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(영문) 수원지방법원평택지원 2020.09.24 2018가합11789
신주발행 무효의 소
Text

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

Reasons

1. Basic facts

A. 1) At the time of the establishment of the Defendant, the Defendant issued 20 million common shares of KRW 5,000 (capital KRW 100 million) and allocated 10,000 (50%) each to the Plaintiff and C, respectively, for the purpose of real estate development business and used vehicle sales business. 2) At the time of the establishment of the Defendant, the Defendant was appointed as the inside director, as the Plaintiff, as outside director, and registered as the representative director, but E actually operated the Defendant.

B. 1) The Defendant’s director D, C, and Plaintiff (F) was dismissed on May 8, 2018.

(1) The board of directors of May 16, 2018 (hereinafter referred to as the “resolution of the board of directors of this case”) shall adopt a resolution to issue 4,000 common shares of KRW 5,00 at par value to shareholders allotment method (hereinafter referred to as the “resolution of the board of directors of

2) On the same day, the Plaintiff and C, a shareholder of the Defendant, have written up a written waiver of the acquisition of new shares with the purport that “to waive the preemptive rights to all the Defendant’s shares (44,000 shares) to be allocated to the new shares” (50%) was to be “to waive the preemptive rights to all the Defendant’s shares (44,000 shares). G received 40,000 shares as above and paid KRW 22,00 million (=4,000 shares x 5,00 won) for the acquisition price of new shares (i.e., 44,00 shares x 5,00 won). The registration of change on the issuance of new shares by the Defendant (hereinafter “instant issuance”) was completed on May 17, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 9, 12, Eul evidence 8 (including each number, hereinafter the same), the purport of the whole pleadings

2. At the time of the Plaintiff’s assertion of the issuance of new shares, H had been engaged in the business delegated by E, the Defendant’s actual manager, but H had been in custody of D’s seal of the Defendant’s corporate seal and former representative director. As such, H forged a written waiver of the acquisition of new shares in the Plaintiff’s name and issued new shares by allocating 44,000 shares of the Defendant’s new shares to a third party G, other than a shareholder.

Therefore, the issuance of new shares of this case is subject to this.

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