2020Ma6195 Permissible Provisional Disposition such as Book

Claimant (Appointed Party)

Attorney Yang Ho-sung et al., Counsel for the defendant-appellant

A debtor corporation, one of the lawsuits of Han Pung Pung Pung, a corporation, is the debtor corporation.

The Non-Party Administrator of Stockholders’ Pulll

Seoul High Court Order 2019Ra21185 dated May 12, 2020

October 20, 2020

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

The grounds of reappeal are examined.

1. Article 466(1) of the Commercial Act recognizes the right of a shareholder who holds no less than 3/100 of the total number of issued and outstanding shares of a company to claim inspection and copying of the accounting books, etc. The shareholder’s right to claim dismissal of directors (Article 385 of the Commercial Act), the right to claim dismissal of directors (Article 402 of the Commercial Act), the right to claim dismissal of directors (Article 402 of the Commercial Act), and the right to representative litigation (Article 403 of the Commercial Act), must have accurate knowledge and appropriate information about the company’s business or financial status. Since it is difficult to obtain sufficient information only by inspecting the financial statements kept in the company pursuant to Article 448 of the Commercial Act, such right is recognized as allowing the shareholder to peruse and copy the accounting books and accounting documents which form the basis for the financial statements. However, the Commercial Act

The right to claim inspection and copying of such minority shareholders' account books, etc. shall be deemed not to be excluded from the company even after the commencement of rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act (hereinafter "DRA"). The detailed reasons are as follows.

A. The Debtor Rehabilitation Act excludes the application of the provisions of the Commercial Act to cases where specific matters, such as the reduction of the debtor’s capital and merger, are prescribed in the rehabilitation plan (Articles 264(2) and 271(3) of the Debtor Rehabilitation Act), and prohibits the commencement of rehabilitation procedures for the debtor from undergoing rehabilitation procedures, such as capital reduction, issuance of new shares, and merger (Article 55(1) of the Debtor Rehabilitation Act). However, Article 466(1) of the Commercial Act does not provide for the exclusion of the application of Article 466(1) of the Commercial Act upon commencement of rehabilitation procedures for the company, and there is no provision that the shareholder may not exercise his/her right to request perusal and copying of the account books, etc. under Article 466(1) of the Commercial Act. Documents that the shareholder is entitled to request perusal and copying pursuant to Article 466(1) of the Commercial Act included in the account books and accounting documents and the scope of documents that interested parties may peruse under the Debtor Rehabilitation Act. However, it is unreasonable to exclude or limit the commencement of rehabilitation procedures without express

B. If rehabilitation procedures were abolished before the commencement of rehabilitation procedures, even if the rehabilitation procedures were to be approved prior to the commencement of the rehabilitation plan, exemption from rehabilitation claims, etc. due to authorization of the rehabilitation plan (Article 251 of the Debtor Rehabilitation Act) or the right to manage and dispose of the debtor’s property is restored without the validity of alteration of the right (Article 252 of the Debtor Rehabilitation Act). Therefore, even if rehabilitation procedures commenced, the need for the shareholder to exercise his/her right under Article 466(1) of the Commercial Act is not denied. In cases where the shareholder’s request for perusal and copy of accounting books and documents are made by the shareholder under Article 466(1) of the Commercial Act, the company may refuse such request by proving that it is unreasonable, and whether the shareholder’s exercise of the right to inspection and copy is unreasonable should be determined by comprehensively taking into account various circumstances, including the circumstances leading to the exercise of the right, the purpose of the exercise, and the existence of bad faith (see Supreme Court Decision 2017Da270916, Feb. 28). 28).

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The applicant (Appointed Party) and the designated parties (hereinafter referred to as the “applicant”) filed an application for inspection and copying of the articles of incorporation, minutes of the shareholders’ meeting, documents on financial statements, etc. against Han shareholder Pung Pung Pung Pung, a corporation consisting of 11 shareholders, pursuant to Articles 39,80 of the Commercial Code, for the inspection and copying of the articles of incorporation, minutes of the shareholders’ meeting, and documents on financial statements, etc. against Han shareholder Pung Pung, a corporation holding not less than 3/100 shares of not less than 80,90 shares of the 349,800 shares of the 349,800 shares.

B. The court of first instance accepted only the application for inspection and copying of the articles of incorporation, minutes of the general meeting of shareholders, statement of financial position, income statement, etc. (each of the documents listed in the attached Form No. 1 decision of the court of first instance; hereinafter referred to as "documents quoted in the first instance") of a set set forth in Articles 396 and 448 of the Commercial Act, and dismissed the application for inspection and copying of account books under Article 466(1) of the Commercial Act on the ground that there is insufficient vindication as to the necessity of preservation and preservation of the right to be preserved. Upon filing a complaint by the applicant, the applicant additionally applied for inspection and copying of the documents listed in Annex No. 16 of the judgment of the court below as to the documents listed in Annex No. 2 of the application No. 2 of the judgment of the court below. Pursuant to the Debtor Rehabilitation Act, the Respondent, a representative director of one shareholder set forth in the Debtor Rehabilitation

D. In the above rehabilitation case, a report of investigation was prepared and submitted on the one shareholder opposition, and its contents include the fact that the sales amount for several years has been excessively appropriated and the expenses have been reduced by the window dressing accounting, such as appropriating the sales amount for the reasons that led to the commencement of rehabilitation procedures, etc.

3. For the following reasons, the lower court dismissed the application for inspection and copying of the remainder of the documents except the documents cited in the first instance trial and the documents additionally applied in the appellate trial (hereinafter referred to as “subject documents”).

A. From 2014 to 2014, the applicants sought perusal and copying of the accounting books and accounting documents kept by one shareholder. However, there is a lack of vindication of the specific grounds for the application, or there is no evidence to prove the substantial relationship between the reasons for the application and the documents concerned, and the period and scope thereof are too broad. Furthermore, there is no need to explain the need to require the respondent to send them by electronic mail and facsimile.

B. It is insufficient to vindicate that the materials submitted by the applicants alone have been cited in the first instance trial. Moreover, insofar as the report of investigation was prepared and submitted in the rehabilitation procedure for the Han shareholdership, it seems that the applicants can peruse the report of investigation so that the purpose of this part of the application can be substantially achieved.

C. Among the relevant documents, it is difficult to view the monthly minutes, etc. as “accounting books and documents” under Article 466(1) of the Commercial Act, and it does not sufficiently explain the grounds for the instant application for perusal and copying and what substantial relations exist.

4. However, in light of the above legal principles, the order of the court below cannot be accepted for the following reasons.

The applicants are not allowed to peruse the accounting books and accounting documents of one shareholder, even though they are seven shareholders exceeding a majority among the shareholders of one shareholder book composed of 11 shareholders. However, the respondent has a cumulative loss of KRW 00,000 as a result of the windowping accounting that has been performed as a sole representative director for several years, and the rehabilitation procedure began for this reason. Accordingly, the applicants have the right to request the respondent to peruse and copy the accounting books and accounting documents so that they can grasp the management status and request correction if necessary in the future.

Most of the documents subject to the application by the applicants for inspection and copying are difficult to be deemed documents that can be perused and copied in the rehabilitation procedure of one shareholder can be seen as documents.Although the rehabilitation procedure was commenced for one shareholder book or the investigation report was submitted regarding the property status of one shareholder book and the details of the entry into the rehabilitation procedure for one shareholder book in the rehabilitation procedure, it is not denied the need for the applicants who are minority shareholders of one shareholder book to exercise their rights under Article 466(1) of the Commercial Act. Nevertheless, the lower court rejected the application for inspection and copying by the applicants under Article 466(1) of the Commercial Act. In so determining, the lower court erred by misapprehending the legal doctrine on the rights under Article 466(1) of the Commercial Act. The grounds for re-appeal pointing this out are with merit.

However, the lower court needs to examine the scope of documents subject to perusal and copy after remanding. The accounting books and documents that are subject to perusal and copy based on Article 466(1) of the Commercial Act should be limited to the reasons for the applicant to request perusal and copy, and their evidentiary materials (see Supreme Court Decision 9Da58051, Oct. 26, 2001). This is because it is improper for the applicant to exercise the above right in the position of a monetary creditor who is not a shareholder (see Supreme Court Decision 2017Da270916, Feb. 28, 2018).

5. Therefore, without further proceeding to decide on the remainder of the grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

October 20, 2020

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok