2010 Ghana 43579 Damage

Stock Company

Chicago-si

Representative Director Kim00

Law Firm Doz.

Attorney Kim DD

▦▦주식회사

Chicago-si

Representative Director Kim Dong-won

Attorney Kang-O, Counsel for the defendant-appellant

November 23, 2010

December 21, 2010

1. The defendant shall pay to the plaintiff 45, 650, 033 won with 20% interest per annum from July 7, 2010 to the day of full payment.

2. The costs of lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Basic facts

가 . 윤▲▲은 2002 . 10 . 28 . 한국토지주택공사로부터 충남 당진군 주차장용지 ( 아래에 서는 이 사건 토지라고 쓴다 . ) 를 1 , 200 , 100 , 000원에 분양받아 그 무렵 분양대금을 모두 지급하였으나 바로 이전등기를 경료받지는 않았다 .

나 . 김○○은 2003년 9월경 욱의 소개로 윤▲▲을 알게 되어 윤▲▲과 사이에 이 사건 토지를 1 , 940 , 100 , 000원에 매입하기로 하는 매매계약을 체결하는 한편 , 지상에 주차빌딩 상가 ( 아래에서는 이 사건 주차빌딩이라고 쓴다 . ) 을 신축 · 분양하려고 하였다 .

다 . 윤▲▲은 2004 . 3 . 11 . 원고 회사 ( 설립 당시 상호는 發컨설팅 주식회사였는데 2005 . 10 . 10 . 현재의 상호로 변경됨 ) 를 설립하여 대표이사로 취임하였는데 , 설립 당시 주주는 윤▲▲ ( 4 , 000주 ) , OO식 ( 윤▲▲의 매제 , 3 , 000주 , 이사 ) , ♠ ♠경 ( 十王욱의 처 , 3 , 000주 , 감사 ) 으로 되어 있었으나 ○○식 , ♠♠경은 명의상 주주로서 윤▲▲이 실질적 주주였다 .

라 . 김○○과 윤▲▲은 2004 . 11 . 13 . 김○○이 윤▲▲으로부터 원고 회사를 인수하 여 원고 회사 명의로 이 사건 주차빌딩의 신축 · 분양사업을 하면서 윤▲▲에 대한 채 무 ( 이 사건 토지의 매매대금 , 분양대행보증금반환 등 체무 ) 를 이 사건 주차빌딩의 상가 일부로 대물변제하기로 약정하였고 , 위 약정에 따라 윤▲▲은 윤▲▲ 명의의 주식 ( 4 , 000주 ) 은 王王욱에게 , OO식 명의의 주식 ( 3 , 000주 ) 은 김○○의 인척인 철에게 ,

♠♠경 명의의 주식 ( 3 , 000주 ) 은 김○○이 실질적으로 운영하는 ㅎㅎ 개발 주식회사 ( 아래 에서는 ㅎㅎ라고 쓴다 . ) 의 직원인 백○○에게 각 이전하였다 .

마 . 그 후 원고 회사의 대표이사는 욱이었으나 김○○이 대표이사 및 이사 백이 ○ , 감사 한아 등을 지휘하여 실질적으로 운영하였고 , 욱이 2005 . 5 . 18 . 원고 회 사의 이사직에서 해임된 후 같은 날 백○○이 원고 회사의 대표이사로 , 김○○의 친구 인 ▣▣균이 이사로 각 선임되었다 . 그 무렵 王욱의 주식 ( 4 , 000주 ) 중 3 , 000주는 김 OO에게 , 1 , 000주는 백○○에게 , 철의 주식 ( 3 , 000주 ) 은 한○에게 각 이전되었다 ( 이로써 원고 회사의 주주현황은 , 백00 4 , 000주 , 김00 3 , 000주 , 한아이 3 , 000주가 됨 ) .

바 . 김○○은 세무조사에 대비하여 원고 회사의 자본금을 증액해두는 것이 좋을 것 이라는 백○○의 제안에 따라 신주를 발행하기로 하였고 , 이에 따라 당시 원고 회사의 대표이사인 백○○은 2005 . 6 . 13 . 자신에게 보통주식 12 , 000주의 , 김○○과 한아에 게 각 보통주식 9 , 000주씩의 각 신주를 배정하는 내용으로 주주총회 의사록을 작성하 고 , 2005 . 6 . 16 . ㅎㅎ 법인통장에서 인출된 자금으로 위 3인 명의로 주금을 납입하여 증자를 마친 후 위 납입금을 다시 인출하였다 ( 이로써 원고 회사의 주주현황은 , 백○○ 16 , 000주 , 김○○ 12 , 000주 , 한ⓒⓒ 12 , 000주가 됨 ) .

G. Meanwhile, on December 2, 2005, Kim ○ intended to change the representative director of the Plaintiff Company from 00 to 1,000, which led to extreme dispute between Kim ○ and 00, by refusing to change the representative director, which led to Kim ○ and 00, and Kim ○ expressed his intention to terminate the title trust of the Plaintiff Company’s shares on March 24, 2006, and upon refusing the said two persons’ refusal to transfer the shares, the said two persons filed a criminal complaint on April 5, 2006 on the charge of embezzlement, etc., and filed a lawsuit against Suwon District Court 2006Ga975 against the said two and the Plaintiff Company seeking the confirmation that they are shareholders of the said shares.

H. On June 2, 2006, Kim○-○ and 000, during the above-mentioned confrontation, purchased the shares of the Plaintiff Company that ○○ held or was delegated by ○○ on June 2, 2006, and made an agreement in lieu of payment of the said amount to accord and substitute for Pyeongtaek-si newly constructed by the Plaintiff Company (hereinafter the following agreement is called the instant agreement). However, Kim○-○ asserted invalidation from the date immediately after the instant agreement and notified ○○ on June 23, 2006 in writing the revocation and cancellation of the instant agreement.

I. On June 8, 2006, 000: (a) the establishment of the Defendant Company (the representative director, director, director, and auditor) and on the other hand, June 14, 2006, as the representative director of the Plaintiff Company; (b) on the other hand, on behalf of the representative director of the Defendant Company, the Plaintiff Company sold the instant land and parking building to the Defendant Company for KRW 10,336, 685, 862; (c) the sales contract was 0,286,685,862 out of that amount to KRW 0,00,000,000,000,000 won was 10,000,000 won was 10,000,000 won was 10,000,00 won was 30,000,000 won was 30,000,000 won was 30,000,000 won was 30.

(j) On April 18, 2008, the parking building of this case was partitioned into a partitioned building, and each registration of preservation of ownership was made in the name of the Plaintiff Company in the name of the Plaintiff Company, upon the application for compulsory auction for the parking building of this case in an unregistered state with the Plaintiff Company as its obligor at the Seosan Branch of Daejeon District Court around 2008 and around 3003.

(k) The Defendant Company received the order of provisional disposition of prohibition on disposal of the instant parking building as the Seosan Branch of Daejeon District Court 2008Kahap102, with respect to the instant parking building, and issued the order of provisional disposition of prohibition on disposal, and the registration of compulsory decision of prohibition on disposal by the Defendant Company was made in the same order of priority as the registration of compulsory decision of prohibition on disposal by the said court around 2008 and the provisional disposition of prohibition on disposal by the Defendant Company, Daejeon District Court 16 XX of April 18, 2008.

C. On July 11, 2008, the Defendant Company filed a lawsuit against the Plaintiff Company for the claim for ownership transfer registration against the Daejeon District Court 2008Gahap1155, Daejeon District Court 2008, the principal lawsuit of the above provisional disposition. The above court dismissed the Defendant Company’s claim on the grounds that (i) the instant parking loan brokerage, the object of the instant sales contract, constitutes part of the Plaintiff Company’s business, and (ii) the instant special resolution of the shareholders’ meeting was not required to transfer it, and thus, the instant sales contract is null and void. In addition, the Defendant Company’s sales contract between the Plaintiff Company and the Defendant Company is one of the representative directors of the Plaintiff Company, and thus, is an independent transaction likely to cause conflicts of interest between the Plaintiff Company and its directors, and thus, the board of directors’ approval was not required, and thus, the judgment was finalized by Daejeon High Court 2009 or Daejeon High Court 934, and thus, the above judgment was withdrawn.

(m) On September 19, 2008, the Plaintiff Company delegated the instant case to the attorney Kim Jong-○, an agreement was made to pay KRW 3,300,000, the contingent fee of KRW 55,00,000, the contingent fee of KRW 58,300, and KRW 00 (in case of confirmation in favor of the Plaintiff, payment shall be made) in total.

[Reasons for Recognition] The fact that there is no dispute or is not clearly disputed, Gap evidence 1-1, 2, and 2

The purpose of the whole pleadings, including evidence 5, evidence 8, evidence 6-1 through 3, and the purport of the whole pleadings.

2. Judgment on the plaintiff's claim

A. Although preservative measures such as provisional attachment and provisional disposition are executed by the court's trial, whether there exists a substantive claim is entrusted to the lawsuit on the merits and is under the creditor's responsibility by vindication. Thus, if the execution creditor has become final and conclusive after the execution, it is presumed that the execution creditor was intentional or negligent with respect to the damage incurred by the debtor due to the execution of the preservative measure, unless there is any special objections to the damage incurred by the execution, and therefore, the execution creditor is liable to compensate for the damage caused by unfair execution.

Examining the instant case, it is presumed that the Defendant Company had intention or negligence in the occurrence of damages caused by the execution of the preservative measure, on the grounds that the final and conclusive facts in the lawsuit on the merits after the execution of the provisional disposition in this case were as seen earlier.

As to this, Defendant Company asserted that it is not responsible for compensating for damages caused by an unfair provisional disposition or an unfair lawsuit, since the contents of the contract are false or forged, etc., it is not due to the substantive reasons. However, the above reasons asserted by Defendant Company cannot reverse the presumption of intention or negligence of Defendant Company on the unfair provisional disposition, and rather, Defendant Company asserted the invalidity of the agreement immediately after the agreement, namely, Kim○-○, based on the facts acknowledged earlier, as follows; Defendant Company established the Defendant Company after the above agreement and entered into a contract for the sale of this case; it appears that Kim○-○ concluded a contract for the sale of this case after the establishment of the Defendant Company and the acquisition of the title of this case. It appears that Kim○-○ would have been aimed at reducing the land and parking buildings of this case before finding the management right of the Plaintiff Company; Defendant Company’s failure to hold a general meeting of shareholders at the time of the contract for sale of this case is an intentional act of Defendant 1, a shareholder of this case, rather than an act of Defendant 1, a shareholder of this case.

B. Furthermore, if there is an agreement on remuneration between the defendant company and the attorney-at-law with respect to the amount of damages that the defendant company should compensate for, in addition to the amount of damages which the agreement seems to be a considerable amount of damages under the agreement, the amount of damages shall also be deemed to be the amount (Supreme Court Decision 70Da1069 Decided August 31, 1970). If the amount of remuneration is deemed to be a considerable amount, it shall not be deemed that the amount is the name of contingent remuneration. It shall be determined by 0% of the claim amount and winning amount, the difficulty and progress of the lawsuit, 00 won, 00 won, 00 won, 00 won, 30% of the total amount of damages of the plaintiff company and the defense counsel, 40% of the total amount of damages of the lawsuit in this case, 50% of the total amount of damages of the plaintiff company in this case, 50% of the total amount of damages of the plaintiff company in this case 2, 50% of the above amount of the lawsuit in this case, 300% of the lawsuit in this case.

3. Conclusion

Therefore, the plaintiff company's claim of this case is justified and it is so decided as per Disposition by admitting it.

Judges strict interference