[1] Whether all co-inheritors shall participate in the agreement division of inherited property (affirmative), and the validity of the agreement division of inherited property made in succession (effective)

[2] Whether a lawsuit seeking confirmation of existence of a right to share of a jointly inherited property is an essential co-litigants (negative)

[3] The method of acquiring possession of share certificates

[4] Whether specific preemptive rights are transferred by transfer of shareholders' rights (negative), and the subject of ownership of specific preemptive rights (=shareholders listed in the register of shareholders at the time of the relevant date)

[1] The division of inherited property by agreement between co-inheritors is a kind of contract between co-inheritors, where all co-inheritors participate, and the division by agreement only by some inheritors shall be null and void. However, it does not necessarily require to be made at one place, and it may be made in succession, and the original division made by one of the inheritors may be made by other inheritors after return to the other inheritors.

[2] A lawsuit seeking confirmation of existence of a right to share of an jointly inherited property is not an essential co-litigation but an ordinary co-litigation.

[3] The transfer of shares after the issuance of share certificates takes effect (Article 336(1) of the Commercial Act), and the method of acquiring possession of share certificates is simple delivery and transfer of right to request a return, in addition to the actual delivery (delivery).

[4] Where a stock company issues shares by transferring the reserves to capital by a resolution of the board of directors under Article 461 of the Commercial Act, or where a stock company issues new shares by a resolution of the general meeting of shareholders or the board of directors under Article 416 of the Commercial Act is merely a specific right arising from a resolution of the general meeting of shareholders or the board of directors under the provisions of the Commercial Act and merely a specific right arising from a resolution of the general meeting of shareholders or the board of directors. Therefore, where the company issues new shares and limited the person to whom such rights accrue to the shareholders listed in the register of shareholders at a certain point of time by the resolution of the general meeting of shareholders or the board of directors, such new shares shall belong to the shareholders legally asserted against the

[1] Article 1013 of the Civil Code / [2] Article 67 of the Civil Procedure Act / [3] Articles 188 and 190 of the Civil Code, Article 336 (1) of the Commercial Code / [4] Articles 416, 418, and 461 of the Commercial Code

[1] Supreme Court Decision 93Da54736 delivered on April 7, 1995 (Gong1995Sang, 1810), Supreme Court Decision 2000Du9731 Delivered on November 27, 2001 (Gong2002Sang, 199), Supreme Court Decision 2003Da65438, 6545 Delivered on October 28, 2004 / [2] Supreme Court Decision 65Da279 delivered on May 18, 1965 (No 13-1, 141), Supreme Court Decision 9Da58471 Delivered on September 8, 200 (Gong200Ha, 2081) / [4] Supreme Court Decision 2003Da657989 delivered on June 29, 205, Supreme Court Decision 2009Da757989 Delivered on June 29, 2005

Plaintiff (Law Firm Woo, Attorneys Woo-gn et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm, Kim & Lee LLC et al., Counsel for the defendant-appellant)

Busan High Court Decision 2008Na6199, 6205 decided Nov. 28, 2008

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to Busan High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the first ground for appeal

A lawsuit for confirmation is not necessarily limited to a legal relationship between the parties, but can be subject to the legal relationship between one of the parties and a third party or between third parties. However, in order to have the interest to confirm the legal relationship, there must be danger and non-existence of the party's rights or legal status in accordance with the legal relationship. In order to remove the risk and non-performance, it is necessary to immediately confirm the legal relationship by the confirmation judgment aimed at confirming the legal relationship, and it should be the most effective and appropriate means (see Supreme Court Decision 94Da23388 delivered on November 8, 194, etc.).

The court below acknowledged, based on its adopted evidence, that 348,682 common shares of 5,00 won per par value issued by Defendant 1 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) listed in the attached Table 2 List 2 as stated above are registered as owned by the Defendant Co., Ltd. on the Defendant Co., Ltd.’s registry, and determined that the Plaintiff’s claim for confirmation cannot be deemed an effective and appropriate means to secure the legal status of the Plaintiff, as long as the judgment cannot affect the Defendant Co., Ltd.’s legal status, even if the Plaintiff asserted that the shares are owned by the Plaintiff, and that the shares are owned by the Plaintiff against Defendant 2.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interest in confirmation, as alleged in the

B. Regarding ground of appeal No. 2

Articles 1065 through 1070 of the Civil Act stipulate strictly the method of a will with the intention to clarify the will of the testator and prevent legal disputes and confusion arising therefrom. Thus, a will contrary to the legal requirements and methods cannot be null and void even if it conforms to the true will of the testator (see Supreme Court Decision 98Da17800, Sept. 3, 199, etc.). Since the inheritor agreed to recognize its contents, the will does not become effective.

Meanwhile, the division of inherited property by agreement between co-inheritors is a kind of contract between co-inheritors, in which all co-inheritors participate, and the division by agreement between some inheritors is null and void (see, e.g., Supreme Court Decision 93Da54736, Apr. 7, 1995). However, it is not necessary to be made at one place and may be made in order without any necessity, and it may be made in order (see, e.g., Supreme Court Decision 2000Du9731, Nov. 27, 2001). Even if one of the inheritors approves that other inheritors return to the original plan made by one of them (see, e.g., Supreme Court Decision 2003Da65438, 65445, Oct. 28, 2004).

The court below acknowledged the facts as indicated in its reasoning based on the adopted evidence, and determined that the testamentary book prepared by the deceased non-party 1 (hereinafter “the testamentary book of this case”) was written by the deceased’s own pen, and there was no seal or seal from the deceased, and thus, it was invalid as a testament. The agreement on January 10, 1985 that the plaintiff, defendant 2, etc. agreed to follow the contents of the testament of this case (hereinafter “instant agreement”) was reached between the co-inheritors except the non-party 2 among the co-inheritors, and thus, it was invalid as an agreement on division of inherited property

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just in the premise that the above non-party 2 cannot be deemed to have approved or consented to the agreement of this case as well as at the time of the agreement of this case, and there is no violation of the rules of evidence or misapprehension of legal principles as asserted

C. Regarding ground of appeal No. 3

Article 445 of the Commercial Act provides that "the invalidation of capital reduction may be asserted only by litigation within six months from the date of registration of alteration due to the reduction of capital, only shareholders, directors, auditors, liquidators, trustees in bankruptcy, or creditors who have not approved the reduction of capital." Thus, even if there are some errors in the procedures and contents of the reduction of capital, barring special circumstances to the extent that it is extremely serious that the reduction of capital does not exist due to its defect, a dispute can be raised only by a lawsuit for invalidation of the reduction of capital after the reduction of capital becomes effective.

The court below found, based on its adopted evidence, that the defendant company was subject to the resolution of the board of directors, made the reduction of the capital on June 21, 1994 through the resolution of the temporary general meeting of shareholders pursuant to the comprehensive delegation by the shareholders including the plaintiff, and completed the registration of modification on the 29th of the same month, and that the plaintiff did not file a lawsuit to nullify the reduction of capital within six months thereafter, and determined that even if there are some procedural defects, such as the plaintiff's failure to receive the notification of the above temporary general meeting of shareholders, it cannot be said that the reduction of capital does not exist, and that the above reduction of capital cannot be asserted unless the plaintiff files a lawsuit to nullify the reduction

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misapprehension of legal principles as alleged in the

2. Judgment on the Defendants’ grounds of appeal

A. As to the ground of appeal on the lawfulness of the lawsuit

(1) A lawsuit seeking confirmation of existence of a right to share of an jointly inherited property is not an essential co-litigation but an ordinary co-litigation (see Supreme Court Decision 65Da279 delivered on May 18, 1965).

In light of the above legal principles and records, the part of the lawsuit against Defendant 2 on which the Plaintiff seeks confirmation of shareholders' rights regarding part of the shares listed in Defendant 2's shareholder registry against Defendant 2 does not constitute an essential co-litigation to be brought by all co-inheritors. On the other hand, as long as Defendant 2 contests the Plaintiff's assertion, it shall be deemed that Defendant 2 has existing risks and signs regardless of whether Defendant 2 is the representative director of the Defendant company, and thus, there is a benefit to seek confirmation of shareholders' rights.

(2) A lawsuit for recovery of inheritance refers to filing a claim for recovery of inherited property against a reference heir or a third party who acquired a right to inherited property or entered into a new interest from a reference heir or a reference heir on the premise that he/she is the true inheritor (see Supreme Court en banc Decision 90Da5740, Dec. 24, 1991, etc.).

However, the plaintiff's lawsuit of this case asserted that the plaintiff lawfully acquired the shares issued by the defendant company through the agreement of this case with other co-inheritors of the above deceased, and sought confirmation of ownership of the plaintiff or transfer of ownership to the defendant company on the register of shareholders against the defendant company, and thus the successor does not constitute a lawsuit against the person who acquired the right to inherited property from the title successor successor or title successor, and thus, the limitation period under Article 999 (2) of the Civil Act does not apply.

(3) In the same purport, the court below is just to make a decision on the merits on the premise that the remainder of the lawsuit except the part determined in the above 1. A among the plaintiff's lawsuits in this case is legitimate, and there is no error of law such as misunderstanding of legal principles as to indispensable co-litigation, standing for a party, interest in confirmation, and period of exclusion, as

B. As to the ground of appeal on the validity of the instant agreement

The interpretation of a juristic act is to clearly confirm the objective meaning which the parties have given to the act of expression, and it is not subject to the text, but is to reasonably interpret the objective meaning which the parties have given to the act of expression according to the contents of the language regardless of the parties' internal intent. In the event that the objective meaning is not clearly expressed by the terms indicated by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, general common sense and transaction norms so that it conforms to the ideology of social justice and equity, by comprehensively taking into account the contents of the language and text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the juristic act, transaction practices, etc., as well as the contents of the language and text, and in the event that the objective meaning is not clearly expressed by the parties' internal intent (see, e.g., Supreme Court Decisions 93Da32668, Mar. 25, 1994; 96Da1

Based on its adopted evidence, the court below acknowledged on January 10, 1985 that the remaining inheritors except the non-party 2, among the inheritors of the above deceased, acknowledged the effect of the will of the deceased on January 10, 1985 and agreed in this case to distribute the legacy in accordance with the contents thereof. The deceased's will included the plaintiff's property in the name of the plaintiff and the contents of the legacy of all the property in the name of the deceased to the plaintiff. The court below determined that the agreement in this case was valid as an agreement to transfer the shares of the defendant company in the name of the deceased and the plaintiff out of the inherited property to the plaintiff, on the other hand, it cannot be viewed that the plaintiff implied or impliedly consented to the transfer of the shares of the deceased to the plaintiff out of the inherited property.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles, lack of reasons or inconsistency of reasons, etc. In so determining, the court below included the purport that the agreement in this case was rescinded, or that new agreement was reached between the plaintiff and defendant 2, etc., and

C. As to the ground of appeal on the means of real-time attack and defense

The court may dismiss the method of offence or defense which has been submitted late at the time of the party's intention or gross negligence when it is deemed that the conclusion of litigation is delayed due to such act. However, even if the method of offence or defense is the method of offence or defense which requires the continuation of the due date, and the deliberation of the method of offence or defense can be completed within the scope of the due date, or its contents are included within the scope of the litigation materials which have already completed the trial, it shall not be deemed that it delays the conclusion of litigation, and it shall not be dismissed (see Supreme Court Decision 98Da46167 delivered on July 27, 199).

In light of the above legal principles and records, even if the Plaintiff asserted that the remaining inheritors, other than the Plaintiff, have the meaning of transferring part of the inheritance share to the Plaintiff, as seen earlier, even if the agreement in this case was reached at the closing date of pleading, the delay in the lawsuit due to the above defense was not caused due to the conclusion of pleading at the date of pleading in this case, and thus, the court below was just in holding that the Plaintiff did not treat the Plaintiff’s claim as a means of attack and defense due to the deadline for pleading,

D. As to the ground of appeal on the validity of acquiring the Plaintiff’s shares

The transfer of shares after the issuance of share certificates takes effect (Article 336(1) of the Commercial Act). In addition to the actual delivery (delivery), there are simplified delivery and transfer of right to request a return (see Supreme Court Decision 9Da58471 delivered on September 8, 200, etc.).

Based on its adopted evidence, the lower court determined that the Plaintiff acquired ownership of the shares of the Defendant Company at the time of the death of the said deceased, and that the share certificates of 1,887,546 shares in the name of the said deceased (hereinafter “the shares of this case”) were in custody of the deceased’s home depository. However, Defendant 2 was in custody of the shares of 271,228 shares among them, and the remainder of the share certificates was in custody and possession of the Plaintiff. The agreement of this case was made at the time of the lapse of two years after the death of the said deceased. Based on the agreement of this case and delivery of share certificates, the lower court determined that the Plaintiff acquired ownership of the shares of the remaining 1,313,076 shares [1,87,546 shares” =1,87,546 shares -492,043 shares (the Plaintiff’s share certificates) -82,067 shares (the Plaintiff’s share of inheritance].

In light of the above legal principles and records, 492,043 out of the shares of this case shall be inherited by inheritance, and 1,041,848 out of the remainder shall be deemed to have lawfully acquired the ownership of each of the shares by means of simplified delivery in accordance with the agreement of this case from the remaining inheritors except for Nonparty 2. Therefore, the judgment of the court below in this part is just, and there is no error of law as argued in the Grounds for Appeal.

However, as acknowledged by the court below, if the defendant 2 took custody of the share certificates of 271,228 among the shares of this case, the plaintiff could not receive or deliver the share certificates pursuant to the agreement of this case. Thus, the plaintiff could not acquire ownership of the shares. The court below acknowledged that the defendant 2 re-issued the share certificates of 271,228 shares around August 1987, which are after the agreement of this case and delivered them to the plaintiff. However, although the court below recognized that the defendant company conducted a consolidation of shares by changing the par value of 500 won of the shares issued by the defendant company to 5,00 won on January 11, 1987, the court below also recognized that the defendant 2 did not examine and confirm the agreement of this case and whether the re-issuance and delivery of the share certificates reached the above 271,228 share certificates, or whether the re-issuance and delivery of the share certificates constitute the re-issuance and delivery of the share certificates pursuant to the above re-issuance and delivery of the shares.

Nevertheless, the court below concluded that the plaintiff acquired the above 271,228 ownership without examining and confirming the above facts. The judgment of the court below in this part is erroneous by failing to exhaust all necessary deliberations or by misapprehending the legal principles on stock transfer, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

E. As to the ground of appeal on the bona fide acquisition of Defendant Company’s shares

The allegation in this part of this case is asserted for the first time in the final appeal, and cannot be a legitimate ground of appeal.

F. As to the ground of appeal on the attribution of new shares due to capital increase

Pursuant to Article 461 of the Commercial Act, where a stock company issues shares by transferring its reserves to capital by a resolution of the board of directors, or where a stock company issues new shares by a resolution of the general meeting of shareholders or the board of directors pursuant to Article 416 of the Commercial Act, the preemptive right to new shares is merely a specific right derived from a resolution of the general meeting of shareholders or the board of directors under the Commercial Act and is merely a specific right arising from the resolution of the general meeting of shareholders. Thus, if the company issues new shares and the person to whom such rights accrue is limited to a shareholder listed in the register of shareholders at a certain point of time by a resolution of the general meeting of shareholders or the board of directors, the preemptive right to new shares shall be deemed to belong to a shareholder who can legally oppose the company, i.e., a shareholder listed in the register of shareholders, regardless of whether they are actually shareholders at a certain point of time (see Supreme Court Decisions 87Meu259, 2600, Jun. 14, 198; 94Da25

According to the facts admitted by the court below and the records, the plaintiff acquired the ownership of the shares of this case by inheritance or transfer of inherited shares from other inheritors, but did not enter into the register of shareholders of the defendant company. The defendant company did not enter the register of shareholders of this case on January 11, 1987, which was after the agreement of this case, in accordance with its reasoning, acquire the shares of this case, and did not enter the register of shareholders of the defendant company in sequential order according to the current status of shares listed on the register of shareholders as of December 25, 2003, capital reduction on June 21, 1994, capital increase without compensation, capital increase on September 16, 2002, capital increase on December 26, 2003, capital reduction for consideration on February 26, 2004, and capital increase

Examining these facts in light of the legal principles as seen earlier, new shares newly issued in accordance with each of the above gratuitous capital holders or capital increase with new shares are attributed to each shareholder listed in the register of shareholders at that time, but does not belong to the Plaintiff who did not transfer to a third party.

Nevertheless, under the premise that new shares issued by Nonparty 2, except for the part corresponding to the inheritance shares of Nonparty 2 among the shares in this case, belong to the Plaintiff, not the shareholders on the shareholder registry, the court below held that 498,157 shares among the shares listed as owned by Defendant 2 and 298,867 shares among the shares listed as owned by Defendant 2, are owned by the Plaintiff respectively. The judgment of the court below is erroneous in the misunderstanding of legal principles as to the attribution of new shares due to the increase of capital, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the part against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)