(영문) 대구고등법원 2017.5.24.선고 2016나25981 판결

At the defendant's office, the documents and books in the attached list are perused within the business hours (09:0 to 18:00) of the defendant's office.

(D) the Defendant’s failure to perform the above obligation;

amount of KRW 1,00,000 per day from the day following the expiration of the period until the completion of the implementation to the Plaintiff.

under payment.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

Reasons

1. Facts of recognition;

(a) the status, etc. of a party;

1) The Defendant is a wholesale market corporation which lists or purchases agricultural and fishery products on consignment after being designated by an opener of an agricultural and fishery products wholesale market pursuant to Article 2 subparag. 7 and Article 23 of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products.

2) On September 28, 2001, the Plaintiff was appointed as the Defendant’s auditor and was retired on March 18, 2013, and was holding 38,086 shares out of 210,000 shares issued by the Defendant as of February 2015 (18.14%).

3)C is the representative director of the defendant, and D is the defendant's major shareholder and in-house director.

B. The defendant's trading method

The defendant's primary business is agricultural products entrusted for sale, and the method is to sell agricultural products shipped from the producer (the shipper) to the intermediate wholesaler through auction and pay the sales proceeds to the producer (the shipper) on the same day, and then the sales proceeds are carried out by the method of credit transaction with the settlement of accounts from the intermediate wholesaler until the end of the reduction determined by the defendant.

1) Article 55 of the Daegu Metropolitan City Ordinance on the Operation and Management of Agricultural and Fishery Product Wholesale Market (hereinafter referred to as the “Ordinance”), 'The Mayor may have wholesale market corporations or wholesalers separately accumulate a certain amount of money in order to compensate for losses to shipping owners (Paragraph 1), 'No wholesale market corporation or wholesaler at the market shall use it for any purpose other than compensating for losses to shipping owners where the amount of compensation for losses under Paragraph 1 is set aside separately (Paragraph 2), 'the wholesale market corporation or wholesaler at the market' shall make up for the amount of compensation for losses by the last day of each month if the amount of compensation for losses is paid by the wholesale market corporation or wholesaler at the market (Paragraph 3), 'the detailed matters concerning the operation of the compensation for losses are prescribed separately by

2) On January 4, 2012, Daegu Metropolitan City issued an order to take measures with respect to the Defendant to set aside the amount of compensation for shipment loss from the net asset value of the pertinent year in order to maintain the market order based on Article 55 of the Ordinance of this case, that the Defendant shall secure the estimated amount of compensation for shipment loss from the earned surplus of the previous year and report it to the opener in one month. According to the above order to take measures, the Defendant must set the budgetary amount of compensation for shipment loss for the pertinent year within the limit of the net asset value of the pertinent year.

3) However, the Defendant paid compensation for losses worth KRW 1.0 billion in excess of KRW 677 million within the scope of the expenditure for compensating for losses in 2012 pursuant to the instant ordinances.

4) Accordingly, around February 4, 2013, the Defendant received domestic warning from Daegu Metropolitan City to the effect that it violated the order to pay compensation for losses incurred to the owner of the shipment.

D. Defendant’s refusal to allow the Plaintiff to inspect and copy account books, etc.

1) On April 1, 2013, the Plaintiff filed a request for perusal, copy, with the Defendant, of the minutes and agenda items (approval of the settlement of accounts in 2012, approval of the budget bill in 2013, change of the director, change of the articles of incorporation, etc.) of the ordinary shareholders’ meeting (20th) as of March 18, 2013, and the list of shareholders, etc.

2) In regard to this, the Defendant rejected the perusal on the ground that the Plaintiff’s direct participation in the general meeting as a shareholder or the Plaintiff’s complaint against management could leak the above request data outside or expand it into an unfounded litigation.

3) After that, the Plaintiff, a major shareholder of the Defendant, and directors D owned by himself, had raised doubts, such as excessive spending of compensation for losses between the Defendant and the Defendant, and had requested the perusal of the Defendant’s account books for the purpose of confirming the Defendant’s spending of compensation for losses. However, on October 28, 2013, the Defendant rejected all of them on the grounds that it is expected that the Plaintiff will be used maliciously through the perusal of account books only because there is no doubt as to the Plaintiff’s non-founded grounds.

4) As a result of the instant lawsuit, the Plaintiff sought perusal of the accounting books, etc. (hereinafter “instant accounting books, etc.”) as shown in the attached Form, on the grounds that it is necessary to verify whether the Defendant’s abnormal sales incentive payments for the intermediary wholesalers violate Article 9(2), whether the instant ordinances were violated due to excessive compensation for loss incurred to the shipment owner, the suspicion of window dressing accounting, such as the increase of non-performing loans, the arrears of corporate tax, and the appropriateness of accounting methods, etc.

[Ground of recognition] The fact that there is no dispute, Gap's 1, 2, Eul's 3 and 13 evidence (including a variety number if there is no special indication; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

A. The defendant's duty of reading and copying

1) The Commercial Act provides that a shareholder who holds no less than 3/100 of the total number of issued and outstanding shares may request, in writing, the inspection or copying of the account books and documents with reasons attached thereto (Article 466(1)), and that the inspection or copying of the account books and documents is serious for the operation of accounting, and thus, the procedure should be taken carefully and at the same time, the other party must not allow the inspection or copying of the account books and documents (see Supreme Court Decision 9Da137, Dec. 21, 199). In such a case, the “accounting books and documents” subject to a request for inspection or copying refers to account books and documents that have substantial relations with the reasons for inspection and copying (see Supreme Court Decision 9Da5051, Oct. 26, 201).

2) According to the above facts, the Plaintiff is a shareholder holding no less than 3/100 of the total issued and outstanding shares of the Defendant. The account books of this case, etc. fall under the account books and documents related to the reasons for requesting perusal and copying by minority shareholders, which are substantially related to the reasons for requesting perusal and copying, and the Plaintiff, in writing stating the reasons under Article 466(1) of the Commercial Act, requested perusal and copying of the account books of this case, but the Defendant refused to comply with such request. Thus, barring any special circumstance, the Defendant is obligated to comply with the Plaintiff’s perusal and copying of the account books of this case, etc. sought by the Plaintiff.

B. Judgment on the defendant's defense

1) Summary of the defense

A) When the Plaintiff was discharged from office as the Defendant’s auditor for about ten years until March 2013, the Plaintiff sought 38,086 shares of the Plaintiff (18.14%) for the purpose of abusing 38,086 shares of the Plaintiff’s representative director C as a means of pressure to sell them at a higher price to D, etc., the director, etc. is unreasonable.

B) Although the Plaintiff, only the Defendant’s total director of the account and the director of the account book (if any, or a certified tax accountant’s accounting file), can sufficiently verify the shipment owner and intermediary wholesaler transaction data, it is unreasonable to seek perusal copies of the shipment performance management card or compensation for losses arising from the shipment performance management card and the intermediary wholesaler’s resident registration number, for the purpose of abusing personal information, such as the shipment owner and intermediary wholesaler’s resident registration number.

C) The degree of paying the shipment price compensation and sales incentives to the intermediate wholesalers, and the terms and conditions of the transaction contract between the Defendant and the intermediate wholesaler constitute an important trade secret between the Defendant and the intermediate wholesaler. In the event that such trade secret is leaked to the intermediate wholesaler, etc. in transactions with the competitor, the Defendant and the intermediate wholesaler would suffer serious business damage.

D) The Plaintiff filed a complaint against the Plaintiff with respect to the amount of compensation for losses by shipment owner or sales incentives by intermediary wholesaler, etc., and C and D were subject to investigation by the investigation agency, and were subjected to non-suspected disposition.

2) Determination on the defense

In a case where a shareholder’s request for inspection and reproduction of accounting books, documents, etc. is made pursuant to Article 466(1) of the Commercial Act, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection and reproduction is unjust or not should be determined by comprehensively taking into account all the circumstances, such as the developments leading to the exercise of shareholder’s right, the purpose of exercise, and the existence of bad faith. In particular, it should be deemed that the exercise of shareholder’s right to inspection and reproduction is unfair by attaining justifiable purpose in a case where the exercise of shareholder’s right to inspection and reproduction is likely to harm the company’s business or the shareholder’s common interest, or where the shareholder exercises the acquired information as a competitor at an excessively unfavorable time against the company (see Supreme Court Order 2003Ma1575, Dec. 24,

Based on the above legal principles, first of all, the Plaintiff was employed as the auditor of the Defendant Company for about 10 years, and thereafter thereafter, from the time of retirement, it is insufficient to recognize that the Plaintiff filed a criminal complaint against the representative director C and the major shareholder D on several occasions against the Defendant, and filed a lawsuit seeking perusal of the account books, etc. of this case by the lawsuit of this case, and the Plaintiff abused the Plaintiff’s shares of this case 38,086 shares (14%) as a means of pressure to sell them at a high price to D, etc., or unfairly lacking legitimate purpose by taking advantage of the intent to leak or abuse personal information such as the resident registration number of the shipping owner and the intermediary wholesaler’s business secrets of the Defendant Company and the intermediary wholesaler. There is no evidence to acknowledge otherwise.

Rather, in light of the following circumstances, considering the overall purport of evidence Nos. 3 through 8, Nos. 7 and 15 through 16 and the overall purport of arguments, the plaintiff needs to confirm, discover, and request the effective management supervision and management problems, etc. of the defendant's management, to correct them, or to verify the scope of the shipment price compensation, confirm the management status of outstanding accounts to intermediary wholesalers and the amount of establishment of security to secure them, to confirm the current status of sales incentives, to examine the appropriateness of the payment status of sales incentives for intermediary wholesalers, to examine the appropriateness of the amount of difference in the profit and loss statement, the scope of losses caused by the defendant's representative director and majority shareholder's occupational embezzlement and breach of trust, and to verify whether the act of embezzlement and breach of trust has been committed. Thus, the plaintiff's inspection of the account books, etc. of this case can only be deemed to have been requested within the effective scope for obtaining appropriate information under legitimate purposes, and the perusal scope or time is not too unfavorable to the defendant. Therefore, the defendant's defense is not too unfavorable to the defendant.

A) On January 4, 2012, the Defendant issued an order to take corrective measures regarding the scope of expenditure for compensating for losses incurred to the shipper from Daegu Metropolitan City, but in violation of the order to take corrective measures, paid compensation for losses exceeding KRW 420,100,000,000 in excess of the limit of expenditure in 2012. Accordingly, the Defendant received a warning of violation of the order to compensate for losses incurred to the shipper on or around February 4, 2013.

B) According to the Defendant’s income statement and statement of financial position in 2012 and 2013, there is a considerable difference between the Defendant’s net income on the income statement and the net income statement on the income statement as listed below.

A person shall be appointed.

C) As to the Plaintiff’s point of view on the problem of accounting method as to the above paragraph (b), the Defendant asserts that the above difference is not against the accounting standards, but is merely against the difference in simple methods, because it reflected the corporate tax paid in the current year in the statement of disposal of earned income in the current year in the amount of 2012 in the amount of 464,378,020. In other words, the Plaintiff asserts that the amount of KRW 115,326,170, plus the amount of KRW 132,00 as the corporate tax for the current year, plus the amount of KRW 132,00,00,00 as the amount of carried forward profit and loss, and KRW 71,704,190 (= KRW 464,378,020 + KRW 115,326,170 + KRW 132,000,000) as the amount of net profit and loss statement for the current year plus KRW 136364,364,24164,4646,46,4646.

Therefore, according to the Defendant’s profit and loss statement before deducting the corporate tax under the Defendant’s income statement, the amount of the budget setting for compensating for losses incurred during the pertinent year compared to the Defendant’s settlement of accounts for the pertinent year is as listed below. On January 4, 2012 at Daegu Metropolitan City, the scope of expenditure for compensating for losses incurred during the pertinent year should be set within the scope of the net income for the immediately preceding year, and in fact, the Defendant’s budget setting for compensating for losses incurred during the shipping period in 2014 and 2015 within the scope of the net income after deducting the corporate tax for the previous year under the income statement. However, if the corporate tax was reflected in the income statement account as stated in the Defendant’s income statement in 2014 and 2015, the amount of net income after deducting the corporate tax was reduced to the extent of the net income for the following year, and there seems to have been no reasonable doubt as to the amount of the Defendant’s net income for the following year based on the income statement for the pertinent year 2013rd.

(unit: million won)

A person shall be appointed.

D) Meanwhile, according to the Defendant’s income statement, budget bill, etc. for each fiscal year of 2012, the Defendant received warning from Daegu Metropolitan City around February 4, 2013 due to an excessive enforcement of compensation for losses incurred during the shipment year of 2012, and thereafter, the Defendant appears to have made a significant increase in the amount collected in excess of the budget for the pertinent fiscal year due to the shipment promotion cost from 2013 to 2015 (the items of expenditure, such as shipment owner, news article provision and pre-sale gift cost, daily assistance with the shipping owner and intermediary wholesaler, shipment cost, freight provision, good shipment organization provision, etc.). In particular, in the case of 2015, the sales amount of the shipping cost increased by 1.2 billion won compared to the previous fiscal year (the increase by 1.6% from the previous year to 1.1 billion won to 25 billion won from the previous year, and the Defendant appears to have made a significant increase in the sales amount to 1.5 billion won from the previous year to the enforcement amount to 1.5 billion won (the Plaintiff’s revenue amount to 2.

(unit: million won)

A person shall be appointed.

E) In order to prevent the situation in which the Defendant is unable to pay the shipment price to the shipper, the Defendant shall strictly manage the outstanding amount for the intermediary wholesaler. In other words, according to Article 20 of the instant Ordinance and the general transaction agreement between the Defendant and the intermediary wholesaler (Evidence A (Evidence A) No. 34), the Defendant shall pay attention not to the occurrence of the irrecoverable claim by means of receiving additional collateral if the amount exceeds the amount of the deposit and the collateral value offered by the intermediary wholesaler. However, even if the Defendant’s assertion on the claim is made on December 31, 201, it still remains as follows: (a) the intermediate wholesaler traded with the Defendant as of December 31, 201, which was trading with the Defendant; (b) the fixed amount of the outstanding amount, among the intermediary wholesalers trading with the Defendant, the fixed amount of the outstanding amount, and (c) the estimated amount of the outstanding amount of the bonds sold to the trading company, such as ○○○ Association, Cheong○ Association, Cheong○○ Association (K), and the fixed amount of the outstanding amount.

(unit:,000 won)

A person shall be appointed.

In such circumstances, it is not unreasonable for the Plaintiff to verify the management status of outstanding bonds and the occurrence of non-performing loans through the account books, etc. of this case from January 1, 2012 to December 31, 2015 for the purpose of effective management supervision, etc.

F) According to Article 9(2) of the General Agreement on Trade between the Defendant and the intermediary wholesaler, the Defendant stipulates that sales incentives shall not be paid when the intermediary wholesaler fails to settle the price of goods by the due date set by the Defendant. Nevertheless, the Defendant did not comply with the above provision, such as paying sales incentives to the intermediary wholesaler who did not pay the price of goods by the due date, according to the light judgment of the Defendant Company. Accordingly, it is doubtful that the Plaintiff’s failure to comply with the above provision on the payment of sales incentives despite the existence of the intermediary wholesaler who did not pay the outstanding amount in full as set forth in the above clause (e) is unreasonable, and it is necessary to verify whether the business judgment is reasonable, and whether the details on the calculation of sales incentives by the intermediary wholesaler and the payment details by the intermediary wholesaler are in fact consistent. Accordingly, the Plaintiff’s aforementioned doubt cannot be seen as unreasonable

G) Even if the Plaintiff can verify the Defendant’s financial status or business status through the Defendant’s General Account Director and the Director General of the Account (in addition or a certified tax accountant’s account file), it is necessary to confirm the shipment performance management card or the compensation for losses on each shipment owner, the security or business operation status by intermediary wholesaler, and the sales incentive and the transaction agreement.

H) In addition, there is no special circumstance to deem that there are important personal information of shipping owners and intermediate wholesalers in the documents such as the above g above g). Moreover, in light of the fact that the collection of personal information by the owner of personal information or the collection of personal information without the legal basis under the Personal Information Protection Act is strictly restricted, and that the obligation to take measures, such as encryption, is imposed (see Articles 16, 24, and 24-2). It is difficult to deem that the Plaintiff’s claim in this case is likely to infringe on the personal situation and appearance of shipping owners and intermediate wholesalers.

I) The circumstances alleged by the Defendant and documentary evidence alone are insufficient to recognize that each payment level of the sales price compensation and sales incentive for intermediary wholesalers, and the transaction terms and conditions prescribed in the contract between the Defendant and intermediary wholesalers are important business secrets of the Defendant and intermediary wholesalers. In addition, even if there is a certain risk that the Defendant’s trade secrets will be disclosed due to the Defendant’s intention to peruse the instant accounting books, etc., there are no special circumstances to recognize that the Plaintiff could leak or abuse the Defendant’s trade secrets in the instant case. On the other hand, if the Plaintiff refused to peruse the said accounting books, etc., which the Plaintiff wanted due to business secrets, it would be substantially difficult to exercise the Defendant’s effective right to supervise the management of the Defendant Company as the shareholder.

(j) The Defendant’s representative director C and D, a major shareholder of the Plaintiff, were found to have committed the above crime of KRW 10,000,000,000 for each of the above crimes of KRW 20,000 for the purpose of occupational embezzlement and breach of trust (Seoul District Court Decision 2013No. 2598, Feb. 7, 2014; Supreme Court Decision 2014No668, Jan. 8, 2015). According to the above final judgment, C and D conspired with the above 10,00 won for the purpose of occupational embezzlement of KRW 20,00,000 for each of the above crimes of KRW 20 for each of the above crimes of violation of the Act on Distribution and Price Stabilization of Agricultural and Fishery Products, and C and D conspired with the above 200,000 won for the purpose of occupational embezzlement of KRW 20 for each of the above crimes of KRW 20,000 for the purpose of increasing the amount of wages to be paid by C200.

Therefore, it is not unreasonable or unreasonable to seek perusal copies of various documentary evidence, such as the benefit ledger, tax invoice, invoice, receipt, etc. from the year 2012 to the year 2015, in order to doubt that the Plaintiff’s management’s above-mentioned business embezzlement or breach of trust continued before January 16, 2015, which is the date on which the said criminal judgment became final and conclusive, and to verify the scope of damages caused by such embezzlement or breach of trust, and the continuation of such embezzlement or breach of trust.

Therefore, the defendant is required to allow the plaintiff to inspect and copy the account books, etc. of this case (including photographs and the reproduction of computer USB) within the business hours (09:0 to 18:00) of the defendant's head office, and it is necessary to inspect and copy the account books, etc. of this case.In light of sufficient time, the time required for the defendant's preparation for implementation, and the peace of the defendant's business, the period of this conduct shall be 30 days after 3 days of the date the judgment of this case becomes final and conclusive, except for legal holidays.

Furthermore, according to the above facts, the defendant refused the plaintiff's legitimate request for cooperation in the perusal of accounting books on the ground that the plaintiff's malicious use is expected or that it is likely to be expanded into unfounded writing. Thus, even if the enforcement title ordering the defendant to allow the perusal of accounting books, etc. is established, it is unlikely that the defendant will implement it, and even in this case, it is necessary to calculate the reasonable enforcement fine. Thus, if the defendant does not allow the perusal of accounting books, etc. according to the judgment of this case, it is necessary to order the defendant to make an indirect lecture. In light of all the circumstances revealed in the pleading process of this case, in order to order the defendant to pay compensation calculated in the ratio of one million won per day from the day following the expiration of the above 30 days period until the completion of the execution.

3. Conclusion

If so, all of the plaintiff's claims shall be accepted on the ground of its own reasoning, and the judgment of the court of first instance is legitimate as it is so decided, and the defendant's appeal is dismissed and it is so decided as per Disposition.

Judges

Clinical technicians (Presiding Judge)

Lee Jin-Jin

South Korean War

Note tin

1) The amount of compensation for loss to the shipment owner is awarded as a wholesale market corporation if the price of the agricultural product at the auction is lower than the normal price.

the company shall mean the money to compensate the shipper for any loss incurred by the company.

2) An accounting error for the previous financial statements on the grounds of the preceding year, as an accounting error in the previous financial statements, corresponding to the previous revised interest.

It is the account to include the revised loss items in the case of revision.

to Defendant 7 days prior to the date of commencement of the business permit period of J. H. H., and to Defendant Doz, the security deposit will be paid to Defendant Doz as a security against the payment of the E. M. M. M. H.

3) Article 20 of the Ordinance

The defendant shall submit the result thereof to the Mayor without delay.

래에םרעד 참가할수없다.

Paragraph (4) An intermediary wholesaler shall operate a wholesale market without paying a security deposit or providing a security pursuant to paragraphs (1) through (3).

4) An intermediary wholesaler’s trade agreement

피고가 7Łokakol 필요하다고인

Article 4 (Deposit) Any intermediary wholesaler shall pay a specified amount as a deposit to the defendant.

Article 5 (Limit on Foreign Trade and Guarantee of Security)

When determining an intermediary wholesaler, the intermediary wholesaler and the intermediary wholesaler shall take into account the financial status, status of provision of security, business activities, payment of outstanding amounts, etc.

The limit of credit transaction shall be adjusted after consultation.

(2) Where an intermediary wholesaler intends to trade credit in excess of the trading deposit under Article 4, the intermediary wholesaler shall provide real estate, guarantee insurance policy, and the intermediary wholesaler.

A pledge, etc. shall be provided to the defendant as security.

(Settlement)

VI. (Change in Security)

(1) An intermediary wholesaler has failed to settle the price of goods to be paid to the defendant by the due date for at least one month, and the defendant's credit information is overdue.

If it is deemed necessary for the preceding time, the intermediary wholesaler shall provide the defendant with the additional security or the guarantor's guarantee;

section 3.

Upon occurrence of a cause, the defendant may unilaterally suspend a transaction or terminate a transaction agreement.

In principle, an intermediary wholesaler shall pay the price of goods awarded by the defendant to the defendant as the date of payment, and the final date determined by the defendant.

Until the final and conclusive settlement is made, the final and conclusive settlement may be made differently for each category.

The defendant, such as additional provision of security, etc., because the amount of arrears exceeds the trading limit because the outstanding amount is not caused by the payment of the outstanding amount, which is not understood under the provisions.

Article 8 (Prepaid Amount)

When an intermediary wholesaler fails to pay an outstanding amount arising from transactions in agricultural products between the defendant and the intermediary wholesaler for at least one month from the closing date;

An intermediary wholesaler shall apply the interest rate of general loans in commercial banks and pay the outstanding amount plus interest to the principal.

Article 12 (Suspension of Transactions or Termination of Agreements)

(2) If such demand has not been duly made.