[1] Where an applicant for registration bears the responsibility for fraudulent registration under Article 39 of the Commercial Act without making a registration by himself/herself

[2] In a case where a shareholder with a substantial share of the company completes a false registration by creating an appearance of a resolution of a general meeting of shareholders, whether the company may be held liable for fraudulent registration under Article 39 of the Commercial Act (negative in principle)

[1] In principle, in order to hold the applicant for registration liable for a false registration under Article 39 of the Commercial Act, the registration is completed by the applicant for registration. However, even if the applicant for registration did not make a registration by himself/herself, the applicant for registration may be held liable for a false registration under Article 39 of the Commercial Act with respect to the applicant for registration, in special circumstances where the applicant for registration is deemed identical to the registration made by the applicant for registration by intention or negligence, such as taking part in the registration or neglecting the registration without correcting the fact despite being aware of the existence of such false registration.

[2] Where a person other than the applicant applicant has falsely prepared the minutes of the general meeting of shareholders and the minutes of the board of directors and completed the registration of the representative director by making the appearance of the resolution of the general meeting of shareholders and the resolution of the board of directors and making the appearance of the resolution of the general meeting of shareholders and the resolution of the board of directors, unlike the case of invalidation or revocation, the company which is the applicant for registration could not participate in the registration of the representative director because there was no internal decision-making of the company concerning the appointment of the representative director. Thus, unlike the case of invalidation or revocation, the legitimate representative director of the company involved in the registration of the company in the manner of cooperation or implied registration, or neglecting the company's failure to correct the omission registration despite being aware of the existence of the existence of the fraudulent registration, etc., it cannot be held that the company is not liable to make a false registration of the company under Article 39 of the Commercial Act with respect to the company, and in this case, even if a person who has completed the registration of the omission by making the appearance of the false

[1] Article 39 of the Commercial Act / [2] Article 39 of the Commercial Act

Plaintiff, Ltd.

National Bank of Korea (Law Firm Pule, Attorneys Yoon Young-young et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2005Na11571 Decided March 30, 2006

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In order to hold the applicant for registration liable for fraudulent registration under Article 39 of the Commercial Act, in principle, the registration is completed by the applicant for registration. However, even if the applicant for registration did not make a registration by himself/herself, if there are special circumstances that can be deemed the same as the registration made by the applicant for registration by intention or negligence, such as engaging in the registration by reason of his/her responsibility, or neglecting the registration without correcting the fact despite being aware of the existence of such fraudulent registration, the applicant for registration may be held liable for such fraudulent registration under Article 39 of the Commercial Act.

However, in a case where a person, other than the applicant applicant, prepares a false minutes of the general meeting of shareholders and minutes of the board of directors and completes the registration of appointment of the representative director by making the appearance of the general meeting of shareholders and the resolution of the board of directors, unlike the case where the general meeting of shareholders is held and resolution was adopted but there was no invalidation or revocation, and thus, the company, which is the applicant for registration, could not participate in the registration of the representative director because the internal decision-making of the company on the appointment of the representative director did not exist, and thus, it cannot be involved in the registration of the company. Thus, unless there are special circumstances that make it identical to the registration of the company's intentional or negligent act by failing to correct the fact that the representative director of the company took part in the registration of the fraudulent registration despite being aware of the existence of the fraudulent registration, or neglecting the company without correcting the existence of the fraudulent registration despite being aware of the existence of the fraudulent registration, the company cannot be held liable to make a false registration of the company pursuant to Article 39 of the Commercial Act.

2. According to the facts established by the court of first instance by citing the judgment, the plaintiff company was originally established by Nonparty 1 and Nonparty 2 to hold shares in the plaintiff company 50: 50. The original register of the plaintiff company was stated that Nonparty 3, an son of Nonparty 2, and Nonparty 4, an son of Nonparty 2, owns 30%, 20%, and Nonparty 1, an son of Nonparty 1, an son, own 20%, and 30%, respectively, and the appointment of Nonparty 5, an son as the representative director of the plaintiff company, was completed on September 13, 2002, and the non-party 2 changed the list of the plaintiff company's shareholders and delivered the minutes to the non-party 6, which became final and conclusive by the court of second instance on September 20, 200, which decided that the non-party 6 was the representative director of the non-party 2, who was the representative director of the plaintiff company, and that the non-party 2, upon the above resolution of the plaintiff's general meeting became final and conclusive.

In light of the above legal principles and the above facts, there was no internal decision-making such as the resolution of the general meeting of shareholders or the resolution of board of directors of the Plaintiff company on the appointment of Nonparty 6 as the representative director of the Plaintiff company. In this case where there is no evidence to recognize that the legitimate representative director of the Plaintiff company participated in the act as above by Nonparty 2 or knew the existence of the registration of appointment of the representative director of Nonparty 6, it cannot be found that Nonparty 2 was able to exercise the right equivalent to 50% of the shares issued by the Plaintiff company through her son and her son, solely on the ground that Nonparty 2 was able to exercise the right equivalent to 50% of the shares issued by the Plaintiff company’s her son’s son’s son’s son’s son’s son’s son’s son’s son

Nevertheless, the court below determined that the plaintiff company should be held liable for the above mortgage contract and the establishment registration of mortgage in accordance with the legal principles under Article 39 of the Commercial Act, on the ground that as long as the non-party 2 was a shareholder who actually controls the operation of the plaintiff company and participated in the appearance of the resolution of the general meeting of shareholders, the plaintiff company should be deemed to be related to it. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the non-party 2's liability for registration

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)