[1] The purpose and function of the right to claim perusal and copy of the register of beneficial shareholders, which can be exercised by shareholders and beneficial shareholders pursuant to Article 396(2) of the Commercial Act and Article 315(2) of the Financial Investment Services and Capital Markets Act / Whether Article 396(2) of the Commercial Act applies mutatis mutandis to cases where a beneficial shareholder requests perusal and copy of the register of beneficial shareholders (affirmative), and whether the permissible scope of request for perusal and copy is limited to those falling under the “matters entered in the register of beneficial shareholders” under the Commercial Act (affirmative)

[2] Whether a company may refuse a request for inspection or copying of the shareholder registry, etc. of shareholders or company creditors (negative in principle), and in such a case, the burden of proving that there is no legitimate purpose in the request (=company) / Whether such a legal principle equally applies to cases where the right to request inspection or copying of the beneficial shareholder registry is acknowledged by analogy of Article 396(2) of the Commercial Act (affirmative)

[1] A shareholder may file a request for perusal or reproduction of the shareholder registry at any time during business hours (Article 396(2) of the Commercial Act) and a beneficial shareholder under the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) may also request perusal or reproduction of such shareholder registry (Article 315(2) of the Capital Markets Act). The purpose of this is to effectively exercise shareholder rights by allowing shareholders to exercise shareholder rights, thereby protecting the interests of the company and protecting the interests of the company. In addition, the function of allowing minority shareholders to jointly exercise shareholder rights with other shareholders or recommend to exercise voting rights by proxy, thereby preventing the abuse of shareholder rights by controlling shareholders.

However, since the beneficial shareholder registry prepared with respect to listed stocks deposited in the Korea Securities Depository pursuant to the Capital Markets Act has the same effect as the shareholder registry under the Commercial Act (Article 316(2) of the Capital Markets Act), there is no reason to treat the same differently from the shareholder registry in determining whether to acknowledge the right to peruse and copy the same (see, e.g., Article 316(2) of the same Act). Therefore, Article 396(2) of the Commercial Act also applies mutatis mutandis to cases where a beneficial shareholder requests perusal and copy of the beneficial shareholder registry. The scope of allowing perusal and copy is limited not to “the whole matters to be entered in the beneficial shareholder registry” but to fall under “matters to be entered in the shareholder registry” such as the name and address of the beneficial shareholder, and the type and number of shares of each beneficial shareholder. To such extent, perusal and copy of the beneficial shareholder registry being

[2] In a case where a shareholder or a company creditor requests an inspection or copy of the shareholder registry, etc. pursuant to Article 396(2) of the Commercial Act, the company may not reject such request unless there exist special circumstances, such as the absence of justifiable purpose. In this case, the burden of proving that there is no legitimate purpose is borne by the company. Such a legal principle equally applies to cases where the right of inspection or copy of the beneficial shareholder registry is acknowledged by analogical application of Article 396(2)

[1] Articles 352 and 396(2) of the Commercial Act; Articles 315(2) and 316(2) of the Financial Investment Services and Capital Markets Act; Articles 15(1)2 and 17(1)2 of the Personal Information Protection Act / [2] Article 396(2) of the Commercial Act; Articles 315(2) and 316(2) of the Financial Investment Services and Capital Markets Act; Article 288 of the Civil Procedure Act

[2] Supreme Court Order 97Da7193 Decided March 19, 1997 (Gong1997Sang, 1167), Supreme Court Decision 2008Da37193 Decided July 22, 2010 (Gong2010Ha, 163)

The Economic Reform Co., Ltd. (Attorney Han-sik et al., Counsel for the plaintiff-appellant)

Dae Forestry Industry Co., Ltd. (Law Firm LLC, Attorneys Or-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2052443 decided August 13, 2015

The part of the judgment of the court below that allowed perusal and copying to the e-mail address of beneficial shareholders on the roster of beneficial shareholders is reversed, and the corresponding plaintiff's claim is dismissed. The remaining appeal is dismissed. All costs of the lawsuit are three minutes, and the plaintiff is assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 4

A. A shareholder may file a request for perusal or reproduction of the shareholder registry at any time during business hours (Article 396(2) of the Commercial Act), and a beneficial shareholder as prescribed by the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) may also request perusal or reproduction of such shareholder registry (Article 315(2) of the Capital Markets Act). The purpose of this is to effectively exercise shareholder rights by allowing shareholders to exercise shareholder rights, thereby protecting the interests of the company and protecting the interests of the company at the same time. In addition, the function of allowing minority shareholders to jointly exercise shareholder rights with other shareholders or recommend to exercise voting rights by proxy, thereby preventing the abuse of shareholder rights by controlling shareholders.

However, since the beneficial shareholder registry prepared with respect to listed stocks deposited in the Korea Securities Depository pursuant to the Capital Markets Act has the same effect as the shareholder registry under the Commercial Act (Article 316(2) of the Capital Markets Act), there is no reason to treat the same differently from the shareholder registry in determining whether to acknowledge the right to peruse and copy the same (see, e.g., Article 316(2) of the same Act). Therefore, Article 396(2) of the Commercial Act also applies mutatis mutandis to cases where a beneficial shareholder requests perusal and copy of the beneficial shareholder registry. The scope of allowing perusal and copy is limited not to “the whole matters to be entered in the beneficial shareholder registry” but to fall under “matters to be entered in the shareholder registry” such as the name and address of the beneficial shareholder, and the type and number of shares of each beneficial shareholder. To such extent, perusal and copy of the beneficial shareholder registry being

B. The lower court determined that the instant beneficial shareholder’s e-mail address is also subject to perusal and copying, while deeming that perusal and copying of the instant beneficial shareholder registry is permissible through analogical application of Article 396(2) of the Commercial Act, which does not fall under the matters stated in the shareholder registry.

C. We examine the reasoning of the lower judgment in light of the aforementioned legal doctrine. The lower court is justifiable to have determined that perusal and reproduction of the beneficial shareholder list of this case is permitted by applying Article 396(2) of the Commercial Act mutatis mutandis. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on perusal and copying of the beneficial shareholder list, and provision of personal information to a third party, thereby adversely affecting the conclusion of the judgment. However, the lower court erred by misapprehending the legal doctrine on the scope of perusal and copying of the beneficial shareholder list,

2. Regarding ground of appeal No. 2

A. Based on the following circumstances, the lower court determined that it is difficult to view that the perusal and copy claim is not allowed on the ground that the actual shareholder registry of the instant case currently kept by the Defendant Company was merely a previous shareholder registry based on December 31, 2014.

1) Even if the volume of the Defendant Company’s shares traded after the establishment of the beneficial shareholder registry of this case had already reached the extent of the total number of shares issued, such circumstance alone cannot be readily concluded that the beneficial shareholder stated in the instant beneficial shareholder registry is not currently the beneficial shareholder of the Defendant Company.

2) As of the date of closing of argument in the instant case, the most recent among the de facto shareholders’ list prepared and kept by the Defendant Company under the Capital Markets Act is recognized as the instant de facto shareholders’ list.

3) Whether the requirements for filing a shareholder representative lawsuit are satisfied is a matter to be determined depending on whether the shareholders who participated in the pertinent lawsuit voluntarily have the certificate of shareholder.

B. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding perusal and copying of the register of shareholders, contrary to what is alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

A. In a case where a shareholder or a company creditor requests an inspection or copy of the shareholder registry, etc. pursuant to Article 396(2) of the Commercial Act, the company may not reject such request unless there exist special circumstances, such as the absence of justifiable purpose. In this case, the burden of proving that there is no justifiable purpose is borne by the company (see Supreme Court Order 97Do7, Mar. 19, 197). Such a legal principle equally applies to cases where a right to request inspection or copy of the beneficial shareholder registry is acknowledged by applying Article 396(2) of the Commercial Act mutatis mutandis.

B. The lower court, based on the following circumstances, determined that it is difficult to readily conclude that the purpose of the instant request for inspection and copying is unreasonable.

1) The instant claim is not for the purpose of perusal and copy of the shareholder registry and the beneficial shareholder registry itself, but rather for the purpose of soliciting shareholders to derivative suit against other beneficial shareholders, and it is difficult to view that it is irrelevant to the protection of the interests of the company and shareholders.

2) In fact, the Plaintiff filed a shareholder derivative suit against the directors of another construction company against which the Fair Trade Commission imposed a penalty surcharge on the Defendant Company by deeming that the Plaintiff was in existence with the Defendant Company.

3) The Defendant Company filed a lawsuit seeking revocation of the imposition of a penalty surcharge by the Fair Trade Commission and was finally and conclusively invalidated. Therefore, it cannot be readily concluded that preparation of a shareholder representative lawsuit and solicitation thereof are merely based on the Plaintiff’s subjective belief.

4) The beneficial shareholder registry of this case contains only information about beneficial shareholders as of the aforementioned base date ( December 31, 2014). However, the Plaintiff’s intent to recommend the participation in the shareholder representative lawsuit for those identified as beneficial shareholders even on the basis of the aforementioned intent, and therefore, it is difficult to deem that there is no practical benefit from the inspection and copying of the shareholder representative lawsuit.

C. Examining the foregoing legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the legitimate purpose of requesting perusal and copy of the register of shareholders under the Commercial Act, as otherwise alleged in the grounds of appeal.

4. Conclusion

Of the lower judgment, the part of the lower judgment that allowed perusal and copying of the electronic mail address of the beneficial shareholder registry of this case is reversed, and that part is sufficient for the Supreme Court to directly render a judgment, and thus, it is determined to be readable pursuant to Article 437

Therefore, the plaintiff's claim corresponding to the above reversal portion is dismissed as it is without merit, and the remaining grounds of appeal are dismissed as it is without merit. It is decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)