[1] The meaning of "transfer of the whole or essential part of the business" under Article 374 of the Commercial Code which requires a special resolution of the general meeting of shareholders

[2] Whether a lessee's right to demand the purchase of ground can be acknowledged even if the land lease contract is terminated due to the lessee's default (negative)

[1] The term "transfer of the whole or essential part of the business" under Article 374 subparagraph 1 of the Commercial Code, which requires a special resolution of the general meeting of shareholders, refers to a transfer of the whole or essential part of the whole or essential part of the business which is organized and systematically integrated for a certain business purpose. Since the transfer of the business property by the transferor company should be accompanied by the succession of the whole or essential part of the business activity of the transferor company, it does not constitute a simple transfer of the business property, but in case where the disposal of the business property results in the same result as the transfer or closure of the whole or part of the business of the company

[2] In a case where a lease contract is terminated due to nonperformance such as delayed rent of a land lessee, etc., a land lessee may not request a land lessee to purchase a ground building.

[1] Article 374 subparagraph 1 of the Commercial Code / [2] Articles 283 and 643 of the Civil Code

[1] Supreme Court Decision 90Da10308 delivered on January 15, 1991 (Gong1991, 739), Supreme Court Decision 91Da36062 delivered on February 14, 1992 (Gong1992, 1028), Supreme Court Decision 93Da47615 delivered on May 10, 1994 (Gong1994Sang, 1650), Supreme Court Decision 94Da39253 delivered on October 28, 1994 (Gong194Ha, 3124) / [2] Supreme Court Decision 90Da19695 delivered on April 23, 191 (Gong1991, 1464), Supreme Court Decision 209Da297494 delivered on February 194 (Gong1994, 1964) 197Da197494 delivered on February 1964, 1994)

Park Tae-nam et al. (Law Firm Chungcheong, Attorneys Yellow-tae et al., Counsel for the plaintiff-appellant)

China Co., Ltd. (Attorney Lee Sung-hoon, Counsel for defendant-appellee)

Seoul High Court Decision 95Na36918, 36925 delivered on November 7, 1996

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. As to the lease agreement dated December 1, 1987

A. According to the records, on December 1, 1987, the defendant entered into a lease contract with the non-party 100 million won of deposit, monthly rent of 6 million won, and lease period of 5 years with respect to the building site of this case owned by him, and the defendant newly constructed and used the new building of this case needed for the defendant's business separately from the building of this case on the above site, and upon the expiration of the lease period, there is no violation of the rules of evidence, such as the theory of lawsuit, and there is no ground for appeal.

B. "Transfer of the whole or essential part of the business" under Article 374 subparagraph 1 of the Commercial Act which requires a special resolution of the general meeting of shareholders means a transfer of the whole or essential part of the whole or essential part of the business which is organized for a certain business purpose, and this is to be accompanied by a succession of the whole or essential part of the transferring company's business operation. It does not constitute a simple transfer of the business property, but if the disposal of the business property results in the same result as the transfer or closure of the whole or part of the company's business, a special resolution of the general meeting of shareholders is required (see, e.g., Supreme Court Decisions 94Da39253, Oct. 28, 1994; 93Da47615, May 10, 1994; 91Da36062, Feb. 14, 1992; 90Da308, Jan. 15, 1991).

2. As to the lease agreement dated December 1, 1992

On December 1, 1992, the court below concluded a new lease contract between the plaintiffs and the defendant with a lease deposit of KRW 1.2 billion, monthly rent of KRW 12 billion, and five years, and the defendant delayed to pay the full rent from December 1993, and rejected the defendant's assertion that the above lease contract is null and void as an unfair legal act. In light of the records, the court below's decision is just and there is no violation of the rules of evidence, such as the theory of lawsuit, and there is no violation of the misapprehension of the legal principles as to the increase or decrease of rent. In addition, the argument of the misapprehension of the legal principles as to the increase or decrease of rent is based on facts other than the legally recognized facts, and all of the arguments are without merit.

3. As to the exercise of the right to demand purchase

Where the lease contract is terminated due to nonperformance such as delayed rent of a land lessee, the land lessee may not request the purchase of the ground building against the land lessee (see, e.g., Supreme Court Decisions 95Da29345, Feb. 27, 1996; 93Da44104, Feb. 22, 1994; 90Da19695, Apr. 23, 1991).

Unless there are special circumstances that make it difficult for a lessee to transfer or remove a ground building upon the expiration of the land lease term, the agreement to exclude the lessee’s right to demand the purchase of the ground property under Article 643 of the Civil Act is an agreement to exclude the lessee’s right to demand the purchase of the ground property under Article 643 of the Civil Act and is disadvantageous to the lessee, and thus, it is like the theory that it shall be null and void under Article 652 of the Civil Act. However, as in this case, if the land lease contract is terminated due to the Defendant’s delay of rent, the Defendant cannot make a request for purchase of the ground building itself against the Plaintiffs. It is just and there is no error of law by misunderstanding legal principles as to the right to demand the purchase, such as theory

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)