[1] Standard for determining whether the exercise of shareholder's right to peruse or copy the minutes or accounting books and documents of the board of directors is unfair

[2] In a case where it is deemed necessary to peruse and copy the minutes of the board of directors’ meeting to exercise the right as a shareholder, whether the claim may be deemed unreasonable solely on the ground that the shareholder who requested the perusal and copy of the minutes of the board of directors’ meeting attempted the hostile acquisition and merger (negative in principle)

[3] The case holding that the court below's order which held that the above claim is unfair for lack of legitimate purpose and is erroneous in the misapprehension of legal principle, in case where Eul, a foreign corporation which acquired Gap company's elevator business division with the intent of acquiring Gap company's elevator business division, collected Gap company's shares in bulk and raised its equity ratio, requested reading and copying of the minutes of Gap company's board of directors' meeting

[4] Where the relevant documents submitted to the board of directors for the resolution by the board of directors fall under the scope of perusal and copy of the minutes

[1] In a case where a shareholder’s request for inspection or copying of the minutes of the board of directors or accounting books, documents, etc. as stipulated in Articles 391-3(3) and 466(1) of the Commercial Act is made, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection or copying is unjust should be determined by comprehensively taking into account all the circumstances such as the circumstance leading to the exercise of the right, the purpose of the exercise, and the maliciousness of the right. In particular, it should be deemed that the exercise of shareholder’s right to inspection or copying is unfair for lack of justifiable purpose, such as where the exercise of shareholder’s right to inspection or copying is detrimental to the company’s business operation or joint interest of shareholders, or where

[2] Even in cases where a shareholder’s request for inspection and copying by shareholders seeking hostile mergers and acquisitions is not simple pressure, but should be permitted if the purpose is to protect the interests of the company and shareholders by supervising the company’s management, and the shareholder’s request for inspection and copying of the minutes of the board of directors’ meeting is to protect the company and shareholders’ interests by supervising the company’s management, and in cases where the shareholder’s request for inspection and copying of the minutes of the board of directors’ meeting is deemed necessary in order to exercise shareholder’s rights, such request is aimed at protecting the company and shareholders’ interests by supervising the company’s management, barring any special circumstance. Thus, the mere fact that the request by the shareholder who requested the request is seeking hostile mergers and acquisitions cannot be deemed unfair for accomplishing a legitimate purpose, and it should be allowed unless the shareholder might use the acquired information as

[3] The case holding that the order of the court below rejecting the above claim is erroneous in the misapprehension of legal principles as to the exercise of shareholder's right to peruse and copy the minutes of the board of directors' meeting, in a case where Eul corporation's claims for perusal and copy of the minutes of the board of directors' meeting, which had an intention to take over Gap corporation's elevator division with the intention to collect Gap corporation's elevator's shares in large quantity, were made for pressure against Gap corporation, regardless of the fact that Eul corporation's request for perusal and copy of the minutes of the board of directors' meeting was made for pressure to Gap corporation, regardless of the fact that Gap corporation's management supervision over Gap company's management and for the purpose of protecting Gap company's shareholders' interests, and it cannot be deemed that Gap corporation's right to peruse and copy the minutes of the board of directors' meeting, in light of various circumstances such as the fact that Eul corporation's use of information acquired by the minutes of the board of directors' representative lawsuit against directors, etc.

[4] Relevant documents submitted to the board of directors for the resolution by the board of directors, etc., if they are not attached to the minutes of the board of directors, they are not subject to the request for inspection and copying of the minutes of the board of directors, but attached documents citing the contents while using terms such as “a separate sheet”, “attached Form” or “attached” in the minutes of the board of directors constitutes part of the minutes of the board of directors

[1] Articles 391-3 (3), (4), and 466 of the Commercial Act / [2] Article 391-3 (3), (4) of the Commercial Act / [3] Article 391-3 (3), (4) of the Commercial Act / [4] Article 391-3 (3) of the Commercial Act

[1] Supreme Court Order 2003Ma1575 dated December 24, 2004 (Gong2005Sang, 232)

Applicant (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Hyundai Elevator Co., Ltd. (Law Firm Sejong, Attorneys Kim Yong-dam et al., Counsel for the defendant-appellant)

Seoul High Court Order 2012Ra674 dated April 16, 2013

Of the judgment of the court below, the part concerning Attached List Nos. 1, 2 and 4 of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the reappeal is dismissed.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the first and second grounds for reappeal

A. In a case where a shareholder’s request for inspection or copying of the minutes of the board of directors or accounting books, documents, etc. as stipulated in Articles 391-3(3) and 466(1) of the Commercial Act is made, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection or copying is unjust or not should be determined by comprehensively taking into account all the circumstances, such as the background leading to the exercise of the right, the purpose of the exercise, and the maliciousness of the right. In particular, it should be deemed that the exercise of shareholder’s right to inspection or copying is unfair for lack of legitimate purpose, such as impairing the company’s business or common interest, or exercising shareholder’s right to inspection or copying as a competitor, or exercising shareholder’s right to inspection or copying at the time when it is excessively unfavorable to the company (see Supreme Court Order 2003Ma1575, Dec. 24, 2004). Meanwhile, a shareholder’s request for inspection or copying of the company should be deemed to be unreasonable for the purpose of protecting the company’s interests.

B. First of all, it is reasonable to view that the principal of the case, regardless of its principal business purpose, maintains the management right for the modern commercial group, and thereby suffers enormous loss in trading derivatives by concluding a derivatives contract based on the underlying asset of the modern commercial group in order to secure the management right for the entire modern group. Moreover, it is doubtful that the consent of the modern group, including the principal of the case, has participated in the modern construction without sufficient financial resources, and then has lost its status as the preferred bidder. Thus, the court below reasoned that the applicant, as the principal of the case, needs to peruse and copy the minutes of the board of directors, i.e., the minutes of the board of directors in order to verify the existence of the director's responsibility for the transaction of derivatives or the participation in the modern construction.

그러면서도 원심은, ① 신청인은 2004년 사건본인 등과 사이에 사건본인의 엘리베이터 사업부문을 분리하여 신청인이 그 경영권을 취득하고자 한다는 의향서를 체결하였고, 2005. 10.경 위 의향서를 해제하면서도 추후 사건본인의 엘리베이터 사업부문 분리 시 신청인 측에 통지하도록 한 점, ② 신청인은 세계 2위의 엘리베이터 생산업체로서 2003년 국내 시장에 진출하여 중앙엘리베이터를 인수하였으나 괄목할 만한 성과를 내지 못하고 있었는데, 그러한 상황에서 위 의향서 해제 직후인 2006. 3.경 사건본인의 주식 25.54%를 취득하는 데에 막대한 자금을 투여한 점, ③ 특히 2010년 이후 사건본인이 파생상품계약에 따라 평가손실을 입었다거나 현대건설의 인수에 참여하였다는 등의 사실을 알았음에도 계속하여 사건본인의 주식을 대량으로 매집하여 35%에 이르는 지분을 확보한 점, ④ 신청인이 위와 같이 사건본인의 주식 취득을 위하여는 거액의 자금을 투자하였으나, 자신의 국내 자회사인 주식회사 쉰들러엘리베이터에 대한 신규 투자금은 약 37억 원에 불과한 점, ⑤ 신청인은 사건본인에게 있어 현대상선 경영의 지배가 가지는 의미가 크고 그 때문에 사건본인이 파생상품계약 체결 등의 방법으로 현대상선의 경영권을 유지하고 있다는 것을 비롯하여 사건본인의 사정을 소상하게 파악하여 온 것으로 보이는 점, ⑥ 그러한 사건본인의 사정을 감안하여 사건본인에게 현대상선 경영권의 확보를 도와주는 대신 엘리베이터 사업부문을 인수하고자 한다는 등의 취지를 담은 라자드 제안서를 보내기도 한 점, ⑦ 사건본인이 위 제안을 거절하자, 신청인은 사건본인의 주식 매집에 나서 약 1,640억 원을 투입하여 사건본인에 대한 지분율을 끌어 올리는 한편, 위 파생상품계약 등의 정당성을 문제 삼으면서 사건본인에게 이와 관련한 상세한 자료의 제공을 요구하고 이 사건 열람·등사청구를 하기에 이른 점, ⑧ 이 사건 열람·등사청구의 주된 대상은 파생상품계약과 관련된 이사회 의사록인데, 사건본인이 체결한 파생상품계약과 이로 인한 손익 등의 주된 내용이 비교적 상세히 공시되고 있으므로, 이사회 의사록을 열람하지 않더라도 그 내용을 쉽게 파악할 수 있는 점, ⑨ 신청인은 2011. 1. 이후 사건본인 발행 주식의 33.34% 이상의 지분율을 유지하고 있어, 사건본인이 주주총회 특별결의가 필요한 영업양도나 회사분할을 통하여 엘리베이터 사업부문을 분할하여 제3자에게 매각하려면 반드시 신청인의 동의를 받아야 하는 상황이 된 점 등을 종합적으로 고려하여 보면, 신청인은 주주로서 사건본인의 경영을 감독하기 위하여서가 아니라, 주주라는 지위를 내세워 사건본인을 압박함으로써 사건본인으로부터 엘리베이터 사업부문을 인수하거나 그와 관련하여 협상하는 과정에서 보다 유리한 지위를 점하기 위하여 이사회 의사록 등에 대한 열람·등사를 청구하는 것으로 보이므로, 신청인의 이 사건 열람·등사권 행사는 부당하다고 판단하였다.

C. However, the lower court’s determination is difficult to accept in light of the above legal doctrine.

In other words, the above circumstances 1 to 6 are merely the circumstances where it can be acknowledged that the applicant has the intention to take over the elevator business division of the principal of the case. 8 Even if the main contents of the derivatives contract or its profit and loss, etc. entered into by the principal of the case, such as the above circumstances, are relatively detailed, it is not possible to grasp the minutes of the board of directors without inspection, such as who is the director who consented to the resolution of the board of directors concerning the conclusion of such derivatives contract. In addition, even according to the judgment of the court below, it is proved that the applicant needs to peruse and copy the minutes of the board of directors in order to verify whether the applicant is responsible for the transaction of derivatives or directors' participation in modern construction. The following circumstances revealed in the records, namely, the modern commercial company continuously reported large-scale losses after 2011 due to the decline in business and stock price, and thus, the damage borne by the principal of the case in order to conclude and maintain the derivatives contract with the modern commercial company's own stocks, etc. is not likely to exercise its right to use the minutes of the Hyundai Group.

In light of the above, even if the applicant’s intent to take over the elevator business division of the principal of this case and his intention is embodied, the applicant’s request for inspection and copying of this case was made solely for pressure on the principal of this case, regardless of whether the applicant’s request for inspection and copying of this case’s business management was intended to protect the interest of the principal of this case and his/her shareholder, and all other circumstances indicated in the records are considered comprehensively, and thus, it cannot be said that it is unfair for the applicant to achieve the legitimate purpose.

Nevertheless, the lower court determined otherwise. In so doing, the lower court erred by misapprehending the legal doctrine as to the exercise of shareholder’s right to peruse and copy the minutes of the board of directors, thereby adversely affecting the conclusion of the decision. The ground of reappeal assigning

2. As to the third ground for reappeal

In light of the records, the court below is just in rejecting the request for perusal and copy of the minutes of the board of directors' meeting related to the service contract between the principal of the case and the modern United Nations corporation before and after division, or between the modern global corporation, and the minutes of the board of directors' meeting as stated in Paragraph 3 of the attached list of the order of the court below. There is no error of law by misapprehending

3. As to the fourth ground for reappeal

The lower court determined that the minutes of each board of directors’ meeting as stated in the separate list of the lower court’s order “related documents, such as attached materials and the written contract submitted to the board of directors for review of whether to approve the attached materials and the board of directors’ meeting” goes beyond the scope of the minutes of the

However, relevant documents submitted to the board of directors for the resolution by the board of directors, if they are not attached to the minutes of the board of directors, they shall not be subject to the request for inspection and copying of the minutes of the board of directors. However, attached materials citing the contents in using terms such as “a separate”, “attached”, or “attached” in the minutes of the board of directors shall constitute part of the minutes of the board of directors, and shall be subject to the

Therefore, without such distinction, the lower court’s determination that “all relevant documents, such as attached documents and contracts, submitted to the board of directors for the purpose of reviewing whether to approve the attached documents and the board of directors’ meeting” in the minutes of the board of directors as stated in paragraphs (1), (2) and (4) of the attached list of the lower court’s order is not subject to a uniform request for inspection and copying, is erroneous in matters of law by misapprehending the legal doctrine on the scope of minutes of the board of

4. Conclusion

Therefore, the part of the order of the court below regarding the annexed list Nos. 1, 2 and 4 shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the remaining reappeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)