Plaintiff (Law Firm Rois, Attorneys Jeon Man-soo, Counsel for the plaintiff-appellant)

NaoC Co., Ltd. (Attorney Choi Jin-soo, Counsel for the plaintiff-appellant)

December 19, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The issuance of new shares registered by the Defendant as of January 24, 2008 (ordinary shares of 800,000, 500 won per share), new shares (ordinary shares of 400,000, 500 won per share) registered as of January 30, 2008, new shares (ordinary shares of 800,000, 500 won per share), new shares registered as of February 11, 2008 (ordinary shares of 800,000, 500 won per share), and new shares registered as of March 4, 2008 (ordinary shares of 156,00,00 won per share), shall be confirmed to be null and void, respectively.

1. Basic facts

A. The Plaintiff is a shareholder of the Defendant Company who currently holds 417,600 shares, which are 5,556,000 shares issued by the Defendant Company.

B. On January 24, 2008, the Defendant Company issued each new shares of 800,000 common shares (500 won per share), 400,000 common shares (500 won per share), 800,000 common shares (50 won per share) on January 29, 2008, 11, 2008, 500 common shares (500 won per share), and 156,000 common shares (50 won per share) on March 4, 2008 (hereinafter “instant issuance of new shares”).

C. The detailed status of the issuance of new shares of this case is the same as the entry of the status of the issuance of new shares in the attached Form. When the issuance of new shares on January 24, 2008 is made, Neibrid Korea Co., Ltd. and Nibrid Korea Co., Ltd., Ltd., which acquired new shares at the time of the issuance of new shares on February 11, 2008, were all the previous shareholders of the defendant company.

D. The Plaintiff’s share ratio with respect to the Defendant Company was reduced from 12.3% to 7.5% due to the issuance of new shares in this case.

[Ground of recognition] Unsatisfy, Gap evidence 2, Gap evidence 18 to 21, Gap evidence 27 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff

The issuance of new shares in this case is null and void for the following reasons.

㈎ 이 사건 신주발행을 위한 각 이사회 결의시 원고가 이사회에 참여하지 않았는데도 이사회에 참석하여 의결한 것처럼 이사회 회의록을 허위 작성하였고 신주발행시에도 상법 제418조 , 제416조 와 정관의 규정에 위반하여 기존 주주인 원고에게 신주인수권을 행사할 것인지를 확인하지 않았다.

㈏ 기존 주주가 모두 신주인수권을 포기한 후 특정 주주에게 신주를 인수하도록 하는 것은 제삼자에게 신주를 배정하는 것과 마찬가지로 보아야 하고 제삼자에게 신주를 배정하기 위하여는 정관에 규정이 있어야 하는데 이 사건 신주발행 당시 피고 회사의 정관에는 제삼자에게 신주를 배정하는 규정이 없었다.

㈐ 이 사건 신주발행은 정관에 제삼자에 대한 신주발행 규정이 없음에도 불구하고 멋대로 특정 주주에게 주주의 지위와 무관하게 신주인수권을 부여한 것이므로 민법 제103조 가 규정하는 선량한 풍속 기타 사회질서에 위반한 사항을 내용으로 하는 법률행위로서 무효이다.

B. Doz.

On January 4, 2007, when Nonparty 4, who is a professional manager, takes office as the representative director of the defendant company, major shareholders and directors of the defendant company including the plaintiff, agreed that the capital of the defendant company should be increased up to three billion won and all acts related to the increase in the capital should be comprehensively entrusted to the full-time management company. The plaintiff, which was held on September 15, 2007, comprehensively delegated the third party's share increase amount and the schedule for issuance of new shares to the full-time management company.

Therefore, the issuance of new shares of this case is carried out by the comprehensive delegation of the plaintiff, and there is no procedural defect in disregarding the plaintiff's preemptive right.

(b) Markets:

㈎ 이사회 결의 및 신주발행절차에 하자가 있다는 주장에 관하여

(1) On January 4, 2007, the board of directors of the Defendant Company, including the Plaintiff, held on January 4, 2007, decided to increase the company’s capital through the increase of the company’s capital by gathering all of the directors of the Defendant Company, which was held on September 15, 2007, and the board of directors of the Defendant Company held on September 15, 2007, including the Plaintiff, agreed on the five times increase of the company’s capital through the increase of the company’s capital, and agreed on the third party’s capital increase, the amount of the capital increase, and the amount of the capital increase to the full-time management company,

According to the above facts, the issuance of new shares in this case is carried out by the comprehensive delegation of the directors of the defendant company including the plaintiff, and cannot be deemed to have obtained consent from each resolution of the board of directors. Since the plaintiff already delegated the procedures for the issuance of new shares, it cannot be deemed that there is a defect in the procedures for the issuance of new shares on the ground that the former shareholder did not notify the plaintiff of the procedures for the issuance of new shares and prepared a written waiver of preemptive rights in the name of the plaintiff. In addition, as seen earlier, since the share ratio of the plaintiff was reduced from 12.3% to 7.5% by the issuance of new shares in this case, it cannot be deemed that the change in corporate governance structure of the defendant company caused the issuance of new shares in this case, it is difficult to deem

D. As to the issuance of new shares, the Plaintiff asserts that the board of directors of September 15, 2007 agreed to the allocation of shares to a third party and delegated the procedure for the issuance of new shares to a full-time management company is trusted by Nonparty 1’s majority shareholder of the Defendant Company, a construction company of Hyundai Automobile, to allocate new shares, and that it does not purport to exclude the Plaintiff from the existing shareholders, who are not a third party, and to allocate new shares only to the specific shareholders. Thus, the Plaintiff asserts that the issuance of new shares in this case goes against the purport of delegation by

However, it is insufficient to recognize that the Plaintiff delegated the procedure for issuing new shares to IMC only in consideration of the Plaintiff’s delegation purport with respect to the issuance of new shares, or that the allocation of new shares to specific shareholders among the existing shareholders who are not a third party is contrary to the Plaintiff’s delegation intent. Rather, the purport of the Plaintiff’s consent to the issuance of new shares to a third party of the Defendant Company’s allocation of shares to a full-time management company is to recognize that the capital needs to be raised by the Defendant Company and to delegate specific procedures for capital financing to management, and that there was no special delegation with regard to who allocate new shares. Furthermore, as long as the issuance of new shares does not violate the Plaintiff’s delegation intent, the withdrawal of the Plaintiff’s delegation does not affect the validity of the instant issuance of new shares.

㈏ 정관에 제삼자 신주배정 규정이 없었다는 주장에 관하여

According to the evidence Nos. 15 through 17, the defendant company may recognize the fact that the articles of incorporation provide for the provision for allocating new shares to a third party on November 18, 2008, which is after the issuance of new shares in this case.

However, according to the evidence Nos. 18 through 21 (including each number), when issuing new shares of this case, the defendant company received a waiver of the subscription under the name of the existing shareholders, and then allocate new shares to some of the existing shareholders by submitting a new subscription form for new shares, and most underwriters who subscribed the new shares of this case, such as the statement on the status of the issuance of new shares, can recognize that they are the existing shareholders. Thus, the articles of incorporation does not require the provision on the allocation of new shares to the existing shareholders.

On the other hand, as seen earlier, NAN Korea Co., Ltd. and NAND Korea acquired new shares at the time of issuance of new shares on January 24, 2008 and Nonparty 3, who acquired new shares at the time of issuance of new shares on February 11, 2008, are acknowledged as having no provision on the allocation of new shares in the articles of incorporation at the time of the allocation of new shares, and 40,000 shares for new shares acquired by NAN Korea Co., Ltd. and NAND Korea were 30,000 shares for 30,000 shares for new shares acquired by NAND Korea, respectively, based on the total number of shares issued by the Defendant Co., Ltd. at the time of the issuance of new shares, and there was an amendment of the articles of incorporation adding the provision on the allocation of new shares to a third party during the period of the issuance of new shares. Therefore, it is difficult to deem that there was a serious

㈐ 선량한 풍속 기타 사회질서에 위반되는 신주발행이라는 주장에 관하여

As seen earlier, insofar as the issuance of new shares was carried out according to the Plaintiff’s comprehensive delegation, even if most of the existing shareholders did not allocate new shares to a third party at the time of the issuance of new shares and allocated them to a specific shareholder among the existing shareholders, such fact alone is difficult to deem the issuance of new shares of this case as an act contrary to good morals

The plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed.

[Attachment]

Judges Park Jong-young (Presiding Judge)