Plaintiff (Appointed Party Law LLC, Attorneys Lee Young-hee et al., Counsel for the plaintiff-appointed party-appellant)

New-ro Co., Ltd. (Law Firm LLC, Attorneys Park Im-sik et al., Counsel for the defendant-appellant)

November 27, 2014

1. All part of the instant lawsuit’s claim for confirmation of shareholder status is dismissed.

2. The defendant,

(a) As to the shares listed in Attachment 1 List 1 to 2 of the Selections:

(b) As to the shares listed in Section 2 of Schedule 1 to 3 of the Selection:

(c) As to the shares listed in Annex 1 Schedule 3 to 4:

(d) As to the shares listed in Section 4 of Annex 1 to 5:

(e) As to the shares listed in Annex 1 Schedule 5 to 6:

(f) As to the shares listed in Annex 1 Schedule 6 to 7:

(g) As to the shares listed in Section 7 of the Schedule 1 to the Appointor 8:

(h) As to the shares listed in Attachment 8 of Schedule 1 to 9:

(i) As to the shares listed in Section 9 of Schedule 1 to 10:

(j) As to the shares listed in Section 10 of [Attachment 1] to the Plaintiff (Appointed Party);

(k) As to the shares listed in Section 11 of [Attachment 1] to 11

Each transfer procedure shall be implemented.

3. The Defendant’s resolution on July 9, 2013 at a special shareholders’ meeting as of July 9, 2013 is revoked.

4. Of the costs of lawsuit, 1/5 are assessed against the Plaintiff (Appointed Party) and the remainder are assessed against the Defendant, respectively.

An order Nos. 2, 3, and 2 of the order Nos. 2, 3 and 2 of the annexed Table Nos. 1 List Nos. 1. 3 as to the shares listed in Annex No. 2 of the annexed Table Nos. 1. 4 as to the shares listed in Annex Nos. 4 as to the shares listed in Annex Nos. 1 List No. 4 as to the shares listed in Annex Nos. 5 as to the shares listed in Annex Nos. 5 as to the shares listed in Annex Nos. 1 List No. 6 as to the Claimant No. 7 as to the shares listed in Annex No. 8 as to the shares listed in Annex No. 1 List No. 9, the Appointed No. 9 as to the shares listed in Annex No. 1 List No. 10, and the Appointed No. 11 as to the shares listed in Annex No. 1 List No. 1 as a shareholder of each Defendant company.

1. Basic facts

A. Status of the parties

(1) On January 5, 1988, the total number of shares issued by the Defendant (the first two were the “Sable Plastic Co., Ltd.” but the last two were the trade name as of July 9, 2013) is 60,000 shares issued by the company established on January 5, 198 (the total shares were not issued) and the total amount of capital is 300,000 won.

B. The Defendant Company’s representative director or internal director from January 5, 198 to June 15, 2012. Nonparty 3 (Defendant Defendant 2: Defendant 2) and Nonparty 4 (Defendant 2: Defendant 2) are the former wife of the Deceased and the Deceased, and both the Plaintiff (hereinafter referred to as the “Plaintiff”), 3, 6, 8, and 9 were the births of the Deceased. The Appointed 2 is the spouse who re-born with Nonparty 5 around 1991 after the Deceased was divorced from Nonparty 5, and the rest of the Appointed 3, 3, 8, 8, 9 are the spouses or children of the Deceased.

Fidelity at the time of June 9, 2012, the Deceased held 40,000 shares out of the total number of shares issued by the Defendant Company (hereinafter “instant shares”) and Nonparty 4 and 6,000 shares out of the remaining shares were owned by Nonparty 3 respectively.

B. Holding a general meeting of the defendant company

(1) On June 10, 2012, Non-party 3 and Non-party 4 were transferred in 20,000 shares of this case owned by the deceased, and the non-party 4 was appointed as the internal director of the Defendant company, a successor, through a written resolution of the general meeting of shareholders (hereinafter “the first general meeting of shareholders”) on the 15th of the same month.

B. On August 13, 2012, the Plaintiff and the designated parties (hereinafter referred to as “Plaintiffs”) filed an application for permission to convene a general meeting of shareholders (the Suwon District Court Decision 2012Kahap169 case) with respect to Nonparty 4, appointed as a director at the first general meeting of shareholders, for the suspension of the exercise of director’s duties and the provisional disposition to appoint an acting director (the Suwon District Court Decision 2012Kahap169 case), and for the change of executive officers, etc. on the agenda, respectively. On April 8, 2013, the court accepted each of the above applications on the premise that the Plaintiffs had been effectively transferred the shares of this case.

(1) On May 29, 2013, Non-party 1, appointed as an acting director in the above provisional disposition, held a provisional general meeting of the defendant company (hereinafter referred to as "second general meeting of shareholders"). The shareholders present at the above general meeting of shareholders (the acting director, according to the purport of the above provisional disposition disposition order, the plaintiffs took the general meeting of shareholders on the premise that the non-party 4 had a total of 40,00 shares, the existing 14,00 shares, and the existing 6,00 shares, respectively) were dismissed from the inside director, and the non-party 3 was decided to appoint the appointed person as a new director and the non-party 6 as an auditor respectively.

In addition, on October 11, 2012, the time when the above provisional disposition was filed, the plaintiffs filed a lawsuit seeking confirmation that Nonparty 4 did not have a resolution at the first general meeting of shareholders against the defendant as an internal director (the Suwon District Court Branch Decision 2012Gahap8045 case; hereinafter the "previous principal lawsuit"). On August 22, 2013, the first trial court dismissed the plaintiffs' transfer of the shares of the defendant company to the effect that "the non-party 3 and non-party 4 were transferred 20,000 shares of the defendant company from the deceased on June 10, 2012, the plaintiffs were unable to receive the shares of the defendant company from the deceased, and thus the plaintiffs were not entitled to seek confirmation of the non-existence of the resolution at the general meeting of shareholders." The plaintiffs filed an appeal and withdrawn the lawsuit above on April 18, 2014.

(v) Thereafter, Nonparty 3 and Nonparty 4, along with Nonparty 7, dismissed Nonparty 3 from the internal director, Nonparty 6 from the auditor, respectively, on the premise that they are the entire shareholders of the Defendant company ( Nonparty 434,000, Nonparty 324,500, Nonparty 1,500, and Nonparty 7) by the written resolution on July 9, 2013, on the premise that they are the entire shareholders of the Defendant company (hereinafter referred to as “each of the instant resolutions”). Nonparty 4, as the representative director and the internal director of the Defendant company, was subject to a resolution of shareholders’ meeting (hereinafter referred to as “third shareholders’ meeting”) (hereinafter referred to as “each of the instant resolutions”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 7 through 11 (including each number in the case of provisional evidence; hereinafter the same shall apply), Eul evidence 1, 10, 12, 25, 26, 33 and 34, and the purport of the whole pleadings

2. Determination prior to the merits

A. As to the defendant's main defense

(1) The defendant's assertion

On June 10, 2012, Nonparty 3 and Nonparty 4 received the entire shares of this case from the Deceased, and accordingly completed the transfer of the shares until the 18th of the same month. Thereafter, on August 13, 2012, the Plaintiffs received the entire shares from the Deceased and notified the Defendant Company of a transfer with a fixed date after receiving the transfer of the shares of this case from the Deceased. However, this is null and void as the Plaintiffs actively participated in the dual transfer of shares by the Deceased, and even if not, the Plaintiffs cannot exercise their shareholder rights lawfully against the Defendant Company due to the completion of the change of entry in the name of the Defendant Company.

In addition, a resolution of the second general meeting of shareholders of the defendant company that appointed 3 as the inside director of the defendant company is invalid as a resolution that excluded the non-party 3 who was the actual shareholder at the time of the second general meeting of shareholders

Ultimately, the plaintiffs are not the shareholders, directors, and auditors of the defendant company who can file a lawsuit seeking revocation of the resolution of the general meeting of shareholders under Article 376 of the Commercial Act.

D. As to the existence of the status of shareholder

㈎ 논의의 쟁점

Although Nonparty 3 and Nonparty 4 received 40,00 shares of this case from the Deceased on June 10, 2012 (hereinafter “prior transfer”), and received the Defendant’s assertion that the transfer of ownership was completed on the 18th day of the same month, Nonparty 3 and Nonparty 4 did not reflect the fact that the shares were transferred to Nonparty 3 and Nonparty 4 on the Defendant’s list (Evidence A6) as of July 24, 2012 submitted by the Plaintiff; ② P&G tax accountant office that had been in charge of accounting affairs of the Defendant Company by the first day of April 2013, it is difficult to conclude that the transfer of shares was made with Nonparty 3 and Nonparty 4’s request from the Defendant for the change of ownership to the effect that the transfer of shares was transferred to Nonparty 4 and Nonparty 4; ③ it is difficult to conclude that the transfer of shares was made with Nonparty 1’s statement on the change of ownership by Nonparty 4 and Nonparty 1’s transfer of shares by the Defendant’s transfer of shares, etc.

㈏ 후행 주식양도행위의 유효성

The transfer of shares prior to the issuance of share certificates takes effect only with the declaration of intention of the parties, and a person who has acquired shares prior to the issuance of share certificates can, except in extenuating circumstances, solely prove that he/she acquired shares by himself/herself without obtaining cooperation from the transferor, and in order to oppose the transfer to a third party other than the company, the transferor shall obtain the notification or consent of the transfer by a certificate with the fixed date in accordance with the transfer of nominative claim. In light of the fact that the transferor shall notify the transfer to the company so that he/she can satisfy the requisite for setting up against the third party by giving the transferee the notification of the transfer to the company. Therefore, if the transferor transfers the shares to a third party before giving notice of the transfer to the third party before giving notice of the transfer, and the transferee cannot set up against the third party by giving notification of the transfer with the fixed date, and if the third party actively participated in the act of the transferor's breach of trust, the transfer to the third party is null and void as a juristic act contrary to social order (see Supreme Court Decision 2005Da4537

According to the health stand and evidence evidence No. 7 of this case, it is recognized that the deceased transferred 3,00 shares of this case to the 2 of August 13, 2012, to the 10,000 shares out of 40,000 shares of this case, the plaintiff, 3, 4, 9, 10, 10, 11 each of 3,00 shares to the 2,00 shares, 5, 6, and 7, respectively, to the 2,000 shares, 6,00 shares to the 8, and 6,000 shares to the 6,00 shares to the 8,00 shares, and on the same day, the defendant company notified the 3,00 shares with a fixed date of transfer concerning the subsequent transfer of shares of this case.

As seen earlier, the Defendant asserts that such transfer is null and void as a juristic act contrary to social order since the Plaintiffs actively participated in the deceased’s breach of trust, i.e., transfer after the instant case. However, it is insufficient to recognize such assertion only with the descriptions of evidence Nos. 5, 7, 17, 19, Nos. 1, 2, 7 through 11, 16 through 21, 26, 28 through 32, and 35, and there is no other evidence to acknowledge otherwise, the Defendant’s above assertion cannot be accepted (or, in other words, how the deceased did not know that it was the deceased’s 5 through 7, and 17, and how the Plaintiff did not know that it was the deceased’s 20th of June 21, 2012, which was subsequent to the instant transfer of shares, and how the Plaintiff did not know about the transfer of the deceased’s shares to Nonparty 2, 201, including the Plaintiff’s written testimony to the 10th of the company.

㈐ 이중양수인 간의 우열 관계

A shareholder registered in the register of shareholders is recognized as having the effect of exercising a shareholder’s right even if he/she does not prove his/her actual right in relation to the company, and does not have the effect of establishing a new shareholder’s right by entry in the register of shareholders. Therefore, in cases where a dual transfer of shares prior to issuance of share certificates is at issue, regardless of whether a change of ownership has already been made with respect to a part of the dual transferee, who is the first priority holder should be determined as a holder of a right. In principle, in the case of a dual transfer of nominative claim, the order of transfer with a fixed date should be determined by the date when the notice of transfer with the fixed date reaches the company or after the date of approval with the fixed date with the fixed date, according to the case of a dual transfer of nominative claim (see, e.g., Supreme Court Decision 2005Da45537, Sept. 14, 206).

In light of the above legal principles, although non-party 3 and non-party 4 first transferred 40,00 shares prior to the issuance of the defendant company's share certificates from the deceased and completed the transfer procedure, they cannot assert preferential exercise of shareholders' rights against the plaintiffs who have met the requirements for setting up against the third party upon the arrival of the notice of transfer with the fixed date, unless it is proved that the defendant company notified the defendant company of such transfer with a certificate with the fixed date or consented to the transfer with a certificate with the fixed date (refer to Supreme Court Decision 94Da4728 delivered on March 24, 195).

Therefore, the plaintiffs' shareholders' rights shall take precedence over those of the non-party 3 and non-party 4, and as a result, they can exercise such shareholders' rights against the defendant company (the defendant asserted that the defendant cannot exercise shareholders' rights against the defendant company as long as the plaintiffs did not complete the change of shareholders, but the defendant, rather, may file a lawsuit seeking cancellation of shareholders' rights in the position of shareholders as follows.

【Status of Director】

According to the above, the second shareholders' meeting may exercise the shareholders' rights following the second shareholders' transfer of this case. On the other hand, even if the representative of the corporation, etc., appointed by the decision of provisional disposition, is restricted to ordinary business affairs, barring any special circumstance, it does not limit the authority of the general shareholders' meeting itself. Thus, a resolution such as dismissal of the representative and appointment of his successor, etc. at the general assembly of the corporation, etc., convened according to legitimate procedures, shall be freely adopted (see Supreme Court Order 2004Da113, Jan. 29, 2005; Supreme Court Order 2009Da70395, Feb. 11, 2010; Supreme Court Order 2009Da70395, Feb. 11, 2010; Supreme Court Decision 2009Da70395, Feb. 11, 201) of the defendant company, including the plaintiffs, to convene a general shareholders' meeting and the second shareholders' meeting held by the second shareholders' meeting.

Therefore, even though the appointed party 3 was dismissed from office as a director by a resolution of the third general meeting of shareholders held thereafter, as long as the lawsuit in this case was brought to the effect that the resolution of dismissal was improper, the Appointed 3 may file a lawsuit seeking revocation of the resolution of the general meeting of shareholders as a director (see Supreme Court Decision 82Meu957, Dec. 14, 1982).

· Sub-committee theory

Ultimately, the defendant's defense of the above principal safety is without merit.

B. Whether amendment of the purport of the claim is lawful

On October 15, 2014, the Plaintiff sought only the revocation of each of the instant resolutions made at the first third shareholders’ meeting, and revised the purport of the claim by adding the Plaintiffs’ request for confirmation as a shareholder of each of the shares listed in the separate sheet No. 1 and the Defendant’s request for demanding the transfer of a title to each of the shares.

Accordingly, the defendant asserts that each of the above additional claims is not allowed because it is not identical to the previous claim.

The plaintiff in a civil lawsuit may alter the purport or cause of the claim until the conclusion of pleadings, unless it substantially delays the litigation procedures (Article 262(1) of the Civil Procedure Act). The purport of recognizing the modification of the lawsuit system is to achieve the rational resolution of disputes between the parties who are requested as a lawsuit and at the same time to be compatible with the economy in the lawsuit, so the modification of the purport of the claim merely differs in the same living facts or the same economic interest disputes, and where most of the previous litigation data can be used for the purpose of examining the new claim, it shall not be deemed that there is no change in the basis of the claim. In addition, if the previous litigation data can be used for the purpose of examining the new claim, it shall not be deemed that the delay in the litigation procedures is significant (see, e.g., Supreme Court Decisions 87Meu25, Jul. 7, 1987; 97Da4416, Apr. 24, 1998).

In light of the above legal principles, although the request for cancellation of the initial resolution and the request for confirmation of shareholder status added thereafter and the request for implementation of the transfer procedure are different legal composition, it is reasonable to view that the above modification of the plaintiff's claim does not change the basis of the previous claim, and that most of the evidential materials submitted before the modification of the purport of the claim can be used for the examination of the newly added claim. ③ The main purpose of the plaintiff's establishment through the lawsuit of this case lies in the friendly relationship between the plaintiffs, non-party 3, and non-party 4 as the shares of the deceased were transferred doublely. Each claim added after the previous claim of this case and each claim of this case correspond to such friendly relationship, which results in a collective conclusion based on such friendly relationship. In light of the fact that the judgment together with one procedure corresponds to the economy of the lawsuit, it is reasonable to deem that the above modification of the plaintiff's claim of this case did not change the basis of the previous claim, and that it satisfies the requirements for modification of lawsuit

Therefore, this part of the defendant's assertion is without merit.

C. Whether the lawsuit on the claim for confirmation of shareholder status is lawful

ex officio, this part of the lawsuit is lawful, and it is recognized that the lawsuit for confirmation is the most effective and appropriate means to determine the legal status of the plaintiff when removing the apprehension and risk is unstable and dangerous. Thus, despite the fact that a lawsuit seeking performance is possible, filing a lawsuit for confirmation is not a final solution of dispute, and there is no benefit of confirmation (see Supreme Court Decision 2005Da60239, Mar. 9, 2006, etc.).

However, the plaintiff can claim the transfer of ownership to the defendant company by proving that the plaintiff is a legitimate shareholder with respect to the shares of this case, and as long as it is seeking the implementation of such transfer of ownership procedures, there is no benefit to seek confirmation as a shareholder against the defendant company separately. Thus, the plaintiffs' lawsuit on the claim for confirmation of shareholder status against the defendant is unlawful.

3. Judgment on the merits

(a) Requests for implementation of transfer procedures;

As seen earlier, as long as the plaintiffs legally received the shares of this case from the deceased and can oppose Nonparty 3 and Nonparty 4, a double transferee, the defendant is obligated to implement the transfer procedure for the shares of this case as shown in the separate sheet 1.

B. Demanding revocation of resolution of a general meeting of shareholders

For the above reasons, the plaintiffs can exercise their shareholders' rights against the non-party 3 and non-party 4 in relation to the shares of this case. According to the above facts of recognition, it is reasonable to view that the plaintiffs among the 60,000 shares of the defendant company at the time of the third general meeting of shareholders, the non-party 4,00 shares, the non-party 3, the non-party 4,50 shares, and the non-party 7 can exercise their shareholders' rights equivalent to the non-party 1,50 shares at the time of the third general meeting of shareholders.

Nevertheless, Nonparty 3 and Nonparty 4 made each of the instant resolutions with Nonparty 7 by means of a written resolution under Article 363(4) of the Commercial Act on the premise that they were lawfully transferred from the deceased, and as a result, the Plaintiffs, the majority shareholders of the instant resolutions, were unable to exercise their voting rights on the grounds that they were unable to receive a notice for convening a meeting. The third general meeting of shareholders, which had adopted each of the instant resolutions, has significant defects in the convocation procedure, the method of resolution, and the calculation of the quorum, and in light of the degree of such defects, the Plaintiffs may seek the revocation of each of the instant

Meanwhile, if a stock company notifies the shareholders on the list of shareholders of the convocation of the general meeting of shareholders and allows such shareholders to exercise their voting rights, it is legitimate to exercise the voting rights even if the shareholders merely leased their names. However, according to the facts acknowledged earlier, the defendant company knew that the non-party 3 and the non-party 4, who was a shareholder on the list of shareholders, were merely a formal shareholder, or did not know by gross negligence. In addition, even if the non-party 3 and the non-party 4 were to have refused to exercise voting rights by facilitating the proof, it is deemed that the non-party 3 and the non-party 4 were to have allowed to exercise voting rights or to exercise voting rights. In this respect, each resolution of this case should be revoked illegally (see Supreme Court Decision 96Da45818,

4. Conclusion

Therefore, the part of the plaintiffs' claim for confirmation of shareholder status is all unlawful, and all of the plaintiffs' remaining claims are justified, and it is so decided as per Disposition by the assent of all of them.

[Attachment]

Judges Kim Jong-ho (Presiding Judge)

1) Nonparty 3 transferred 1,500 shares via Nonparty 8.