Tanf&L Co., Ltd. (Law Firm Gyeongsung, Attorney Han Jae-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Young-chul, Counsel for the defendant-appellant)

SPP Co., Ltd.

August 14, 2013

Changwon District Court Decision 201Da17171 decided May 11, 2012

1. The plaintiff's appeal is dismissed.

2. At the first preliminary claim of the Plaintiff as added at the trial, compulsory execution based on the original copy of the decision of indirect compulsory performance by the Defendant at the Changwon District Court, Jinju Branch Branch, 201 Taz. 331, is denied only on the part exceeding KRW 1,545,00,000.

3. On October 26, 2011, with respect to the case of application for the suspension of compulsory execution (No. 201Kaman358), Jinwon District Court Branch Branch, the ruling of suspension of compulsory execution (No. 26, 201) shall be approved only for the portion exceeding KRW 1,545,00,000.

4. All of the ancillary claims of the Plaintiff as added at the trial and the secondary preliminary claims exceeding KRW 1,545,00,000 are dismissed.

5. The costs of the lawsuit after the appeal shall be borne by the Plaintiff, including the costs incurred by the intervention in the appeal.

The judgment of the first instance shall be revoked.

In the first place, with respect to the Defendant’s order of indirect compulsory performance by Jinwon District Court Jinju Branch 201Ma331 against the Plaintiff, compulsory execution based on the original executory decision granted by the court clerk of the above court on September 29, 201 and October 17, 2011 is denied.

1. Preliminaryly, the defendant's motion to Jinwon District Court for the plaintiff is denied compulsory execution based on the original copy of the decision of indirect compulsory enforcement by the defendant 201Tho 331.

2 Preliminary, it is confirmed that the Plaintiff did not have any obligation to pay to the Defendant in relation to the decision of indirect compulsory performance (the Plaintiff added the first and second preliminary claims at the trial).

1. Basic facts

A. On June 16, 2011, the Defendant filed an application against the Plaintiff for a provisional disposition against the Plaintiff on the perusal and copying of the account books with Jinwon District Court Jinwon Branch Branch 201Kahap26, the Defendant received a provisional disposition order that “the Plaintiff shall be allowed to peruse and copy the account books and documents stated in the separate sheet” (hereinafter the instant provisional disposition order), and the original copy was served on the Plaintiff on June 20, 201.

B. On June 24, 2011, the Defendant delegated to ○○ Accounting Corporation all the powers relating to the perusal and copying of the account books and documents listed in the separate sheet ordering the instant provisional disposition. On June 24, 2011, the ○○ Accounting Corporation sent to the Plaintiff a certificate of content indicating the deadline for performing its obligations, the data requesting perusal and copying

C. As the Plaintiff did not perform its obligation to peruse and copy the instant provisional disposition order, the Defendant filed an application for indirect compulsory enforcement against the Plaintiff on July 21, 2011 by filing an application for the said support with the Plaintiff, and the Defendant ought to allow the Plaintiff to peruse and copy the account books and documents in the separate sheet with the obligee for ten days, excluding holidays from the day following the day on which the decision was served. If the Plaintiff fails to perform his/her obligation within the said period, the Plaintiff paid money calculated at the rate of five million won per day from the day following the expiry of the said period until the completion of the performance thereof (hereinafter “the instant indirect compulsory enforcement order”). The original copy of the decision was served on the Plaintiff on July 22, 2011.

D. Nonparty 2, who belongs to ○○ Accounting Firm, read and copied part of the Plaintiff’s account books and documents at the time limit for performing the obligation determined by the instant decision of indirect compulsory performance (from July 23, 2011 to August 3, 2011).

E. On September 29, 201 and October 17, 2011, the Defendant received respectively an execution clause based on the decision of indirect compulsory performance (hereinafter “each of the instant execution clause”) from the above support.

F. The Plaintiff filed an objection against the instant provisional disposition order as above support 2012Kahap62, and on December 20, 2012, the said support revoked the instant provisional disposition order on the ground that the Plaintiff sent all accounting books and documents required by the Defendant to the Defendant on two occasions on May 4, 2012 and June 8, 2012, which were subsequent to the instant provisional disposition order, and the Defendant perused and copied all the said accounting books and documents.

(In fact that there is no dispute, Gap 1 through 8, 12, Eul 1, 3, 5, and 6, the purport of the whole pleadings and arguments)

2. The plaintiff's primary claim and its judgment

A. The parties' assertion

1) The plaintiff's assertion

Since the Plaintiff fulfilled all the duty of action ordered by the decision of indirect compulsory enforcement, the granting of each of the instant execution clause on the ground of the breach of duty ordered by the decision of indirect compulsory enforcement.

Therefore, compulsory execution based on each of the execution clause of this case should not be permitted.

2) The defendant's assertion

The Plaintiff did not provide the Defendant with a membership certificate, a membership certificate, and a membership list stating the membership number, a member’s name, a member’s sale price, each account of the Jeju Bank, Han Bank, Gwangju Bank, etc., which is a premise for the preparation of an audit report, the details of ordinary deposit transactions from March 4, 2011 to June 30, 201, and a certificate of verification of shares price deposited in the Japanese bank account (Account Number 2 omitted). Therefore, the Plaintiff did not perform all the duty of action ordering a decision of indirect compulsory enforcement.

(b) Markets:

1) Whether the Plaintiff violated the Plaintiff’s obligation to sell membership cards and to peruse and copy the membership roll

A) Whether the membership ownership register and the membership list are subject to the request for inspection and copying

(1) The plaintiff's assertion

Since the membership ownership ledger and the membership list do not constitute accounting documents, even if the Plaintiff did not provide the Defendant with the perusal and copy of the membership ownership ledger and the membership list, it does not violate the duty of perusal and copy that ordered the instant indirect compulsory enforcement decision.

(2) Determination:

"Books and documents of accounts" in Article 466(1) of the Commercial Act refers to accounting books and documents which are substantially related to the reasons for minority shareholders to seek perusal and copying (see Supreme Court Decision 9Da58051 delivered on October 26, 2001).

In light of the situation that the sale price of membership accounts for a significant portion of the total assets of the plaintiff, the plaintiff's register of membership and the list of members can confirm the sale price of membership and the receipt of the sale price of membership, which are relevant to the accounting data subject to the request for inspection and copying.

Furthermore, even if the membership ownership ledger and the membership list do not correspond to the accounting documents, as long as the membership ownership ledger and the membership list are specified as the documents subject to the provisional disposition of this case, the above documents shall be subject to inspection and copying without relation to whether they fall under the accounting documents.

Therefore, the plaintiff's above assertion is without merit.

B) Whether the Plaintiff violated the Plaintiff’s duty to sell membership cards and to peruse and copy the membership roll

(1) The plaintiff's assertion

The Plaintiff did not have the documents called the membership ownership ledger, and thus was unable to issue the membership ownership ledger to the Defendant. In addition, the Plaintiff was only excluded from the name and part of the resident registration number for the purpose of protecting the privacy of its members, and the Plaintiff fulfilled all the obligation to peruse and copy the membership list ordered by the instant decision of indirect compulsory enforcement.

(2) Facts and determination of recognition

(A) Facts of recognition

The following facts are acknowledged according to the purport of Gap evidence 8, Gap evidence 13-1 to 3, and the whole arguments.

① When providing a membership list to the Defendant on July 26, 201, the Plaintiff did not provide the remainder of the number excluding the preceding three pages of the membership card number, the name portion excluding the sex of the member, and the remaining number excluding the preceding two pages of the resident registration number.

② On May 4, 2012, the Plaintiff provided the Defendant with the membership card number, name of the member, resident registration number of the member, and the date of issuance of the membership card.

③ On June 8, 2012, the Plaintiff provided the Defendant with data stating the Plaintiff’s actual contractor status as of July 18, 2010, stating the membership list and the name, membership amount, membership amount, membership deposit amount, and unpaid balance.

(b) the sales board;

According to the above facts, since the list of members offered by the Plaintiff on July 26, 201 does not contain the date of sale of membership and the price for sale of membership, it appears that the above list alone could not accurately grasp the part concerning the accounting. Thus, it is difficult to view that the Plaintiff’s act of providing the above membership list on July 26, 201 is insufficient to deem that the Plaintiff fulfilled all the obligation to peruse and copy the membership list ordered by the decision of indirect compulsory performance.

2) Whether the Plaintiff violated the Plaintiff’s duty to peruse and copy each account in the Jeju Bank, Han Bank, Gwangju Bank, Foreign Exchange Bank, Gyeongnam Bank, Gyeongnam Bank, Enterprise Bank, and post offices

According to the purport of the statement in Gap evidence and the arguments in the whole, on July 28, 2011, the plaintiff is recognized to provide the defendant with access to the account [Account Number 3 omitted), (Account Number 4 omitted), (Account Number 5 omitted), (Account Number 6 omitted), (Account Number 7 omitted), Japanese bank account [Account Number 8 omitted, (Account Number 9 omitted), one bank account], Han Bank account [Account Number 10 omitted], Gwangju Bank Account [Account Number 11 omitted], National Bank Account [Account Number 12 omitted, (Account Number 13 omitted, (Account Number 14 omitted), and (Account Number 15 omitted], Foreign Exchange Bank Account [Account Number 16 omitted], Kyungnam Bank Account [Account Number (Account Number 17 omitted, Account Number 18 omitted), Enterprise Bank Account], Account Number (Account Number 19 omitted], and Account Number (Account Number / [Account Number 19 omitted].

In light of the above circumstances, even if the Plaintiff failed to comply with the Plaintiff’s request for re-data because the amount of the audit report submitted by the Plaintiff and the balance of each of the above accounts at the end of December, 2010, it is difficult to deem that the Plaintiff failed to comply with the obligation to peruse and copy this part of the order of indirect compulsory enforcement, as long as the Plaintiff submitted both the audit report and the details

3) Whether the Plaintiff’s bank account (Account Number 1 omitted) violated the Plaintiff’s duty to peruse and copy the details of the ordinary deposit transactions and to provide copies

Considering the following circumstances, it is difficult to view that the circumstance or evidence presented by the Plaintiff alone, which the Plaintiff presented, has fulfilled its duty to peruse and copy this part within the time limit for performing the duty stipulated in the decision of indirect compulsory performance, based on the following circumstances, etc., which are acknowledged by the respective statements and evidence Nos. 4, 13-7, 13-1, 2, and 2.

A) The Defendant requested the Plaintiff to provide the details of the ordinary deposit transactions from January 1, 2010 to June 31, 2011 of our bank account (Account Number 1 omitted) within the performance period stipulated in the instant decision of indirect compulsory performance. However, the Plaintiff issued only the details of the ordinary deposit transactions to the Defendant from July 1, 2010 to March 3, 201.

B) On June 8, 2012, the Plaintiff provided the Defendant with the details of ordinary deposit transactions from February 1, 2011 to June 30, 201.

C) The financial data related to the payment of subscription money for new shares, as the Plaintiff conducted capital increase on June 27, 2011, constitutes evidence to identify the Plaintiff’s financial status.

4) Whether the Plaintiff violated the Plaintiff’s duty to inspect and copy the certificate of proof on the share price deposited in the Japanese bank account (Account Number 2 omitted)

In light of the following circumstances, which are acknowledged by the purport of the entire pleadings in each of the statements Nos. 4, 5, 1, 2, and 13-4 through 6, it is difficult to deem that the circumstances or evidence presented by the Plaintiff alone, which the Plaintiff cited, fulfilled its duty to peruse and copy this part within the time limit for performing the duty stipulated in the decision of indirect compulsory performance.

A) The Defendant demanded the Plaintiff to submit a deposit certificate of the stock price deposited in the Japanese bank account (Account Number 2 omitted) within the performance period stipulated in the instant decision of indirect compulsory performance, but the Plaintiff did not submit it.

B) On June 8, 2012, the Plaintiff issued a certificate of stock payment custody to the Defendant regarding the stock price deposited in the said Japanese bank account.

C) The financial data related to the payment of subscription money for new shares, as the Plaintiff conducted capital increase on June 27, 2011, constitutes evidence to identify the Plaintiff’s financial status.

(c) Conclusion

The Plaintiff’s assertion is without merit, based on the premise that the Plaintiff fulfilled all the duty of action ordering the instant decision of indirect compulsory performance within the time limit for performing the duty stipulated in the instant decision of indirect compulsory performance.

4. The plaintiff's first preliminary claim and its judgment

A. The plaintiff's assertion

The Plaintiff fulfilled all the duty of action ordering the instant order of indirect compulsory performance within the time limit set by the instant order of indirect compulsory performance, and the duty of action ordered by the instant order of indirect compulsory performance on May 4, 2012 and June 8, 2012 at the latest. As such, the executory power of the instant order of indirect compulsory performance was extinguished.

Therefore, compulsory execution based on the decision of indirect compulsory performance of this case shall be denied.

(b) Markets:

1) Compensations based on a decision of indirect compulsory performance under Article 261(1) of the Civil Execution Act shall be deemed not only to be a psychological compulsory means that allows an obligor to perform within the implementation period, but also to be a statutory sanction against the obligor’s nonperformance of obligations. Therefore, in a case where an obligor performed an obligation after the implementation period stipulated in the decision of indirect compulsory performance expires, barring any special circumstance, the obligee may perform compulsory execution to collect compensation corresponding to the delayed period of the performance of the obligation (see Supreme Court Decision 2012Da26398, Feb. 14, 2013).

2) The Plaintiff’s fulfillment of the duty of act ordering the instant indirect compulsory performance was partially delayed, on May 4, 201 and June 8, 2012, by issuing the Plaintiff’s membership roll, deposit certificate for the share price deposited in the bank account, to the Defendant, within the performance period (from July 22, 2011 to August 3, 201) stipulated in the instant decision on indirect compulsory performance (from July 22, 2011 to August 3, 2011) by issuing the Plaintiff’s deposit certificate for the share price deposited in the bank account, and thus performing the duty of act ordering the instant indirect compulsory performance is recognized as above.

In light of the aforementioned circumstances, the Defendant may enforce compulsory execution for the collection of KRW 1,545,00,000 corresponding to the period (309 days from August 4, 201 to June 7, 2012) for which the Plaintiff delayed the performance of the duty of action ordered by the decision of indirect compulsory enforcement (i.e., KRW 5,00,000 x 309). However, the Defendant may not enforce compulsory execution based on the decision of indirect compulsory enforcement, since all of the duty of action ordered by the decision of indirect compulsory enforcement was fulfilled.

Ultimately, compulsory execution based on the Defendant’s decision of indirect compulsory performance of this case against the Plaintiff should not be permitted only to exceed KRW 1,545,00,000.

3) The Supreme Court Decision cited by the Plaintiff as the ground for the above assertion (Supreme Court Decision 2002Du2444 Decided January 15, 2004) is related to damages arising from a decision of indirect compulsory performance under Article 34 of the Administrative Litigation Act. The above compensation is merely a psychological compulsory means concerning the delay of re-disposition by an administrative agency, not a sanction or compensation for damages, and is merely a psychological compulsory means concerning the implementation of re-disposition, and even after the expiration of the performance period stipulated in the decision of indirect compulsory performance, collection of damages is not allowed if the other party to the disposition performs re-disposition in accordance with the final and conclusive judgment even after the expiration of the performance period stipulated in the decision of indirect compulsory performance. As such, the case differs from the case in which the Defendant applied for a decision of indirect compulsory performance under Article 261(1) of the Civil Execution Act on the ground of the Defendant’s failure to perform

5. The plaintiff's second preliminary claim and its judgment

A. The non-existence of the obligation to pay damages upon the decision of indirect compulsory enforcement of the instant case

1) The plaintiff's assertion

Since all of the duty of action ordered by the decision of indirect compulsory performance, there is no obligation to pay compensation based on the decision of indirect compulsory performance against the defendant of this case.

(ii) the board;

The Plaintiff partially delayed the performance of the duty of action ordered by the instant decision of indirect compulsory performance within the time limit (from July 23, 2011 to August 3, 201) stipulated in the instant decision of indirect compulsory performance (from July 23, 2011 to August 3, 201), and upon the occurrence of June 8, 2012, fully performing the duty of action ordered by the instant order of indirect compulsory performance is recognized as above.

Therefore, the Plaintiff is obligated to pay the Defendant the amount of KRW 1,545,00,00 (=5,000,000 x 309 days) equivalent to the period of delay (309 days from August 4, 2011 to June 7, 2012) of the obligation to act ordered by the instant decision of indirect compulsory performance (i.e., KRW 5,00,000 x 309).

Ultimately, the Plaintiff’s obligation to compensate based on the decision of indirect compulsory performance of the instant case against the Defendant does not exceed KRW 1,545,00,000.

B. Offset Claim

1) The plaintiff's assertion

Since the Plaintiff has a damage claim equivalent to KRW 7,983,527,875 against the Defendant, there is no obligation to pay compensation to the Defendant when offsetting the Defendant’s claim based on the decision of indirect compulsory performance.

(ii) the board;

It is insufficient to recognize the existence of the Plaintiff’s damage claim against the Defendant solely with the statement of evidence No. 16, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit without any need to further examine it.

6. Conclusion

A. As to the plaintiff's appeal

The plaintiff's main claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is eventually without merit, and it is dismissed as per Disposition.

B. As to the Plaintiff’s conjunctive claim

The conjunctive Claim No. 1 of this case added by the Plaintiff at the trial for the above reasons are accepted within the above scope of recognition, and the remainder is dismissed as it is without merit. The part exceeding KRW 1,545,00,000 among the conjunctive Claim No. 2 is dismissed as it is without merit (the first conjunctive Claim No. 1,545,00,000 is accepted, and it is not determined as to the second conjunctive Claim No. 2 of this part). It is so decided as per Disposition.

[Attachment]

Judges Kim Young-ju (Presiding Judge)