Effect of transfer of shares before issuance of share certificates

The transfer of shares prior to the issuance of share certificates is null and void against the company even if it is sufficient to issue shares, and it was completed after the lapse of reasonable time.

Article 335 of the Commercial Act

Supreme Court Decision 77Da1244 Delivered on October 11, 1977

Han forest Industries Co., Ltd., Ltd., Counsel for defendant-appellee

[Defendant-Appellant] Plaintiff 1 et al.

Daegu High Court Decision 77Na54 delivered on July 14, 1978

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant's attorney are examined.

On the first ground for appeal

The court below acknowledged that the above non-party 1 and the non-party 1 and the non-party 2 were to be appointed at the general meeting of shareholders of the above non-party 1 and that the non-party 1 and the non-party 2 were to be the non-party 7 shareholders of the above non-party 1 and the non-party 1 and the non-party 3 were to be the non-party 1 and the non-party 1 and the non-party 2 were to be the non-party 1 and the non-party 3 were to be the non-party 1 and the non-party 4 were to be the non-party 1 and the non-party 2 were to be the non-party 1 and the non-party 3 were to be the non-party 1 and the non-party 1 and the non-party 2 were to be the non-party 1 and the non-party 3 were to be the non-party 4 and to be the non-party 1 and the non-party 2 were to be the non-party 1 and the non-party 3.

Meanwhile, according to the evidence cited by the court below in order to find the above facts, the above Central Institute Industrial Co., Ltd. was established with seven promoters, such as the above non-party 2, non-party 8, non-party 7, non-party 9, non-party 10, non-party 3, and non-party 11, and received an authentication of the law office (the total number of shares to be issued by the company is KRW 500) under the provisions of the Commercial Act, and each of the promoters has acquired the same number of shares as determined by the court below, and the remaining 10,000 shares were acquired by the non-party 6, non-party 7, non-party 8, and the auditor, the above representative director was the above non-party 6 and completed the registration of incorporation on March 7, 197 (the non-party 2's testimony at the court of first instance did not reach the board of directors' meeting, but the court below did not accept the record that the witness was unlawful.

Therefore, the above reasoning of the court below is that the above centralization industry corporation has a substance as a stock company and is engaged in its activities. Among them, the company's trade name is changed over several occasions and its use is based on the premise that it is the fact that it is the Han forest industry corporation as indicated by the plaintiff. Thus, the above opinion of the court below included the defendant's above argument that it can be viewed as including the non-existence of the company. In other records, it cannot be found that there is sufficient material that the plaintiff company's non-existence of the company or its establishment can be regarded as null and void automatically. Thus, the above contract with the Korea Assets Management Corporation or the above non-party 4 or the above non-party 1 and the defendant's company cannot be accepted, and in light of the above facts, the judgment of the court below that the plaintiff company purchased the plaintiff company's property under the name of the plaintiff company as a result of the denial of the contract, and it can be argued that the plaintiff company's non-existence of the company's name was invalid.

With respect to the second ground:

According to the court below's reasoning, the above contract concluded on January 20, 1978 with the above non-party 4 as the representative of the plaintiff company and the above non-party 1 as the representative of the above non-party 4 company and the above contract to change the purchaser of the above contract to the defendant is null and void since it was concluded by a non-party 1 who is not entitled to represent the plaintiff company. Thus, the above contract with the Korea Assets Management Corporation was ratified, and it was rejected the claim that the above contract was a contract with the non-party 4 or the non-party 1 to change the purchaser to the defendant. Thus, the court below's determination of the records did not have any reason to believe that the above contract was unlawful. According to the evidence No. 1 of the court below (the certified copy of the plaintiff company's company) which was signed by the above non-party 4 company's representative of the above non-party 1 company and the above non-party 1 company's representative of the non-party 4 company's industrial company was changed to the above non-party 1 company's domestic shares.

In addition, according to the soar Chapter, at the time of concluding a contract with the Korea Assets Management Corporation to change the above sales contract or the purchaser thereof, the Plaintiff asserted that the above non-party 4 and the above non-party 4 representing the Plaintiff Company was not a legitimate representative of the Plaintiff Company and that the real estate attached to the list of the lower judgment was KRW 69,071,217, which the Plaintiff Company paid the price from the Defendant Korea Assets Management Corporation as of January 20, 1973, the down payment amount is KRW 6,971,217, and the remainder is to be repaid in annual installments until January 20, 1978. The contract to change the purchaser of the above contract to the Defendant is null and void, and it is obvious that the Defendant and the Korea Assets Management Corporation were jointly the Defendant and the above Korea Assets Management Corporation were seeking confirmation of the above invalidation. Thus, the Plaintiff is a party to the above sales contract, which was not the Plaintiff Company's property, and it is reasonable to deem that the Plaintiff and the Korea Assets Management Corporation did not have any legitimate reason for the conclusion.

With respect to the third point:

According to the judgment of the court below, the court below rejected the defendant's assertion that transfer of shares prior to the issuance of share certificates cannot be deemed effective in relation to the company, and that transfer of shares prior to the issuance of share certificates cannot be deemed effective in relation to the company, and that transfer of all the shares he acquired to the above non-party 4 on September 30, 1972 and that the above non-party 4 transferred to the above non-party 1 6,00 shares remaining at his own share on August 30, 1973, since transfer of shares prior to the issuance of share certificates to the above non-party 1 is a transfer of shares prior to the issuance of share certificates, it is obvious that each transfer has no effect against the plaintiff company pursuant to Article 335 (2) of the Commercial Act. Since the plaintiff company was established on March 7, 1972 and it was sufficient and reasonable to issue share certificates beyond the reasonable time, each transfer of shares prior to the issuance of share certificates to the plaintiff company cannot be seen as valid in relation to the plaintiff company 2516416.7

Therefore, this appeal is without merit, and therefore dismissed pursuant to Articles 400, 395, and 384, Paragraph 1, of the Civil Procedure Act. It is decided as per Disposition by the assent of all participating Justices, excluding the Korean Supreme Court Judge, the Korean Supreme Court Judge, and the Korean Supreme Court Justice, among participating judges, as to the bearing of litigation costs, under Articles 95 and 89 of the same Act.

The opinion of the Supreme Court on the interpretation of Article 335 (2) of the Commercial Code and the opinion of Article 335 (2) of the same Act is as follows.

According to Articles 355(1) and 635(1)19 of the Commercial Act, a company shall issue share certificates without delay after its establishment or after the payment date of new shares. If a company delays the issuance of share certificates, its directors, auditors, etc. shall be punished by a fine for negligence. Meanwhile, Article 335(1) of the Commercial Act recognizes the freedom of transfer of shares by prohibiting, prohibiting, or restricting the transfer of shares under its articles of incorporation, and Article 335(2) of the Commercial Act denies the effect of transfer of shares prior to the issuance of share certificates in relation to the company. In light of the purport of each provision, Article 335(2) of the Commercial Act provides that the transfer of shares prior to the issuance of share certificates shall be null and void as a result of the company’s transfer of share certificates without delay pursuant to the provisions of Article 35(1) of the Commercial Act, and it shall be reasonable to restrict the company’s transfer of share certificates prior to the issuance of share certificates to the extent of its prompt and smooth disposal of the share certificates. Thus, the company’s transfer of share certificates shall be justified.

C. It is natural that even if a share certificate is issued without delay and the validity of the company can not be the same as that of the transfer before the issuance of the share certificate, in the case of the former, the above provision (Article 335 (2) of the Commercial Act) shall be deemed to be beyond the reasonable scope, and in the latter case, its validity shall not be denied on the ground of the above provision. Therefore, in a case where the company does not issue the share certificate even with the reasonable period as necessary for the issuance of the share certificate, the freedom of temporary transfer of shares for benefit of the company is removed, and even if it is before the issuance of the share certificate, the transfer of shares can be made freely and freely in relation to the company, and it can not be denied its validity on the ground that it is transferred before the issuance of the share certificate, and it shall be reasonable to have the effect not only the parties to the transfer but also the company.

In addition, even if there is a claim for damages against shareholders for reasons of delay of issuance of share certificates, these claims are not sufficient to eliminate restrictions on the freedom of transfer of shares by shareholders who may actually result from delay of issuance of share certificates, or as compensation methods for disadvantages resulting therefrom. Before the issuance of share certificates, the effect of transfer of shares before the issuance of share certificates is not entirely denied, and it is recognized by the parties to the transfer (as such, in a case where the parties to the transfer by themselves do not have to consider the above matters, it is unreasonable to permit the transfer of share certificates as a result of the above-mentioned interpretation that the transfer of share certificates will not be effective without delay because it is unreasonable to permit the transfer of shares by the parties to the transfer without delay because it is difficult to interpret that the transfer of share certificates would be effective without delay because the transfer of share certificates would not be effective because it would result in a lack or inconvenience in the process of the company's affairs to which the company can recognize the transfer of share certificates as shareholders. Therefore, it is difficult to say that the transfer of share certificates would not be effective without delay or without delay.

Therefore, it is expected that a small-scale corporation has been established and a large number of companies are expected to be established, and such small-scale company has no intention to issue share certificates and there is almost no need in fact. Accordingly, the shareholders of such company are able to transfer shares without the issuance of share certificates. In addition, in the case of large-scale companies, the transfer of shares is always null and void for the company as well as for third parties, because the transfer of shares is actually intended without any resistance as a transfer before the issuance of share certificates. Accordingly, even in the relationship between the company and the transferor and the third parties, the above transfer results in confusion in the above legal relationship, and the above provision of the Commercial Code does not go against the interests of the company and the other party or the third parties, and there is no need to modify the previous demand for share certificates to support the company's transfer of shares. In light of the above circumstances, the reason is that the transfer of shares is not always void.

Furthermore, in light of the contents of the previous party members' above opinion, it functions as a standard for the formation of a certain living relationship between the king or the future, and it is anticipated to function or function, so its modification is the result of lowering the expectation of the stability of legal life, and its modification cannot be said to be a desirable one.

As shown in this case, the plaintiff company was established in March 7, 1962, and the above original shareholders transferred all of their stocks to the non-party 4.9.30 of the same year, and the shareholders at that time are limited to seven promoters and the above non-party 6, and there are no reasonable grounds such as know-how that the number of stocks is limited to 20,000 and that there is a special obstacle to the issuance of share certificates even if the record is prepared, it is reasonable that the transfer of the above shares is necessary for the issuance of share certificates in light of the reality.

Therefore, since the provision of Article 335 (2) of the Commercial Act is reasonable in cases where a company issues share certificates without delay in accordance with the provision of Article 355 (1) of the same Act, it is reasonable to view that if a company delays the issuance of share certificates, it shall be deemed that the same provision is internal and the validity of the transfer of shares shall not be denied in cases where the company delays the issuance of share certificates. Accordingly, the previous precedents of the party members who are opposing opinions

Justices Lee Young-pop (Presiding Justice) Ha Young-gu (Presiding Justice) Jin-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak Kim Jong-Jk-Jak