(영문) 서울고등법원 2012.11.15.선고 2012누12565 판결

On April 12, 2012, the Defendant revoked the designation of an enterprise group subject to limitations on mutual investment made against the Plaintiff.

Reasons

1. Details of the disposition;

On April 12, 2012, pursuant to Article 14(1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act"), the Defendant designated 25 companies, including the Plaintiff, B, C, D Co., Ltd., and D Co., Ltd. (hereinafter referred to as "B, C, and D") as E and notified them (hereinafter referred to as "the instant disposition").

[Grounds for Recognition] No dispute

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although creditor financial institutions, not E, actually control the business activities of B, C, D, B, and D subsidiaries, the instant disposition should be revoked as it is unlawful on the premise that E actually controls the business activities of the above companies.

B. Relevant provisions

Attached Table 2 is as follows.

C. Facts of recognition

① around January 6, 2010, the creditor financial institutions of B and C commenced the procedures for joint management by creditor financial institutions pursuant to Article 8(1) of the former Corporate Restructuring Promotion Act (amended by Act No. 10684, May 19, 201) with respect to B and C.

(2) The Korea Development Bank (hereinafter referred to as the "Industrial Bank") shall be the Korea Development Bank (hereinafter referred to as the "Industrial Bank"). The Industrial Bank is the "F-affiliated principal creditor bank of the F-affiliated selected by the Governor of the Financial Supervisory Service as the "main debt department" in accordance with Article 79 (1) of the Regulations on the Supervision of Banking (Financial Services Commission's Notice) and E, and its G (hereinafter referred to as the "E father") made an agreement between the creditors and the controlling shareholders to promote the normalization of the F-affiliated companies including the following:

The Do Governor E shall provide stocks, real estate, etc. as security in order to secure all obligations owed to the Industrial Bank B, C, the Plaintiff, and D.

If it is determined that the conversion of capital and loans into investment is necessary for the improvement of the financial structure or the normalization of the business as a result of an actual inspection of assets liabilities against B, C, Plaintiff, and D, the E father consents to the reduction of capital for secured stocks and cooperate in the reduction of capital and the conversion into investment.

The Industrial Bank shall cooperate so that E may be entrusted with the honorary chairperson in B, and shall cooperate so that those recommended by E may be appointed as the representative director in B.

The Industrial Bank shall cooperate in the exercise of management rights for E father C. If the management normalization plan for B and C is successfully achieved, E father shall have the preferential right to purchase C and B stocks held by the Industrial Bank through debt-equity swap, etc.

③ On February 2, 2010, the Industrial Bank and E made an additional agreement including adding D to the company that has a preferential stock purchase right by taking charge of honorary president, exercising the right to recommend representative director, and exercising the right to recommend representative director.

④ A creditor financial institution that constitutes the creditor financial institutions’ council of creditor financial institutions, B’s principal creditor bank, and B’s creditor bank (hereinafter “Korea bank”), on April 13, 2010, entered into a summary agreement to implement the “B business normalization program.” This agreement includes the creditor financial institutions’ right to request replacement of management and the right to request the retirement of standing executives, the creditor financial institutions’ prior consent to other matters for business management (sale of fundamental property, promotion of new business, investment, etc.), and the funds management by the funds management body dispatched by the creditor financial institutions, but does not include the contents of the E’s right to recommend representative director or the E’s preferential purchase right for the stocks owned by creditor financial institutions. Meanwhile, the creditor financial institutions’ council of creditor financial institutions may grant preferential purchase rights to E on February 22, 2012, and specific conditions are decided by the Steering Committee.

6. On May 5, 2010, a creditor financial institution that constitutes C’s creditor financial institutions’ consultative council, C’s principal creditor bank, C’s subsidiary bank, and C’s deputy bank entered into an agreement for implementation of C’s business normalization planning containing a guarantee of management right to C’s shares held by creditor financial institutions, and a preferential right to purchase E’s shares held by a creditor financial institution.

(6) Around April 2011, pursuant to Article 14(1) of the Fair Trade Act, the Defendant designated and notified 36 companies, including the Plaintiff, B, C, and D, as E, as the conglomerateF.

① As of April 1, 2011, shares of E and E related persons in B are 3.08%, shares of creditor financial institutions are 8.89%, shares of E and E related persons in C are 9.74%, and shares of creditor financial institutions are 68.97%.

④ On April 12, 2012, the Defendant issued the instant disposition.

9. E’s equity interest in B with capital increase on May 2, 2012 became 14.19%, and E’s equity interest in C became 6.33%.

[Ground of recognition] No dispute, Gap 1, 4- 7, 15, 17, 18, Eul 1-11 (including virtual numbers), the purport of the whole pleadings

D. Determination

1) Provisions of the Fair Trade Act and the Enforcement Decree thereof

Article 2 subparag. 2 of the Fair Trade Act provides that the same person shall be a group of companies the business contents of which are substantially controlled by the same person according to the criteria prescribed by the Presidential Decree. Article 3 of the Enforcement Decree of the Fair Trade Act provides that the same person shall independently or jointly with persons related to the same person, and shall own not less than 30% of the total number of issued and outstanding stocks. Article 2 subparag. 2 of the same Act provides that the same person shall exercise controlling influence over the business management of the company: ① the company in which the same person appoints or dismisses the representative director or appoints or is capable of appointing not less than 50% of the executives by contract or agreement with other major stockholders; ② the company in which the same person exercises controlling influence over the principal decision-making or business execution through persons related to the same person directly or through persons related to the same person; ③ the company in which the same person exchanges of personnel such as the company under the control of the same person, ④ the company with which the business group can be recognized as an affiliated company of

2) Determination as to B

In full view of the facts acknowledged earlier and the following circumstances that can be recognized by the evidence, it can be deemed that E actually controls the business contents of B, rather than only the daily management of B according to the delegation by creditor financial institutions. The evidence submitted by the Plaintiff alone is insufficient to reverse the recognition. The Plaintiff’s assertion on this part is without merit.

① The industrial bank, the principal creditor bank of E and F affiliated companies, agreed to obtain cooperation from the industrial bank so that the person recommended by E can be appointed to the representative director, and H (E was appointed as the inside director of B on March 25, 2010) recommended by E was appointed as the representative director of B on July 20, 2010 with the agreement and cooperation of the remaining creditor financial institutions.

(2) E is under the supervision of creditor financial institutions, but exercises dominant influence over major decision-making or execution of business, such as organizational change B, management strategy, and personnel announcement. Even if it is subject to the prior approval of authorized financial institutions and restrictions on the management of funds by the fund management body dispatched by creditor financial institutions with respect to major decision-making, such restrictions shall be deemed to take place in the supervision for business normalization, and shall not interfere with recognizing that E exercises dominant influence on the major decision-making or execution of business.

③ The representative director H concurrently holds nine inside directors of the nine affiliated companies, such as C, etc.

④ The Plaintiff and its subsidiaries are using the same lines as “I, J, and L” as other affiliates belonging to the enterprise group F. However, although the Plaintiff and their subsidiaries are replaced by lines, they still use the same lines.

⑤ On October 28, 2010, E is called the "chairperson" after being appointed as the advisory staff by a resolution of the board of directors on October 28, 2010.

6) A vice-party E has a preferential purchase right to B stocks held by an industrial bank, and on February 22, 2012, the creditor financial council of creditor financial institutions adopted a resolution to grant E a preferential purchase right to B stocks held by a creditor financial institution. In addition, E vice-party B’s shares were 14.19% of the capital increase with the capital increase issued on May 22, 2012, which was made in cooperation with a creditor financial institution.

7) The creditor financial institutions or the fund management body dispatched to B by the creditor financial institutions are aware that E is only responsible for monitoring the management of B, and that E actually controls the management of the business of B, and that B is also responsible for the management of the business of E.

3) Determination as to C

In full view of the facts acknowledged earlier and the following circumstances that can be recognized based on the evidence, it can be deemed that E is not only the daily management of C according to the delegation by creditor financial institutions, but also controls C’s business contents. The evidence submitted by the Plaintiff alone is insufficient to reverse the recognition. The Plaintiff’s assertion on this part is without merit.

(1) E shall continue to maintain the representative director of C and G shall hold the office of inside director according to an agreement with creditor financial institutions.

(2) A vice-party shall exercise dominant influence over major decision-making or business execution while running a business in cooperation with financial institutions with financial institutions having jurisdiction over the management of financial institutions. Even if a creditor financial institution's prior approval of major decision-making and other matters are subject to restrictions on fund management by financial management by a financial management organization dispatched by creditor financial institutions, such restrictions are deemed to take place in terms of supervision for business normalization, and it does not interfere with recognizing that E vice-party exercises dominant influence over C's major decision-making or business execution. In addition, it is insufficient to reverse the fact that a creditor financial institution's cooperation in exercising management rights may be suspended in certain cases.

③ At the same time, C uses ‘I', ‘J' and ‘B' as other affiliates belonging to the enterprise group F. However, even though the Plaintiff and its subsidiaries replaced the route to another one, they still use the same as the trade name.

④ The E father holds a preferential right to purchase the stocks held by a creditor financial institution. In addition, the E father’s equity interest in C was 6.33% of the paid-in capital increase with a creditor financial institution’s cooperation on May 22, 2012.

(5) Creditor financial institutions recognize that E has de facto control over the business contents of C, and C also recognizes that E has de facto control over the business contents.

4) Determination as to D/D subsidiaries and B subsidiaries

As seen earlier, E actually controls the business contents of B, and there is no dispute over the fact that B is the largest shareholder holding not less than 30% of D’s shares. If so, it can be recognized that E actually controls the business contents of D, D’s subsidiaries and B’ subsidiaries. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the disposition of this case is lawful, and the plaintiff's claim is dismissed as there is no ground.