[1] Method of transferring shares before the issuance of share certificates and requisite for setting up against a third party

[2] Legislative intent of Article 450 (1) and (2) of the Civil Code

[3] In a case where a nominative claim is transferred dually without notice or consent by a certificate with a fixed date, whether one of the assignee can assert the effect of the transfer against the transferor (affirmative)

[1] The transfer of shares before the issuance of share certificates can be made pursuant to the general principle as to the transfer of nominative claim when six months have elapsed since the incorporation of the company or the date of payment of new shares. Thus, the transfer of shares becomes effective only with the expression of intent of transfer between the transferor parties. However, in order to oppose a third party as in the case of double transfer of shares, it is required to give notice of transfer to the transferor company

[2] The provisions of Article 450 (1) and (2) of the Civil Code concerning "a debtor and other third party" in transferring a nominative claim shall promote the safety of transaction by allowing the debtor to perform the function of public disclosure through the awareness of the debtor's assignment of claims by notification and approval. Furthermore, in a case where there are more than one person in a position to be compatible with the assignment of claims due to double transfer of claims, i.e., a person in a position to be compatible with the assignment of claims, i. a third party other than the debtor, and there is a need to establish a friendly relationship among them, it shall not be applied by the incomplete public announcement method, and it shall be deemed that the notification or approval by the certificate with a fixed date under paragraph (2) of the same Article is based on the final judgment that misleads the claim.

[3] The assignment of a nominative claim takes effect only with the declaration of intention between the parties, and the notification or acceptance is not an effective requirement, and the transferor of a claim does not fall under any "debtor or any third party" or "third party other than the obligor" as stipulated in Article 450 of the Civil Code, and the transferee of a claim is in the position to request the transferor to notify the obligor of the transfer of the claim to the obligor and to implement the notification procedure by the certificate with a fixed date, and therefore, the transferee of the claim is in the position to request the transferor to perform the notification procedure by the certificate with a fixed date. Thus, in cases where the nominative claim is transferred double, even if there is no notification or approval, or it is not based

[1] Article 450 (1) and (2) of the Civil Act, Article 335 of the Commercial Act / [2] Article 450 (1) and (2) of the Civil Act, Article 335 of the Commercial Act / [3] Article 450 (1) and (2) of the Civil Act, Article 335 of the Commercial Act

[1] Supreme Court Decision 94Da36421 delivered on May 23, 1995 (Gong1995Ha, 2226)

(Attorney Kim Sang-hoon, Counsel for the defendant-appellant)

Park Jae-gu et al. (Attorney Han-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Na34537 delivered on May 6, 1997

1. Of the total number of shares issued by Non-Party 7,800 taxi companies:

A. 2,251ism between the Plaintiff and Defendant Park Jong-chul;

B. Each of 780 weeks between the Plaintiff, Defendant Jeon Soo-young, and Park;

C. Each shareholder confirms that the Plaintiff and the Defendant Lee Jong-soo are the Plaintiff.

2. The plaintiff's remaining claims against the defendant Park Jong-dae are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant’s deceased’s deceased’s deceased shall be five minutes, and the remainder shall be borne by the same Defendant, and the remainder shall be borne by the Plaintiff, respectively, and the part arising between the Plaintiff and the Defendant’s deceased’s deceased’s deceased and deceased’s deceased

Of the total number of shares issued by the non-party 7,800 taxi company (hereinafter the non-party 1 company), each of the 3,811 share shares between the Plaintiff and the defendant 1,780 share shares between the Plaintiff and the defendant 2, and 1,170 share shares between the Plaintiff and the defendant 2, and 1,170 share shares between the Plaintiff and the defendant 2.

1. The parties' assertion

The plaintiff asserted that the defendant Park Jong-young was transferred by the defendant Park Young-chul to the non-party company's total share of 4,680 shares of the non-party company, which was owned in his name, Lee Jong-young's name, Lee Jong-young's name, and Lee Jong-jin's name, and the total share of 1,861 shares of the same company, which were owned in his name, was transferred by the non-party Lee Jong-jin's name, and that the total share of 6,541 shares was owned by the plaintiff, and that it was not transferred by the non-party company's 6,541 shares of the non-party company, but was merely a title trust upon the non-party company's request for the normalization of its management, and even if the shares were transferred by domestic affairs, 1,861 shares of the above 1,861 shares were transferred by the non-party Lee Jong-jin's name to the non-party company Lee Jong-jin's name, and 1,259 shares already transferred by the above double shares were transferred.

2. Facts of recognition;

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence 1, 2, 17 through 21, Gap evidence 3-1 through 96, Gap evidence 4-1 through 10, Gap evidence 6, and 7-1 through 4, Gap evidence 13-1 through 3, Gap evidence 16-1 through 5, Gap evidence 22-1, 7, 11, 14, 15-1, 2, 6-1 through 4, Eul evidence 4, 5, 8 through 10, 12, and 13-1, 17-14, 17-2, 17-1, 17-2, 17-1, 3-1, 17-2, 17-1, 17-2, and 6-1, 3-1, 17-2, 3-1, 17-2, and 5-1.

A. On April 1, 1990, Defendant Park Jong-sik purchased common shares of 7,800 shares (10,000 won per share) which are the total number of outstanding shares of the non-party company from the date of the non-party company's escape, etc., and took office as the representative director. On the other hand, the non-party company's garage that leased the 750 square meters and the 150 square meters to the above non-party company's garage as the head of the non-party company's garage. The above 1,560 shares in the land and the 1,560 shares in the land and the 1,50 square meters in the land and the 1,50 square meters in the name of the non-party company's head of the non-party company, while working as the managing director of the non-party company's new Dong-dong company's managing director, the non-party company's 780 shares in the name of the non-party company's head of the non-party company, the non-party company's 1,70 and the 7.

B. On July 6, 1991, the Defendant’s name book was entrusted with 10,00,000 won borrowed from the above Lee Jong-sik and 10,000 won borrowed from the above Lee Jong-sik, and the Defendant entrusted with 10,00 and 2 cars owned by the non-party company that transferred to the above Lee Jong-sik, and paid 2,20,000 won monthly to the above Lee Jong-sik regardless of profit and loss, and additionally transferred 1,259 shares equivalent to 10 of the shares of the non-party company owned in the name of the same Defendant, which were owned by the same Defendant, to the above Lee Jong-sik.

C. On December 28, 1992, on the 30th of the same month, the defendant Park Jong-dae, who was in the name of the same defendant, entered into a contract with the plaintiff and the person designated by the plaintiff to transfer 4,680 shares of the non-party company (including 1,259 shares already transferred to Lee Jong-sik), 1,950 shares of the plaintiff, 1,950 shares of the non-party company's wife designated by the plaintiff, and 780 shares of the plaintiff's wife to the non-party beneficiary, the plaintiff's wife, and 1,259 shares of the non-party company that had already been additionally transferred to the above Lee Jong-sik, instead of paying 1,00,000 won per month of the defendant's living expenses.

D. On February 4, 1993, 2,819 shares of the non-party company (1,560 shares that were acquired by public order + 1,259 shares that were additionally acquired by public order) owned by the non-party company on February 4, 1993. In other words, 2,340 shares out of the non-party company's total shares 3,599 shares (780 shares that were acquired by public order + 2,819 shares that were acquired by public order + 2,819 shares) owned by the non-party company around that time, are transferred 780 shares each to the non-party fact-finding, the consignor, and the invoice. Since then on April 1 of the same year, the non-party company's list of shareholders owned 691 shares (1,259 shares that were additionally transferred to non-party 1,950 shares for non-party 1,250 shares) and the above 1,259 shares of the non-party company [the non-party 1,39,798 shares]

E. Since the non-party company's default, it was intended to promote only personal interests, such as transfer of shares, for which the non-party company was promised to pay debts and living expenses from the plaintiff without performing its business affairs. The above Lee Jong-jin, a managing director of the non-party company, at the time, notified 9 shareholders on its register of shareholders to convene an extraordinary general meeting of shareholders as of June 10 of the same year in order to normalize the company by proxy the representative director's duties in accordance with the articles of incorporation, and to appoint directors and auditors as of May 27, 1993. The plaintiff was aware of this fact on June 1 of the same year. The notice of convening an extraordinary general meeting of shareholders on the 8th day of the same month was defective, the above Lee Jong-jin, the 7th day of the same month to the above 9 shareholders on the above 4th day of the same month, the above 7th day of the same month to the above 9 shareholders on the list of shareholders, and the above 9th day of the above 4th day of the same month, the above 5th day of the above shares held.

F. The plaintiff asserted that each share of the non-party company's non-party company's 1,861 share of the non-party company's 1,560 share of the non-party company's 1,861 share of the non-party company's 1,560 share of the non-party company's 1,560 share of the non-party company's 1,861 share of the above 1,861 share of the above 1,861 share of the above 1,861 share of the 1,861 share of the 1,861 share of the 1,00 shares of the 1,861 share of the 1,861 share of the above 1,00 shares of the 1,861 share of the above 1,00 shares were transferred to the plaintiff in collusion with the non-party company's 1,560 share of the 1,861 share of the above shares.

G. On June 16, 1993, the Plaintiff opened a temporary general meeting of shareholders on the part of the Plaintiff and the persons with the right to know-how and the persons with the right to know-how, dismissed all the existing directors and auditors, appointed each director, and appointed the above Switzerland as the auditor instead of the above directors, and decided to change the trade name of the non-party company to the non-party company to the non-party taxi company, opened the board of directors on the same day, and appointed the defendant mail as the representative director. On the same day, the Plaintiff issued 6,541 shares of the non-party company (4,680 shares transferred to the company by the defendant mail + 1,861 shares additionally transferred after the date of issuance on September 1 of the same year.

H. According to the articles of incorporation of the non-party company, a provisional general meeting of shareholders shall be convened, as required, pursuant to the resolution of the board of directors and other laws and regulations, and the president of the general meeting of shareholders shall act on behalf of the managing director if he is the representative director, and the resolution of the general meeting of shareholders shall be made by the majority of the voting rights of the shareholders who hold the shares equivalent to the majority of the total number of issued shares, except as otherwise provided in Acts and subordinate

I. On June 11, 1996, the defendant Park Jong-young notified the non-party company of the fact that he transferred 780 shares of the non-party company to the non-party company as of April 1, 1990, the above notification was delivered to the non-party company. The above notification was delivered to the non-party company around that time.

3. Judgment of party members

A. Part of the stocks transferred in duplicate

(1) According to the facts found in the above 2. 1,259 out of the shares of the non-party company 1,950 shares which the defendant Park Jong-chul owned in his name, 1,259 out of the shares of the non-party company 1,90 shares, 3,120 shares of the above 1,861 shares of the above 1,861 shares of the above 3,120 shares of the 3,120 shares awarded to Lee Jong-jin, the 780 shares awarded to Lee Jong-jin, and 301 shares awarded to Lee Jong-jin-jin, the 3,861 shares of the above 1,861 shares. The transfer of shares after the issuance of the original share certificate becomes effective only with the declaration of intention between the parties to transfer the shares after the establishment of the company or six months after the date of the new shares, and thus, the transfer of shares becomes effective only between the parties to transfer the shares, but in order to oppose the transferor or the third party 94.

(2) As acknowledged earlier, on June 16, 193, when the plaintiff convened the above general meeting of shareholders on or around the 9th day of the same month, the non-party company's directors were four persons, such as the above spawn, the spawn, the truth-finding, and the spawn. The representative director, despite the above spawn, the plaintiff merely received the above spawn and was not the representative director at the time, and the non-party company's shareholders, such as the above spawn and the above spawn were not the notification of convening the general meeting of shareholders. Thus, the resolution of the general meeting of shareholders and the board of directors of the above 6th day of the above 16th day of the above 193 did not exist because the non-party company's share certificates issued by the plaintiff were issued by a non-party company without any authority. Accordingly, in this case, the non-party company's share certificates issued by the plaintiff should be null and void.

(3) First of all, examining the above gambling, the plaintiff, and the non-party company's shares 780 shares, each of which was transferred twice by the plaintiff, and 1,560 shares of the non-party company that were transferred twice, as seen earlier, the defendant Park Jong-jin transferred 780 shares, respectively, to the non-party company on June 11, 1996, and to the non-party company on April 1, 1990, "the above notification was delivered to the non-party company as of April 1, 1990," and at around that time, the above notification was delivered to the non-party company, which is a content-certified document with a certified fixed date, by giving priority to the effect of the transfer to the plaintiff, and the effect of each transfer to Lee Jong-jin and Lee Byung-jin was determined as the only shareholder for each of the above 780 shares, and the plaintiff did not acquire the above shares, and this applies to the relation to the defendant Park Jong-jin, the transferor.

(4) Next, examining the above different types of shares and the total 1,560 shares of the non-party company (1,259 shares +301 shares) that the plaintiff transferred twice, there is no dispute between the parties as to the facts that the above defendant, the transferor, still notified the transferor of the above shares of the fixed date with a certificate indicating the fixed date or that the non-party company, the debtor, had not accepted such shares.

However, Article 450(1) of the Civil Act provides that the transferor shall not oppose the obligor or any third party unless the obligor notifies the obligor of the assignment of nominative claim or the obligor does not consent, and Paragraph (2) of the same Article provides that the notification or consent under the preceding paragraph shall not be asserted against any third party other than the obligor unless it is based on a certified fixed date certificate. In transferring a nominative claim, it is reasonable to deem that the transfer of a nominative claim is based on the final judgment that the notification or consent under the document with the certified fixed date under paragraph (2) of the same Article requires the obligor to perform the function of public disclosure through the awareness of the assignment of claim by the obligor. In addition, in case where there are more than one person in a position compatible with the assignment of claim due to the double transfer of claim, i.e., the third party other than the obligor, who is in a position equivalent to the assignment of claim, and it is necessary to establish a friendly relationship among them, it is reasonable to deem that the notification or consent under the certificate with the certified fixed date is based on the final judgment

On the other hand, as seen earlier, the transfer of nominative claim becomes effective only with the declaration of intention between the parties, and the notification or acceptance is not valid, and the transferor of the claim does not fall under "debtor or any third party other than the debtor" or "third party other than the debtor" under the above provision of the Civil Code, and rather, the transferee of the claim is in the position to request the transferor to notify the obligor of the assignment of claim and to implement the notification procedure by the certificate with a fixed date. Thus, in a case where the nominative claim is transferred double and even if the notification is not given or it is not given, each transferee of the claim is the creditor of the claim which is all taken over in relation to the transferor, and the plaintiff can claim that the transferee of the claim is the shareholder of the non-party company 1,560 shares of the non-party company which was transferred twice to the defendant Park Jong-m

(5) Therefore, among the shares of the non-party company that was transferred twice from the defendant Park Jong-dae, Lee Jin, Lee Jong-Jin and Lee Jong-Jin, the total of 3,120 shares of the non-party company that was transferred twice from the defendant Park Jong-Jin, 1,560 shares of the non-party company that was transferred twice with the above 3,120 shares shall be the shareholders of the above 780 shares, respectively, and 1,560 shares transferred twice with the above 1,560 shares transferred double 1,560 shares can be argued that the plaintiff and the non-party company were all shareholders of the 1,560 shares

B. The remaining shares

Meanwhile, according to the facts found in the above 2. The shares of the non-party company 1,950 shares owned by the defendant Park Jong-young in his name, 691 shares, excluding the shares of the non-party company 1,259 shares additionally transferred to the above Lee Jong-sik, and 780 shares, and 1,170 shares, and 3,421 shares, which were owned in the name of the defendant Lee Jong-young and the shares of the non-party company 1,950 shares in his name, were legally transferred among the plaintiff and the defendants, so the plaintiff is the plaintiff.

4. Conclusion

Therefore, among the total number of shares issued by the non-party company 7,800 shares, 2,251 shares between the plaintiff and the defendant Park Jong-young, 780 shares between the plaintiff and the defendant Jeon-young, and between the plaintiff and the defendant Lee Jong-young, it is clear that each shareholder of 1,170 shares is the plaintiff, and as long as the defendants dispute this, the plaintiff is entitled to seek confirmation. Thus, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claim against the defendant Park Jong-young is dismissed as there is no reason, and it is so decided as per Disposition by the application of Articles 89, 92, and 93 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges Kim Tae-hun (Presiding Judge)