2014 Doz. 1994 Issuance of New Shares

○ ○

○ Stock Company

October 30, 2014

November 2011, 2014

1. The Defendant’s issuance of new shares of KRW 29,00 in common shares of KRW 5,00 per face value on May 22, 2014 is null and void.

of this section.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Basic facts

A. Defendant Company is a corporation established for the purpose of passenger transport service, etc., and the Plaintiff is a corporation.

A shareholder who holds 25,593 shares out of 104, 720 shares issued by Defendant Company.

B. The management of the Plaintiff and the Defendant Company continued a dispute over the management right.

3 . 14 . 원고는 청주지방법원 2014비합◆호로 이사 5인 , 감사 2인 추가 선임을 위한 임

On June 17, 2014, with the permission to convene a general meeting of shareholders of the Si, the special meeting was to be held as a person, and this was to this effect.

On May 2014, the notice of convening the above provisional shareholders' meeting was given since the first police officer.

C. Among them, Defendant Company held a board of directors on May 22, 2014 to the creditors of Defendant Company.

Resolution to issue new shares 29,006 shares at par value of 5,000 by means of investment in kind with bonds

C. (hereinafter referred to as the "Issuance of New Shares") on May 28, 2014, registered the issuance of the above new shares.

D. Changes in the capital structure and governance structure of the Defendant Company due to the issuance of the instant shares are as follows.

In addition, the details, etc. of bonds shall be as stated in the attached Form and the matters concerning the issuance of new stocks and investment in kind.

for the purposes of this section.

A person shall be appointed.

E. The articles of incorporation of the defendant company shall not provide for issuance of new stocks or contribution in kind through the assignment of a third party.

(c)

[Ground of recognition] Unsatisfy, Gap evidence 1 to 9 (including branch numbers, if any)

Each entry, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff asserts that the issuance of new shares of this case is null and void for the following reasons.

(1) The issuance of new stocks by investment in kind is deemed to affect shareholders' preemptive rights.

As such, the requirements set forth in Article 418 of the Commercial Code shall be met, and such requirements shall be met.

issuance of new stocks by investment in kind which does not satisfy the requirements is infringed upon the preemptive rights of shareholders.

illegal.

However, there is no provision regarding the issuance of new shares by the third party allocation in the articles of incorporation of the defendant corporation.

The issuance of new shares in this case is required by Article 418(2) of the Commercial Act.

In addition, the defendant company did not meet the requirements for the issuance of new shares of this case.

In this regard, the public notice procedure under Article 418(3) of the Commercial Code was not followed.

As above, corporate governance of the defendant company has changed due to illegal issuance of new shares, and the plaintiff

The shareholders' rights were infringed.

② The issuance of new shares in this case is made in kind with a claim the maturity of which has yet to elapse, and it is reasonable to make a contribution in kind.

under section 422(1) of the Commercial Code, however, the defendant corporation shall be subject to an investigation by an inspector under section 422(1) of the Commercial Code

The issuance of new shares did not go through such procedures.

B. Defendant Company’s assertion

The Defendant Company asserted that the issuance of the instant shares is lawful on the following grounds.

(1) Where issuance of new stocks is made by contribution in kind, the preemptive rights of existing shareholders shall not be forfeited.

not, in particular, with respect to the allocation of new shares to the investment in kind or to a third party, the articles of incorporation of the defendant corporation

under Article 416 (4) of the Commercial Act, which is amended by Act No. 416 (4)

may determine matters concerning contribution in kind.

(2) Existing shareholders' preemptive rights to new stocks through investment in kind shall also affect the issuance of new stocks.

Even if the issuance of new shares by investment in kind is made, it is not necessary to achieve the objective of management.

Since it was avoided, it satisfies the requirements of Article 418(2) of the Commercial Code.

3. Relevant legal principles

A. The shareholder’s preemptive right to new shares causes priority in proportion to the number of shares previously held by the shareholder.

by law, the right to be apportioned with new shares is entitled to be apportioned to the shareholders, subject to the qualifications of the shareholders.

to be recognized as shareholders and only derived from the articles of incorporation or a resolution of the board of directors;

The shareholder’s preemptive right to new shares maintains the proportion of the shareholder’s participation in the company.

The basic device is the incidental phenomenon to the shareholder qualification, and the Commercial Code is the acquisition of new shares by shareholders.

Considering such characteristics of rights, the existing shareholders' preemptive rights have wide been subject to articles of incorporation.

In principle, a shareholder through the amendment of the law on July 24, 2001 when making it possible to limit.

(Article 418(1)), the legal status of shareholders, by expressly stipulating that the right to subscription belongs to the State (Article 418(1));

Along with this, the Act was strengthened.

However, the shareholder's preemptive right to new shares also seeks to create capital stock of the company or to deal with employees and transactions.

to strengthen the relationship with third parties, such as wife, or to protect management rights from hostile corporate purchase;

of the shares held by the existing shareholders in such case, the value of the shares held by the existing shareholders

in light of the concern that there is a risk of disadvantage, such as the loss of control over such company or

Article 418 (2) of the Act shall only make the allocation of new shares to a third party available in accordance with the articles of incorporation.

(2) If it is necessary to establish a new technology or improve the financial structure of the company, it is necessary to operate the company.

In exceptional cases, the protection of existing shareholders' preemptive rights is strengthened by limiting them to exceptional cases.

(See Supreme Court Decision 2008Da50776 Decided January 30, 2009).

B. On the other hand, the contribution in kind is to raise capital of the company or to convert the company into a company or to convert the company into a company; or

in the form of an important contribution of property used in dividing or commercializing industrial property rights:

to secure, in advance, specific property necessary for the enterprise and to hold in kind;

to facilitate the public capital by allowing subscribers to make a direct investment in kind.

§ 416(4) of the Commercial Code, unless otherwise provided in the articles of incorporation, the board of directors may withdraw in kind.

It provides that any person may make a decision on any of its matters.

In light of the above provisions of the Commercial Act and the purport of the investment in kind system

In principle, in the case of issuance of new shares, there is no existing shareholder's preemptive right.

tin but, in this case, the reasonable assessment in kind has been made, which is a creditor of the Company, even if such assessment was made.

the protection of the company may be the protection of the existing company, but it is insufficient to protect the proportional interest of the existing company.

There is no choice but to say that it is.

In particular, a resolution of the board of directors under Article 416 of the Commercial Code is not provided for in the articles of incorporation.

to make a decision on the investment in kind, if such decision is allowed without any limitation, the investment in kind.

The ratio of new shares to existing shareholders relatively easily by allocating new shares to a third party using the system.

the investment in kind system can be adjusted in favor of them, and as a result, existing investment in kind system.

It is also likely to be abused as a means of avoiding the preemptive rights of shareholders.

In addition, the method is not a cash investment but a new shareholder's trust solely because it is an investment in kind.

There is no reason to see that protection of the master authority is weak, and the discretion of the board of directors is interest of the company.

of its management right or controlling shareholder's interest in all shareholders.

consideration of the duty of loyalty of directors that should not be exercised for the maintenance of control or

In full view of the purpose of the current law that strengthens the shareholder's preemptive right to new shares, withdrawal in kind

Even in the case of issuance of new shares by the method of self-issuance, certain restrictions are necessary.

(c) The statement that shareholders' preemptive rights are excluded in cases of issuance of new stocks by the method of investment in kind.

If it is necessary to place a certain limitation on the grounds as seen earlier, the meaning of any standard

The question is whether or not to limit it.

First of all, the purpose to achieve through exclusion of preemptive rights should be beneficial to the company.

In other words, the company has a special interest in the increase of capital under the condition that the existing shareholders' preemptive rights are excluded.

required by section 20.

Second, the exclusion of preemptive rights must be necessary and appropriate for the interests of the company.

If the exclusion of preemptive rights is not required, it shall be the interest of the company, even though it is not required to do so.

shall not be permitted even if it is not permitted.

Finally, the Company's interest in and its result of the exclusion of preemptive rights made to achieve the objective

Compared balancing between the loss suffered by the shareholder, that is, the proportionality between the purpose and the means.

in this case the purpose may be achieved without exclusion of preemptive rights.

The exclusion of preemptive rights where the corporate interests are too weak to justify the loss of shareholders;

shall not be permitted.

In light of the above point, in the issuance of new shares by the third party allocation method, the Commercial Code

418(2) In the management of a company, such as the introduction of new technology, improvement of financial structure, etc.

If it is necessary to achieve the purpose, the requirement to issue new stocks by the method of investment in kind.

It can be applied equally to the case.

(d) However, the contribution in kind is made by various motives compared to the contribution in cash.

in determining the legitimacy of the exclusion of preemptive rights by contribution in kind; and

(1) be the subject of such consideration.

Review of legitimacy of the exclusion of preemptive rights by general property investment is different from the case of cash investment.

corporation. Accordingly, the corporation acquires the property in question in light of the purpose of the corporation.

(ii) there is such interest of the corporation that is able to be paid as such; and

meeting the requirement of exclusion of preemptive rights, 3) meeting the proportionality if necessary.

must be examined as to whether or not.

On the other hand, in order to improve the financial structure, new shares are issued through conversion of liabilities.

such conversion may take place only in the form of investment in kind, in principle, in the company.

interest. In this case, exclusion of preemptive rights may be deemed to meet the suitability and need.

In order to maintain the prop ratio of other shareholders, whether the proportionality is satisfied or not.

capital increase by cash investment under the exclusion of preemptive rights of such person; or

section 1.3.

4. Determination

A. In issuing the new shares of this case, the defendant company's defendant company

It is true that the capital structure has been improved formally by receiving each claim against the company.

In this case, the interests of the existing shareholders and the management rights of the company due to the issuance of the new shares

If, as a result, the preemptive right of a shareholder was infringed by a significant impact on the control control, that effect.

The issuance of new shares, such as the issuance of new shares, shall be null and void.

B. Based on the facts as seen earlier and the evidence stated in the above Paragraph (1)

The following circumstances are recognized:

① Many of the monetary claims invested by the investors in kind in the issuance of new stocks of this case have yet to exist.

(1) If the due date has not yet arrived, the defendant company shall not be

There was no situation in which a demand for the repayment of a claim was made.

② A dispute arises between the management of the Plaintiff and the Defendant Company, and the Plaintiff is appointed from the court.

A notice of convening a general meeting of shareholders was given with the permission to convene a general meeting of shareholders.

During the issuance of new shares in this case, the issuance of new shares was completed.

③ Before the issuance of new shares in this case, the Plaintiff issued shares equivalent to 44% of the total issued shares.

shareholders who were owned and delegated to the Plaintiff the voting rights at the temporary shareholders’ meeting.

§ 25.65% of outstanding shares, and the voting rights that the plaintiff could have exercised at the time of a special meeting of shareholders shall not be less than

50. 09% of the voting rights that the plaintiff can exercise at a special shareholders' meeting due to the issuance of the new shares of this case

The total voting rights reduced to 39.91%.

On the other hand, the plaintiff and the representative director, directors and their shareholders of the defendant company in dispute of management.

their voting rights are changed from 98% to 65% before and after the issuance of the new shares of this case to 36% before and after the issuance of the new shares of this case.

With the issuance of new shares, significant changes in the corporate governance structure of the defendant company have occurred.

(4) The purpose of the defendant company's contribution of monetary claims from the investors in kind is ordinary.

there is no circumstance to consider that the method of stock allocation could not be achieved.

(2).

C. The situation of the Defendant Company at the time of the issuance of the new shares in this case and before and after the issuance of the new shares in this case

Details of changes in the governance structure of the Defendant Company, the nature of the claim invested in kind, the necessity of investment in kind, and longer;

In light of urgency, etc., the issuance of new shares in this case is realistic when a dispute over management rights of the company is realized.

to achieve the purpose of the management or the defense of control of the management of the defendant corporation;

Although it is not necessary to achieve the objective or it is unnecessary to take into account the interests of the existing shareholders;

In spite of the type of investment in kind to a third party who can defend the right of management and control;

It is reasonable to see that it is a mere allocation of new shares.

As a result, it infringes on existing shareholders' preemptive right to new shares by using the contribution in kind system.

Therefore, the issuance of new shares in this case is null and void.

5. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it shall be decided as per Disposition.

Judges Cho Jae-chul et al.

judge-in-law

Judge Han-hee

1) The Plaintiff and the representative director, directors, and their shareholders (new shareholders by the issuance of new shares) who are in dispute with management rights are owned by them.

2) For example, in the event that there is no operating nature, such as the acquisition of art products by a company whose purpose is mining operations, a non-business trend is for the purpose of the company.

It would be difficult to see that there is a special interest.

3) Investment in property that can be easily purchased in the market may not meet the need.