Plaintiff (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Han Newa Co., Ltd. (Law Firm LBS Partners, Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

May 30, 2013

Suwon District Court Decision 201Gahap12597 Decided December 28, 2012

1. Revocation of a judgment of the first instance;

2. The defendant shall be dissolved;

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The reasoning for this Court's explanation is as follows, except for the addition of "Nos. 1 through 20" to "Nos. 24, 25" at the bottom of the 13th judgment of the first instance court, to "No. 38, 57, 59, 63" at the bottom of the 3rd "No. 38, 40", and "No. 48, 57, 59, 63" to "No. 48, 57, 59, 63" at the bottom of the 13th judgment of the first instance court, and therefore, it is identical to the corresponding part of the judgment of the first instance court. Thus, it shall be accepted in accordance with

F. Collection of loan and receipt of the defendant's revenue, etc.

1) Under the status of the first and second priority beneficiaries of the instant trust agreement, Han New Public Co., Ltd recovered KRW 19.5 billion in actual paid out of the instant public auction proceeds, and KRW 20,506,736,333 in total, and its interest. The Defendant loaned business expenses to the Defendant shall also be recovered through the entire order for KRW 5.0 billion, and the settlement procedure thereof shall be completed between the Defendant and the Defendant.

2) On August 24, 2011, the Defendant received value-added tax of KRW 2,949,646, total of KRW 11,570,345,967, and KRW 11,573,295,613 from Daol Trust as a beneficiary of the instant trust contract. On September 8, 2011, the Defendant received KRW 14,803,215 as interest of KRW 5 billion from Daol Trust. On September 9, 2011, the Defendant received KRW 1,151,458,671 as the settlement amount of KRW 5 billion from Daol Trust, and received KRW 12,739,57,499 out of the instant public auction proceeds.

G. Disposition of each land, etc. listed in the Plaintiff’s separate sheet 2

1) As the Plaintiff anticipated that each of the lands and above-ground buildings listed in the separate sheet 1 will be disposed of by public auction to the walk Development Co., Ltd., the Plaintiff sold the instant standing timber at KRW 1 billion on June 20, 201, which was the day immediately preceding the date of public auction to the walkra Holdings Co., Ltd.

2) On August 29, 201, the Plaintiff sold each of the lands listed in the attached Table 2 to Down Development Co., Ltd., Ltd. in the attached Table 2 in KRW 1 billion, and received KRW 300 million in total as down payment and intermediate payment.

H. The defendant's operation of the land of this case by the Korean public side after the public sale and disposal of the land of this case

1) After the public sale and disposal of the instant land, the Korea New and New Co-operation is practically impossible, as a major shareholder of the Defendant, who holds 51% of the shares issued by the Defendant, and excluded the Plaintiff from the Plaintiff, and makes an investment in a business unrelated to the instant project as follows, with the balance obtained by deducting the Plaintiff from the remainder of KRW 12,739,557,49, which was paid by the Defendant as the corporate tax for the year 2011 and the local income tax for the Defendant’s 3,00,886,880, out of the remainder of KRW 12,739,57,49.

2) The Defendant, on May 7, 2012, requested the Plaintiff to review the business plan and participate in capital increase with capital increase for new stocks on June 13, 2012, and operated 56,000 (5,000 won per share, 5,000 won per share, per share, by acquiring the total of KRW 644,400,000 won per share, and KRW 900,000 per share, in relation to the joint ground construction project (land size: KRW 54,795 square meters; KRW 48.100,000,000,000 per share) of Gangseo-gu, Busan, which is part of the city construction project, and whose new public interest is part of the city construction project.

I. Progress of the relevant case

The Plaintiff asserted that the instant joint venture investment contract and the instant sales contract were lawfully rescinded against the Defendant as Seoul Central District Court Decision 201Gahap6653, and sought a claim for return of unjust enrichment or claim for return of unjust enrichment, that the Plaintiff paid KRW 12,739,557,49 of the balance of the proceeds of public sale according to the public sale of each land listed in the attached Table 1 among the instant land and the building on the ground of the claim for return of unjust enrichment. However, the said court rejected the Plaintiff’s claim on May 24, 2013 on the ground that “ insofar as the instant sales contract and the instant trust contract are concluded with the Defendant to make the said investment, the Plaintiff cannot receive any residual property as long as the liquidation procedures of the Defendant do not take place pursuant to the provisions of the Commercial Act on the liquidation of the Company, and the Plaintiff appealed against the said judgment and is still pending in this court.

2. The plaintiff's assertion

For the purpose of running the instant business, the Defendant is a special purpose company established on the basis of the instant joint venture agreement between the Plaintiff and the Defendant, the instant joint venture agreement between the Defendant, and the instant sales agreement, etc., and the Defendant has the nature of the association. As a result, the Plaintiff and the Defendant notified the rescission of the instant sales contract, which serves as the basis of the instant business, due to disputes between the Plaintiff and the Han New New New New New Joint Venture, and as a result, the Defendant lost ownership of the instant land, which can be considered as assets essential for the instant business operation, and thus, cannot achieve the purpose of establishing the establishment that the Defendant operates the instant business. This constitutes “when the company’s business operation is likely to cause or threaten to cause irreparable damage,” under Article 520(1)1 of the Commercial Act, and thus

3. Determination

(a) The Commercial Act governing dissolution judgment of a company;

1) Article 520(1) of the Commercial Act provides that “A shareholder who holds no less than 10/10 of the total number of issued and outstanding shares may file a petition with a court for dissolution of a company.” subparagraph 1 provides that “When the company’s business operation continues to be in and is likely to cause irreparable damage to the company,” and subparagraph 2 provides that “when the company’s existence is endangered due to a substantial loss in the management or disposal of the company’s assets,” and subparagraph 2 provides that “When the company’s business operation may be harmed. Therefore, in order to constitute a cause of dissolution as stipulated in Article 520(1)1 of the Commercial Act, any company must not only cause or threaten irreparable damage to the company continuously due to the significant loss of the company’s business operation, but also there is an inevitable reason for dissolution of the company.

2) Meanwhile, in determining whether to dissolve a stock company pursuant to Article 520(1) of the Commercial Act, a company has the nature of a typical association controlled by the principle of majority of a physical company, and shareholders have a need to protect its shareholders through dissolution, such as where the company bears limited liability only within the limit of investment shares and transfers shares, thereby recovering their capital, etc. However, although minority shareholders' right to demand dissolution of a stock company is relatively less than the case of employees of a human company through dissolution of a stock company, it was introduced into the Republic of Korea in which the existence of a company is recognized as being in the nature of an association under the common law of the United States and America, and the purpose of which is to protect its shareholders' interests by depriving of its corporate personality when the existence of a company harms the interests of its shareholders, and therefore, it is necessary to recognize the above grounds for requesting dissolution of a stock company relatively broad.

However, as seen earlier, in light of the joint venture investment contract of this case, the first and second amendment contract of this case, the sales contract of this case, the series of procedures in which the trust contract of this case was concluded, the contents of each contract of this case, the progress of the business of this case, the establishment of the defendant and the composition of shareholders, etc., it is reasonable to see that the joint venture investment contract of this case, the first and second amendment contract of this case, the contract of this case, the contract of this case, the contract of this case, and the trust contract of this case are incorporated and operated jointly with the plaintiff by investing in kind (land of this case) and cash for the execution of the business of this case, and it is reasonable to see that the defendant's organization of shareholders is limited to the joint venture of Korea and its operation is limited to the execution of the business of this case under the same business contract of this case, and its operation is limited to the execution of the business of this case under the same business contract of this case. However, it is assumed that majority is based on the principle of the defendant's physical trust among the company.

(b) the existence of reasons for dissolution;

1) Whether the defendant's business continues to maintain a considerable fixed state

Comprehensively taking into account the evidence and facts found earlier, ① the Plaintiff, the Defendant, and the Korea New Technology Co., Ltd. entered into the instant joint venture investment agreement, the first and second revision agreement, the instant sales contract, and the instant trust agreement with the substantial aim of running the instant business. The Defendant was established as a special purpose company for the instant business. ② However, the Plaintiff and the Korea New Technology Co., Ltd continued to engage in the affairs related to the authorization and permission of the instant project due to disputes arising between the scope of beneficial rights to the instant land and the right to lead the Defendant’s management, and ③ The Plaintiff, the Korea New Technology Co., Ltd. expressed their intention to cancel the first change agreement, and thus, the instant sales contract appears to have been rescinded. ④ During the dispute process, the Plaintiff Co., Ltd., notified the repayment of loans to the Plaintiff Co., Ltd. on April 1, 201, and the Defendant could not be deemed to have been able to acquire the Plaintiff Co., Ltd.’s own land and its own land other than the instant public sale of the instant land.

2) Whether there is or may be irreparable damage to the defendant because the defendant's business continues to be remarkably in a fixed state

A) Furthermore, the following circumstances revealed by the above facts and the evidence revealed. ① Under the situation where the defendant's business was not normally carried out due to conflict between the plaintiff's 2 and Han New Public Corporation as to the execution of the project of this case, most of the land of this case, which is essential assets for the operation of the project of this case, were disposed of by Han New Public Corporation. As a result of the disposal of the plaintiff, the defendant could no longer carry on the business of this case. ② The public sale price related to the land of this case, the plaintiff's sales price of 37.25 billion won, which is less than 5 billion won as normal value of the land of this case, are merely the defendant's 1.74 billion won and 1.4 billion won as to the remaining remaining assets of this case, and there is no possibility that the defendant would incur losses from the remaining remaining assets of this case to the defendant's 60 billion won as to the defendant's business of this case, and the defendant's remaining assets of this case can not be recovered from 3.5 billion won.

3) Whether there is any inevitable reason for dissolution

The dissolution of a stock company under Article 520(1) of the Commercial Act is a final measure that is taken when it is impossible to take into account other means in order to protect the interests of shareholders. As such, "inevitable reason" means not only the normal operation of a stock company without dissolution, but also the case where there is no way to protect the legitimate interests of shareholders". Here, other means that can be considered as an alternative to dissolution of a stock company include a shareholder representative lawsuit (Article 403 of the Commercial Act), a director's right to demand dismissal (Article 385 of the Commercial Act), a director's right to demand maintenance of illegal acts (Article 402 of the Commercial Act), a director's right to demand issuance of new stocks (Article 424 of the Commercial Act).

However, as seen earlier, the current operation of the defendant is entirely dealt with by the single-new public side, such as dismissal of the plaintiff who was a joint representative with the consent of all of the board of directors held on January 28, 201, when the plaintiff was absent from the board of directors held on January 28, 201, and the defendant's joint representative director recommended by Han-new Public Office. Thus, there is a limit in preventing the plaintiff from exercising shareholder representative lawsuit, right to dismiss directors, right to maintain directors' illegal act. Even if the plaintiff requests the convening of a provisional general meeting at the defendant's board of directors in accordance with Article 366 of the Commercial Act for the dissolution and liquidation of the defendant or convened a provisional general meeting with the permission of the court, the quorum for dissolution of the corporation is more than 2/3 of the shareholders' voting rights and not less than 1/3 of the total number of issued and outstanding shares. Thus, in light of the defendant's dissolution opposing the dissolution of the defendant, it is difficult to say that the defendant's provisional general meeting is dissolved.

4) Sub-committee

Therefore, there are grounds for dissolution under Article 520 (1) 1 of the Commercial Act to the defendant.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and the defendant shall be dissolved.

Judge highest (Presiding Judge) and the President of the Republic of Korea