Changwon District Court 2012 Gohap32119 (No. 26, 2013)

Whether the entry of the issue shares in the name of the delinquent corporation should be made

Since the defendant is obligated to implement a transfer procedure to a delinquent corporation, the plaintiff may seek performance of the above duty against the defendant in order to preserve national tax claims against the delinquent corporation.

Article 30 of the National Tax Collection Act and restitution to its original state.

(C)Revocation of fraudulent act 2013Na21140

AA

aa and one other

Changwon District Court Decision 2012Da32119 Decided September 26, 2013

November 20, 2014

December 18, 2014

1.The judgment of the first instance shall be modified as follows:

A. Defendant Aa transfers 204,385 shares out of the shares listed in the Schedule on April 25, 2008, to BB Co., Ltd. (Seoul District Court Decision 607-13 Tridong 307, representative director bbb), and 204,385 shares out of the shares listed in the Schedule due to a share sales contract on April 25, 2008.

B. Defendant Aa notifies Defendant CCC that it transferred 204,385 shares out of the shares listed in the separate shares list to BB corporation by means of a certificate with a certified fixed date.

C. Defendant CCC shall implement a transfer procedure to change the name of shareholders on the list of shareholders to BBB stock company with respect to 204,385 shares out of the shares listed in the separate list of shares.

D. The plaintiff's remaining claims against the defendants are all dismissed.

2. The 80% of the total costs of the lawsuit shall be borne by the Plaintiff, and 20% by the Defendant.

1. Purport of claim

Defendant A transferred 90,00 shares listed in the list of shares to BB corporation on February 15, 2008 on the ground of a contract for purchase and sale of shares and acquisition of management rights as of February 15, 2008, and notified Defendant CCC of the intent of transfer with a certificate with a fixed date. Defendant CCC will implement a transfer procedure to change the name of shareholder in the list of shareholders to BB corporation with respect to 990,00 shares listed in the list of shares listed in the list of shares.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. As of September 18, 2012, the Plaintiff has a claim against BB Co., Ltd. (hereinafter “BB”) to collect the total sum of the national taxes, including value-added tax and corporate tax, from the Plaintiff.

B. On February 15, 2008, BB entered into a contract with Defendant Aa to purchase 90,000 shares of Defendant Aaa as stated in the attached shares list issued by Defendant CCC (hereinafter “Defendant CCC”) from Defendant AAa (hereinafter “Defendant CCC”). Specific terms and conditions of the contract are as follows: (a) the shares of Defendant Aa as stated in the attached shares list issued by Defendant CCC (hereinafter “Defendant CCC”).

【Agreement on Purchase and Sale of Stocks and Acquisition of Management Right】

Article 1. Sale and Purchase Agreement

(1) Defendant Aa shall sell, as provided in this Agreement, the shares of this case, such as the entry in Schedule 1 held by Defendant Aa, and BB shall purchase them.

(2) Under the terms and conditions set out in this Agreement, Defendant Aa agrees to transfer to BB the shares of this case and the management rights incidental thereto, and BB will take over them from Defendant Aa.

Article 2. Sales Price

The total purchase price of the shares of this case shall be x00 million won, and shall be adjusted pursuant to Article 6.

Article 3 Payment of Sales Price

(1) BB receives x x00 billion won equivalent to 20% of the total purchase price as down payment on the date of this contract.

shall be paid to Goa for such purpose.

(2) BB shall pay the balance to Defendant A in the amount of 80% of the total purchase price on (b) January 2008, the amount of xx billion equivalent to 80% of the total purchase price.

Article 4 Transfer of Stock and Transfer of Title

Defendant A shall transfer all of the shares of this case to BB at the same time with the payment of any balance under Section 2 of Article III, and complete the transfer process on the register of shareholders of the company in the name of BB (hereinafter referred to as “Conclusion of this Agreement”).

Article 11 Cancellation, etc. of Contracts

(1) If the BB fails to pay any balance within thirty (30) days after the date on which the BB is liable to pay the balance, this contract shall be automatically rescinded, and if the BB breaches or fails to perform important matters under this contract, Defendant Aa may rescind this contract. If this contract is terminated due to any cause attributable to BB, the down payment shall be reverted to Defendant Aa in full due to the penalty.

(2) BB is unable to transfer to BB the full ownership of all or part of the shares of the instant case, including provisional attachment, provisional injunction, compulsory execution, and other fraudulent act revocation proceedings, in which all or part of the shares of the Defendant Aa are held, or in which bankruptcy, rehabilitation, rehabilitation, or bankruptcy-related proceedings are initiated with respect to the whole or any part of the shares of the said case on the outstanding payment date, the contract may be rescinded if the Defendant Aa violates or fails to perform important matters under this contract. In this case, the amount equivalent to the down payment shall be paid to B in excess of the obligation to restore the amount of the down payment, other than the obligation to return the amount of the down payment paid by BB to Defendant Aa as the down payment.

【Annexed Agreement】

Article 2. Paid-in capital increase

1. BB will, after acquiring shares from Defendant Aaa after acquiring shares, invest x x0 billion won in capital increase for new shares issued by Defendant CCC, but will proceed with mutual consultation between BB and Defendant Aa in such a way as to ensure 50 per cent of each of the amounts in question.

2. Defendant Aaa shall, upon the recommendation of BB after the sale of shares, make an investment of x0 billion won in the purchase of shares of BB, and BB shall ensure that the investment principal can be recovered within one month after the general meeting of shareholders of BB with respect to the amount invested by Defendant Aa.

[Schedule1 Defendant Aa’s holding of shares, the number of sales shares, and sales price]

C. On April 25, 2008, BB entered into a contract with Defendant AA with BB to purchase 440,000 shares issued by Defendant CCC from Defendant Aa to purchase x00,000 won ("the Second Contract"), ② between Nonparty CC, DD, BB entered into a contract with BB to purchase x0,000,000 won ("the First Contract") from Defendant C, DD to purchase x0,000,000 shares issued by Defendant CCC ("the Second Contract").

(d) BB transferred, on February 15, 2008, the share purchase price to the national bank account of Defendant Aa on a four-time basis between June 16, 2008 and June 16, 2008, the sum ofx billion to the national bank account of Defendant Aa and the foreign exchange bank account of Defendant Aa.

E. BB was delisting on February 10, 2010, and the head of the competent tax office voluntarily closed BB on April 30, 2010.

F. As of the date of the closing of argument in the trial of the court (on November 20, 2014), Defendant Aa 1250,000 shares issued by Defendant CCC (established on November 1, 200), CC 452,00 shares, Dd 98,00 shares, Nonparty F 98, and e held 10,00 shares, and DD 20,00 shares, but stock certificates were not issued by the date of the closing of argument in the trial of the court.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5-2, Eul evidence 1 through 3, 5, 6, 12 through 13-3, 16, 17, 22, 23, and 24, each statement of evidence, witness hhh of the first instance trial, witness d'd', and the purport of the whole pleadings

2. Stock sales contract;

A. In a case where the obligee’s right to preserve by subrogation is a monetary claim, that is, the need to preserve the obligee’s right to a third obligor by subrogation of the obligee only when the obligor is insolvent (see Supreme Court Decision 2008Da76556, Feb. 26, 2009).

In light of the above facts and the above evidence, the plaintiff has a national tax claim of KRW 9,460,928,540 against BB, and the BB did not pay delinquent tax and discontinued its business. At present, it is found that the property is insufficient to pay the above national tax even if 90,000 shares listed in the attached shares list are transferred to the Defendants. Thus, if BB has a claim for transfer of 990,000 shares listed in the attached shares list against the Defendants, the plaintiff may exercise the above claim for transfer in order to preserve the above national tax claim against BB.

B. The transfer of shares before the issuance of share certificates under Article 335(3) of the Commercial Act is effective against the company when six months have elapsed since its incorporation. In this case, the transfer of shares takes effect only by the declaration of intention of the parties in accordance with the general principle as to the transfer of nominative claims (see Supreme Court Decision 2003Da29661, Oct. 24, 2003). According to Article 450 of the Civil Act, the transfer of nominative claims cannot be set up against the obligor and any third party, other than the obligor, unless the transferor notifies the obligor, or the obligor does not consent, without the obligor’s consent. According to Article 337(1) of the Commercial Act, the transfer of shares cannot be set up against the company unless the transferee’s name and address are entered in the register of shareholders. The transfer of shares in the register of shareholders goes beyond the requisite to exercise the shareholder’s right in relation to the company. Thus, the transferee of shares before the issuance of share certificates is entitled to solely prove the fact that the transferee acquired shares without the transferor’s need to cooperate (see Supreme Court Decision 95Da.

C. In light of the following facts: (a) the first and second contracts are only the parties to the contract, and the subject matter of the contract and the number of payments are the same; (b) the Plaintiff and Defendant Aa did not assert that both the first and the second contracts are valid; (c) the testimony of DD witness at the trial did not have agreed with BB to cancel or nullify the third contract after the conclusion of the third contract; and (b) the testimony of DD witness at the trial did not have reached an agreement with BB to cancel or invalidate the third contract after the conclusion of the third contract; and (c) according to the evidence Nos. 8-2 and 9, according to the fact that the Defendant A (a) urged BB on August 8, 2008 to return KRW 3.7 billion on behalf of the Defendant A, it is reasonable to deem that BB and Defendant A (a) concluded the second contract after the first contract and concluded the first contract after the signing of the contract to pay KRW 3.7 billion on behalf of the Defendant A.

As seen earlier, BB remitted x0 million won to Defendant AA’s deposit account. Among them, since the price for Defendant Aaa’s 440,000 million shares, which was stipulated in the 2 contract, is KRW x0 billion, aa upon receipt of the purchase price, may be deemed to have a duty to transfer 40,000 shares to BB and notify the above transfer to Defendant CCC with a certificate with a certified fixed date, barring any special circumstance. However, as seen earlier, as seen earlier, it is recognized that xx0,00 won was paid out of the price for the above 440,00 shares, the Plaintiff’s assertion that the purchase price was paid in excess of xx00,000 won out of the Plaintiff’s claim is without merit.

D. The plaintiff asserts that BB concluded the second contract and agreed again with Defendant Aa to cancel the second contract and restore the first contract.

The plaintiff's assertion is without merit, since it is not sufficient to acknowledge that the entries of No. 3, and No. 8-2 and No. 12 in each of the evidence No. 8-2 and No. 8-2, and there is no other evidence to acknowledge it.

E. The argument by Defendant Aa is that even if the first contract is deemed valid, the BB failed to pay the balance to Defendant A by May 15, 2008, and thus, it was automatically rescinded pursuant to Article 11(1) of the Contract A, and even if the second contract is valid, Defendant A rescinded the second contract by mail proving the content of the contract on May 12, 2014, and thus, the Plaintiff’s claim cannot be accepted.

On the other hand, as seen earlier, Article 11 (1) of the Contract 1 is deemed to have been terminated by agreement. Since Article 11 (1) of the Contract 1 is not effective, Article 2 of the Contract 1 does not have the same automatic rescission provision as Article 11 of the Contract 1, and Article 4 of the Contract 2 of the Contract 4 provides that the obligation to pay the balance of BB and the obligation to transfer shares of the Defendant Aa are in the simultaneous performance relationship. Since there is no evidence to prove that Defendant Aa provided the said obligation to transfer shares, Defendant Aa cannot rescind the 2 Contract. Thus, Defendant Aa's assertion is without merit.

3. Payment of purchase price of stocks;

A. The Plaintiff asserts that BB paid KRW x0 billion in total to Defendant Aa by means of remitting the purchase price of shares to Defendant Aa in the form of a deposit account in Defendant Aaa, and that Defendant Aa asserts that, even if BB wired x00 million to Defendant Aaa’s deposit account in the name of Defendant Aaa, BB withdraws xx00 million in the course of managing the Defendant Aaa’s deposit account, the amount that BB paid to Defendant Aa is KRW x00 million.

B. In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in a real name verification statement, etc., the deposit account holder shall be deemed the party to the deposit contract, i.e., the right to claim the return of the deposit, unless it is extremely exceptional under the agreement between the financial institution and the contributor, etc. to exclude the right to claim the return of the deposit in the deposit account and conclude a deposit contract with the contributor, etc. by denying the deposit contract with the deposit account title holder, and the deposit account holder shall be deemed the party to the deposit contract, i.e., the right to claim the return of the deposit. In a case where the remitter has made the deposit in the deposit account of the payee pursuant to the basic terms and conditions of deposit transaction and the deposit account is recorded in the deposit account ledger, the deposit contract equivalent to the above deposit amount between the remitter and the receiving bank shall be established, and the payee shall acquire the deposit claim from the receiving bank (see Supreme Court Decision 2010Da41263, Nov. 11, 201

C. On the other hand, it is reasonable to view that BB had already received a return of the remaining x billion won, excluding xx billion won, out of the 5 billion won deposited in the account under the name of Aaaa, from among the 5 billion won deposited in the account under the name of BB, to Defendant Aa, as the sum of the prices stipulated in the 2 contract to be deposited in the Defendant Aaa, x billion is to be x x00,000,000,000 won, and therefore, the Plaintiff’s assertion is reasonable within the above scope of recognition, and the remainder is without merit.

1) According to the overall purport of evidence Nos. 3 and 4-1 to 12, evidence Nos. 3 and 4-2, evidence Nos. 12 through 13-3, 14-2, and 20 through 24, the following facts are recognized. ① Defendant Aa has lent the Ha investment securities account opened in its name to dives of the representative director of BB, and has been in charge of the passbook, seal impression, and card. Dd has made a statement that the sum of KRW 10 billion was deposited to the national bank account connected to it through the above dives account, from February 15, 2008 to June 16, 2008, the sum of KRW 60 billion was deposited to the national bank account connected to it, and the remainder of KRW 200 billion was released from the prosecutor who purchased the dives of this case from 200 billion to d'B 600 billion to 160 billion to dB.

According to the above facts, BB is recognized to have withdrawn x00 million from the HB securities account and the national bank account opened in the name of Defendant Aaa with the consent of Defendant Aa.

2) According to each description of the evidence Nos. 8-1 to 3 and 10 of the evidence Nos. 8-2, the following facts are recognized:

① On June 20, 2008, BB made available to Defendant A on June 20, 2008, the date on which the letter of undertaking was drawn up to June 16, 2008.

【Declaration】

With respect to the acquisition of the shares of Defendant CCC between BB and Defendant Aa as of June 16, 2008, the following BB, with respect to the receipt of the shares of Defendant CCC as of June 16, 2008, undertake to:

1. BB shall keep x00 million won out of the acquisition price of Defendant CCC shares, and shall substitute this letter of commitment for cash storage.

2. BB promises to return in full the amount of x billion x billion in the custody to Defendant Aa by July 15, 2008.

3. BB promises not to exercise its sovereignty over Defendant CCC until full payment of the cash in its custody to Defendant Aaa.

② around April 30, 2009, BB issued to Defendant A, issuance date April 30, 2009, April 30, 2012, the redemption date, April 30, 2012, and the face value of KRW xx0 million.

According to the above facts, BB may be deemed to have agreed not to make a claim for transfer of the shares equivalent to the above x00 billion won prior to the receipt of the return of the x00 million won from Defendant Aaa, and at the same time the x00 million won was paid to Defendant Aa.

3) The claim by Defendant Aa, BB, as of April 25, 2008, shall be between Defendant Aa and Defendant A as of April 25, 2008, the third party contract shall provide that KRW 400 million, out of the xx billion received by Defendant Aa from BB.

Since the agreement was reached to convert the purchase price of the second contract into the medicinal amount, it is not sufficient to acknowledge that the above agreement was made between BB and Defendant Aaa, since the purchase price of the second contract is the remaining x0 billion won. Thus, it is not sufficient to acknowledge that the statement of evidence No. 2-3 of the YY No. 2-100, and there is no other evidence to

D. Sub-determination

According to the contract 2, since the agreed price for the share 4.40,000 won is 2.8 billion won, x00 million won is x billion won for shares 204,385 shares (i.e., 440,000 shares x x x00 million won x x x00,000 shares). Therefore, Defendant Aa has a duty to transfer the above shares to the Plaintiff, and notify Defendant CCC of the above transfer by means of a certificate with a fixed date. ② Defendant CCC has a duty to change the shareholders' name for the above shares 204,385 shares to BB, so the Plaintiff may seek performance of the above obligation against the Defendants in order to preserve the national tax claim against BB, the Plaintiff’s assertion has merit within the above recognition limit, and the remainder has no merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by changing the judgment of the court of first instance.