[1] Legal relations where a company refuses a transfer without justifiable grounds

[2] Whether the mortgagee of stocks has voting rights to the company (affirmative)

[3] Whether the act of issuance of share certificates for personal debt security of the representative director is invalid (effective)

[4] Method of transferring registered shares

[5] The case holding that in case where the representative director of a stock company provides his/her own registered shares as a security for transfer and issues and delivers stock certificates to a third party after issuing and delivering them as well as then transfers them to a third party by means of transfer, the resolution of a general meeting of shareholders made without giving a notice of convening a general meeting of shareholders is null and void on the ground that there is a serious defect in the convocation procedure

[1] In principle, the acquirer of registered shares can exercise shareholders' rights against the company which should transfer the ownership of the company. However, the company may not refuse the transfer without proof that the claimant is not a legitimate holder, and if the company refuses such transfer, the transferee of the shares may exercise shareholders' rights against the company without a change of entry of the ownership of the company

[2] Even if shares are transferred for the purpose of collateral security and the transferee is merely a mortgagee, the mortgagee has a shareholder status in relation to the company, so voting right on the shares is against the mortgagee.

[3] The issuance of share certificates shall fall under the authority of the representative director and shall not require a separate resolution of the board of directors or any other decision-making procedure. Thus, the representative director's issuing of share certificates shall not be deemed null and void, and the delivery of share certificates shall not be null and void on the ground that the representative director delivered

[4] The transfer of shares under the current Commercial Code requires the issuance of share certificates in addition to the agreement on the transfer of shares, which shall be sufficient, and the above provision is a mandatory provision and shall not be stipulated otherwise by the articles of incorporation. Since the contract on the transfer of shares, which is not based on the method of the transfer of registered shares, cannot be asserted that the transfer of shares is effective against the company because it does not have the effect of the contract on the transfer of shares.

[5] The case holding that in case where the representative director of a corporation provides his own registered shares 50% of the shares issued by the company as security for transfer and issues and delivers share certificates as well as transfers them again to a third party by the method of transfer of claim, the resolution of the general meeting of shareholders made without giving a notice of convening the general meeting of shareholders is null and void on the ground that there is a serious defect in the convocation procedure

[1] Article 337(1) of the Commercial Act / [2] Article 372 of the Civil Act, Article 369 of the Commercial Act / [3] Articles 209(1), 356, and 389(3) of the Commercial Act / [4] Articles 335(1) and 336 of the Commercial Act / [5] Articles 363, 368, and 380 of the Commercial Act

[1] Supreme Court Decision 92Da40952 delivered on September 13, 1993 (Gong1993Ha, 2242) / [2] Supreme Court Decision 93Da8719 delivered on December 28, 1993 (Gong1994Sang, 511) / [3] Supreme Court Decision 94Da24039 delivered on January 26, 1996 (Gong196Sang, 715), Supreme Court Decision 96Da4319 delivered on September 12, 1997 (Gong197Ha, 3083) / [4] Supreme Court Decision 79Da71 delivered on January 15, 1980 (Gong1980, 12540)

A

B

1. The respondent shall not perform the functions of the representative director or director of the above company until the judgment on the merits of the case of confirmation of existence, etc. of the general meeting of shareholders (2002Gahap243) against C filed by the applicant against C.

2.The Attorney D shall be appointed as the representative director and the acting director of C in the period of suspension of the performance of duties.

3.The costs of the Request shall be borne by the respondent.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of Gap evidence 1, 2, 3-1 through 59, Eul evidence 1 through 3, 4-1 through 3, 5, and 6-1 through 6, and the whole purport of the examination of witness E's testimony, and witness E's testimony contrary to this is not trusted, and there is no other supporting evidence.

A. On February 26, 1992, the applicant lent KRW 500 million to C Co., Ltd (F Co., Ltd. before the trade name was changed on June 25, 2001; hereinafter referred to as “Nonindicted Co., Ltd.”) other than the applicant, and in return, received 1,000 shares of the company other than the applicant’s own shares from G which was the representative company of the company other than the applicant.

(b)In addition, on March 27, 1999, the applicant lent KRW 1 billion to G on July 27, 1999 as the due date for payment, and receives 4,000 shares of the company other than the applicant who owns it as collateral from G as collateral security, and if the above loan is not repaid by the due date for payment, the shares offered as collateral shall be owned by the applicant without any condition, and G agreed not to raise an objection in any way against it, and G has failed to repay the above loan by the due date for payment.

(c)The shares issued at the time of incorporation of the company other than the applicant were 10,000 shares of 10,000 won per face value per share, all of which were registered ordinary shares, and G and H were owned 5,000 shares each before the applicant acquired or received each of the above shares as security;

D.On the other hand, while transferring 5,00 shares to the respondent or offering them as above, G transferred 50 shares out of its own shares to I on December 1, 1999, 2,50 shares out of its own shares to J on August 9, 200 and 2,500 shares out of its own shares to K on December 5, 200, J and K once again transferred 50 shares to SH on December 1, 199, H transferred 4,50 shares to 50 shares and 4,50 shares to B on December 1, 199, and I transferred 1,00 shares to 1,00 shares that it transferred to Respondent on January 16, 201, B and D are registered as shareholders in the register of shareholders and L shareholders, and both transfer and transfer of shares without the issuance of each share certificate.

E.M was registered as a director or representative director on August 10, 200 in the registry of the company other than the applicant for registration. The minutes of the provisional shareholders' meeting and the authentication of the minutes of the board of directors submitted at the time of the application for registration of the above representative director were held as shareholders of the company other than the applicant, G, B, and I as the temporary shareholders' meeting held at the time of the application for registration of the appointment of the representative director, and the resolution of dismissal of N, the director and the representative director of the company other than the applicant, while the non-party M is appointed as a director, the board of directors of the company other than the applicant for registration held at 15:30 on that day, stated that the non-applicant M is present at the meeting of the board of directors other than the

F. After the lapse of July 27, 1999, the applicant filed a claim for change of ownership over several occasions with respect to the 5,000 shares he/she holds as the non-applicant company, but the non-applicant company did not comply with it without any justifiable reason. On February 26, 2001, the applicant filed a lawsuit against the non-applicant company claiming change of ownership of shares at this court No. 2001Ga253 with respect to the above shares he/she holds as the non-applicant company. On June 3, 2001, the applicant filed a lawsuit against the non-applicant company that appointed M on August 9, 200, asserting that the resolution of the general meeting of shareholders was invalid or non-existent, and filed a provisional disposition application for suspension of the performance of his/her duties as the representative director and the director and the appointment of the acting director (hereinafter referred to as "provisional disposition case").

G.M had registered the appointment as a director and a representative director of the company other than the applicant company on August 10, 200, while performing the duties of the representative director of the company other than the applicant company. Around June 25, 2001, the previous provisional disposition case was under trial, and the trade name of the company other than the applicant was changed from F to C to F Co., Ltd. A. On October 4, 2001, the court rendered a decision to suspend M’s execution of duties as the representative director and the director until the main decision of the case where the invalidity or non-existence of the resolution of the general meeting of shareholders was declared on August 9, 200, while dismissing the applicant’s application for the appointment of the representative director and the director.

H. On October 5, 2001, the following day after the decision of provisional disposition for transfer was made, the respondent registered as a director on the register of the company outside the application, and the registration was entered that the total number of shares to be issued by the company outside the application was changed to 500,000 shares. On September 25, 2001, the letter of certification of the minutes of provisional shareholders meeting of the company outside the application filed at the time of the above application for registration was written on September 10, 2001, the respondent, who is a shareholder of 5,500 shareholders of the total number of shares issued by the company outside the application (hereinafter referred to as the "general shareholders' meeting of this case"), dismissed the Respondent, who is a director, and appointed the Respondent as director. The resolution was made on October 5, 2000 to appoint the total number of shares to be issued under Article 5 of the articles of incorporation of the company outside the application, the type of share certificates, 10, 100 share certificates, 100 share certificates, 100

(i)In addition, on October 26, 2001, the registry of the non-applicant company is listed on November 10, 2001 that the respondent was the representative director, Q and R were appointed to each director. The letter of certification of the board of directors meeting minutes submitted at the time of the above application for registration of the representative director was held on October 26, 2001, each of the respondent, S, Q and R was present at the board of directors of the non-applicant company held at around October 10, 201 as the respondent, S, Q and R respectively as the director and the auditor, and each of them is stated that the resolution was made to appoint the respondent as the representative director, and in light of the above registry, Q and R was held in the same way as the shareholders' general meeting of this case. However, the applicant did not hold a notice of convening a temporary general meeting of shareholders under the provisions of the Commercial Act concerning the holding of the provisional general meeting of shareholders.

(j)U Co., Ltd. (the respondent of representative director, and the establishment of July 24, 2001) obtained ownership by winning a bid in KRW 9,99,99,99,99 on August 31, 2001 through the court auction procedure on August 13, 2001. Since the registration of appointment as a director and representative director of a company outside the application, the respondent obtained ownership by fully paying the price. Since the registration of appointment as a director and representative director of the company outside the application, the respondent obtained a permit for the alteration of the above business place and its trade name from the Minister of Culture and Tourism to C, a corporation (Y) on August 31, 201.

2. Determination as to the existence of a preserved right

A. The assertion of the applicant and the judgment thereof

(1) The applicant asserts that the applicant is a shareholder holding 5,00 shares equivalent to 50% of the total number of shares issued by the company other than the applicant, and that the applicant has been notified of the convocation of the general meeting of shareholders of this case, and there is no fact that the applicant attends the general meeting of shareholders of this case. Thus, the respondent is appointed as a director of the company other than the applicant at the general meeting of shareholders of this case and the appointment as a representative director at the board of directors based on this is null and void as it is without a legitimate resolution of the general meeting of shareholders. Thus, the applicant who is a shareholder of the

(2) There is no dispute between the parties that the applicant did not attend the general meeting of shareholders of the instant case. We examine whether the applicant owns 50% of the shares of the non-applicant company, or whether the applicant has 50% of the voting shares of the shareholders of the non-applicant company even if he did not acquire the ownership of the shares.

First, with respect to the 1,00 shares of the registered shares transferred on February 26, 1999, the applicant received the above share certificates, and the non-applicant company rejected the request for change of ownership unfairly prior to the opening of the shareholders' general meeting of this case. However, in principle, the acquirer of the registered shares is entitled to exercise the shareholders' rights against the company which is required to change of ownership (Article 337(1) of the Commercial Act), but the company cannot refuse the change of ownership without proving that the applicant for change of ownership is not a legitimate holder. In this case, the transferee of the shares can exercise the shareholders' rights against the company without changing of ownership (see Supreme Court Decision 92Da40952 delivered on September 13, 1993). In this case, the applicant can exercise the shareholders' rights against the company other than the applicant without a change of ownership (see Supreme Court Decision 92Da40952 delivered on September 13, 193).

Next, with respect to the 4,00 shares which the applicant was provided as security for transfer on March 27, 1999, even though the applicant did not yet undergo the procedure for settlement of the above shares as asserted by the respondent for household affairs and the right to ownership is not transferred to the applicant, even if the shares are transferred for the purpose of security for claims and the transferee is merely the mortgagee, in relation to the company, the mortgagee is entitled to shareholder in relation to the company (see Supreme Court Decision 93Da8719 delivered on December 28, 1993). Therefore, the right to vote on the above shares shall be held by the

(3) Therefore, the applicant has the right to exercise the voting right on 5,000 shares issued by the company other than the applicant's general meeting of shareholders. Thus, the applicant's general meeting of shareholders of this case held without giving a notice for convening a notice under the Commercial Act shall have a significant defect in its procedure.

B. Respondent's assertion and judgment

(1)The respondent argues that the issuance of the share certificates is also null and void since G was issued and delivered in accordance with the gross area, and it was also issued for the representative director's personal obligation security, but the issuance of the share certificates is also subject to the representative director's authority and does not require separate resolution or other decision-making procedures (see Supreme Court Decision 94Da24039 delivered on January 26, 1996, etc.). Thus, the issuance of the share certificates cannot be deemed null and void, and the delivery of share certificates cannot be deemed null and void because it was delivered for the representative director's personal obligation security. Accordingly, each of the above arguments is without merit.

(ii)The respondent must again obtain the approval of the board of directors at the time of the establishment of the security for transfer of shares. At the time of the establishment of the security for transfer of shares, there was no procedure for the approval of the board of directors at the time of the establishment of the security for transfer of shares, and the applicant was well aware of this fact, so that the transfer of the security for transfer of shares in this case is null and void as an anti-social order or an evasion of law under Article 103 of the Civil Code, but there is no ground to deem that the transfer of shares in the company other than the applicant is subject

(iii)The respondent asserts that all these are registered shares, and the applicant does not have been registered as a shareholder in the register of shareholders of the company other than the applicant, and that the applicant does not have a way to transfer the ownership by registering shares from G as a shareholder in the register of shareholders. Thus, the applicant asserts that the applicant is no longer entitled to claim rights as a shareholder of the company other than the applicant.

Therefore, the transfer of shares under the current Commercial Code requires the issuance of share certificates in addition to the agreement of transfer (Article 336 (1) of the Commercial Code), and the above provision is sufficient, and the articles of incorporation are no different provisions. The above assertion also has no reason to believe that the transfer of shares is effective against the company since the agreement of the transfer of shares without the delivery of share certificates is merely the in personam effect of the transfer of shares (see Supreme Court Decision 79Da71 delivered on January 15, 1980). Since the transfer of shares under the current Commercial Code requires the delivery of share certificates in addition to the agreement of the transfer of shares (see Supreme Court Decision 79Da71 delivered on January 15, 1980), the transfer of shares is null and void, on the other hand, that the applicant can exercise his voting rights against the company other than the applicant.

(4) Finally, the respondent argues that the applicant's own ownership of B and G's legitimate ownership was denied by the applicant's own acquisition of the applicant's own shares in a bilateral selective relationship with B and G, and thus, the filing of the application in this case is in violation of the principle of gold speech. However, it is not sufficient to recognize that the applicant recognized the Plaintiff's ownership of B and G's shares only with some entries of No. 3-2, 53-57, and witness E's testimony, and there is no other evidence to acknowledge it, and therefore, the above assertion is without merit.

(c) Conclusion

Therefore, at the time of the opening of the general meeting of shareholders of this case, the applicant had voting rights on 50% of the shares issued by the company other than the applicant, and so long as it was proved that he did not attend the general meeting of shareholders of this case, the general meeting of shareholders of this case shall be deemed to have a serious defect in the convocation procedure, and the resolution of the above board of directors based on the resolution of the above defective general meeting of shareholders shall also be deemed to have a significant defect. Thus, the applicant has a vindication of the preserved right to seek the suspension of the respondent's performance of duties on account of the defect in the resolution

3. Determination on the necessity of preservation

A. According to the facts found in paragraph (1) above, the respondent attended the resolution of the shareholders' meeting of this case on September 25, 2001, when the previous provisional disposition case, which became an issue as to the applicant's status as a shareholder of the company other than the applicant, was under trial, and was appointed as directors themselves. The respondent decided to transfer provisional disposition that the applicant has voting rights as shareholders of 5,000 shares out of 10,000 shares of the company other than the applicant, and it violated the purport of provisional disposition by holding temporary shareholders' meeting to move Q and R to the applicant as a director without notification even after October 26, 2001. ② In light of the above, it is difficult for the board of directors to change the applicant's rights as a shareholder of the company other than the applicant's company's company's company's company's representative director's representative director's material rights as a shareholder of the non-applicant company's company's company's representative director's representative director's representative director's representative director's representative director's representative director's right to move.

(b)In this regard, the respondent asserts that the applicant's application for provisional disposition suspending the representative director's performance of duties without filing a principal lawsuit on the right to be preserved is only for the applicant to use the application in the manner of pressure to easily recover monetary claims in dispute between the company outside the application and the company outside the application, not for exercising shareholder's rights. Since the respondent, who is the actual owner of the company outside the application, takes office as the representative director, the non-applicant company outside the application is in business expansion and internalization, and the non-applicant company is in business state, so the respondent's continued performance of duties as representative director is likely to cause irreparable damage to the company outside the application, or there is no need to preserve the application in this case.

On March 22, 2002, the claimant filed a lawsuit against the non-applicant company in this court for confirmation of the absence of the resolution of the general meeting of shareholders in this case as the court 2002Gahap243, the respondent's assertion based on the facts that the applicant filed a lawsuit for confirmation of the absence of the resolution of the general meeting of shareholders in this case is without merit, and the respondent's assertion based on the facts that the respondent has not filed a lawsuit on the merits is not reasonable, and it is possible on the premise that the respondent is a substantial owner of the company other than the applicant's company, and that the business expansion or business expansion is being performed as a substantial owner of the company other than the applicant's claim, so the respondent's above argument

4. Conclusion

Therefore, the respondent shall not perform the duties of the representative director and director of the company other than the respondent's application for suspension of the performance of duties as the representative director and director of the company other than the application of the respondent on the ground of the defect in the resolution of the general meeting of shareholders of this case. Thus, the respondent shall not perform the duties of the representative director and director of the company other than the application of the applicant until the judgment on the merits of the case such

Furthermore, in light of the fact that the respondent who is a major shareholder of the company other than the applicant does not recognize the rights of the applicant as a shareholder of the company other than the applicant, the dispute over the management rights of the company other than the applicant is very serious, and that it is difficult to expect fair performance of duties as an acting person under the provisions of the articles of incorporation of the company other than the applicant since the board of directors is composed of directors appointed under the status of exclusion of the applicant as a shareholder of the applicant, the acting person under the provisions of the company's articles of incorporation of the company other than the applicant is difficult.

Therefore, the applicant's application of this case is legitimate, and all of them are accepted, and it is decided as per Disposition.

Judges Lee Jong-soo (Presiding Judge)