Korea Deposit Insurance Corporation and six others (Law Firm LLC, Attorneys Gyeong-soo et al., Counsel for defendant-appellant)

Defendant 1 and two others (Law Firm Gyeong, Attorneys Kim Jin-jin, Counsel for the defendant-appellant)

February 28, 2017

Seoul Central District Court Decision 2015Gahap576271 Decided August 24, 2016 (Seoul Central District Court Decision 2015Gahap576271 Decided September 20, 2016)

1. Revocation of the first instance judgment.

2. On May 2, 2013, the Plaintiffs and the Defendants confirmed that, with respect to KRW 126,90,000,00 deposited by Samsan Co., Ltd. with the Incheon District Court Gold 3256, May 2, 2013; KRW 253,80,000 deposited by the Incheon District Court No. 2860, April 8, 2014; KRW 296,100,000 deposited by the Incheon District Court No. 2778, April 9, 2015; and KRW 803,70,000,000 deposited by the Incheon District Court No. 3218, Apr. 5, 2016, each of the “amount claimed” of the claims by Plaintiff was claims against each of the Plaintiffs.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. On July 29, 2009, the bankrupt Korea Savings Bank Co., Ltd., the bankrupt Korea Savings Bank Co., Ltd., the bankrupt Gyeonggi Savings Bank Co., Ltd., the bankrupt Savings Bank Co., Ltd., the bankrupt Yong-Nam Savings Bank Co., Ltd., the Korea Mutual Savings Bank, the Korea Securities Co., Ltd., Ltd. (former trade name: Hyundai Securities Co., Ltd.), and the Korea Life Savings Bank Co., Ltd. (hereinafter “Plaintiffs”) leased KRW 35 billion to the ELWn Mutual Partnership Co., Ltd., the representative director, and Defendant 1 Co., Ltd., Ltd. (hereinafter “the Nonparty”) entered into a stock transfer contract with Defendant 1 as a security, on 15,000 shares (hereinafter “instant shares”) owned by Defendant 1.

B. Samdae-sung consented to the establishment of the transfer security of the instant shares by means of a certificate with a fixed date on November 30, 2010.

C. On the other hand, Defendant ENNethyl Co., Ltd. (former trade name: hereinafter “NNethyl”) and Defendant Republic of Korea (competent tax secretary) provisionally attached and seized the instant shares as follows.

1. On November 26, 2012, Defendant 1’s seizure of provisional attachment against Defendant 1’s claims (In Incheon District Court 2012Kahap1965), 840, 821, 917, 12.20, 220, 480, 670, 670, 2012, on November 26, 2012

D. Pursuant to the latter part of Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act on the ground that security for transfer, provisional seizure and seizure of claims competes with each other, the deposited person made a mixed deposit of dividends on four occasions as follows (hereinafter “each of the instant deposits”) by designating the deposited person as either the Plaintiffs or Defendant 1.

The deposit amount (won) of the contents of the deposit on the deposit date of the table Nos. 201 in the main sentence of this Act, the Incheon District Court of 126,90,000,000 of the shares dividends of 2013 on May 2, 2013, 2013, the Incheon District Court of 253,80,000 of the shares dividends of 253,80,000 on April 8, 2014, the Incheon District Court of 2015 No. 296,10,000,000 of the shares dividends of 2015 on April 9, 2015, the Incheon District Court of 2015, the Incheon District Court of 3218, April 2016, 2016

E. On the other hand, the share certificates of the shares in this case have not yet been issued.

[Reasons for Recognition]

Defendant 1: Confession (Article 150(3) and (1) of the Civil Procedure Act)

Defendant Isiene, Republic of Korea: The absence of dispute, Gap evidence Nos. 1 through 5 (including Serial number; hereinafter the same shall apply), Eul evidence No. 2, and the purport of the whole pleadings

2. Determination as to the claim against Defendant 1

(a) Description of the claim;

The Plaintiffs, around July 30, 2009, concluded a share transfer agreement with Defendant 1 and Defendant 1 to provide the Plaintiffs with the instant shares owned by Defendant 1 as a security for transfer, and obtained the fixed date of November 30, 2010 with respect to the share transfer agreement, and accordingly, sought confirmation from Defendant 1 that each of the claim amount stated in the column for each of the “request amount” in the separate sheet regarding each of the instant deposits is against each of the Plaintiffs.

(b) Grounds for recognition;

Confession Judgment (Article 208 (3) 2 of the Civil Procedure Act)

3. Determination as to the claim against Defendant Egethyl et al. and Korea

A. Summary of the parties' arguments

1) Summary of the plaintiffs' assertion

For the following reasons, the plaintiffs asserts that the right to claim for payment of deposit money under each of the deposits in this case exists under each of the plaintiffs.

A) At the time of the establishment of the instant share transfer security, the entry of change of entry into the register of shareholders should be deemed to have been made on the register of shareholders, as the Plaintiffs were to deliver the list of shareholders indicated as shareholders at the time of the establishment of the instant shares. Even if not, the Plaintiffs supplement “the date of July 30, 2009,” which is the date of the conclusion of the instant share transfer security contract, to the date of the formation of the new list of shareholders, based on the right to supplement delegated by Sam Jong-ri at the time of the establishment of the instant shares transfer security, the Plaintiffs should be deemed to have entered into the change of entry into the register of shareholders as of July 30, 2009 in accordance with

B) The Plaintiffs received the transfer of the instant shares prior to the issuance of share certificates in accordance with the method of transferring nominative claims. Before the provisional attachment decision of Defendant ENNethyl and the seizure of Defendant Republic of Korea, they obtained consent to the establishment of the transfer of the instant shares by means of a certificate with a fixed date date. The Plaintiffs are in a legitimate shareholder status in relation to the said Defendants, and the transfer of ownership is merely merely a requisite for setting up against the said Defendants, regardless of whether the transfer of ownership is a change of ownership, the amount of

C) Sam Jong-ri had ordered the Plaintiffs to establish the instant share transfer security interest, and continued to pay dividends on the instant shares before the provisional seizure or seizure by the said Defendants, to Plaintiff KB Securities Co., Ltd. representing the Plaintiffs. However, Sam-ri had a contractual obligation to recognize the Plaintiffs as legitimate shareholders and pay dividends on the instant shares.

2) Summary of the assertion of Defendant ENNethyl and Republic of Korea

A) It cannot be said that a lawful change of entry was made on the register of shareholders of Sam Jong-sung, solely based on the circumstances alleged by the Plaintiffs.

B) The Plaintiffs cannot claim the payment of dividend as a shareholder of the instant shares with respect to third-party bond as a stock mortgagee who did not enter into a transfer of ownership. Therefore, the Plaintiffs did not have the right to claim payment of deposit money pursuant to the deposit of this case.

C) In light of the fact that Sam Jong-sung paid dividends to Defendant 1, a shareholder listed on the register of shareholders, and did not pay dividends directly to the Plaintiffs, and that Sam Jong-sung deposited the instant Defendants including the said Defendants at the time of deposit, etc., Sam-sung cannot be deemed to have recognized the Plaintiffs as a real shareholder, and therefore, Sam-sung cannot be deemed to have a contractual obligation to pay the dividends for the instant shares.

B. Determination

1) Whether a change of entry into the register of shareholders was made in the name of the plaintiffs

According to each statement of evidence Nos. 6, 7, 9, and 10, the court below's determination that the plaintiffs delivered the document of title Nos. 6, 7, 9, and 10 to the shareholders at the time of the establishment of the transfer security of the shares of this case. The plaintiffs delivered the document of title Nos. 352, which the plaintiffs entered as shareholders at the time of the establishment of the transfer security of the shares of this case, to the shareholders of this case, and the document No. 30, 2009, which is the date of the conclusion of the transfer security contract of this case, on the date of the above document No. 4, 5, 6, and 100, which is the date of the establishment of the transfer security of the shares of this case. However, in light of the whole purport of arguments, the list of shareholders of this case was prepared and kept by the company pursuant to the provisions of the Commercial Act in order to clarify the status of shareholders and share certificates, and the date of acquisition of each shares must be stated in the shareholders' list of this case.

2) Whether the plaintiffs' right to claim dividends belongs to the plaintiffs as a substantial shareholder in relation to the above defendants

A) Relevant legal principles

The transfer of shares made before the issuance of share certificates is effective against the company as of its incorporation or at the expiration of six months after the date of payment of new shares. In this case, the transfer of shares takes effect only by the declaration of intention of the parties in accordance with the general principle as to the transfer of nominative claim, and the transfer of shares on the register of shareholders takes effect only in the requisite to exercise shareholder's right in relation to the company. Thus, any person who acquired shares before the issuance of share certificates proves that he/she acquired shares independently without the need to obtain the transferor's cooperation. Therefore, any person who acquired shares before the issuance of share certificates can assert that he/she is a legitimate transferee of shares as a third party without the transfer of shares on the register of shareholders. It is reasonable to view that the transfer of shares before the issuance of share certificates or preemptive rights to new shares is effective against the third party without the issuance of share certificates as the transfer of nominative claim, and the transfer of shares on the register of shareholders does not constitute the requirement to set up against the legitimate transferee in relation to the company, not between the transferee and transferee of shares (see, e.g., Supreme Court Decision 2005Da364.

In addition, if a claim is transferred doublely, the order between the assignee shall not be determined by the prior date of the fixed date attached to the notification or consent, but by the debtor's recognition on the assignment of claim, that is, by the date and time of receipt of the debtor's notification of the transfer with the fixed date or after the date and time of acceptance with the fixed date. This legal principle applies to the case where the notification of the transfer with the fixed date reaches the debtor with the same claim between the executor of the provisional seizure order and the transferee. Thus, the order of priority shall be determined after the arrival of the third obligor (in the case of the assignment of claim with the fixed date and the original provisional seizure order, referring to the Supreme Court en banc Decision 93Da2423 delivered on April 26, 1994). In a case where the dual transfer of shares prior to the issuance of the stock certificate is at issue, regardless of whether the change of ownership has already been made with respect to the part of the double transferee, it is difficult to determine who is the holder of the right as the priority holder.

B) Determination

The fact that, on July 29, 2009, Defendant 1 entered into a share transfer contract with the Plaintiffs on the instant shares to secure the obligation to borrow loans to the Plaintiffs of LNN Partners, and on November 30, 2010, Sam Jong Jong-sung consented to the establishment of the instant shares transfer by a certificate with a fixed date; Defendant 1 was the debtor; Defendant 1 was the third debtor; Defendant 3 was the provisional attachment decision on November 12, 2012 on the instant shares as the creditor; Defendant 1 was served on March 12, 2012 on March 12, 2012; Defendant 1 was served on March 3, 201 as the debtor; and Defendant 1 was served on March 3, 201 as the creditor; and Defendant 5 was served on December 16, 2012 on the instant shares as the creditor of Korea as the debtor; and Defendant 1 was notified on December 26, 2012.

Examining the above facts in light of the legal principles as seen earlier, insofar as the Plaintiffs approved the establishment of the transfer security of the instant shares by means of the certificate with the fixed date on November 30, 2010, and became equipped with the requirements for setting up against a third party, the decision of the above provisional attachment of Defendant ENNethyl, which was served on Sami-si, and the seizure of Defendant Republic of Korea’s claim against the Plaintiffs cannot be asserted as effective as to the instant shares. The Plaintiffs are deemed to be the substantial shareholders of the instant shares in relation to the said Defendants, and thus, their claim for dividend belongs to the Plaintiffs.

C. Sub-decision

Therefore, with respect to each of the deposits in this case between the plaintiffs and the above defendants, the claims for payment of deposit money equivalent to the stated "amount of claims" among the details of claims by plaintiff in attached Form 1 shall be deemed to exist to each of the plaintiffs, and as long as the above defendants are dissatisfied with this, the profit of confirmation shall also be recognized.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants of this case shall be accepted, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked by accepting the plaintiffs' appeal and it is confirmed that the claims for payment of deposit money of this case are against each plaintiffs. It is so decided as per Disposition.

[Attachment]

Judges Park Jung-hwa (Presiding Judge) early heat