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(영문) 부산지방법원 2013.03.29 2012노3046
공전자기록등불실기재등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. On September 2010, the Defendant: (a) received the entire shares of Q from a single-person shareholder of C Co., Ltd. (hereinafter “C”); and (b) on September 14, 2010, requested transfer of ownership to C; (c) but C refused transfer of ownership without justifiable grounds.

In this case, since C cannot deny the validity of stock transfer between Q and the defendant and the status of the defendant on the ground that there is no change of entry, C is erroneous in the misapprehension of legal principles or misconception of facts on the premise that the defendant is not a single shareholder of Q and the defendant.

B. The penalty of the lower judgment on the grounds of unreasonable sentencing (fine 2,000,000) is too unreasonable.

2. Determination

A. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the defendant, even though he did not acquire the status as a single shareholder, voluntarily prepared the register of shareholders, the minutes of the extraordinary general meeting of shareholders and the minutes of the board of directors, etc. as stated in the facts charged in the case, and made them enter them in the register of shareholders and sufficiently recognized facts that had them kept, the court below which found the defendant guilty of the facts charged in the case cannot be deemed to have erred by misunderstanding of facts or misunderstanding

(1) In a case where a property right is transferred to a creditor for the purpose of securing a claim, the issue of which type of security contract is to be determined specifically by the parties’ intent for each individual case, or, in the absence of any other special agreement, between the parties is presumed to be a weak transfer security that requires settlement procedures (see, e.g., Supreme Court Decision 9Da14433, Dec. 10, 199). As to the instant case, the Health Unit, C’s shareholders’O, R, S, T 4 persons, C and U (hereinafter “U”).

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