendant company against the defendant G and incurred damages due to the defendant G's illegal act. Meanwhile, considering the whole purport of the pleadings in Gap's evidence Nos. 8, 9, Eul's evidence Nos. 2, 6, and 7, the above lawsuit was terminated by the plaintiff's withdrawal on December 20, 201, and the plaintiff held 41,362 shares of the defendant company in the same securities account, 3,685 shares in the future deposit account, and the plaintiff held 11,00 shares in the same securities account under the name of the plaintiff's mother-friendly securities and held 11,00 shares in the same securities account, and there is no difference between the plaintiff's claim for damages and the above 37,526 shares in each of the above case's shares in each of the above case's claim for damages based on the securities and future investment securities in the defendant's account.

3. Judgment on the merits

A. The plaintiff and the designated parties' assertion

Defendant G served as the representative director of the Defendant Company from April 2, 2001 to March 2002, or committed various violations of the Securities and Exchange Act, such as embezzlement of the Defendant Company’s funds, price manipulation, false disclosure of company information related to the Defendant Company, etc. In order to avoid such unlawful acts, Defendant G did not comply with the Exchange’s request for disclosure of inquiry, etc., but did not retire the Defendant Company’s accounting data or keep its accounting management system properly. The act of Defendant G’s act or breach of its duties, as seen above, constitutes an act of bad faith or gross negligence by a director under Article 401 of the Commercial Act, which functioned as an attractive factor for the transaction of stocks by the Plaintiff and the designated parties, constitutes a breach of duty due to the Plaintiff’s bad faith or gross negligence under Article 401 of the Commercial Act. Accordingly, the suspension of the Defendant Company’s stock transaction and eventually delisted, causing damage to the Plaintiff and the designated parties, who were the Plaintiff’s shareholders of the Defendant Company, caused the loss of circulation of stocks

Therefore, the Plaintiff and the Appointors incurred damages corresponding to the difference in the total sales price at the purchase price. Defendant G is obligated to pay 1,340,000 won to the Plaintiff under Articles 401(1) and 401-2(1)1 and 200 of the Commercial Act (i.e., total purchase price of KRW 1,940,000) (i.e., total sale price of KRW 600,000), 47,145,080 to the Plaintiff (i.e., total purchase price of KRW 79,841,600 - total sale price of KRW 32,696,520), 10,800,000 to the Appointors (total purchase price of KRW 17,820,000 - total sale price of KRW 7,020,000) and damages for delay to the Plaintiff under Articles 389(3) and 201 of the Commercial Act.

B. Defendant G’s liability for damages

1) Status of Defendant G

The above basic facts and evidence No. 1 as a whole, namely, ① Defendant G, who was appointed as the director and the representative director of Defendant G from April 27, 2001 to was performing the duties of the Defendant company, and retired on September 6, 2001, respectively. However, from September 6, 2001 to September 6, 2001, Defendant G was actually performing the duties of the Defendant company even after it was registered as the representative director of the Defendant company. ② Defendant G instructed Defendant G’s employees to provide telephone services even after departure from the U.S. on December 20, 201; ③ Defendant G’s relatives and this was resigned from Defendant G’s office on April 27, 2001 to Defendant G 1’s office (the director of Defendant G was assigned to the Defendant company on September 20, 202, but was assigned to the Defendant company’s director on March 8, 2002, and Defendant G was also assigned to Defendant Hong Kong company’s office’s director on its own account.

2) Whether he/she has failed to perform his/her duties in bad faith

위 기초사실 및 앞서 본 증거들에 의하여 인정되는 다음과 같은 사정들, 즉 ① 피고 G은 피고 회사가 특별히 유상증자를 하여야 할 필요성도 없는 상황에서 피고 회사와 직접적으로 연관되어 있지도 않은 K의 투자자들에 대한 투자금 반환 등을 위하여 피고 회사의 유상증자를 실시한 점, ② 위 유상증자를 실시한 2001년경은 이른바 '아이엠에 프(IMF) 외환위기' 직후로서 국내 일반투자자들이 외국인의 특정 기업에 대한 투자를 호재성 정보로 인식하고 있던 시기였고, 이에 따라 외국인들이 특정 기업에 투자하면 그 기업의 주가가 상승하는 경향이 있었던 점, ③ 피고 G은 이러한 점을 이용하여 자신이 보유하고 있는 피고 회사 주식, 유상증자를 통해 취득할 피고 회사 주식을 높은 가격에 매도할 목적으로 앞서 본 바와 같이 피고 G이 법인설립인가서를 위조하여 외국인 투자 등록증을 발급받은 법인들이나 피고 G이 임의로 설립하여 별다른 사업실적이 없는 법인들이 피고 회사의 위 유상증자에 참여한 것임에도 마치 정상적으로 설립된 해외 법인이 피고 회사의 미래수익 가치를 기대하고 유상증자에 참여하여 대규모 투자를 하는 것처럼 허위사실을 공시하였던 점, ④ 또한 특정 법인이 고수익이 예상되는 사업 부분에 그 자금을 집중 투자한다는 것은 향후 당해 법인 자체의 수익에 상당한 영향을 줄 뿐만 아니라, 합리적인 투자자들이라면 당해 법인의 주식 거래에 관한 결정을 함에 있어 위와 같은 정보를 중요한 요소로 고려할 것인데, 피고 G은 위 유상증자를 통하여 끌어모은 자금으로 정보통신분야, 생명공학분야, 인터넷(콘텐츠) 등의 사업에 투자하겠다고 공시하였으나, 실제로는 위 자금을 위와 같은 분야에 전혀 투자하지 아니한 채, K의 투자자들의 투자금을 반환하거나 또는 차명 계좌에 입금하여 피고 회사의 주식거래 대금으로 유용하는 등 피고 회사의 자금 약 319억 원을 횡령하였던 점, ⑤ 피고 G은 2002. 2. 14. 피고 회사의 2001 사업연도 2/4분기 내지 4/4분기(2001. 4. 1.부터 2001. 12. 31.까지) 분기보고서를 작성하여 금융감독위원회에 제출하면서 사실은 위와 같이 유상증자로 조달한 증자금 중 약 319억 원 상당을 횡령함으로써 피고 회사의 재무구조가 현저히 악화되었음에도 분식회계를 통해 이러한 내용을 은폐하고, 피고 회사가 메드페턴트 테크놀로지 등 8개 회사에 주식을 투자한 사실이 없음에도, 위 분기보고서들에 위 회사 등 8개 회사 주식에 17,950,000,000원을 투자하고 있다고 기재하는 등 위 분기보고서들의 중요 사항에 관하여 허위의 기재를 함으로써 부실공시를 하였던 점, ⑥ 피고 G은 2000, 12. 12.부터 2001. 11, 30.까지 가장 매매거래, 통정매매, 고가매수 주문, 허위매수 주문, 허위매도 주문 등을 통해 지속적으로 피고 회사 주식의 시세조종행위를 한 점, ⑦ 위와 같은 일련의 행위로 인하여 결국 피고 회사는 공인회계사를 통해 사실상 피고 회사의 기업 전체적인 계정을 감사하는데 있어 각 항목 계정 금액을 판단하기 위한 자료 자체가 없다는 이유로 한정의견을 받았을 뿐만 아니라, 피고 회사의 자본잠식율이 50% 이상에 달하였다는 등의 이유로 피고 회사 주식이 2002. 7. 말경 상장폐지 되기에 이른점 등에 비추어 보면, 피고 G의 위와 같은 행위는 피고 회사의 이사 또는 상법 제401 조의2의 '업무집행지시자등'으로서 피고 회사의 재산과 자금을 회사에 최선의 이익이 되는 방향으로 처분 · 사용하고, 유상증자를 실시하거나 증권거래법에 따른 분기보고서를 금융감독위원회에 제출함에 있어서 사실에 부합하는 공시를 하고, 피고 회사 주식의 시세조종행위를 하지 말아야 할 업무상 충실의무 및 선량한 관리자로서의 주의의무를 위반한 것으로 볼 수 있으므로, 상법 제401조 제1항의 악의에 의한 임무해태행위에 해당한다.

3) Whether to recognize proximate causal relation

A) Loss caused by delisting of Defendant Company’s shares

Where a shareholder of a stock company directly sustains damages due to a director's bad faith or gross negligence, he/she may claim damages against the director pursuant to Article 401 of the Commercial Act. However, the director's embezzlement of company's property and reduction of company's property, thereby infringing the company's economic interests, such indirect damages as losses are not included in the concept of damages under Article 401 (1) of the Commercial Act, and thus, cannot claim damages under the above provision (see, e.g., Supreme Court Decision 2003Da29661, Oct. 24, 2003).

In light of the above legal principles, the following circumstances acknowledged based on the above basic facts and the evidence revealed earlier, i.e., (i) shareholders' damages mean property damages caused by the decline in the stock price; (ii) the delisting of shares in the securities exchange is merely one element that may affect the stock price; (iii) the assessment of the company's shares is conducted based on the corporation's asset value and profit assessment; (iii) the company's shares cannot be assessed solely on the ground that the shares were delisting; and (iv) even if the shares were delisting, it cannot be deemed that the shares were traded in the long-term market based on the corporation's own asset value and profit assessment; and thus, the distribution nature of the shares cannot be entirely lost due to the delisting; and (iv) the company's damages arising from the delisting of the company due to the delisting of the company's financial structure or management status becomes worse due to the delisting of the company's shares; and (v) the company's damages arising from the delisting of the company's financial structure cannot be deemed to have been directly caused by the delisting company's financial structure or loss.

B) In a case where a director who embezzled the assets of a damage company due to a decline in the stock price did not know the aggravation of the financial structure on the securities market due to bad faith or gross negligence and thereby led to the formation of a company’s share price higher than the normal share price. In a case where the stock purchaser acquired the stocks without knowing such fact, and thereafter the fact was published on the securities market, thereby resulting in a decline in the stock price, the shareholder is entitled to file a claim for damages against the director pursuant to Article 401(1) of the Commercial Act, since he/she purchased the stocks at a price higher than the normal share price due to the false disclosure by the director, thereby resulting in a decline in the stock price (see Supreme Court Decision 2010Da7743, Dec. 13,

(2) In light of the above legal principles, if Defendant G were to know the price of the above 10 shares and the above 20th price of the 3rd price of the 3rd price of the 1st price of the 1st price of the 2nd price of the 3rd price of the 1st price of the 1st price, the 2nd price of the 2nd price of the 1st price of the 2nd price of the 2nd price of the 1st price of the 2nd price of the 1st price of the 2nd price of the 2nd price of the 2nd price of the 3nd price of the 1st price of the 2nd price of the 1st price of the 2nd price of the 1st price of the 2nd price of the 3nd price of the 1st price of the 2nd price of the 4th price of the 1st price of the 2nd price of the 2nd price of the 2nd price of the 4th price price of the 2nd price price of the 2nd price of the 3th price of the shares.

4) Sub-committee

Therefore, pursuant to Articles 401 and 401-2(1)1 and 201-2(2) of the Commercial Act, Defendant G is liable to compensate all damages suffered by the Plaintiff and the designated parties due to the act of neglecting the above duties, such as false disclosure, false disclosure, etc.

C. Defendant Company’s liability

When the representative director of a corporation causes damage to another person in the course of performing his duties, he shall be jointly and severally liable with the representative director (Article 389(3) and Article 210 of the Commercial Act). As seen above, Defendant G was registered as the representative director of the defendant corporation from April 27, 2001 to September 6, 2001, and even after that registration, Defendant G was registered as the representative director of the defendant company and actually carried out the duties of the defendant company. Defendant G was registered as the representative director or the director at the time of the first to fourth public notice.

In addition, the "business operation" under Articles 389 (3) and 210 of the Commercial Act does not belong to the representative director's business operation itself, but it is reasonable to interpret that the business operation of the representative director is deemed to belong to the scope of the representative director's business operation. Thus, if it can be deemed that the representative director's business operation of the representative director of the company externally in the form of an act falls under the scope of the representative director's business operation, the representative director should be held liable for damages of the company even if it is intended to promote the representative director's personal interests or it is in violation of the provisions of the law (see Supreme Court Decision 2003Da67007, Feb. 25, 2005). A series of acts of the defendant G, such as the above false public disclosure related to

Therefore, the defendant company is jointly and severally liable with the defendant G to compensate for the damages of the plaintiff and the designated parties, and even if the defendant G was not the representative director at the time of the defective publication of this case, the share price of the defendant company was formed unfairly higher due to the false publication of this case 1 through 4, and as long as the plaintiff and the designated parties acquired the shares of the defendant company before the effect of the support of the defendant company due to the false publication of this case, it is reasonable to view that the plaintiff and the designated parties acquired the shares of the defendant company before the death.

D. Scope of damages

1) Scope of stock transactions with causations

In a case where the share price of Defendant G was formed higher than normal share price due to the above market price manipulation, false public disclosure, etc., and the Plaintiff and the designated parties suffered damages from the acquisition of shares without knowing such fact, the Plaintiff may claim damages pursuant to Article 401(1) of the Commercial Act. However, if the Plaintiff acquired shares prior to the false public disclosure, etc. or acquired shares after the stock price support effect due to false public disclosure, etc., there cannot be a proximate causal relation between the false public disclosure, etc. and the damages arising from the stock price decline after the purchase of shares by the Plaintiff and the designated parties. In such a case, it is difficult to view that the Plaintiff and the designated parties can claim damages in accordance with Article 401(1) of the Commercial Act. In full view of the overall purport of the arguments in each of subparagraphs 3 through 6 above, the shares seeking damages in the lawsuit in this case constituted a sale of shares after the abnormal public disclosure and false public disclosure, etc., and thus, the share price support effect from the market price manipulation, false public disclosure, etc. was acquired from March 202, etc.

2) It is reasonable to view that the amount of damages sustained by a person who purchased stocks without sufficiently knowledge of the financial status, etc. of the issuing company due to the false disclosure, false disclosure, false disclosure, etc. of the amount of damages is the amount equivalent to the share price that was lost due to such false disclosure, false disclosure, etc. In the absence of special circumstances, the amount equivalent to the share price that was lost due to such false disclosure, false disclosure, etc. is clearly stated, and thus, the share price that was normally formed prior to the suspension of transaction due to the false disclosure, false disclosure, etc., and the difference between the share price normally formed at the time when the transaction was terminated and the share price that was sold at higher than the market price that goes against the continued subordinate price after the resumption of transaction or the sale at higher prices. (See Supreme Court Decision 96Da41991, Sept. 12, 197)

위와 같은 법리에 비추어 이 사건에 관하여 살펴보면, 이 사건에 있어서 허위공시, 부실공시 등이 공표되기 전의 정상주가는 그러한 공표가 있는 시점과 가장 근접한 시점에서 가장 오래 지속된 주가를 기준으로 판단함이 상당한데, 을나 제2호증의 기재에 의하면 피고 회사 주식의 거래정지가 시작된 날인 2002. 3. 7. 직전의 10일 동안 가장 오래 지속된 주가는 종가 기준으로 2002. 2. 26.부터 같은 달 28.까지 및 2002. 3. 4.에 기록된 990원인 사실이 인정되므로, 위 990원을 허위공시, 부실공시 등이 발표되기 전의 정상주가로 봄이 상당하고, 나아가 허위공시, 부실공시 등이 발표된 후 정상적으로 형성된 주가는 거래정지기간이 끝나고 2002. 7. 9.부터 같은 달 30.까지 한 달 정도 지속된 정리매매기간 동안 형성된 주가 중 허위공시, 부실공시 등의 발표로 인하여 나타난 계속된 하종가를 벗어난 시점에서의 안정된 주가라고 보아야 할 것인데, 갑 제48, 49호증, 을나 제2, 36, 49, 54호증의 각 기재에 의하면 위 정리매매기간 동안 최초 130원에서 시작한 주가가 완만한 상승세를 보이면서 정리매매기간 종료 시점에 340원으로 마감한 사실, 피고 회사의 주식이 상장폐지된 이후인 2002. 8.경에도 Q이 피고 회사 주식 60만주를 340원에 매수한 사실을 인정할 수 있으므로, 정리매매기간 종료 시점에 형성된 최종 주가인 340원이 허위공시, 부실공시 등이 발표된 후 주식시장에서 정상적으로 형성된 안정된 주가라고 봄이 상당하다. 따라서 이러한 정상주가 및 안정된 주가 등에 기초해 위와 같은 허위공시, 부실공시 등으로 인해 원고 및 선정자들이 입은 주가하락의 손해를 산정하면, 원고 및 선정자들이 주가조작이 시작된 2000. 12. 12. 이후부터 1 내지 4차 허위공시 및 이 사건 부실공시 등을 거쳐 위와 같은 허위공시, 부실공시 등의 사실이 공표되어 피고 회사의 주식이 거래정지 되기 직전인 2002. 3. 6.까지 취득한 피고 회사의 주식을 현재까지 보유하고 있는 경우에는 거래정지 직전의 정상주가 990원에서 부실공시 발표 후 안정된 주가인 340원을 공제한 650원이 1주당 손해액이 되고, 그 외에 위와 같은 기간에 취득한 피고 회사의 주식을 부실공시 발표 후 처분한 경우로서 매도가액이 340원 미만일 경우에는 거래정지 직전의 정상주가 990원과 위 340원의 차액인 650원이 손해액이 되지만 매도가액이 340원 이상인 경우에는 위 990원과 매도가액의 차액이 손해액이 된다. 다만 취득가액이 990원 미만일 경우(선정자 B이 2002. 3. 7. 취득한 7,599주)에는 위 990원 대신 실제 취득가액을 적용하여 위와 같은 방법으로 손해액을 산정하여야 한다. 한편 원고 및 선정자들의 거래내역 중 타사이체출고, 대체출고로 기재되어 있는 부분 중 거래단가가 기재되어 있는 부분은 이를 매도한 것으로 보되, 거래내역 중 주식을 출고한 것으로 기재되어 있으나 거래단가가 기재되어 있지 않은 경우(선정자 D가 2002. 6. 24. 출고한 9,000주)에는 거래단가를 확정할 방법이 없고, 현재 피고 회사의 주식을 소유하고 있는지도 알 수 없어 손해액에 관한 입증이 있다고 할 수 없으므로 손해액 산정에서 제외하며, 또한 주식의 매도 시기는 보유주식 중 가장 먼저 취득한 주식을 먼저 처분하는 것으로 의제하는 선입 선출법에 따르기로 한다.

3) Calculation of damages 1

A) According to the Plaintiff’s evidence No. 6, the Plaintiff owned 2,00 shares of the Defendant Company (unit price of KRW 970) on March 7, 2002 through the Korea Investment Securities Account, and recognized the fact that the Plaintiff purchased 2,00 shares of the Defendant Company on February 26, 2003 (unit price of KRW 765 won) and transferred 2,00 shares on February 26, 200.

If the amount of damages of the Plaintiff is calculated based on the above recognized facts and the criteria for calculating the amount of damages, the amount of damages of the Plaintiff shall be 410,000 won [=2,000 note X (the unit price of purchase - 765 won)] B

According to Gap evidence Nos. 3 and 19, Eul purchased 71,079 shares of the defendant company from February 20, 202 to March 8, 2002) through the Hyundai Securities Account, and held 71,079 shares of the defendant company. On June 29, 2002, 17,70 shares were transferred to other company (transaction unit price of KRW 1,191). On July 30, 2002, 30, 53,3095 (unit price of KRW 280) were sold (unit price of KRW 280). If the amount of damages is calculated in accordance with the above recognized facts and the criteria for calculating the amount of damages, the amount of damages of the Selection Eul shall be the total amount of KRW 53,309 shares purchased from February 25, 2002 to March 8, 2002, KRW 979, KRW 709, KRW 19759, KRW 7979,7509).75 shares purchased

C) According to the evidence evidence Nos. 5 of the Selection A, the Selection purchased and held 18,000 shares of the Defendant Company on March 4, 2002 through the Korea Exchange Policy Account, and sold 9,000 shares on June 24, 2002 (the unit price was not set) and sold 9,000 shares on July 30, 202 (the unit price was 280 won). If the amount of damages is calculated in accordance with the above recognized facts and the criteria for calculating the amount of damages, the amount of damages No. D cannot be calculated as to 9,00 shares out of the shares purchased on April 3, 202, since the amount of damages cannot be calculated as to 9,00 shares due to the lack of the unit price set forth in the transaction. Accordingly, the remaining shares are 5,850,000 shares (=9,000 shares).

E. Considering that there is extremely diverse and multiple factors at the same time, it is extremely difficult to estimate when and to what extent certain factors have been influenced by a certain degree, there may be cases where it is extremely difficult for Defendant 2 to prove the damages incurred due to such other circumstances as the overall changes in the situation of the company or the stock market during the period from the time of purchase to the time of occurrence of losses, other than false disclosure. In such a case, in light of the ideology of the compensation system for damages as fair apportionment of damages, the amount of damages can be limited (see Supreme Court Decision 2006Da16758, 16765, Oct. 25, 2007). It is difficult for Defendant 2 to exclude the possibility that various factors such as the management performance of Defendant Company or the market situation of Defendant Company 2 from the decline of ordinary investors, such as those of the company’s external investors from the public announcement of new stocks issued by Defendant 1 to the public announcement of new stocks issued by the public announcement of new stocks issued by the public announcement of the company.

F. Determination as to the defendants' assertion

1) Determination on the assertion of the Defendant Company

A) The defendant company asserts that the defendant company does not bear a joint and several liability under Articles 389(3) and 210 of the Commercial Act with respect to the acts that had been conducted after resignation from the representative director on September 6, 2001 by the defendant G on the ground that Article 389(3) and 210 of the Commercial Act does not apply mutatis mutandis where an executive instruction under Article 401-2 of the Commercial Act, which is not a representative agency of a corporation, is liable for a third party pursuant to Articles 401-2(1) and 410 of the Commercial Act.

As seen earlier, as between April 27, 2001 and September 6, 2001, the period for which Defendant G was registered as the representative director, Defendant G made a false publication, embezzlement, and market price manipulation, and due to the above tort, the price of Defendant G’s shares was formed at an abnormal level. As long as the Plaintiff and the designated parties suffered losses by acquiring the shares of the Defendant Company prior to the expiration of the period for which the share price was supported, it cannot be said that the “representative director” did not incur losses on the ground that some of the illegal acts, such as the false disclosure of this case, were committed when the period for which the Defendant G’s representative director was not in office. Accordingly, the above assertion by the Defendant Company is without merit.

B) In addition, the Defendant Company did not include any shareholder in the other person stipulated in Article 210 of the Commercial Act, and the Defendant Company filed a lawsuit against the Defendant G in the United States against the Defendant Company, and received an indirect compensation of the Plaintiffs’ damages, which are the shareholders, by taking a judgment of the amount equivalent to the embezzlement amount of KRW 37.1 billion around February 201, the Defendant Company asserts to the effect that the Plaintiff and the designated parties, who are

According to the evidence evidence Nos. 11, B, or 11, the defendant company's lawsuit (F.vs G. case, No. cV04-386-ABC) filed against the defendant company in the State of California in the U.S. court of California (CV04-386-ABC) is acknowledged, but the judgment of the court below that the defendant G compensates about KRW 37.1 billion to the defendant company. Accordingly, even if the defendant G compensates the defendant company for the damages amounting to KRW 3.7.1 billion, this is merely the damage suffered by the defendant company, and it cannot be deemed that the direct damage suffered by the plaintiff and the selected party's purchase of the defendant company's shares, and if the shareholder suffered direct damage due to the representative director's bad faith or gross negligence, it may claim damages against the director and the company pursuant to Articles 401, 389(3) and 210 of the Commercial Act (see, e.g., Supreme Court Decision 90Da63936, Jan., 26, 1993).

2) Determination as to Defendant G’s assertion

A) Defendant G did not have a shareholder at the time of 201, when there was a false publication from the Plaintiff and the designated parties. Defendant G claimed that there was no causation between the Plaintiff and the designated parties’ high-priced purchase of shares and the above false publication, since most of the stock prices of the Defendant Company immediately after the aforementioned false publication and the false publication of this case were declinedd or rapidly decreased, and the effect of the share price support was not immediately lowered.

In full view of the above basic facts and the purport of the whole oral argument, the share price of the Defendant Company from December 12 to March 6, 2002, which was the average of 1,100 won or more (minimum of 990 won) at the end of February 2, 2002, prior to the publication of false, false, defective, etc., has fallen from 130 to 340 won during the reorganization transaction period. Thus, if true information was provided without false, false, false, false, etc., the share price of the Defendant Company from December 12, 200 to March 6, 202, which was the period of false, false, false disclosure, etc., was deemed to have been formed lower than the share price at that time. Even if the Plaintiff and the designated parties did not obtain at the time of false, false, false disclosure, etc., the effect of the Defendant Company’s share price support due to the Defendant Company’s false, etc. was acquired prior to the purchase of the shares by the Plaintiff and the designated parties above.

B) At the time of February 14, 2002, when the defective publication of this case was made, Defendant G could only inquire about the non-listed corporation’s publication with the Financial Supervisory Service’s electronic publication system (hereinafter “DATR system”). On July 1, 2002, before the DATR system was expanded into a listed corporation, the ordinary investors could not inquire about the defective publication of this case submitted by the Defendant Company, a KOSDAQ-listed company, to the Financial Supervisory Commission. Thus, insofar as the said defective publication did not constitute a high-priced cause to purchase shares, Defendant G asserted that there is no proximate causal link between the said defective publication and the acquisition of shares by the Plaintiff and the designated parties.

According to the evidence evidence Nos. 31 and 40, it can be acknowledged that the publication documents of the Korea Securities Exchange headquarters, such as inquiry, process publication, etc., and listed corporations received separately from the KOSDAQ headquarters, were started to be published together with the DDAT system when the combined publication service was conducted on or around July 2002. However, under the former Securities and Exchange Act (amended by Act No. 7114 of Jan. 29, 2004), the stock-listed corporation, Association-registered corporation, etc. shall submit to the Financial Supervisory Commission and the Korea Stock Exchange or the Association a quarterly report for 3 months and 9 months from the half-yearly report, half-yearly report, and the start date of the business year, etc. The above business report, etc., in principle, is sufficient to keep the Financial Supervisory Commission at a certain place and offer them to the public for 2 years (Articles 186-2, 186-3, 186-5, and 18 of the Enforcement Decree of the said Act). Since the aforementioned false disclosure of the Plaintiff’s stocks price change and the Plaintiff’s stocks were likely to affect the above general investors’s stock price change.

C) Defendant G asserts that since the value per share of the Defendant Company was above 1,000 won even after the non-public notice of this case, Defendant G did not incur any damage to the Plaintiff and the designated parties.

According to the statements in Eul, Eul, or Eul evidence Nos. 42 to 47, after the non-public notice was made, the Selection-based B testified that the share price of the defendant company was traded from 601 to 1,770 won per share, which was then transferred to 1,191 won per trading unit. The joint plaintiff Eul of the first instance court also transferred to 30,500 won per trading unit of the defendant company's shares to 1,283 won. The defendant company's claim for damages (FVs. G, No: CV04-386-ABC) filed against the defendant company at the central court in California, U.S., for the defendant company's share price of 300 won per share to 601 won per share and to 1,000 won per share. However, as seen above, it is difficult to view that the above non-public notice was made at the price of 300,000 won or more after the expiration of the trading period of the defendant company's shares.

D) Defendant G asserts that, insofar as the Defendant Company has already received approximately KRW 37.1 billion damages from Defendant G, since the share value of shareholders, including the Plaintiff and the designated parties, has increased and thus, the damage has not been compensated to the Plaintiff and the designated parties.

According to the evidence Nos. 11, B, or 11, the defendant company filed a claim for damages against the defendant company against the defendant company at the State of California (FVs G. G., No: CV04-386-ABC) in the lawsuit claiming damages against the defendant company at the State of California (CV04-386-ABC). However, even if the defendant G compensates the defendant company for KRW 37.1 billion, this is merely a compensation for damages suffered by the defendant company, and it cannot be deemed that the direct damages suffered by the plaintiff and the appointed party due to the decline of the share price after the purchase of the defendant company's shares. Thus, the defendant G's above assertion is without merit.

E) Defendant G asserts to the effect that there is no causal link between the damages suffered by the Plaintiff and the designated parties and the Defendant G’s breach of duty, since the Plaintiff and the designated parties acquired or could have known the embezzlement, etc. of Defendant G through press reports, etc.

According to the evidence Nos. 2 and 3, each of the following facts can be acknowledged: (a) on Nov. 1, 2001, the article reported to the domestic media by the article suspected of embezzlement, etc.; (b) on Feb. 5, 2002, the article was reported on a newspaper where the article requires the attention of ordinary investors to the Defendant Company due to foreign investment; and (c) from Nov. 2, 2001 to Feb. 2002, the fact that the share price of the Defendant Company fell at a higher level than the higher level; (d) on such circumstance alone, it is difficult to deem that the information on the financial position and management status of the Defendant Company was entirely published in the stock market; or (e) minority shareholders, such as the Plaintiff and the designated parties, including the Plaintiff and the designated parties, were exposed to such circumstance; or (e) there was no other evidence to prove that there was any act of false disclosure, embezzlement, etc. by the Defendant G at the time of acquiring the Defendant Company’s shares, or that the financial condition and management status of the Defendant Company aggravated.

F) Defendant G asserts that even if the Plaintiff and the designated parties suffered damages due to their false disclosure, price manipulation, false disclosure, etc., the act was terminated in November 2001, and ten years have passed thereafter, the damage claim against the Plaintiff and the designated parties was extinguished by prescription.

However, considering that the director's liability for damages against a third party under Article 401 of the Commercial Act is a special liability recognized by the Commercial Act to protect the third party, the extinctive prescription period of general tort liability is not applicable. General claim is ten years under Article 162(1) of the Civil Act (see Supreme Court Decision 2004Da6354, Dec. 22, 2006). The starting point of the extinctive prescription period is the date of actual damage occurrence (see Supreme Court Decision 2004Da6354, May 13, 2005; Supreme Court Decision 2004Da7181, May 13, 2005; Supreme Court Decision 2004Da7181, Feb. 14, 2002). Since the director's liability for damages against a third party under Article 401 of the Commercial Act is a false disclosure or false disclosure, it is clear that the Defendants' damage was actually caused by the aforementioned false disclosure or false disclosure, the point of time of time of the Plaintiff's claim was 20136.

G. Sub-committee

Therefore, the defendants jointly and severally liable to the plaintiff 205,00 won (the amount of damages 410,000 won x 50%) 17,249,435 won (the amount of damages x 50%) to the observer B, 2,925,00 won (the amount of damages 5,850,000 won x 50%) to the observer D, and each of the above amounts is 2,925,00 won (the amount of damages 5,850,000 won x 50%) and each of the above amounts were incurred after the defendant G's false publication, etc., which were deemed reasonable to dispute the existence and scope of the defendants' obligations to perform, and there is no reason to acknowledge that the defendants were jointly and severally liable to the plaintiff 1,200, the following day of the judgment of the court of first instance to October 31, 2014, and there is no reason to acknowledge that the plaintiff 2 and the defense counsel were entitled to pay damages to the plaintiff 2608.

4. Conclusion

Therefore, the claim of this case by the plaintiff and the designated parties shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair, it is so unfair that the judgment of the court of first instance, including the plaintiff and the designated parties that have been expanded and reduced in the trial, will be modified as above. It is so decided as per Disposition.

The presiding judge, judge and mining division

Judges Kim Gin-jin

Judge Maximum Order

1) Specific details of the details of stock trade of the Plaintiff and the designated parties are as shown in attached Table 1, and the details of the calculation of damages are as listed in attached Table 2.

2) According to the statement in Gap evidence No. 6, since the trading unit price for the above part of other company units is indicated as KRW 765,00,000, the transaction price is based on the above trading unit price

recognition that it has been made.

3) The Plaintiff alleged that he sold 2,00 shares of the Defendant Company at KRW 300 per share on December 21, 2004, but there is no evidence to acknowledge it, and rather, there is no evidence to acknowledge it.

According to the statement of No. 6, the plaintiff substituted 8,740 shares of the defendant company that had been in the account on February 26, 2003 by the unit price of 765 won.

Since the plaintiff's above assertion is recognized, it is without merit.

4) According to Gap evidence No. 3-4, Eul purchased the shares of the defendant company on March 8, 2002, which was after March 7, 2002, when the selected party B discontinued the transaction.

because of the method of settlement after 2 days from the date of the purchase order of shares (so-called D+2 settlement system), this is the date of transaction in accordance with the specification of transactions.

may cause a difference according to the method of entry.

5) Total number of purchased shares 71,079 – above 17,770 shares, and sale of 53,339 shares in total at 280 won per unit price on July 30, 2002, but the above sale was made;

53,339 states include 30 shares purchased on July 29, 2002, not subject to compensation for damages.

6) The Appointed B alleged that it sold KRW 1,00 per share of KRW 2002, June 29, 17,770, but the unit price for sale per share of KRW 990 per share of KRW 1,00.

Since it is a prize, it cannot be viewed that there is a loss.

7) The Appointed D alleged that he sold 9,000 shares on June 24, 2002 at KRW 500 per share, but there is no evidence to acknowledge this.