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(영문) 서울중앙지방법원 2018.04.26 2017가합534868
주식양도양수 계약 무효 확인의 소
Text

1. The defendant's ordinary shares (the par value of KRW 5,00 per share), 20,00 shares to the plaintiff A, and 400 shares to the plaintiff B.

Reasons

1.The following facts of recognition do not conflict between the Parties:

On December 30, 2015, the Plaintiffs evaluated 40,000 shares (Plaintiff A: 20,000 shares, Plaintiff B: 400 shares, Plaintiff C: 19,600 shares) of the Defendant’s shares held by the Plaintiffs as of December 30, 2015 by a certified public accountant of 12,50 won per share as of December 30, 2015, pursuant to relevant provisions of the Inheritance Tax and Gift Tax Act.

A. Each share transfer contract was concluded to the Defendant (hereinafter “instant share transfer contract”).

B. However, the unit price per share of the shares, which forms the basis for calculating the amount of transfer under the instant stock transfer contract, was calculated by mistake due to the number of certified public accountants’ loss, and the unit price per share was KRW 32,217 if the Defendant’s shares were properly assessed at the time of the instant stock transfer contract in accordance with the evaluation method under Article 54 of the Enforcement Decree of the Inheritance

C. Therefore, the plaintiffs and the defendant shall revise the transfer amount of shares to 31,000 won per share, and the plaintiff A shall increase the transfer amount to 620,000 won per share from "250,000,000 won per share (12,500 won per share)" to "620,000,000 won per share (31,000 won per share)," and the plaintiff B shall read "12,40,000 won per share (12,500 won per share)" to "245,00,000,000 won" (245,500 won per share) to "607,60,000,000 won per share (31,500 won per share)" and completed a revised report to each competent tax office.

At the time of the instant share transfer contract, the Defendant’s distributable profit was KRW 1,083,143,762.

2. According to the above facts of determination, the sum total of the value of the shares acquired by the defendant under the contract for stock transfer of this case is KRW 1,240,00,000 (=620,000,000 KRW 12,40,000) and exceeds KRW 1,083,143,762, which is distributable profits of the defendant at that time, and thus, the contract for stock transfer of this case is in violation of the proviso to Article 341(1) of the Commercial Act and is thus null and void in its entirety.

(See Supreme Court Decision 2001Da44109 delivered on May 16, 2003, etc.). Accordingly, the Defendant’s common shares per share is at a par value of 5.5%.

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