[1] Two types of a transfer contract for the transfer of business and their legal relations

[2] In the case of a transfer of business by transfer of stocks in a stock company, whether a special resolution of the general meeting of stockholders is required (negative), and whether the agreement is binding upon the parties to the contract which misleads the parties as to the necessity of a special resolution of the general meeting of stockholders

[3] The requirements to revoke an expression of intent on the grounds of mistake in motive

[4] The meaning of "where the scheduled amount of damages under Article 398 (2) of the Civil Code is unreasonably excessive," and the method of determining such amount

[1] In ordinary cases of acquisition of a company, where a transferee, who is a separate principal agent, is engaged in the business of acquisition by transfer from a company which is a business principal agent, and where a transferee is engaged in the business of acquisition by transfer of stocks or equity shares of a company as a new principal agent of the company, and the transferee is engaged in the business of acquisition by transfer as a separate principal agent from the company even after the transfer by transfer by transfer by transfer by transfer by transfer by the transferor who is a business principal agent. However, in this case, since the latter is not a transfer by transfer by transfer of the business itself but a transfer by transfer of the stocks or equity shares of a company which is a business principal agent, the transferee shall not be a transferor, and the company shall not be a transferor

[2] Where a stock company is involved in the transfer and acquisition, if the transfer and acquisition constitutes a case in which the transferee, who is a separate principal agent, takes over all of the business from the company, and operates the business, the company shall undergo a special resolution of the general meeting of shareholders pursuant to Article 374(1)1 of the Commercial Act. However, where the transferee manages the company as a new supervisor by taking over the stocks of the company from the owner, the company's business or property is not changed and only shares are transferred. Thus, a special resolution of the general meeting of shareholders is not necessary. Even if the party of the company agrees to submit a special resolution of the general meeting of shareholders immediately after the contract of transfer because it is mistakenly understood that the transfer of the company's property is followed, it results in the misunderstanding of the legal nature of the contract. Thus, the agreement has no effect on the party

[3] The declaration of intent may be cancelled in a case where there is an error in the important part of the contents of a juristic act, and in a case where there is an error in the motive for the declaration of intent, it may be cancelled by mistake in the contents of the declaration of intent only when the parties have taken the motive into account as the contents of the declaration of intent. The mistake in the important part of a juristic act shall be so important that it would not be expected that if the arbitr would not have made the declaration of intent without such a mistake, and it shall be so important that the arbitr would not have made the declaration of intent.

[4] According to Article 398 (2) of the Civil Code, where the estimated amount of compensation for damage is unreasonably excessive, the court may reduce it to a reasonable extent. Here, "unfairly excessive case" means a case where the payment of the estimated amount of compensation for damage is deemed to result in the loss of fairness by imposing unfair pressure on the debtor who is in the position of the economically weak in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, purpose and content of the contract, motive scheduled for the amount of compensation, the estimated amount of compensation for damage, the ratio of the estimated amount of compensation to the amount of debt, the estimated amount of damage, the size of the estimated amount of damage, and the transaction practices at the time. Meanwhile, in determining whether the estimated amount of compensation for damage is unreasonably excessive or the scope of reasonable reduction is determined in accordance with the above provision, the court shall comprehensively consider all the above circumstances that occurred between them as of the time of the closing

[1] Article 105 of the Civil Act, Article 374(1) of the Commercial Act / [2] Article 105 of the Civil Act, Article 374(1) of the Commercial Act / [3] Article 109(1) of the Civil Act / [4] Article 398(2) of the Civil Act

[1] Supreme Court Decision 95Da20904 delivered on August 25, 1995 (Gong1995Ha, 3273) / [3] Supreme Court Decision 87Meu1271 delivered on January 17, 1989 (Gong1989, 285), Supreme Court Decision 94Da60318 delivered on May 23, 1995 (Gong1995Ha, 2234 delivered on November 21, 1995), Supreme Court Decision 95Da5516 delivered on November 29, 197 (Gong1996, 47) 93Da5487 delivered on March 26, 196 (Gong196, 196Da1363 delivered on September 195, 196) / Supreme Court Decision 97Da39799 delivered on May 23, 195 (Gong196, 1979)

Plaintiff (Law Firm Dong-dong Law Office, Attorneys Park Il-il et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Song-young, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na60267 delivered on August 18, 1998

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal and supplemental appellate brief shall be examined together with supplement in case of supplemental appellate briefs not timely filed.

1. As to the remaining grounds of appeal, except for the part on reduction of the estimated amount of damages among the Plaintiff’s grounds of appeal

A. As to the non-performance of obligation to settle accounts

Examining the reasoning of the judgment below in light of the records, we affirm the court below's rejection of the plaintiff's assertion that the defendant did not perform the duty of settlement prior to the payment of intermediate payment by failing to provide financial statements on October 31, 1996, which are necessary for the accounting office, and did not err in the misapprehension of the rules of evidence or failing to exhaust all deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out is not acceptable.

B. As to the failure to submit a written consent or written consent of the general meeting of shareholders

In ordinary, the acquisition by transfer of a company is a case where a transferee, who is a separate principal agent, is engaged in the business of acquisition by transfer from a company which is a business principal agent, and where a transferee, who is a new principal agent, is engaged in the business of acquisition by transfer of stocks or equity shares of a company as a new principal agent. In the case of the former, the transferee, after concluding a contract with the transferor, is engaged in the business of acquisition by transfer as a separate principal agent from the company. However, in the case of the latter, the transferee does not transfer or acquire the business itself, but transfers or acquires the stocks or equity shares of a company which is a business principal agent. In this case, the transferee shall be an individual who owns the stocks or equity shares of the company, and the company shall not be a transferor (see Supreme Court Decision 95Da20904 delivered on August 25,

Therefore, if a stock company is involved in the transfer or acquisition, the transfer or acquisition of the company must undergo a special resolution of the general meeting of shareholders pursuant to Article 374(1)1 of the Commercial Act, if the transfer or acquisition of the company falls under the case of the former. However, in the latter case, since there is no change in the business or property of the company and only shares are transferred, a special resolution of the general meeting of shareholders is unnecessary. Even if the parties agree to submit a special resolution of the general meeting of shareholders immediately after the contract of transfer because they understand that the transfer of the company's property is followed even if they agree to do so by mistake that the parties agree to submit a special resolution of the general meeting of shareholders

According to the facts stated in the reasoning of the judgment of the court of first instance cited by the judgment of the court below, it is evident that the contract of this case was concluded by the defendant, who is not the non-party company, as the transferor, on the transfer of all shares issued by the non-party corporation (hereinafter referred to as "non-party company") holding or actually controlled by the defendant, since the contract of this case was concluded by the non-party company as the transferor. Thus, the contract of this case was concluded by acquiring all

Therefore, the special resolution of the general meeting of shareholders of the non-party company is not necessary in the contract of this case. Meanwhile, even if the plaintiff and the defendant agree to submit immediately the consent resolution of the general meeting of shareholders following the transfer of the non-party company's property by the special agreement, it can be easily known that the non-party company's property itself is transferred to the non-party company by the contract of this case, and therefore, it comes from the wrong thought that the special resolution of the general meeting of shareholders is necessary, so the above special agreement does not have the effect of binding upon the parties, and therefore, the defendant does not have the obligation to submit the consent resolution

Therefore, the decision of the court below is just in its conclusion that the contract of this case is null and void without a special resolution of the general meeting of shareholders of the non-party company and the defendant violated the contract without submitting a written consent of the general meeting of shareholders or a written consent of the shareholders, and thus, it is not erroneous in the misapprehension of the rules of evidence and there is no violation of the rules of evidence that affected the conclusion of the judgment.

C. As to the violation of the duty to coordinate different opinions on the purchase of golf course sites and the duty to maintain confidentiality

Upon examining the reasoning of the judgment below in light of the records, the court below rejected the plaintiff's assertion that the contract of this case was rescinded on the ground that the defendant did not continue to cooperate in the purchase of golf course land and violated the contract, and that the non-party company violated the duty of confidentiality by informing the general public of the transfer of the non-party company, and therefore, the court below did not err in the misapprehension of the rules of evidence and the misapprehension of the legal principles as to the violation of the good faith principle as otherwise

D. As to the cancellation of a contract by mistake

A declaration of intent may be cancelled in a case where there is an error in the important part of the contents of a juristic act, and in a case where there is an error in the motive of the declaration of intent, it may be cancelled only when the parties have made the motive of the declaration of intent as the content of the declaration of intent. The mistake in the important part of a juristic act shall be important to the extent that the observer would not have made the said declaration of intent if there was no such a mistake, and it shall be important to the extent that it would not have made the said declaration of intent if he had made the place where the observer would not make the said mistake (Supreme Court Decision 93Da5487 delivered on March 26, 196).

Examining the reasoning of the judgment below in light of the records, as to the plaintiff's assertion that the court below's conclusion of the contract of this case was revoked on the ground of motive mistake that the defendant would actively cooperate in the purchase of golf course site, the motive of the argument was not included in the contract, and it is justified to reject the decision, and there is no violation of the rules of evidence and the misapprehension of the legal principle of corporate stock acquisition agreement as otherwise alleged in the ground of appeal. This part of the ground of appeal is not acceptable.

2. As to the Plaintiff’s ground of appeal and Defendant’s ground of appeal regarding reduction of the estimated amount of damages

According to Article 398(2) of the Civil Act, where the estimated amount of compensation for damages is unreasonably excessive, the court may reduce the estimated amount of compensation for damages to a reasonable extent. Here, "unfairly excessive case" means cases where the payment of the estimated amount of compensation for damages is deemed to result in the loss of fairness by imposing unfair pressure on the debtor in the position of the economically weak in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the scheduled amount of compensation for damages, the estimated ratio of the estimated amount of damages to the amount of debts, the estimated amount of damages, the estimated amount of damages, and the transaction practices at the time, etc. In addition, in order to determine whether the estimated amount of compensation for damages is unreasonably excessive or to determine whether the estimated amount of compensation for damages is unfairly excessive or the scope of reasonable reduction is to be determined, the court shall comprehensively take into account all the above circumstances that occurred between them as at the time of the closing of argument in the fact-finding court (see, e.g., Supreme Court Decisions 92Da371575, Jul. 15, 1975, 197.

Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that the amount of KRW 1,300,000,000, which corresponds to the estimated amount of damages in this case, is unfairly excessive and reduced to KRW 650,000, in light of the fact that there was a conflict of opinion between the parties in the course of performing the contract in this case, which could have been anticipated from the beginning that the contract would have been rescinded, the contents and purpose of the contract, the status of the plaintiff and the defendant, the ratio of estimated amount of compensation for damages to the transfer price, general transaction practices, and the estimated amount of compensation for damages would be deemed not significant, and there is no error as pointed out in the grounds of appeal, such as the principle of restitution. The plaintiff's grounds for appeal and the defendant's grounds for appeal cannot be accepted.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)