[1] Where a claim is modified following the process of merger, the case holding that the modification of the lawsuit is lawful on the ground that it is a factual dispute interest itself between the purport of the claim before and the purport of the claim after the modification

[2] Whether a shareholder may directly intervene in a company’s legal relationship and assert its invalidity (negative)

[3] Whether the Act on the Structural Improvement of the Financial Industry applies to a merger between superior financial institutions (affirmative)

[4] Whether a notice of convening seven days prior to the general meeting of shareholders under the Act on the Structural Improvement of the Financial Industry constitutes an unlawful notice of convening a shareholders' rights in light of the time necessary for expressing intent to exercise voting rights by the Korea Securities Depository of Korean beneficial shareholders

[5] The method of voting at a general meeting of shareholders and whether it is legitimate to adopt a resolution by asking shareholders whether the chairperson raises an objection to a specific agenda and, in the absence of an objection, passing the agenda by means of gambling (affirmative)

[6] Where the articles of incorporation of a corporation limited the eligibility to exercise voting rights as proxy shareholders, whether it is legitimate for the company to recognize the exercise of voting rights by proxy by a person other than shareholders (affirmative)

[7] Whether Article 7-16 (1) of the former Securities Business Supervision Regulations which provides that foreign shareholders shall not exercise voting rights by any person other than a full-time agent is prohibited from re-electioning the exercise of voting rights to a third party by a full-time agent delegated by a foreign shareholder (negative)

[8] Whether Article 31 (1) of the Regulations on the Deposit and Settlement of Securities, which provides for the time limit for an application by a foreign beneficial shareholder for the exercise of voting rights against the Korea Securities Depository, constitutes a mandatory provision (negative)

[9] Whether the inaugural general meeting in a merger can be substituted by a public announcement of the board of directors (affirmative), and whether the directors and auditors of a company to be incorporated by a merger at the inaugural general meeting of a newly incorporated merger shall be appointed again (negative)

[1] The case holding that the plaintiff's lawsuit is legitimate on the ground that the plaintiff's claim is modified according to the process of the merger, but the purpose of the lawsuit is to prevent the merger is to prevent the merger after the end of the purpose of the lawsuit. Thus, the factual dispute interest itself between the purport of the claim before and after the amendment should be common, and the litigation data should also be common to the extent that it is justified to justify the continuous implementation of the hearing between the applicant and the previous claim

[2] The shareholder, as a shareholder, has a substantial, economic, general, and abstract interest only with respect to the management or property relationship of the company as a shareholder, and cannot be viewed as having a specific or legal interest. Since the shareholder does not directly participate in the management of the company and can only affect the company's business through a resolution of the general meeting of shareholders or by the shareholder's supervisory authority, the shareholder may exercise the right to maintain the director's act against the company or bring a lawsuit to enforce the company's liability by exercising the right to maintain the director's act, or by participating in the legal relationship of the company directly.

[3] The Act on the Structural Improvement of the Financial Industry aims to contribute to the balanced development of the financial industry by supporting the structural improvement of the financial industry, such as the merger, conversion, and reorganization of financial institutions, promoting sound competition between financial institutions, and raising the efficiency of financial business, and the merger between the superior financial institutions also falls under the category of structural improvement of the financial industry, and the merger between the superior financial institutions shall be deemed to fall under the category of structural improvement of the financial industry, and the merger between the superior financial institutions shall not be deemed to fall under the category of the financial industry, in light of the fact that the above Act has separate provisions in Chapter 3 of the above Act

[4] Although the Act on the Structural Improvement of the Financial Industry, which provides that a notice of convening a general meeting of shareholders shall be issued seven days prior to the general meeting of shareholders, is somewhat imminent in light of the date when it is necessary to express the intent to exercise voting rights to the Korea Securities Depository by the beneficial shareholders in Korea under the former Securities and Exchange Act (amended by Act No. 6623 of Jan. 26, 2002), it is not impossible for beneficial shareholders to express their intent to the Korea Securities Depository by facsimile, etc., and Article 174-6 (5) 4 of the former Securities and Exchange Act provides that the Korea Securities Depository shall not exercise voting rights to the shares of beneficial shareholders where a beneficial shareholder directly or by proxy exercises voting rights at a general meeting of shareholders. Thus, even if there is a beneficial shareholder who has failed to express his/her intention to the Korea Securities Depository, the notice of convening a general meeting of shareholders may exercise his/her voting rights directly or by proxy on the date of the general meeting of shareholders, and thus, it cannot be deemed unlawful solely on the ground that the notice of convening a general meeting of shareholders is unreasonable.

[5] In a case where there is no provision in the relevant laws and the articles of incorporation of the company with respect to the method of voting at a general meeting of shareholders, it shall be deemed unreasonable if the method of confirming the intent of the shareholders present at the meeting is the one in which the shareholders present at the meeting can be confirmed, and it is legitimate to adopt a resolution by asking the shareholders whether they object to the vote or not in the absence of any objection.

[6] Even if a company stipulated in the articles of incorporation as a proxy of voting rights as a shareholder, this is due to the necessity of the company to prevent the disturbance of the order of the general meeting of shareholders due to external intervention. Thus, it is unnecessary for the company to verify the proxy qualification of a person who is not a shareholder and to actively guarantee the exercise of voting rights. Such exercise of voting rights is recognized regardless of the articles of incorporation

[7] Article 7-16 (1) of the former Securities Business Supervision Regulations (amended by the Financial Supervisory Commission No. 2001-72 of Oct. 4, 2001) provides that a foreign shareholder shall not exercise voting rights by any person other than a full-time agent. In a case where a foreign shareholder appoints a full-time agent (a full-time agent shall be a bank, securities company, etc. keeping foreign shareholder's stocks pursuant to Article 7-15 of the Supervision Regulations), the company shall be deemed to have the intention of preventing in advance uncertainty and confusion in exercising voting rights that may arise in a case where a foreign shareholder intends to appoint a person other than a full-time agent, who is not a full-time agent, and the full-time agent entrusted with the exercise of voting rights by a foreign shareholder to a third party, not to delegate the exercise of voting rights to a person other than a full-time agent.

[8] Where the Korea Securities Depository exercises the voting rights of a foreign beneficial shareholder pursuant to Article 174-6 (1) of the Securities and Exchange Act, Article 31 (1) of the Regulations on Deposit and Settlement of Securities (hereinafter “Korea Securities Depository”) provides that a foreign beneficial shareholder who applies for the exercise of voting rights to the Korea Securities Depository through the Korea Securities Depository is no later than five business days prior to the date of the general meeting of shareholders, and in case of a financial institution’s approval for a merger agreement, the date of application for the exercise of voting rights by a foreign beneficial shareholder to the Korea Securities Depository is no more than three business days prior to the date of the general meeting of shareholders. Thus, the date of application for the exercise of voting rights by a foreign beneficial shareholder to the Korea Securities Depository is not the basis for calculating the number of stocks that the Korea Securities Depository is able to do so as to exercise voting rights to the Korea Securities Depository. Unlike domestic beneficial shareholder, in light of the fact that it is practically impossible to exercise voting rights directly at a general meeting of shareholders, it is not necessary to interpret the Korea Securities Depository as a mandatory provision.

[9] Article 527(4) of the Commercial Act provides that a report of the inaugural general meeting of a newly incorporated merger may be substituted by a public notice of the board of directors in the case of a newly incorporated merger. Article 528(1) of the Commercial Act provides that a registration of a merger shall be made within a certain period from the date of closing the inaugural general meeting of a newly incorporated merger or the date of public notice in lieu of a report. Article 527(4) of the Commercial Act provides that the inaugural general meeting of a newly incorporated merger may be substituted by a public notice of the board of directors. Article 527(2) of the Commercial Act provides that a resolution of the amendment of the articles of incorporation of a newly incorporated merger may be made at the inaugural general meeting, but it does not necessarily require that a director and auditor shall be appointed at the inaugural general meeting of a newly incorporated company, but Article 312(3) of the Commercial Act applies mutatis mutandis to the inaugural general meeting of a newly incorporated company, while Article 524 of the Commercial Act provides that a resolution of a merger or a member of the audit committee of a newly incorporated company shall be appointed through a merger.

[1] Article 262 of the Civil Procedure Act / [2] Articles 402 and 403 of the Commercial Act, Article 250 of the Civil Procedure Act / [3] Articles 1 and 24-2 of the Act on the Structural Improvement of the Financial Industry / [4] Article 5 (4) of the Act on the Structural Improvement of the Financial Industry, Article 174-6 (5) 4 of the former Securities and Exchange Act (amended by Act No. 6623 of Jan. 26, 2002) / [5] Article 368 of the Commercial Act / [6] Article 368 (3) of the Commercial Act / [7] Article 203 of the Securities and Exchange Act, Article 87-2 of the Enforcement Decree of the Securities and Exchange Act, Article 7-16 of the former Securities Business Supervision Act (amended by Act No. 201-72 of Oct. 4, 2001) / [8] Article 174-6 (1) of the Securities and Exchange Act, Article 3127

Plaintiff

Plaintiff (Appointed Party) (Law Firm Sejong, Attorneys Lee Yong-soo, Counsel for the plaintiff-appellant)

National Bank Co., Ltd., Ltd., a lawsuit taking over the merged National Bank (Law Firm Ha & Yang, Attorney Ansan-sik, Counsel for defendant-appellant)

May 15, 2003

1. The plaintiff's lawsuit in this case dismissed the part of the claim for nullification by the board of directors.

2. The plaintiff's remaining claims and the plaintiff's claims are dismissed, respectively.

3. The costs of lawsuit are assessed against the plaintiffs.

1. The plaintiffs: The merger between the National Bank prior to the merger and the Korea Housing and Commercial Bank prior to the merger must be invalidated on November 1, 2001.

2. Plaintiff: It is confirmed that the resolution by the board of directors of November 1, 2001, which appointed Nonparty 1 as the president of the Defendant, is null and void.

1. Facts of recognition;

A. On December 22, 2000, the Korean National Bank prior to the merger (hereinafter “National Bank”) and the Korea Housing and Commercial Bank (hereinafter “Housing Bank”) established a merger promotion committee consisting of six (6) directors, one non-standing director, advisory officer, and professor of the two banks to facilitate the merger. The above merger promotion committee established a new bank by combining the National Bank and the Housing Bank, and the name of the newly established bank is called a “National Bank of Korea,” and the merger ratio is 1.68346 share common shares of the National Bank.

On April 23, 2001, the president of the newly established bank entered into a merger contract with the contents that "the president of the newly established bank shall be appointed in accordance with the proposal of the merger promotion committee", and the two banks entered into the merger contract with the above contents of the merger contract (hereinafter referred to as "the merger contract of this case").

B. Accordingly, on September 29, 2001, the Korean National Bank approved the instant merger contract with the consent of 250,196,515 shares (the total number of issued shares) at the 252,319,515 shares (the 82.49%) at the meeting room of the Korean Chamber of Commerce and Industry located in South-gu, Seoul, Seoul (hereinafter referred to as the “instant general meeting of shareholders”) and with the consent of the Financial Supervisory Commission on October 26, 2001, the Korean Housing Bank dissolved the National Bank and the National Housing Bank (hereinafter referred to as the “Defendant Bank”) established the merger contract of this case (hereinafter referred to as the “Defendant Bank”) as stated in the attached Form 303,305,662 shares and the total number of issued voting shares were 82.16% at the meeting of the general meeting of shareholders. The Housing Bank approved the merger contract of this case with the approval of the Financial Supervisory Commission on November 1, 2001.

C. On November 1, 2001, the board of directors of the defendant bank appointed Nonparty 1 as the president of the defendant bank with the recommendation of the committee for recommending candidates composed of outside directors of the defendant bank.

D. The plaintiffs and the designated parties are shareholders of the National Bank and members of the National Bank Trade Union (hereinafter referred to as the "Labor Union").

[Ground for Recognition: Statement without any dispute; 15 through 18, 26, 28, 32, 33, 41, 50, 53, 53 evidence, 3 Eul or 5 through 9, 3, 4, 7, 8, 15 (including additional numbers) respectively]

2. Determination as to the legitimacy of the modification of the lawsuit

The plaintiff filed the lawsuit of this case on March 19, 2001 (201Gahap18662) and sought revocation, etc. of the merger promotion between the national bank and the housing bank. When entering into the merger contract of this case on April 23, 2001, the national bank and the housing bank revised the claim to withdraw the merger on May 25, 2001, and again, on September 29, 2001, the resolution of approval for the merger (hereinafter referred to as the "resolution of approval for the merger of this case") was made at the temporary general shareholders' meeting of the national bank on September 10, 201 and the claim seeking confirmation of invalidity and non-existence of the above approval for the merger on October 10, 201, the defendant did not seek revocation of the merger registration of this case on December 24, 2001 (hereinafter referred to as the "party's resolution of this case") by the resolution of the board of directors of this case, which had been amended on January 11, 200001.

Therefore, it is true that the plaintiffs are changing their respective claims according to the process of the merger in this case, such as conclusion of the merger contract, resolution of approval of the merger, and registration of the merger. However, the purpose of the plaintiffs to achieve through the lawsuit in this case is to prevent the merger between the national bank and the housing bank. Thus, the factual dispute interest itself is common between the purport of the claim before and after the modification in this case. In addition, the litigation data is also common to the extent that the continuous implementation of the deliberation is justified. In light of this, the plaintiffs' modification in this case is legitimate, since the identity of the basis of the claim is recognized. Thus, the defendant's above argument is without merit.

3. Determination as to whether a lawsuit seeking confirmation of invalidity by the Plaintiff’s resolution is legitimate

A. The plaintiff's assertion

On November 1, 2001, the Plaintiff asserted that a resolution that appointed Nonparty 1 as the president of the Defendant Bank on November 1, 2001 by the board of directors of the Defendant Bank was null and void, and sought confirmation of its invalidity.

(1) In accordance with Article 24 of the Banking Act, the president of the Defendant Bank established following the merger of this case shall be appointed upon the recommendation of the Executive Recommendation Committee composed of outside directors. Since the president of the Defendant Bank, established by the merger of this case, disregards the authority of the Executive Recommendation Committee and actually appointed by the Executive Candidate Selection Committee under the merger Promotion Committee, which is a voluntary organization, is in violation of Article 24 of the Banking Act and null and void.

(2) The resolution for the appointment of directors, which was made with the approval of the merger contract at the instant general meeting of shareholders, is null and void due to the reasons such as the date of the general meeting of shareholders, the notice for convening the general meeting of shareholders, the obstruction of shareholders' attendance, and the lack of quorum, so there was no appointment of directors of the Defendant bank. Accordingly, the resolution for the appointment of directors of the Defendant bank on November 1, 201 by the board of

(3) Even if the resolution on the appointment of directors at the general meeting of shareholders of this case is valid, since directors of the company to be newly incorporated due to the merger shall be appointed at the general meeting of shareholders of the newly incorporated company, the directors of the defendant bank shall not be appointed at the general meeting of shareholders of the newly incorporated company, and even if the appointment of directors at the general meeting of shareholders of this case is deemed as the appointment of directors of the defendant bank of the defendant bank, the defendant bank recommended and appointed the president on November 1, 2001 and registered the incorporation on the same day. Thus, since the registration of incorporation was completed and the term of office of the director of the defendant bank recommended and appointed the president before the commencement of the term of office of the

(b) Markets:

In a case where a suit is filed for confirmation of a company's existence or absence of a wrong legal relationship, the legal relationship between the plaintiff and the defendant brings an apprehension or risk to the plaintiff's legal status or legal relationship, and the legal relationship with the defendant becomes an effective means to eliminate the plaintiff's legal status or legal relationship's apprehension or risk to the plaintiff's legal status or legal relationship (see Supreme Court Decision 96Da2549, 25456, Jun. 10, 1997, etc.). The shareholder has only a de facto, general, abstract interest with respect to the company's management or property relation as a stock owner, and it cannot be said that he has a specific or abstract interest with respect to the company's management or property relation, and it can only affect the company's business through a resolution of the general meeting of shareholders without directly participating in the management of the company or through the shareholder's supervisory authority. Thus, the shareholder may not intervene in the company's legal relationship with the director by exercising his right to maintain the company's act or enforcing its liability directly through a representative lawsuit.

Therefore, we examine whether the Plaintiff, a shareholder of the Defendant Company, has legal interest in seeking confirmation of the resolution of this case. The validity of the resolution of this case’s board of directors cannot be directly related to the Plaintiff’s status or right, which is a shareholder of the Defendant Bank. Therefore, the Plaintiff cannot be deemed to have legal interest in seeking confirmation of invalidity of the resolution of the Defendant Bank’s board of directors. Therefore, the Plaintiff’s claim for confirmation of invalidity of the resolution of this case

4. Judgment on the plaintiffs' claim for nullification of the merger of this case

As the merger between a national bank and a housing bank becomes null and void, the plaintiffs asserted the following several claims as the grounds for nullification. They will be divided into the grounds for nullification and other grounds for nullification relating to the general meeting of shareholders.

(1) Grounds for invalidation concerning shareholders' general meeting

(A) The allegation that the selection of a general meeting of shareholders is unlawful

① Plaintiffs’ assertion

The National Bank of Korea (hereinafter referred to as the "Company") completed the general meeting of shareholders for approval for merger agreement until October 2001, and the company intentionally interferes with the exercise of shareholders' rights on September 29, 2001, which is earlier than 20 days, as a Saturday, since the end, end, and end of the quarter overlap as a Saturday, and the attendance of minority shareholders holding more than the majority of the total shares is nothing more than a string of the source of attendance of minority shareholders who hold more than the majority of the total shares, since the merger agreement is concluded until October 201.

(2) Determination

In order to prevent the exercise of rights by minority shareholders, there is no evidence that the company intentionally decided on September 29, 2001 as the general meeting of shareholders. Rather, according to the testimony of Non-Party 2 of the witness and Non-Party 3 of the witness Non-Party 3, the National Bank and the Housing Bank planned to list depository receipts of the merged bank on the U.S. Stock Exchange, and should complete the resolution of approval for the merger contract until September 2001. Even if there were circumstances where it is difficult for the company to attend the general meeting of shareholders due to the reasons alleged by the plaintiffs, it is difficult to view that there was any defect in the general meeting of shareholders of this case.

(B) The assertion that the notice of convening a general meeting is illegal

① Plaintiffs’ assertion

On September 21, 2001, 8 days prior to the general meeting of shareholders of this case, the company called a notice of convening a general meeting of shareholders to shareholders. Article 5(4) of the Act on the Structural Improvement of the Financial Industry, which allows shareholders to give notice of convening a general meeting of shareholders seven days prior to the merger of insolvent financial institutions, applies only to the merger of insolvent financial institutions, and the merger of insolvent financial institutions cannot be applied. Thus, the above notice of convening a general meeting of shareholders of the company is unlawful against Article 353(1) of the Commercial Act, which allows shareholders

(C) Even if the merger of this case is subject to the Act on the Structural Improvement of the Financial Industry, a notice of convening a general meeting of shareholders of the company is given not later than two weeks before the general meeting of shareholders under the articles of incorporation of the company.

In addition, it is practically impossible for domestic beneficial shareholders to express their intent to the Korea Securities Depository by September 24, 2001 in accordance with Article 174-6 (5) of the Securities and Exchange Act by September 24, 2001, which is five days before the general meeting of shareholders, in the name of the Korea Securities Depository under the name of the Korea Securities Depository on the register of shareholders of the company. In light of the wind sent to beneficial shareholders on September 21, 2001, the notice of convening the general meeting of shareholders of the company was sent to the Korea Securities Depository by September 24, 2001, it is practically impossible for them to express their intent to the Korea Securities Depository by September 24, 2001.

(2) Determination

Under the Act on the Structural Improvement of the Financial Industry, the purpose of which is to contribute to the balanced development of the financial industry by supporting the structural improvement of the financial industry, such as the merger, conversion, and reorganization of financial institutions, promoting sound competition between financial institutions and raising the efficiency of financial business. The merger between the superior financial institutions, such as the merger, in this case, shall be deemed to fall under the category of structural improvement of the financial industry, and the merger between the superior financial institutions shall be deemed to fall under the category of structural improvement of the financial industry, and the merger of insolvent financial institutions shall not be deemed to fall under the category of structural improvement of the financial industry. In addition, in light of the fact that the above Act

In addition, Article 5 (4) of the above Act, which provides that a notice of convening a convocation seven days prior to the date of the general meeting of shareholders, was newly established to the effect that the period required for the merger of financial institutions will be reduced in order to systematically support the restructuring of the financial industry on September 14, 1998, which was after the IMF, and this shall be applied in preference to Article 363 (1) of the Commercial Act. Thus, it is legitimate for a company to issue a notice of convening a convocation eight days prior to the date of general meeting of shareholders of this case to the effect that it is legitimate in accordance

(b) Next, according to Article 5 (2) of the Addenda to the Act on the Structural Improvement of the Financial Industry (No. 5549, September 14, 1998), the notice of convening a general meeting of shareholders of a financial institution shall be governed by the above Act if it is otherwise provided in Article 5 (4) of the above Act. Thus, the above provision shall apply to the notice of convening a general meeting of shareholders of a financial institution, and the provisions

Finally, the Act on the Structural Improvement of the Financial Industry, which allows a notification of convening a general meeting of shareholders seven days prior to the date of the general meeting of shareholders, is somewhat imminent in light of the date necessary for the declaration of intent to exercise voting rights to the Korea Securities Depository of the Republic of Korea (hereinafter referred to as the “Korea Securities Depository”) provided for in the former Securities and Exchange Act (amended by Act No. 6623, Jan. 26, 2002; hereinafter the same). However, according to the evidence No. 4-2, the company attached the notice of convening a general meeting of shareholders to the Korea Securities Depository when it gives notice of "the exercise of voting rights by the beneficial shareholder". The notice can be acknowledged that there was a statement of intention by facsimile as well as the fact that the Fax number of the Korea Depository was stated on September 24, 2001, because it is not impossible for the beneficial shareholder to express his/her intention to the Korea Securities Depository by September 24, 2001, it cannot be viewed that the notification of convening a general meeting of shareholders is unlawful.

(C) Claim that the company obstructed the exercise of shareholders' rights at the place of shareholders' general meeting.

① Plaintiffs’ assertion

The chief company illegally prevented the position of the chief of the general meeting of shareholders by using police-related forces to stop the attendance of the chief of the meeting of shareholders of the union members who have one week a week to the police, and by using the police-related force to reduce the source of the site of the general meeting of shareholders. On the same day, the company did not implement all the procedures to confirm the qualification of the shareholders or agents, and entered only part of the employees who are not specific shareholders and shareholders through the underground secret passage.

(C) A person, other than the shareholders, entered the general meeting of shareholders, who is not a shareholder, and was engaged in the conduct of shareholders, such as "I consent", "I do not raise any objection" in the process of voting on the agenda, and "I will interfere with the company's legitimate exercise of rights by shareholders."

(2) Determination

㉮ 갑가 36호증, 40호증, 갑가 63호증의 1, 2, 65호증, 66호증, 갑나 4호증, 10호증 내지 13호증(갑나호증은 가지번호를 포함한다)의 각 기재와 증인 소외 2의 증언, 증인 소외 3의 일부증언 및 이 법원의 비디오테이프검증결과에 의하면, 주주총회 당일 회사의 요청에 따라 출동한 경찰이 주주총회가 시작되기 전 주주총회장 입구 및 주변에 도열하여 회사의 주주 확인 창구 앞을 막아서는 등의 방법으로 노조원들의 주주총회장 입장을 저지한 사실을 인정할 수 있으나, 위 인정 사실만으로는 회사측이 경찰병력을 동원하여 소액주주들의 주주총회장 입장을 불법적으로 저지하였다고 보기에는 부족하고, 오히려 위 각 증거 및 갑가 1호증 내지 3호증, 5호증, 56호증, 61호증, 을 5호증, 6호증, 9호증 내지 11호증(가지번호를 포함한다)의 각 기재에 변론의 전취지를 종합하면, 이 사건 합병에 대하여 국민은행과 주택은행 노동조합은 1만 5천여 명의 조합원이 국민은행 연수원에서 농성을 벌이는 등의 방법으로 강경한 반대투쟁을 벌여 온 사실, 두 은행의 합병계약이 주주들에 의하여 승인됨으로써 합병이 결정되는 마지막 단계인 이 사건 주주총회에 대하여 국민은행 노동조합은 그 소유의 주식 13,214주에 대하여 1주씩의 주주총회 참석장 9,000매를 회사로부터 발급받아 이를 노조원들에게 나누어주고, 주주총회 당일 참석장을 소지한 수 천명의 노조원들이 주주총회장에 집결하여 주주총회를 저지하는 방법으로 합병승인결의의 통과를 막으려고 하였던 사실, 이와 같이 노조원들에 의한 주주총회 방해가 우려되자 회사는 주주총회 전날인 2001. 9. 28. 서울지방법원으로부터 노조원들이 회사 주주 및 임직원들의 주주총회장 입장을 방해하는 행위를 금지한다는 주주총회개최등방해금지가처분을 받고 관할경찰서인 남대문경찰서에 질서유지를 위한 경찰병력의 출동을 요청한 사실, 현장에 출동한 경찰은 회사의 요청에 따라 노동조합 대표 1인을 제외한 1주씩의 참석장을 가진 노조원들의 주주총회장 입장을 막기 위하여 주주총회장 입구를 봉쇄하였고, 다른 한편으로 당일 주주총회 진행을 책임진 회사의 총무부장 소외 2는 주주총회가 시작되기 전 도열한 경찰의 뒤편에서 소액주주들이 주주 확인 창구에서의 확인절차를 거쳐 주주총회장에 입장할 것을 핸드마이크를 통하여 수 차례 방송한 사실, 당시 현장에 집결한 노조원 1,000여 명은 주주총회장 입구에 도열한 경찰병력 앞에 길게 줄을 선 다음, 1주씩의 참석장을 가진 노조원 역시 주주임을 주장하며 주주총회장 입장을 저지하는 회사측에 거칠게 항의하는 한편, 노조원들보다 뒤에 도착한 일반 소액주주들이 주주총회장에 입장하려 하자 줄을 서서 순서대로 입장할 것을 강변한 사실, 이와 같은 상황에서 노조원뿐 아니라 일부의 일반 소액주주들도 주주총회장에 입장하지 못하게 된 사실을 인정할 수 있는바, 위 인정 사실에 의하면 노동조합에서 그 소유 주식 13,214주에 대하여 1주씩의 참석장 9,000매를 노조원들에게 나누어주어 의결권을 행사하게 하는 것이 비록 상법에 보장된 의결권 불통일 행사의 한 가지 방법이라 하더라도, 노동조합 대표자 1인이 주주총회에 참석해서 13,214주의 의결권에 대한 불통일 행사를 하면 충분한 것을 굳이 9,000매의 참석장을 발급받아 그 참석장을 소지한 노조원들로 하여금 의결권을 행사하게 하겠다는 것은 주주총회장에 노조원을 최대한 동원시켜 실력으로 주주총회를 저지하겠다는 의도라고 보아야 할 것이므로, 결국 이 사건 주주총회 당일 회사측이 주주총회장 입구를 봉쇄하고 노조원들의 입장을 저지한 것은 위와 같이 노동조합의 주주총회 저지 의도가 뚜렷한 상황에서 정상적인 주주총회 개최 및 진행을 위한 정당한 조치라고 인정되고, 경찰로서도 당일 주주총회 현장에서의 회사측과 노조측의 물리적인 충돌 방지 및 정상적인 주주총회를 위한 질서 유지 차원에서 출동한 것으로서 적법한 공권력의 행사라고 볼 수 있다.

(C) Next, as to the plaintiffs' assertion that the company did not implement the procedure to confirm the company's qualification against the shareholders or agents who entered the general meeting of shareholders, there is no evidence to acknowledge it. Rather, according to the statements in No. 36, No. 63, testimony of witnesses No. 63, testimony of Non-party No. 2 and Non-party No. 4, and the result of this court's video tape verification, some shareholders, representatives, and persons related to the general meeting of shareholders enter the general meeting of shareholders through a separate channel after receiving guidance from the company's company. This can be deemed to be an inevitable measure taken by the company to go through the general meeting of shareholders by entering the shareholders or agents and the persons related to the company's general meeting of shareholders, as seen above, in a situation where the shareholders' general meeting of shareholders is deemed impossible at the time, it can be deemed that there is any defect that can invalidate the merger of this case in relation to the shareholders' general meeting of shareholders.

(C) The assertion that there is a defect in the voting method of the general meeting of this case

① Plaintiffs’ assertion

The voting method of the general meeting of shareholders is not only a full-time meeting, but also a voting procedure for each bill of the general meeting of shareholders, and the voting procedure for the voting without going through the procedure for the voting and ballot counting, although there was an objection against the bill of approval for the merger of this case, the voting method is illegal.

(2) Determination

The method of voting at a general meeting of shareholders does not have any provision in the relevant statutes and the company's articles of incorporation, and if the method of verifying the intent of the shareholders present at the meeting is the same as that of the shareholders present at the meeting, it shall be deemed that there is no way to confirm the intention of the shareholders present at the meeting, and if no objection is raised by the Speaker, it shall be a legitimate method of voting to pass the bill by the vote.

As to the approval for the merger contract of this case, as stated in the separate list of shareholders, 1,324,014 out of 98,79,316 shares of foreign beneficial shareholders and overseas listed shares [limited to 168,251 shares out of 19,92,623 shares, and 631,175 shares out of 75,00 shares of domestic beneficial shareholders in deposit with the Depository, the 252,319,95 shares out of 19,95 shares were informed of the approval method for the merger contract of this case and the 1,324,014 shares out of 19,00 shares of foreign beneficial shareholders present at the above 2,123,440 shares, and there were no objections against the approval method for the merger contract of this case and the 394,00 shares out of 19,00 shares of foreign beneficial shareholders present at the 252,319,95 shares of this case.

(D) The assertion that the exercise of voting rights by the Depository is null and void.

① Plaintiffs’ assertion

In the instant case, Nonparty 4, an employee of the Depository’s general meeting of shareholders, exercised voting rights with respect to the stocks of a foreign beneficial shareholder and New York Bank DDR. The above Nonparty 4 did not submit the original documents proving that he/she is a proxy of the company until the resolution of the approval plan for merger contract on the date of the instant general meeting of shareholders. Moreover, Nonparty 4 did not express any intent at the time of voting even though he/she was delegated to express his/her opposition to the approval plan by a certain delegating person, such as a foreign beneficial shareholder, even though he/she was delegated to exercise voting rights. Thus, the portion of exercise of voting rights by the Depository is null and void because a non-qualified person exercised voting rights or did not exercise voting rights.

(2) Determination

Comprehensively taking account of the witness Nonparty 2 and Nonparty 4’s testimony and arguments, the Depository may recognize the fact that: (a) prior to the instant general meeting of shareholders, Nonparty 4 notified the Company of each agenda of the Depository’s exercise of voting rights; (b) the person in charge of the company’s general meeting of shareholders was aware of the fact that Nonparty 4 was an employee in charge of the Depository’s exercise of voting rights; (c) on the date of the date of the instant general meeting of shareholders, Nonparty 4 submitted documents related to the general meeting of shareholders to Nonparty 5, a working-level employee of the National Bank; and (d) obtained confirmation that Nonparty 4 was a legitimate right holder to exercise voting rights of the foreign beneficial shareholder and the New York Bank DDR; (c) around the time of Nonparty 4’s entry into the place of general meeting of shareholders; and (d) obtained the said documents submitted by Nonparty 5’s proxy from Nonparty 4; and (d) on the date of this case’s general meeting of shareholders, even if Nonparty 4 had been aware of his proxy’s exercise of voting rights in this case’s exercise of voting rights.

In addition, even if the non-party 4 did not separately express his/her dissenting opinion delegated in the course of approval of merger contract, as seen earlier, the exercise of voting rights by the non-party 4 was planned in advance, and as long as the contents were reflected in the voting result as they are, it shall be deemed that the non-party 4 lawful exercise of voting rights as delegated by the shareholders.

(e) Defects in documents related to exercise of voting rights

① Plaintiffs’ assertion

Since Nonparty 2, Nonparty 6, Nonparty 7, and Nonparty 8, who exercised voting rights by proxy, exercised voting rights without submitting a document proving the right of representation on the day of the general meeting of shareholders, their exercise of voting rights is invalid.

(B) In addition, according to the articles of incorporation of the company, the non-party 6, the non-party 7, and the non-party 8 exercise their voting rights without submitting a document proving the shareholder qualification. Thus, the exercise of voting rights by proxy is invalid.

In the event of a notice of convening a general meeting of shareholders, the proxy notified of the notice of convening a general meeting of shareholders to attend the power of attorney and the letter of attendance. However, the shareholder Han Cement Industry Co., Ltd., National Pension Fund Accounting Officer, Youngsung Co., Ltd., Young Life Insurance Co., Ltd., Allied Life Insurance Co., Ltd., Alley Man Mansle, Alley Mansle Mansle, Alley Manslemans (hereinafter the above two are referred to as "Alley Mans") and the representatives of Non-Party 9, Non-Party 10, Non-Party 11 and Non-Party 12

The agent of a personal shareholder who attends the meeting of shareholders shall submit a copy of his/her identification card and the agent's identity card to the company, and the agent of a corporate shareholder shall submit a copy of the business registration certificate and a certificate of the corporation's personal seal impression to the company, and if the shareholder does not have a presence certificate, he/she shall submit

(2) Determination

For the shareholder who delegated the exercise of voting right to Nonparty 2, who is the general secretary of the company and who is responsible for the progress of the general meeting of shareholders of this case, the company is already aware of the qualification of Nonparty 2’s agent in the company. Therefore, the proof of the power of representation is not a problem. In relation to Nonparty 6, Nonparty 7, and Nonparty 8, there is no evidence to prove that he did not submit a document certifying the power of representation to the company on the day of the

(1) Article 4-2 (1) of the Act provides that "the exercise of voting rights by a third party, such as a shareholder, shall be limited to a third party, such as a shareholder, and the exercise of voting rights shall be limited to a third party's exercise of voting rights, regardless of the provisions of the articles of incorporation." (1) of the Act provides that "the exercise of voting rights by a third party, such as a shareholder, shall be limited to a shareholder, and the exercise of voting rights shall be limited to a third party's exercise of voting rights by a shareholder, and shall be limited to a third party's exercise of voting rights by a shareholder, regardless of the provisions of the articles of incorporation." (2) of the Act provides that "the exercise of voting rights by a third party, such as a shareholder, shall be limited to a shareholder, and the exercise of voting rights by a shareholder shall be limited to a third party's exercise of voting rights by a person who is not a shareholder." (3) of the Act provides that the company shall guarantee the exercise of voting rights by a person who is not a shareholder.

In order to prevent a disaster, and to exercise voting rights by proxy, "a document proving the power of attorney to submit to the company's side" refers to the power of attorney, and the company's submission of a letter of proxy along with the power of attorney is intended to verify the company's qualification more clearly. Therefore, the company's failure to submit a letter of proxy to the company's side by proxy, which alone does not affect the validity of the exercise of voting rights by proxy.

In addition, even if the shareholder himself/herself does not possess a letter of attendance, he/she shall undergo a procedure to verify the shareholder himself/herself through identification cards and whether he/she holds the same seal impression as presented to the company. If the shareholder's agent is a proxy, he/she shall receive a letter of delegation, and whether the shareholder's personal information stated in the letter of delegation is the same as the shareholder's personal information stated in the letter of delegation, and whether the shareholder's personal information stated in the letter of delegation is the same as the shareholder's personal information submitted to the company, and through comparison of the proxy's personal information stated in the letter of delegation, it shall be deemed that the shareholder himself/herself or his/her agent need not submit a

(F) Nonparty 2’s assertion that the exercise of voting rights by proxy is invalid

① Plaintiffs’ assertion

In the instant case, Nonparty 2 exercised voting rights by proxy at the general meeting of shareholders of the instant case, which is a foreign shareholder. In the case of foreign shareholders, only a full-time agent may exercise voting rights by proxy pursuant to the Securities Business Supervision Act, but Nonparty 2 did not have a full-time agent of the Alley Mans. Thus, Nonparty 2’s exercise of voting rights by proxy is null and void because it violates the Securities Business Supervision Act.

(2) Determination

The Securities Business Supervision Regulations (amended by the Financial Supervisory Commission No. 201-72, Oct. 4, 2001; hereinafter referred to as the "Supervision Regulations") which was in force at the time of the instant general meeting of shareholders are prescribed by the Financial Supervisory Commission according to delegation by the Securities and Exchange Act and its Enforcement Decree, and Article 7-16 (1) of the Supervision Regulations provides that foreign shareholders shall not exercise voting rights by proxy. In cases where a foreign shareholder appoints a full-time representative (the foreign shareholder shall be a full-time representative under Article 7-15 of the Supervision Regulations), a foreign shareholder shall not be deemed to be a full-time representative (the foreign shareholder shall be a bank, securities company, etc. that keeps foreign shareholders' stocks under Article 7-15 of the Supervision Regulations) and shall not be deemed to be the purpose of preventing in advance uncertainty of the exercise of voting rights and confusion in cases where a foreign shareholder intends to exercise voting rights by appointing another person who is not a full-time representative, and therefore, it shall not be deemed that a full-time representative entrusted by a foreign shareholder shall not be re-off.

In full view of the statements in Eul evidence 7-24 and 25 as to this case and the testimony of non-party 2 as well as the whole purport of the pleading, the general meeting of the shareholders of this case can recognize the fact that the non-party 2 was re-entrusted to exercise the voting right by the Alley Mans Securities Company Seoul branch, a full-time agent of the Alley Mansium, and the non-party 2 exercised the voting right. Thus, the exercise of voting right by proxy of non-party 2 is not in violation of the above supervisory regulations.

(E) The ground that the Korea Securities Depository’s exercise of voting rights on the shares of domestic beneficial shareholders is invalid.

① Plaintiffs’ assertion

In principle, the Depository may exercise voting rights on the shares of beneficial shareholders deposited with the Depository no later than five days prior to the general meeting of shareholders, but the Securities and Exchange Act does not allow the Depository to exercise voting rights on the shares held by the Depository (Article 174-6 (5) 3 of the Securities and Exchange Act). As such, the voting rights exercised by the Depository for the shares of domestic beneficial shareholders in the general meeting of shareholders on the approval of merger should be null and void. Meanwhile, while the Act on the Structural Improvement of the Financial Industry provides an exception that the Depository may exercise voting rights on the shares of domestic beneficial shareholders in the resolution of the merger approval, the said Act is irrelevant to the Government’s provision of public funds, and it cannot be applied to the merger of this case that is unrelated to the structural improvement of insolvent financial institutions.

(2) Article 174-6(5) of the Securities and Exchange Act provides that a beneficial shareholder shall express his/her intention to exercise voting rights to the Depository by September 24, 2001, which is five days before the general meeting of shareholders of this case, in order for the Depository to exercise voting rights to the shares of the beneficial shareholder. The notice of convening the general meeting of shareholders of this case was sent on September 21, 2001 to the Depository, and it was impossible for beneficial shareholders to express their intention to the Depository by September 24, 2001. Thus, it is an unlawful exercise of voting rights infringing upon the shareholder’s rights.

According to Article 174-6 (5) 4 of the Securities and Exchange Act, where a beneficial shareholder exercises voting rights directly or by proxy at a general meeting of shareholders, the Depository may not exercise voting rights. From among the total shares of domestic beneficial shareholder deposited in the Depository, the number of beneficial shareholder on the date of the instant general meeting of shareholders is 4,387,158 shares, which are 73,168,936 shares (7,526,094 - 4,387,158), even though the number of voting rights exercised by the Depository is not outside of 73,168,936 shares (7,526,094), the Depository exercised voting rights to 75 million shares at the general meeting of shareholders of this case, and thus the exercise of voting rights is null and void.

(2) Determination

Under the Securities and Exchange Act, the voting rights of the Depository are restricted in the resolution of the general meeting of shareholders on the approval of merger contracts, as alleged by the plaintiffs. However, Article 5(10) of the Act on the Structural Improvement of the Financial Industry permits the Depository to exercise voting rights on the stocks of the beneficial shareholders deposited in the event a financial institution makes a merger resolution. The merger of this case is governed by the Act on the Structural Improvement of the Financial Industry. Thus, the exercise of voting rights by the Depository is based on the above Act and is lawful

In addition, as seen earlier, it is difficult to view that the notification for convening a general meeting of shareholders was somewhat imminent in light of the time when it is necessary to express the intention to exercise voting rights to the Depository of the Korean beneficial shareholder, and therefore, it cannot be said that the exercise of voting rights by the Depository is illegal that it infringes on the rights of the beneficial shareholder.

(b) Even if the total number of voting rights of beneficial shareholders on the date of the general meeting of shareholders in Korea deposited with the Depository and the number of voting rights of beneficial shareholders on the date of the general meeting of shareholders is as alleged by the Plaintiffs, as seen earlier, even if the number of voting rights of the Depository is merely 73,168,936 shares pursuant to Article 174-6 (5) 4 of the Securities and Exchange Act, this is a case where the company calculated and calculated the number of voting rights of the Depository by mistake, so it is the number of voting rights of the Depository to reduce the number of voting rights of the Depository to 73,168,936 shares so that it can be exercised, and then the number of voting rights of the Depository may not be reduced to 75,00 won until the date when the general meeting of shareholders is exercised (Article 7-23 (1) of the Securities and Exchange Act). Thus, the number of voting rights of the Depository is likely to be exercised by its proxy on the date it is decided that the number of voting rights of the issuer is more than the number of voting rights of voting rights of the Depository.

(f) The argument that the Korea Securities Depository’s exercise of voting rights on the shares of foreign beneficial shareholders is invalid.

① Plaintiffs’ assertion

The foreign shareholders' shares can exercise their voting rights by proxy pursuant to Article 7-16 of the Regulation on Supervision. The Depository is not a full-time agent of the foreign shareholders, and the Depository is invalid because it is not a full-time agent of the foreign shareholders.

(2) Determination

Article 7-23 of the Regulation on Supervision is a provision on the exercise of voting rights by the Depository with respect to the stocks of beneficial shareholders who did not express their intention to exercise voting rights not later than five days prior to the general meeting of shareholders among the stocks deposited with the Depository pursuant to Article 174-6 (5) of the Securities and Exchange Act, and the stocks of foreign beneficial shareholders are excluded from the stocks subject to voting rights pursuant to Article 7-21 (2) 2 of the Regulation on Supervision.

However, according to Article 7-15 (1) and (2) of the Securities and Exchange Act, a foreign beneficial shareholder shall keep the acquired stocks in a depository, securities company, etc. The depository shall re-deposit this stocks with the Depository. According to Article 174-6 (1) of the Securities and Exchange Act and Articles 30, 31, and 58 of the Regulations on Deposit and Settlement of Securities (hereinafter “Deposit Regulations”) as delegated by the Depository, the Depository may exercise its voting rights as stated in the contents of the application at a general meeting of shareholders after receiving an application for voting right accompanied by the contents of the application by beneficial shareholder from the Depository. The business of applying for voting right is possible through the computer processing system established between the Depository and the Depository. Since the foreign beneficial shareholder is not a 58 evidence, 7-31 through 33, 18, 419, 4, 19, 4 testimony of the witness at a general meeting of shareholders of the Korea Securities and Exchange Act, and 5-4, 397, 196, 196, 34, 5, etc. of the deposit Depository.

(F) The assertion that the notice of convening a general meeting of shareholders against foreign beneficial shareholders is unlawful

① Plaintiffs’ assertion

The company issued a notice of convening a general meeting of shareholders to an institution that keeps the stocks of foreign beneficial shareholders, such as Dota Bank, but did not issue a notice of convening a general meeting of shareholders to foreign beneficial shareholders. Since the depository institution did not directly give a notice of convening a general meeting of shareholders to foreign beneficial shareholders, it is illegal that the notice of convening a general meeting of shareholders against foreign beneficial shareholders of the company is illegal.

(2) Determination

According to Article 174-7(3) and (4), Article 174-8(1) and (2) of the Securities and Exchange Act, and Article 353(2) of the Commercial Act, with respect to the stocks deposited with the Depository, the Depository shall notify the issuing company of the name, address, etc. of the beneficial shareholder notified by the depositor who deposited the stocks. Based on this, the issuing company shall prepare the beneficial shareholder registry. The real shareholder registry so prepared shall have the effect of immunity such as the register of shareholders. According to Article 25 of the Deposit Regulations and Article 30 of the Enforcement Rule thereof, the depositor shall notify the Depository of the name, address, etc. of the full-time agent in case a foreign beneficial shareholder appoints a full-time agent, and the address in case a full-time agent is not appointed. Thus, the issuing company shall be deemed to have given notice to the Depository on the stocks of a foreign beneficial shareholder deposited with the Depository through the Depository, if it gives notice to the address of a full-time agent or the address in Korea.

In full view of the health class, Gap's evidence Nos. 31, Eul's evidence Nos. 16 to 18, and the result of fact-finding with respect to the Depository and the whole purport of the oral argument, the company in relation to the shareholders' general meeting of this case can recognize the fact that the company received notice from the Depository and received notice from the Depository to the address of the full-time representative of the foreign beneficial shareholder stated in the roster of beneficial shareholders or the address of domestic notification to the foreign beneficial shareholder. Thus, the company's notice of convening a general meeting

(G) The assertion that there was no delegation of voting rights by a foreign beneficial owner

① Plaintiffs’ assertion

Around September 24, 2001, Dota Bank, etc., a foreign beneficial shareholder depository institution, received a notice of convening a general meeting of shareholders of this case from the company must take into account the time when the Dota Bank, etc. issued a notice by mail to foreign beneficial shareholders and the foreign beneficial shareholders who received the notice will be required to make a decision and again make a declaration to Doesa Bank, etc., it is impossible to delegate the exercise of voting rights to foreign beneficial shareholders to Doesa Bank, etc. Therefore, even though foreign beneficial shareholders have not made a delegation of voting rights to the full-time representative of Doesa Bank, etc., it is unlawful to exercise voting rights by the Depository against foreign beneficial shareholders, as it applied for the exercise of voting rights to the Depository.

According to Article 7 of the Procedure for the Sub-Execution of the Postal Savings Act, a beneficial shareholder shall declare to the depositor by no later than seven days prior to the date of the general meeting of shareholders, and the depositor shall declare to the Depository by no later than five days prior to the date of the general meeting of shareholders. No request was made with respect to the exercise of voting rights by foreign beneficial shareholders to the Depository by September 24, 2001, which is five days prior to the date of the general meeting of shareholders. The Depository received an application from a foreign beneficial shareholder through the depositor communications system (SAFE) after September 24, 2001. Since the closing date is a mandatory provision that must be followed when considering equity among shareholders, the Depository’ exercise of voting rights by foreign beneficial shareholders after receiving an application shall be null and void.

In addition, by September 26, 2001, the application for the exercise of voting rights was 78,714,147 shares, and the application for the exercise of voting rights was 98,884,012 shares until September 27, 2001, and the Periodical Depository exercised voting rights at the general meeting of shareholders of this case.

(2) Determination

It is insufficient to recognize that the depositor of the Domina Bank, etc. who applied for the exercise of voting rights with respect to 98,794,316 shares of foreign beneficial shareholders by means of telephone, facsimile, mail, mail, etc. as to 63 shares of foreign beneficial shareholders, and that the depositor of the Domina Bank, etc. who applied for the exercise of voting rights by the Depository was not delegated with the exercise of voting rights by the foreign beneficial shareholders, or that the Depository was delivered with the intent different from the actual exercise of voting rights by the Depository as to whether the approval of the merger contract in this case. Moreover, there is no other evidence to acknowledge otherwise. Furthermore, there is no separate method of delivering the notice to the general meeting of shareholders by the full-time agent of the Domina Bank, etc. who received the notice of the notice of the notice of the convocation of the general meeting of shareholders by the company to foreign beneficial shareholders, and thus, it is sufficiently possible to confirm the intent of the exercise of voting rights by the said full-time agent (which also applies to the Depository).

As seen earlier, Article 174-6 (5) of the Securities and Exchange Act provides for the matters necessary for the Depository to exercise voting rights with respect to the stocks for which a domestic beneficial shareholder failed to express his/her intention to exercise voting rights to the Depository by no later than five days prior to a general meeting of shareholders. As such, Article 7 of the Procedure for Exercising the Plaintiffs’ Claims and Article 7 of the same Act provides for the time limit for the Korea beneficial shareholder to express his/her intention to exercise voting rights to the Depository. Thus, it is irrelevant to the exercise

However, pursuant to Article 31(1) of the Securities and Exchange Act, where the Depository exercises the voting rights of a foreign beneficial shareholder pursuant to Article 174-6(1) of the Securities and Exchange Act, the time limit when a foreign beneficial shareholder makes an application to the Depository through the depositor is no later than five business days prior to the date of the general meeting of shareholders, and in the case of the general meeting of shareholders for the approval of a financial institution like this case, it is at least three business days prior to the date of the general meeting of shareholders (in accordance with the result of inquiry on the Depository of this court, Articles 3 and 4 of the "Agreement on the Exercise of Voting Rights by Request" concluded between the depositor such as Domina Bank and the Depository, the depositor shall file an application for the voting rights with the Depository three business days prior to the date of the general meeting of shareholders through the depositor communications system (SAFE). However, considering the testimony of the witness 4, the inquiry results with the Depository and the purport of oral argument, it is impossible to interpret the so-called foreign beneficial shareholder's voting rights to the Depository by 197.

Therefore, it is difficult to view that there was any defect in the resolution of the general meeting of shareholders of this case merely by exercising voting rights by summing up the stocks of foreign beneficial shareholders, for which the Depository applied for the exercise of voting rights after the above time limit.

(G) The assertion that the non-united exercise of voting rights by a foreign beneficial shareholder is unlawful

① Plaintiffs’ assertion

Some of the foreign beneficial shareholders held a non-united exercise of voting rights regarding the approval of the merger agreement at the general meeting of shareholders of this case. In order to exercise a non-united exercise of voting rights, foreign beneficial shareholders did not notify the company of the intention to exercise a non-united exercise of voting rights in advance.

(2) Determination

According to Article 31(2) of the Deposit Regulations, in a case where the Depository conducts a non-united exercise of voting rights against the stocks of a foreign beneficial shareholder, it provides that the Depository shall notify the issuing company of the non-united exercise of voting rights three business days prior to the date of the general meeting of shareholders, stating the purport and reason in writing. According to the statement No. 7-33 and the inquiry results with respect to the Depository of this Court, the Depository may recognize the fact that it notified the company of the non-united exercise of voting rights as above in relation to the exercise of voting rights by a foreign beneficial shareholder on September 26, 2001, three business days prior to the date of the general meeting of shareholders of this case. The notice of non-united exercise of voting rights by the Depository is reasonable to deem that the contents of the non-united exercise of voting rights by a foreign beneficial shareholder were included.

(h) The assertion that foreign beneficial shareholders did not include the number of shares present at the meeting.

① Plaintiffs’ assertion

Some foreign beneficial shareholders did not express their intent to agree with or oppose a part of their shares, and the company did not include the remaining shares in calculating the number of shares present at the general meeting of shareholders.

(2) Determination

Comprehensively taking account of the statements No. 58, No. 7-32 of the evidence No. 58, the fact finding to the Depository of this case, the result of the fact inquiry, and the whole purport of the argument, as to the approval for the merger contract of this case, 95 of the total number of foreign beneficial shareholders who applied for the exercise of voting rights to the Depository via the Depository through the depositor, and the remaining shares (7,372,698 shares) may be recognized as having not applied for the exercise of voting rights. As such, the shares for which no application was made from the beginning do not have the authority to attend the general meeting of shareholders, but did not attend the general meeting of shareholders. Thus, it is legitimate that the company is not included in the number of shares present at the general meeting of shareholders

(i) The claim that the exercise of voting rights by the Depository on the depository receipts (De pository Recet, hereinafter referred to as “DR”) of the New York Bank is null and void.

① Plaintiffs’ assertion

In the instant case, the Depository, a full-time agent, exercised voting rights on the DDR 19,92,623 note in the custody of the New York Bank. In order for the New York Bank to exercise voting rights, the said Bank shall notify the actual owners who acquired DDR through the U.S. Stock Exchange, and the actual owners of DDR who received such notification shall notify the Depository of the exercise of voting rights through the New York Bank as prescribed in Article 5-79 of the Regulation on Supervision and Foreign Currency Securities Deposit and Settlement by the Depository, and the New York Bank shall not notify the actual owners of DDR of the exercise of voting rights.

(C) The New York Bank’s agreement in advance to carry out the so-called system for the voting of the New York Bank DDR is invalid as an unlawful act infringing on the rights of beneficial shareholders, who are the actual owners of DDR.

(2) Determination

Article 5-79 of the Plaintiffs’ claim is related to the exercise of rights to foreign currency securities issued by a foreign corporation, etc. by the domestic investor. It is irrelevant to the procedures for exercising rights to foreign securities issued by the domestic investor, such as the New York Bank DDR. In addition, DDR is a securities issued overseas as a substitute for domestic shares for the convenience of overseas investors, and there is an overseas depository in which the issuance of DDR on behalf of the domestic issuer (domestic original issuer) and the exchange of DDR with the original owner for DDR’s exercise of rights. In full view of the Plaintiff’s evidence 7-28 through 30, Eul evidence 13, and 18, the testimony by Nonparty 4, the witness’s testimony to the Depository, and the result and arguments by the court. Accordingly, DDR was lawfully exercised from the date of issuance to the issuing company, New York Bank, New York depository, and the shareholders’ general meeting, excluding the voting rights of the DDR, the owner of DDR’s exercise of voting rights, and the dissenting shareholder’s exercise of D voting rights.

(B) In addition, the agreement between the issuing company and the overseas depository institution, and the actual owner of the DR to give up the exercise of voting rights and instead to do so is due to the situation, etc. where the actual owner of the DR voluntarily holds the DR for profit-making transactions using the DR itself or the DR price difference, and thus, the agreement cannot be deemed null and void in light of these circumstances.

(i) The assertion that proxy voting rights by foreign shareholders is available only to full-time agents.

① Plaintiffs’ assertion

In accordance with Article 7-16 of the Securities Business Supervision Regulations, foreign shareholders are allowed to exercise their voting rights by a full-time agent. Nonparty 4 who exercised voting rights by a New York Bank is not a full-time agent, and the exercise of voting rights is invalid.

(2) Determination

As seen earlier, the fact that a full-time agent entrusted with the exercise of voting rights by a foreign shareholder can re-election the exercise of voting rights to a third party to the third party. According to the evidence Nos. 7-28 through 30 of the New York Bank's evidence, the Depository, which is a full-time agent of the New York Bank, entrusted the exercise of voting rights from the New York Bank's bank, re-entrusts the exercise of voting rights to the non-party 4, who is an employee of the Depository, and accordingly, it can be recognized that the non-party 4 exercised voting rights at the general meeting of this case. Thus, it is legitimate for the non-party 4 to exercise voting rights by proxy of

(j) The assertion that the attendance and power of attorney of the minority shareholders' meeting were forged

Since the plaintiffs asserted that the attendance of some shareholders and the power of attorney of some shareholders were forged, such as the forgery of the attendance of the shareholders, etc. and the non-party 13 and the non-party 14, it is insufficient to recognize the plaintiffs' assertion only by the entry of the evidence No. 64, and there is no other evidence to acknowledge it.

(k) The assertion that the attendance of shareholders who did not attend the shareholders' meeting was aggregated.

① Plaintiffs’ assertion

By the time of the passing of the approval of the merger agreement of this case, Nonparty 15, 16, 16, 1’s agent Nonparty 6, and 12’s agent Nonparty 7 were not present at the general meeting of shareholders. However, the company was aggregated as attendance at the general meeting of shareholders. On the other hand, 60,434 shares of minor shareholders present at the general meeting of shareholders were omitted, and Nonparty 12’s shares were aggregated as of August 8, 2001, which was 2,043 shares of the shareholders as of August 8, 2001, and 397 shares were aggregated as of August 5, 200, and Nonparty 13 owned 51 shares.

(2) Determination

Even if the plaintiffs' assertion is true, it is nothing more than pointing out that the company erroneously calculated the number of shares present at the general meeting of shareholders and the number of shares present at the merger agreement approval. It is obvious in calculating that even if the number of shares present at the general meeting of shareholders and the number of shares present at the meeting are modified and calculated according to the plaintiffs' assertion, it is obvious that the quorum required for passing the merger agreement of this case is satisfied. Thus, the above defect of the plaintiffs' assertion

(2) Other grounds for nullification

(A) The assertion that the conclusion of the MOU is unlawful

The plaintiffs asserted that the conclusion of a letter of understanding on the merger on December 22, 200 by the President of the National Bank and the President of the Housing Bank did not go through a resolution of the board of directors with no deliberation and voting rights on the merger, and thus, the merger of this case is null and void. Therefore, it is not necessary to go through a resolution of the above two banks' board of directors because the letter of understanding does not have any legal binding force on the merger. Furthermore, since the merger contract was concluded through a resolution of the board of directors of the two banks on April 23, 2001, the validity of the merger of this case is no problem.

(B) The assertion that the merger of this case was enforced under the government's initiative

① Plaintiffs’ assertion

The merger of this case is null and void because of the occurrence of monopolyy and olarchy caused by the birth of the primary bank, the occurrence of large scale reduction in the process of the merger, and the outflow of the state and local governments abroad, and its decision making has been unlawfully enforced by the government's initiative.

(2) Determination

The written evidence evidence evidence Nos. 1 through 5, 12, 14, and 22 is insufficient to acknowledge that the government forced a merger against the will of the members or shareholders of the board of directors, which are the decision-making body of the two banks regarding the merger in the instant merger, or neglected the requirements and procedures prescribed in the law, and there is no other evidence to acknowledge it. The other reasons alleged by the plaintiffs are the matters to be considered in the decision-making process for the merger, and they cannot themselves constitute the grounds for nullification of the instant merger.

(C) The argument that the merger of this case was illegally deliberated and decided by the merger promotion committee

The plaintiffs claim that the merger of this case was null and void as it was deliberated and decided by the merger promotion committee, which is an illegal organization made without the consent of the board of directors of the above two banks. Thus, in order to promote the merger of this case more smoothly, the merger promotion committee is a voluntary organization made by the agreement of the president of the above two banks. It does not necessarily require the consent of the board of directors of the two banks. In addition, since the merger contract proposal made by deliberation and coordination of major matters concerning the merger of two banks was approved by the merger promotion committee at the meeting of the board of directors of the two banks, it cannot be deemed that the merger promotion committee decided the merger of this case, and there is no evidence to support that the merger promotion committee decided otherwise, the above plaintiffs' assertion is without merit

(D) The assertion that the merger ratio is illegal and unfair

① Plaintiffs’ assertion

In this case, the merger ratio should be calculated as of April 23, 2001, which is the day preceding the submission of the report of merger in accordance with Article 84-7 (1) of the Enforcement Decree of the Securities and Exchange Act. However, the merger ratio that should be the 1.643213 common shares of the National Bank of Korea per common shares of the Housing Bank, as of December 22, 2000, which is the date of the conclusion of the statement of understanding, shall be the 1.68346 shares of common shares of the National Bank of Korea per common shares of the Housing Bank and shall be the 1.68346 shares of the National Bank of Korea per common shares of the Housing Bank, causing losses to the shareholders of the National Bank of Korea. As long as the merger ratio is unlawful and unfair,

(2) Determination

According to Article 84-7 (1) 1 of the former Enforcement Decree of the Securities and Exchange Act (amended by Presidential Decree No. 17291, Jul. 7, 2001; hereinafter the same) and Article 36-12 (1) of the Enforcement Decree of the Securities and Exchange Act which was enforced at the time of the submission of the merger report of this case, the average closing price for the last one week, average closing price for the last one week prior to the date of submission of the merger report of this case between stock-listed corporations shall be calculated with the last one, but Article 84-7 (3) of the Enforcement Decree of the Securities and Exchange Act provides that the provisions of paragraph (1) of the same Article shall not apply to the merger due to approval, guidance, recommendation, etc. by law or government documents, and Article 4-7 (1) of the Enforcement Decree of the Act on the Structural Improvement of the Financial Industry provides that the merger report of this case shall be approved in advance by the Financial Supervisory Commission, and Article 24 (1) of the Administrative Procedures Act shall not apply to the merger report of this case.

(E) Claim that the general meeting approved a merger ratio different from the contents of the instant merger contract

① Plaintiffs’ assertion

The merger ratio under the merger contract of this case is 1.68346 shares of the National Bank of Korea, although the merger ratio is 1.688346 shares of the common shares of the National Bank of Korea, the chairperson of the general shareholders' meeting of this case proposed approval for the merger contract by stating that the merger ratio is 1.688346 shares of the common shares of the National Bank of Korea per house of the Housing Bank. As a result, the shareholders of the general shareholders' meeting of this case approved the merger contract, not the

(2) Determination

According to the evidence Nos. 28, 35, 33, and 4 (including branch numbers) of this case, when the chairperson of the general meeting of shareholders submits a merger contract approval plan as alleged by the plaintiffs, the merger ratio was erroneous. However, the shareholders present at the general meeting of shareholders should be deemed to have approved the merger contract of this case not only because the merger ratio of this case was stated as 1.68346 shares of the common bank of the Korea Housing Bank, but also as 1.68346 shares of the common bank of the Korea Housing Bank, since the shareholders present at the meeting of this case were aware that the merger ratio of this case was applied to the merger contract of this case but also as 1.68346 shares of the common bank of the Korea Housing Bank.

(f) The assertion that the establishment of the time limit for exercising appraisal rights is unlawful

① Plaintiffs’ assertion

It is against Article 360-5 (1) of the Commercial Act, which provides that the shareholders who oppose the merger may request purchase of shares within 20 days from the date of resolution of the merger at the general meeting of shareholders. Thus, the merger of this case is null and void.

(2) Determination

As mentioned above, the merger of this case is subject to the application of the Act on the Structural Improvement of the Financial Industry, and according to Articles 5(8) and 12(7) of the above Act, where a financial institution makes a resolution of approval of the merger at a general meeting of shareholders, it may have the shareholder opposing the merger exercise his/her right to purchase shares within 10 days after the resolution of the merger. Thus, the above measure of the company against the merger of 10 days is legitimate.

(G) The assertion that the merger of this case is null and void because the inaugural general meeting for the merger was not held.

① Plaintiffs’ assertion

In the case of a new merger, the directors and auditors of the company to be incorporated after the merger at the general meeting of shareholders shall be appointed and the amendment of the articles of incorporation shall be decided, and in the case of the merger at the general meeting of shareholders, the inaugural general meeting shall be omitted and substituted by a public announcement of the board of directors. In addition, even if the general meeting may be substituted by a public announcement of the domestic board of directors, the public announcement of the board of directors at the same time shall be made at least twice in two days in the same manner as the public announcement of the convocation of the general meeting of shareholders.

(2) Determination

Article 527(4) of the Commercial Act provides that a report of the inaugural general meeting of a newly established merger may be substituted by a public notice of the board of directors in the case of a newly established merger, and Article 528(1) of the Commercial Act provides that a registration of a merger may be made within a certain period from the date of closing the inaugural general meeting of a newly established merger or from the date of public notice in lieu of a report. Thus, Article 527(4) of the Commercial Act provides that the inaugural general meeting of a newly established merger can be substituted by

Article 527(2) of the Commercial Act provides that a resolution to amend the articles of incorporation at the inaugural general meeting of a newly established company may be made at the inaugural general meeting. However, Article 312 of the Commercial Act provides that a director and auditor shall be appointed at the inaugural general meeting of a newly established company shall apply mutatis mutandis pursuant to Article 527(3) of the Commercial Act. Meanwhile, Article 524 of the Commercial Act provides that if directors and auditors or members of a newly established company are determined by the merger agreement, their personal information shall be stated in the merger agreement, and in such a case, it is not necessary to appoint directors and auditors of a newly established company at the inaugural general meeting of shareholders of a newly established company at the time of the merger. Furthermore, according to the merger agreement and evidence No. 16, No. 3, 4, and 8 (including serial numbers) of a newly established company, shareholders of a newly established company shall not be appointed at the time of the merger agreement and the list of candidates for the newly established company at the time of the merger.

As long as there is no special provision on the method of public notice in lieu of the inaugural general meeting of a newly established merger in the Commercial Code, the public notice in this case shall also be made in accordance with the general method of public notice as stipulated in the articles of incorporation pursuant to Article 289 (1) 7 of the Commercial Act. Thus, the public notice in lieu of the inaugural general meeting of a newly established merger shall not be the cause of nullification of the merger in this case unless the public notice in lieu of the inaugural general meeting of

(h) The allegation that the merger of this case is null and void in violation of the Notice of the Ministry of Finance and Economy.

① Plaintiffs’ assertion

According to the public notice of the Ministry of Finance and Economy (the standards and support items for the merger, etc. of financial institutions), if the market share after the merger exceeds 30%, the merger cannot be approved. According to the evidence No. 23 (Materials of Financial Supervisory Service, etc.), the merger of this case is obvious that the market share after the merger exceeds 30%, so the merger of this case is null and void due to its violation of the public notice of the Ministry of

(2) Determination

Since Article 4 (1) of the Act on the Structural Improvement of the Financial Industry was amended on May 24, 199 and the right to authorize the merger of this case was transferred to the Financial Supervisory Commission, the merger of this case made in 2001 shall be subject to the Financial Supervisory Commission's guidelines for authorization of banking business established on July 23, 199, and the public notice of the Ministry of Finance and Economy shall not be applicable, and the above guidelines for authorization of banking business shall not be subject to the regulation for authorization according to market share, and the above guidelines for authorization of banking business shall not be subject to the restriction of authorization according to market share, and the Fair Trade Commission's review of competition restriction on the merger

(j) The issue of violation of the monopoly law

Since the plaintiffs claim that the merger of this case constitutes an unfair business combination prohibited under the Monopoly Regulation and Fair Trade Act and thus null and void, it is insufficient to recognize that the merger of this case constitutes a business combination that practically limits competition in a particular business area, such as merger with another company, etc., which practically limits competition, and that the Fair Trade Commission should publicly notify the specific criteria for determination by presumption that the merger of this case constitutes a business combination that practically limits competition in a particular business area. The above argument by the plaintiffs is without merit, since there is no evidence to acknowledge that the merger of this case constitutes a business combination that practically limits competition in a particular business area as determined by the Fair Trade Commission pursuant to Article 7 of the Monopoly Regulation and Fair Trade Act and its delegation.

(3) Conclusion

Therefore, the grounds for invalidation of the merger are all without merit.

5. Conclusion

Therefore, the part of the plaintiff's claim for nullification of the resolution of the board of directors among the lawsuits in this case is unlawful and dismissed. The remaining claims of the plaintiff and the claims of the plaintiff (appointed party) are dismissed as they are without merit. It is so decided as

Judges Hong-sung (Presiding Judge) Lee Jae-jin