Plaintiff (Law Firm Seo-sung, Attorneys Lee Ho-bok et al., Counsel for the plaintiff-appellant)

EPPD Co., Ltd. (Law Firm Suwon, Attorneys Lee Jin-hun et al., Counsel for the plaintiff-appellant)

January 30, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision of dismissal of the plaintiff, the director, the non-party 2, the auditor, the non-party 1, and the decision of appointment of the non-party 6 and the auditor made at the special shareholders' meeting on March 14, 2008 by the defendant was revoked.

1. Basic facts

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap evidence 6 through 9, 11 through 13, 16 through 18, 22, 26, 36 through 38, Gap evidence 10-1 through 4, Gap evidence 35-1 through 5, Eul evidence 1, 2, 5, 7, 12, Eul evidence 6-1 through 4, Eul evidence 9-1 through 6, Eul evidence 32 through 34, Eul evidence 3, 13 through 15, and witness non-party 2, 1, 8, 9, and 10 testimony.

A. On December 21, 2006, the Defendant Company was a legal entity established by Nonparty 6 to run a construction business of main multi-family apartment on the ground of approximately 13,860 square meters on the ground of Dong-dong, Seocheon-gu, Seocheon-gu, Seoul (hereinafter omitted), Seocheon-gu (hereinafter “instant business”). The Plaintiff is an investor who invested the operating fund in Nonparty 6 at the time of the establishment of the Defendant Company.

B. On December 5, 2006, Nonparty 6 provided the Plaintiff with the operating fund of KRW 300 million from the Plaintiff, and Nonparty 6 provided a letter stating that Nonparty 6 would make an investment in KRW 150 million out of the above KRW 300 million from the Plaintiff, but the borrowed principal would be repaid until November 30, 2007, and KRW 80 out of the profits accrued from the implementation of the project, Nonparty 6, and KRW 20% of the profits accrued from the implementation of the project. Nonparty 6 received each of the above receipts from the Plaintiff, and Nonparty 6 would pay the tax and public charges, such as value-added tax, due to the project in this case.

C. Meanwhile, among shares 60,000 shares issued at the time of the establishment of the Defendant Company, the Plaintiff acquired 12,00 shares, Nonparty 1’s wife Nonparty 1, Nonparty 11, Nonparty 9, Nonparty 100 shares, Nonparty 10, Nonparty 10, Nonparty 2, respectively, and Nonparty 12 acquired shares of 7,200 shares and Nonparty 12.

D. However, on January 4, 2007, Nonparty 12 transferred 1,800 shares to Nonparty 10, and around that time, transfer of ownership was completed on the register of shareholders of the Defendant Company.

E. On July 4, 2007, Nonparty 1 transferred 11,400 shares owned by himself to Nonparty 7, and Nonparty 2 transferred 3,600 shares out of 7,200 shares owned by himself to Nonparty 7 (hereinafter “transfer of shares on July 4, 2007”). Around that time, the transfer of shares on the register of shareholders of the Defendant company was completed following the said transfer of shares.

F. On February 27, 2008, the board of directors of the defendant company decided to dismiss the plaintiff, the non-party 2, and the non-party 1, who are directors, and to hold a provisional shareholders' meeting to appoint new directors and auditors. On February 29, 2008, the representative director of the defendant company notified the shareholders on the register of shareholders of the defendant company that the provisional shareholders' meeting will be held on March 14, 2008.

G. On March 14, 2008, the Defendant Company attended the meeting room of the head office with the shareholders other than Nonparty 2, and passed a pro-con vote on the agenda on which the Plaintiff, Nonparty 2, and Nonparty 1, the director, and Nonparty 6 and Nonparty 7, who were directors, were appointed by Nonparty 7 at the temporary general meeting of shareholders held (hereinafter “the temporary general meeting of shareholders”). The Defendant Company resolved to approve the said agenda with the 44,400 shares among the 56,400 shares voting rights of the shareholders present at the meeting (hereinafter “the instant resolution”).

2. The assertion and judgment

A. The plaintiff's assertion

(1) After Nonparty 2 and Nonparty 1 transferred all the shares of the Defendant Company to the Plaintiff, Nonparty 3, 4, and 5 (hereinafter “Plaintiff, etc.”) and notified the Defendant Company of each of the above shares transfer by content-certified mail with a fixed date. The above notification was made prior to issuance of a notice of transfer with a fixed date following the transfer of shares by July 4, 2007.

(2) Therefore, since the above transfer of shares takes precedence over the transfer of shares as of July 4, 2007, the defendant company rejected the plaintiff's request for change of ownership on the register of shareholders following the transfer of shares at the request of the plaintiff et al., but the plaintiff et al. could not exercise voting rights by attending the provisional shareholders' meeting of this case.

(3) However, since the resolution of this case was less than the quorum if the plaintiff et al. had attended the above provisional shareholders' meeting and exercised voting rights, the resolution of this case in this case should be revoked due to the defect in the method of resolution.

B. Determination

(1) Therefore, in full view of the overall purport of the pleadings as to the testimony of the Defendant Company’s 7,200 shares, and Nonparty 1’s 3,00 shares of the Defendant Company’s 7,200 shares, and Nonparty 1’s 3,40 shares of the same shares to Nonparty 3 and 4, and 5,40 shares of the same shares to Nonparty 5 (hereinafter “the instant shares sale”) on February 18, 208, it can be acknowledged that Nonparty 1 notified the Defendant Company of the purchase of the instant shares by content-certified mail, with a fixed date.

(2) However, even if the registered shares were transferred, unless the name of the shareholder on the register of shareholders is opened in the name of the transferee, the transferee cannot oppose the company as a shareholder in order to exercise the voting right at the general meeting of shareholders, and this applies to the notification of transfer (see, e.g., Supreme Court Decisions 2000Da6927, Dec. 24, 2002; 94Da25735, Jul. 28, 1995; 94Da25735, Jul. 28, 1995); and 27 and 28, each of the items of evidence Nos. 1 through 4 are insufficient to deem that the plaintiff et al. filed a transfer claim against the defendant company due to the purchase and sale of the shares of this case, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit without

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Young-young (Presiding Judge)