A. Whether a person holds old share certificates in a judicial claim for issuance of new shares due to merger of companies

(b) bona fide acquisition of stock certificates and prescriptive acquisition;

A. The possession of old share certificates is not a requirement of judgment for the judicial claim of issuance of new shares due to merger of companies, but is sufficient to obtain the issuance of new shares by submitting them in redemption at the time of issuance.

B. The stock certificates do not mean that the subsequent purchaser acquires shareholders' rights even if they were acquired without any negligence in the name of a person who is not a shareholder, and the subsequent purchaser does not acquire shareholders' rights as a prescription with the lapse of five years after the acquisition of the stock certificates.

Articles 355 and 359 of the Commercial Act

Busan Fisheries Corporation

Korea Electric Power Corporation

Seoul Central District Court (71 Gohap2903) in the first instance trial

Supreme Court Decision 73Da1320 Delivered on May 28, 1974

(1) The original judgment is modified as follows.

(2) The defendant shall issue the share certificates of 1,232 shares of the defendant company with a share price of KRW 1,000 to the plaintiff in the name of the plaintiff and pay KRW 519,650 to the plaintiff.

(3) The plaintiff's remaining appeal is dismissed.

(4) The costs of lawsuit shall be divided into four parts through the first and second trials, one of which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

(5) A provisional execution may be effected only with respect to the amount paid in paragraph (2) above.

The Plaintiff amended the purport of the claim from the original judgment and the original judgment in the trial, and the Defendant, as the principal claim, issued to the Plaintiff the share certificates of 1,232 shares of the Defendant Company with a par value of KRW 1,00,00 in the name of the Plaintiff, and paid KRW 972,848 in the name of the Plaintiff. The Plaintiff sought a provisional execution on the share certificates of 1,232 shares of the Defendant Company with a par value of KRW 1,00

As a preliminary claim, the defendant shall pay to the plaintiff the amount of KRW 2,204,848.

The court of first and second instances sought a judgment that all the costs of lawsuit will be borne by the defendant and a declaration of provisional execution.

1. Determination as to the defense of this safety;

The defendant's attorney did not own or possess the share certificates issued by the defendant, and therefore, the plaintiff's claim of this case should be dismissed as illegal and illegal. Thus, the plaintiff's claim of this case is the main claim for the issuance of registered shares and the distribution of dividends, and the claim for damages arising from the infringement of shareholder's rights can be viewed as the preliminary claim in the judgment below, and the above claim can only be owned or possessed by the share certificates in the lawsuit. Thus, the above safety defense is groundless.

2. The defendant's duty to issue share certificates

In light of Gap evidence Nos. 1-2-1, 2-2, 3-1, 4-2, 5-1, 6-2, 7-1, 10-2, and 10-2, and 10-1, 3-2 of the above-mentioned No. 1, 3-2 of the above-mentioned No. 1, 3-2 of the above-mentioned No. 4, the above-mentioned No. 3-2 of the above-mentioned No. 1, and the above-mentioned No. 3-2 of the above-mentioned No. 10 of the above-mentioned No. 1, and the above-mentioned No. 10 of the above-mentioned No. 1, the above-mentioned No. 2 were the shareholders of the non-party company, and there were no changes in the above-mentioned No. 2's share certificates to the non-party company's 3-party company's 1,215 shares as its representative, and there were no changes in their share certificates to the plaintiff's 10-6.

If so, even if Korea Fisheries holds the above sovereignty and submitted it to the defendant, it shall be presumed that Korea Fisheries has a real right holder for the shares, and there is no other evidence to prove that Korea Fisheries lawfully acquired the above shares, the defendant shall not be exempt from the duty to issue the shares to the plaintiff because Korea Fisheries issued the share certificates, such as the entry in the attached list, to the company, which are non-refluent securities, such as the non-refluent securities, and therefore, the plaintiff, the legitimate owner of the above shareholders' rights, barring special circumstances, shall be obliged to issue his new shares.

(A) When the defendant seeks the issuance of the above new shares, the plaintiff is not entitled to make a claim for issuance of the old shares because it is required to submit the old shares, so the plaintiff is unable to make a claim for issuance of the old shares because it is not currently owned by the old shares. Therefore, the health class and the re-issuance of the old shares are recovered from the old shares and repaid or the new shares are issued after a judgment of nullification has been issued. However, a judicial claim for issuance of the new shares due to a merger of the company is not a requirement of the judgment, but it is sufficient that the old shares are held at the time of the issuance of the new shares, and that the plaintiff's old shares are already submitted to the defendant by the non-party fishery

(B) The defendant has already issued the share certificates within the authorized capital limit as stipulated in the articles of incorporation of the defendant company, and the law and the articles of incorporation of the defendant company cannot issue the plaintiff's claim, but there is no proof. This defense is without merit.

(C) Although the defendant's right to claim the issuance of share certificates of this case has expired due to the statute of limitations for commercial matters, the right to claim the issuance of share certificates of this case may not be subject to the statute of limitations, unless there are special circumstances to the contrary. Therefore, this defense is groundless.

3. Dividends to be paid by the defendant;

In full view of the whole purport of the party’s pleading in the testimony of the lower court’s most evidence, the Defendant may recognize the fact that the Defendant did not pay the Plaintiff dividends of 1,232 shares after the year 1961, and there is no evidence contrary thereto.

Accordingly, the defendant's claim against the plaintiff for the payment of 972,848 won as the dividend for the shares of 10 years from 1961 to 1970.

(A) Although there is no claim for dividend because the Plaintiff did not hold the share certificates, it does not require the shareholder of the registered shares to hold the share certificates in the exercise of shareholder's rights. Therefore, the above claim is groundless.

(B) The above shares were acquired in good faith with respect to the non-party Korea Securities Co., Ltd., which acquired the shares from Korea Fisheries, and five years have passed since it acquired the shares, the plaintiff lost the share certificates. However, the above non-party Korea Fisheries Co., Ltd., as if it was not the shareholder of the defendant Co., Ltd. but the plaintiff Co., Ltd., issued the share certificates of 1,232 in the name of the non-party Co., Ltd. under the name of the defendant. Thus, even if the non-party Korea Securities Co., Ltd. acquired the share certificates from the above Korea Fisheries Co., Ltd. without gross negligence without knowledge of its fact, the share certificates do not constitute a securities establishment, and therefore the stock certificates in the name of the non-party to Korea Co., Ltd., Ltd., which was not a shareholder, were not acquired by the subsequent purchaser, and it was not acquired by the subsequent purchaser without knowledge of its right, and it was not acquired by prescription after five years have passed since its acquisition.

(C) Inasmuch as the Plaintiff’s claim is groundless after the lapse of the period of extinctive prescription, the Defendant’s claim for the payment of dividends against the company issuing shares as a shareholder of the company, which constitutes five-year commercial prescription under Article 64 of the Commercial Act, and thus, the Plaintiff’s claim for the payment of dividends prior to May 18, 1966, which was five years prior to the filing of the lawsuit, should have expired.

Furthermore, when calculating the dividend amount that the Defendant is liable to pay, since the fact that the dividend rate and taxes from 1966 to 1970 are the same as the attached Table 2 does not conflict between the parties, it is reasonable to pay the Plaintiff KRW 519,650.

4. Therefore, the defendant is obligated to issue shares 1,232 shares of the defendant company with a share price of KRW 1,00 in the name of the plaintiff and pay KRW 519,650 as well as shares 1,232 shares of the defendant company with a share price of KRW 1,00 in the name of the plaintiff. Thus, within that limit, the plaintiff's claim is justified and the remainder of the claim is dismissed. Accordingly, although the original judgment dismissing the plaintiff's claim was unfair, the plaintiff's claim was modified in the original judgment as above, but it was modified in the original judgment as it changed the purport of the claim at the court, and it is so decided as per Disposition by applying Articles 96, 89, and 92 of the Civil Procedure

[Attachment List omitted]

Judges Kim Jin-jin (Presiding Judge)