(a) Whether a special resolution of the general meeting of shareholders is required for the transfer of an important property which serves as the basis of existence of a corporation

(b) The effect of transfer of important assets without a special resolution of the general meeting of stockholders where a stock company virtually suspends its business;

A. The transfer of business under Article 374 subparagraph 1 of the Commercial Act refers to the transfer of business under Chapter 7 of Part 1 of the Commercial Act. Thus, the transfer of business property cannot immediately be the transfer of business because it is the only property or important property of a stock company. However, the transfer of important property which is the basis of existence of a stock company is an act that causes the discontinuance or discontinuance of business in whole or in part, and in such a case, the provisions of subparagraph 1 of Article 374 of the Commercial Act should be applied by analogy to the special resolution of the general meeting of shareholders.

B. In a case where a stock company has already discontinued its business at the time of disposing of an important asset which serves as the basis of the existence of the company, it cannot be said that all or part of its business has been discontinued or suspended only due to such disposal. In such a case, the disposal of the material asset is not invalidated on the ground that no special resolution

Article 374 subparagraph 1 of the Commercial Act

A. Supreme Court Decision 65Da2099, 2100 Decided December 21, 1965, 65Da2140, 2141 Decided November 25, 1969, Supreme Court Decision 84Da569 Decided June 11, 1985, Supreme Court Decision 86Meu2478 Decided June 11, 1985, and 84Meu693 Decided June 11, 1985

Cheong Water Tourism Development Co., Ltd., Counsel for the plaintiff-appellant

Defendant 1 and five others, Defendant 5, and Defendant 6’s attorney Park Jong-ok

Seoul High Court Decision 86Na2349 delivered on May 22, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to Article 374 subparagraph 1 of the Commercial Act, a corporation's transfer of all or part of its business requires a special resolution of the general meeting of shareholders as stipulated under Article 434 of the same Act. Since the transfer of business refers to the transfer of business under Part 7 of Part 1 of the same Act, the transfer of property cannot be the transfer of business immediately because it is the only or important property of the corporation. However, since the transfer of important property which is the foundation of the corporation's existence causes the discontinuance or suspension of business, it is reasonable to deem that it does not differ from the transfer of all or part of its business, and in such a case, the provisions of subparagraph 1 of Article 374 of the Commercial Act shall apply mutatis mutandis to the special resolution of the general meeting of shareholders (see, e.g., Supreme Court Decisions 84Da963, Jun. 11, 1985; 64Da569, Nov. 25, 196; 205Da214196, Feb. 1965, 1965).

Meanwhile, if a company has already ceased its business at the time of disposing of the above property, it cannot be said that the whole or part of its business was discontinued or suspended only due to such disposal. In such a case, the disposal of the property is not invalidated on the ground that there was no special resolution of the general meeting of shareholders (see Supreme Court Decision 84Meu963, Jun. 11, 1985).

Therefore, at the time when the registration of this case was made by Nonparty 1, who was the representative director of the Plaintiff Company, for the purpose of the tourist hotel business, on the certificate, the Plaintiff Company had been established for the purpose of the Plaintiff Company's tourist hotel business, and the land was registered in the future in order to guarantee its personal obligation, and the Plaintiff Company had no office ordered the owner of the building which had already been used as the office before that time, and the land was newly constructed on that ground as the development restriction area, and the construction permission of the tourist hotel and the use of loan funds for L. D. (A.I.D) which had already been incorporated as the land was not possible to continue its business due to the cancellation of the construction permission of the tourist hotel as the purpose of the tourist hotel business. Accordingly, in light of the above circumstances, the Plaintiff Company's shareholders and directors determined that the construction of the tourist hotel, the purpose of which was to suspend its business, was no longer possible, and in light of the above circumstances, it did not err in the misapprehension of legal principles as it did not have any special resolution of the general meeting of shareholders.

All arguments are groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-chul (Presiding Justice)