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(영문) 서울동부지방법원 2015.12.22 2015가합2735
분할합병무효
Text

1. The merger becomes null and void by Defendant D’s division and absorption of part of the business of Defendant D on April 22, 2015.

Reasons

1.The following facts are recognized by each entry in Gap evidence 1 to 3 (including paper numbers), unless there is a dispute between the Parties or by the Parties:

A. On February 27, 2015, the bankrupt corporation B (hereinafter “B”) divided the electrical construction business part, which was a part of the business, and divided and merged (hereinafter “Defendant D”) with Defendant D Co., Ltd. (hereinafter “Defendant D”) (hereinafter “instant division and merger”).

B and Defendant D have approved the merger of this case with the consent of all shareholders present at each special shareholders meeting on the same day, following the same year.

4. 22. The instant merger after division was registered.

B. B and Defendant D, within two weeks from the date of the resolution of the merger with respect to the merger with this case, shall make a public notice to the creditors of the company that they have an objection to the merger with respect to the merger with this case within a period of not less than one month, and they did not go through the procedures for the protection of creditors who are known individually (Article 530-11, Article 527-5 of the Commercial Act).

C. B was declared bankrupt on September 14, 2015 and the defendant C was appointed as a trustee in bankruptcy on the same day.

The plaintiff is the inside director of defendant D.

2. The Plaintiff’s assertion that the merger by division of this case is null and void because it does not go through the procedures for protecting creditors under Articles 530-11 and 527-5 of the Commercial Act.

3. Article 530-11(2) and Article 527-5(1) of the Commercial Act provides, “A company shall publicly announce within two weeks from the date of a resolution of approval of the general meeting of shareholders under Article 522 that any creditor who has an objection to a merger should submit such objection within a period of not less than one month and make a peremptory notice to the creditors known that such merger has an objection to the merger.” In light of the fact that the merger after division may cause a significant change in the company’s property, which is the security of the claim from the creditors of the company, and that the merger after division may

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