(영문) 서울동부지방법원 2018. 2. 8. 선고 2017가합105478 제13민사부 판결

2. Defendant A Co., Ltd will implement the transfer procedure to change the name of shareholder on the list of shareholders as to the shares listed in the attached list to the Plaintiff.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The primary purport of the claim is as set forth in paragraphs (1) and (2) of this Article.

Preliminary Claim: Claim No. 2 and the Plaintiff, Defendant B, C, and D confirm that the shareholder of the shares listed in the separate sheet issued by Defendant A (hereinafter “Defendant Company”) is the Plaintiff. [The Plaintiff is seeking to consent to the implementation of the procedure as part of the implementation of the transfer procedure, such as the entry in the order No. 2, while the Plaintiff also seeks consent to the implementation of the transfer procedure, the transferee of the shares can solely file a claim for the change of the shareholder registry without the transferor’s cooperation. As such, the Plaintiff need not seek to consent to the above Defendants separately from seeking the implementation of the transfer procedure as above. In light of the overall purport of the Plaintiff’s claim, the Plaintiff’s primary and conjunctive claim is cited as above]

Reasons

1. Facts of recognition;

A. Defendant B and C hold 135,00 shares of each of the total shares issued by the Defendant Company, and Defendant D hold 165,00 shares of each of the 135,00 shares (hereinafter collectively referred to as Defendant B, C, and D; hereinafter referred to as “Defendant B, etc.”); and hereinafter referred to as “instant shares” in total shares owned by the said Defendants).

B. On October 17, 2016, the Plaintiff made an investment of KRW 500 million in relation to the construction project of the regional housing association or apartment complex of KRW E in Yangyang-si, where the Defendant Company is promoting, and the Defendant Company entered into an investment contract with the Plaintiff to pay the said investment principal plus KRW 500 million (hereinafter “instant contract amount”) to the Plaintiff by April 17, 2017, and to provide the Defendant Company’s stocks, etc. as security. The Defendant D guaranteed the Defendant Company’s obligation to pay the instant contract amount on the same day.

C. On October 20, 2016, the Plaintiff: (a) between Defendant B, etc., and Defendant B, etc., transferred the instant shares to the Plaintiff at KRW 1 billion; (b) in the event that the instant obligation was repaid, the Plaintiff would immediately return the entire shares to the Defendant B, etc.; and (c) in the event that Defendant B, etc. did not pay the Plaintiff by the due date for the payment of the said obligation or would lose the due date for the payment of the said obligation, a pledge was created on the instant shares as security; and (d) upon its option, the Plaintiff would dispose of the said shares so that it can be used for the expenses and repayment of the remaining obligation; and (e) at any time upon the Plaintiff’s request, a pledge created on the establishment of the

D. The Defendant Company did not pay the Plaintiff the instant contract amount up to now.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (including additional number), the purport of the whole pleadings

2. Determination as to the cause of the claim (main claim)

According to the above facts, it is reasonable to view that Defendant B, etc. agreed to transfer the instant shares to the Plaintiff as the security of the obligation under the agreement and the pledge of shares, and to cooperate in the transfer procedure by changing the name of a shareholder on the register of shareholders on the said shares to the Plaintiff (in the case of the above share pledge agreement, the content thereof and the content thereof were prepared together with the above share transfer contract, notwithstanding the title of the document), etc. Therefore, among the shares of this case, Defendant B and C, and Defendant D, among the shares of this case, deliver 135,00 shares to the Plaintiff, respectively, and 165,00 shares to the Plaintiff, and the Defendant Company is obligated to implement the transfer procedure by changing the name of a shareholder on the register of shareholders on the register of shareholders to the Plaintiff.

3. Judgment on the defendants' assertion

A. The Defendants asserted that, inasmuch as the Plaintiff’s disposal of the instant shares at a reasonable price and then appropriated the disposal price after deducting the disposal cost, etc. for the instant agreed amount, the Defendants cannot seek delivery of the entire shares of this case to Defendant B, etc. without going beyond the aforementioned settlement obligation. However, since the secured party’s settlement obligation is an obligation to dispose of and liquidate the shares of this case after receiving a security from the secured party, the Plaintiff may demand delivery of the shares of this case to Defendant B, etc. according to the instant agreement, regardless of the aforementioned settlement obligation. The Defendants’ aforementioned assertion cannot be accepted.

B. The Defendants asserted that, on the other hand, the Plaintiff’s compulsory execution is obstructed by the Plaintiff’s debt repayment by receiving an order for the seizure and collection of the claim amount as the claim amount, and on the other hand, the Plaintiff filed the instant lawsuit in order to deliver the instant shares with a security in lieu of the above claim amount, and thus, it cannot be permitted as abuse of rights as a double claim. However, the Defendants asserted that the instant lawsuit cannot be deemed as a double claim. However, on the sole basis of the fact that the secured creditor is obliged to provide a security to the secured party before the entire secured claim is extinguished due to the full repayment, etc. of the secured claim, and compulsory execution with the claim amount is underway, it cannot be said that the above obligation to provide a security becomes extinct or that compulsory execution cannot be deemed as an act interfering with the obligor’s debt repayment. The Plaintiff does not seek the delivery of the instant shares in lieu of the repayment of the claim amount, but seeks the delivery of the said shares by implementing an agreement for the establishment of a security to the above claim amount. Therefore, the Plaintiff’s compulsory execution is being conducted by undergoing the seizure and collection order.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendants is justified and it is decided as per Disposition without examining the conjunctive claim.