[1] Whether a special resolution of the general meeting of members is required to recover the membership rights of a title truster upon termination of a title trust with respect to the membership rights of a limited liability company (affirmative)

[2] The case holding that the termination of title trust is effective on the ground that a special resolution of the general meeting of members is made under the principle of good faith where a title trustee with respect to a share of a limited liability company refuses to return the share in violation of the duty to return it

[3] In the case of paragraph (2), whether the title truster has the benefit of confirmation to seek confirmation of the employee's right against the title trustee (affirmative)

[1] The purport of Article 556 (1) of the Commercial Act is to prevent the cancellation of title trust with respect to the shares of a limited liability company, which consists of a minority member, has importance of the identity of the minority member, and is based on close trust relationship between the members, if a limited liability company which is based on the close trust relationship between the members allow the members to freely transfer their shares, it would be contrary to the smooth management and the trust relationship between the members, as a result would impede the trust between the members and thereby would be contrary to the closedness and nonpublic nature of the limited liability company. Therefore, even in the case of the cancellation of title trust with respect to the shares of the limited liability company, it would result in the change of the members, and therefore, it would be reasonable to view the above provision to take effect by applying mutatis mutandis the special resolution of the general meeting, and therefore, it shall not be returned immediately to

[2] The case holding that even if a title trustee with respect to the shares held by a limited liability company of the title truster, was a person who is obligated to transfer the shares to the title truster upon the termination of the title trust by the title truster, and the company did not have any other members except Gap et al. and thus, despite the recognition of a family title trust despite the absence of a special resolution of the general meeting of members, the company should hold a general meeting of members and make a special resolution, it is reasonable to view that the termination of the title trust is valid on the ground that only the compensation for damages is a fundamental solution unless there is a special resolution of the general meeting of members, and in special circumstances where the title truster does not have any legal means to demand a special resolution of the general meeting of members against the title trustee or the company, and even if it did not go through a special resolution of the general meeting of members

[3] [2] In a case where the termination of a title trust is effective, the entrusted share is returned to the title truster immediately, and the title truster can change the name of the member on the register of members by filing a lawsuit to confirm the membership rights against the title trustee and submitting it to the company after receiving the judgment. Therefore, there is a benefit of confirmation.

[1] Articles 56(1) and 585 of the Commercial Act / [2] Articles 556(1) and 585 of the Commercial Act, Article 2 of the Civil Act / [3] Articles 556(1) and 585 of the Commercial Act

[1] Supreme Court Decision 88Meu3626 delivered on November 28, 1989 (Gong1990, 132) Supreme Court Decision 92Da16386 delivered on October 27, 1992 (Gong192, 3261)

Republic of Korea Veterans Association (Attorney Jeong Tae-sung et al., Counsel for the defendant-appellant)

Defendant 1 and four others (Law Firm 21st century, Attorneys O Dong-sop et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na4973 delivered on April 7, 1995

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal by the plaintiff's attorney are examined as follows.

1. As to the grounds of appeal Nos. 1 and 2

Article 56 (1) of the Commercial Act provides that "a member may transfer all or part of his/her share to another person only if a resolution of a general meeting of members is made pursuant to Article 585 of this Act." The purport of Article 556 (1) of the Commercial Act provides that "if a member is composed of a minority member, the identity of the member is serious, and members are permitted to freely transfer his/her share in a limited company based on close trust relationship among the members, if a member is allowed to freely transfer his/her share in the limited company, the person who is not friendly in the company can become a partner, thereby hindering the smooth management and the trust between the members, which would be contrary to the closed and non-public nature of the limited company. Therefore, even in the case of the termination of a title trust with respect to the share of a limited company, the above provision is valid by analogy of the above provision, and therefore, it shall not be deemed that the shares entrusted only by the declaration of intention of termination are not returned to the title truster immediately.

The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as the theory of lawsuit.

However, based on the evidence of this time, the court below acknowledged the fact that Jeonnam-do branch, under the Plaintiff’s control, held that the Plaintiff’s claim seeking such confirmation was groundless, on the premise of the legal principles as seen earlier, that the Plaintiff did not have a special resolution of the general meeting of members, because the Nonparty, a member of the Jeonnam-do branch at the time of the establishment of the native Transport, agreed to make a joint investment with the said Jeonnam-do branch, thereby holding 30% of the shares of the native Transport. The court below determined that the Plaintiff’s claim seeking such confirmation was not a member of the native Transport, and there was no ground.

However, according to the relevant statutes and the records, the Defendants denied the title trust even though the title trustee with respect to the Plaintiff’s shares of native transport is a person who is obligated to transfer their shares to the Plaintiff upon the termination of the Plaintiff’s title trust. The Defendants, except the Defendants, did not have any other members, and the Defendants have to make a special resolution despite the absence of a special resolution of the members’ general meeting, despite the recognition of the title trust, the Defendants asserted that the termination of the title trust is null and void unless there is a special resolution of the general members’ general members’ meeting, and the compensation for damages is the fundamental solution, and the Plaintiff did not have any legal means to request the special resolution of the general members’ meeting against the Defendants or the native transport. In the event of such special circumstances, it is reasonable to deem the termination of the title trust is valid on the ground that a special resolution of the general members’ general members’ meeting for the consent to the transfer of shares exists in light of the principle of trust and good faith, and as long as the title trust termination becomes effective, the shares entrusted to the Plaintiff immediately return to the Plaintiff.

Nevertheless, the court below dismissed the Plaintiff’s claim for confirmation of membership right on the ground that the cancellation of title trust in this case did not go through a special resolution of the general meeting of members. However, the court below erred by misapprehending the legal principles as to a special resolution of the general meeting of members under Article 556(1) of the Commercial Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Therefore, there is a ground to

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)