Whether the intention or negligence of a preservative measure creditor who lost the lawsuit on the merits is presumed to have been actually presumed (affirmative), and whether the above presumption may be reversed in cases where there are special objections (affirmative)

Article 750 of the Civil Act, Articles 276 and 300 of the Civil Execution Act

Supreme Court Decision 92Da49454 Decided March 23, 1993 (Gong1993Sang, 1273), Supreme Court Decision 2005Da3103 Decided April 26, 2007, Supreme Court Decision 2009Da82046, 82053 Decided February 11, 2010 (Gong2010Sang, 553)

Plaintiff 1 and two others (Law Firm LLC, Attorneys Lee Dong-ho et al., Counsel for the plaintiff-appellant)

See the attached list of the defendants (Attorney Jin-hun, Counsel for the defendant-appellant)

Gwangju High Court ( Jeonju) Decision 2011Na264 decided February 16, 2012

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The determination of whether a preservative measure, such as a provisional attachment or a provisional disposition, takes place in the lawsuit on the merits, and is subject to the creditor's responsibility with a vindication. Thus, in case where the execution creditor after the execution of the preservative measure, if the execution creditor loses the lawsuit on the merits, it shall be presumed that the execution creditor had intention or negligence on the part of the execution creditor as to the damage incurred to the debtor due to the execution of the preservative measure, but in case where there are special objections, the presumption of intention or negligence may be reversed (see Supreme Court Decisions 92Da49454, Mar. 23, 1993; 2005Da31033, Apr. 26, 2007, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The former North Korea-high speed Co., Ltd. for the purpose of passenger transport service (hereinafter “former North Korea-high speed”) owned a total of 79,527 equity shares (hereinafter “the instant treasury shares”).

B. The representative director, Nonparty 1 and Nonparty 2 of the former North Korean speed wanted to sell the above shares at the end of 2008, and some existing shareholders, including the Defendants, filed a lawsuit against the former North Korean speed on December 10, 2008 and December 11, 2008, which prohibit the sale of the instant shares against Nonparty 1 and Nonparty 2, prior to the disposal of the instant shares in order to prevent this, and filed a lawsuit claiming the maintenance of the sale of the shares (the former District Court Decision 2008Da8637, 208Kahap639). The date of the provisional disposition was designated as December 29, 2008.

C. On December 18, 2008, Nonparty 2 convened the board of directors on the agenda of selling the instant treasury shares prior to the date of the above examination, and held the board of directors on December 23, 2008. On December 23, 2008, the said board of directors passed a resolution that “the sales price of stocks shall be sold at KRW 20,000 per share, but the specific method of disposal shall be delegated to the representative director.”

D. Accordingly, on December 24, 2008, the representative director Nonparty 1 and Nonparty 2 sold the instant treasury stocks to the Plaintiffs and Nonparty 3, 4, 5, 6, 7, 8, 9, 10, and 11 (hereinafter “the purchaser of the instant treasury stocks”) from around 15:00 on the same day to around 17:40 on December 24, 2008, with the date and time payment of the purchase price, and the sale period from December 24, 2008 to the 30th day of the same month.

E. Accordingly, the Defendants filed a lawsuit against the buyers of the instant treasury shares, including the Plaintiffs, seeking confirmation of invalidity of the sales contract of the instant treasury shares, with the Jeonju District Court 2009Kahap180, and filed an application for provisional disposition, such as prohibition of exercising voting rights, by asserting that the sale and purchase of the instant treasury shares is null and void by unfair procedures and methods detrimental to the interests of other shareholders, and thus, is null and void by those detrimental to the interests of other shareholders.

F. On February 13, 2009, the above court accepted the application for provisional disposition and rendered a decision that “The purchaser of the instant shares shall not exercise voting rights on each of the shares listed in the separate list of shares acquired pursuant to the sales contract of the instant shares until the judgment on the merits 2009 Gohap180 became final and conclusive, and shall not receive dividends based on the said shares and other provisional payment, and shall not dispose of the said shares” (hereinafter “the provisional disposition decision of this case”).

G. On February 23, 2009, the former Jeju District Court 2009Kahap99 decided the provisional disposition of this case, but on June 10, 2009, the above court stated that "the instant treasury shares may have a critical effect on securing the management right of the former North Korea," but the representative director, non-party 1 and non-party 2 of the debtor company did not notify most creditors of the disposal of the instant treasury shares, even though they did not properly notify most of the creditors of the disposal right of this case, they failed to sell only three hours after the resolution of the board of directors was passed to secure the management right of this case, and the purchaser of the instant treasury shares became aware that the disposal of the instant treasury shares was done in bad faith for the purpose of maintaining the management right of the current management. Thus, it is sufficient to view that the act of disposal of the instant treasury shares as abuse of representative right of this case was conducted as an act of abuse of management right of this case, and the defendants sought confirmation of the provisional disposition of this case as the obligees (the obligees).

H. Meanwhile, with respect to the case of the Jeonju District Court 2009Gahap180 on November 19, 2009, the above court did not have any evidence to acknowledge that there was a need to dispose of the instant treasury shares rapidly at the time of the disposal of the said treasury shares. On the other hand, although the date of examination for the case of the maintenance and provisional disposal of the above treasury shares was scheduled on December 29, 2008, Nonparty 1, and 2 of the former North high-speed representative director was sold under the above resolution of the board of directors on December 24, 2008 without notifying the purchaser and the officer of the above resolution of the majority of the board of directors, the above court’s disposal of the instant treasury shares to a third party violates the existing interests of the previous shareholders, and thus, it constitutes an abuse of the former representative director’s management right or the management right of Nonparty 1 and 2, and thus, it constitutes an abuse of the existing treasury shares by taking into account the following facts.

I. Some buyers of the instant shares, including the Plaintiffs, appealed to the Gwangju High Court (Seoul High Court) 2009Na3277 on May 28, 2010. The said court revoked the judgment of the first instance court that held that “The shareholders may exercise their right to maintain directors’ acts against directors according to certain requirements, or bring a lawsuit to enforce their responsibilities through a representative lawsuit, and cannot assert the invalidity of the contract that the company entered into by directly participating in transaction with the third party. It is not possible to assert the invalidity of the contract that the company entered into. The dilution of the value of shares is limited to factual and economic interests, as it increases proportional interests of the existing shareholders due to disposal of treasury shares to the third party and reduce their proportional interests with respect to the existing shareholders. Therefore, even if the Defendants had no benefit to seek confirmation of invalidity of the sales contract of the instant shares that was concluded between the former and the former purchaser of the instant treasury shares, it cannot be seen that the aforementioned provisional disposition of the instant case would have been invalidated by applying the aforementioned provisions to the Defendants’ prior to issuance of new shares to Gwangju High Court [200 days].

(j) The Defendants appealed to the Supreme Court Decision 2010Da51413, but on October 28, 2010, the above appeal was dismissed on the same ground as the above appellate judgment, and around that time, the above judgment became final and conclusive, and the re-appeal filed against the Defendants regarding the above case No. 2009Ra20 (Supreme Court Decision 2010Ma1049) was dismissed on the same day.

3. The above facts are as follows. ① Even if the Defendants were to maintain and dispose of their own shares against the former and the former directors, the representative director 1 and 2 convened the board of directors meeting and passed a resolution to dispose of the shares of this case at the same time under the circumstance that they were designated until the date of examination of the application for the above disposal of the former and the former and latter directors, and the Defendants purchased the shares of this case immediately after preparing large amount of purchase price to Nonparty 1 and 2, and there was a concern that the Defendants would be disadvantageous to the Defendants in dispute over the management rights. Thus, it is difficult to view that the Defendants would have a right to dispute over the validity of the above disposal of their own shares, which appears unfair in light of the general principles of transaction, as long as the Defendants did not have a right to claim the sale of the shares of this case, and it is difficult to view that there was a difference between the first instance court of this case and the Defendants’ right to claim the sale of their own shares of this case, and that the Defendants did not have a right to claim the above disposal of this case.

Nevertheless, the lower court determined that the Defendants were liable for damages against the Plaintiffs on the ground that there was intention or negligence in the execution of the provisional disposition in this case. In so doing, the lower court erred by misapprehending the legal doctrine on actual presumption of intention or negligence in the compensation for damages caused by the execution of provisional disposition, thereby affecting

4. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Defendants: omitted

Justices Jo Hee-de (Presiding Justice)