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(영문) 서울중앙지방법원 2020.07.03 2019가합562270
주주부존재 확인의 소
Text

1. The instant lawsuit shall be dismissed.

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

Reasons

1. Facts of recognition;

A. The Plaintiff was running the Defendant while retaining 30,000 common shares issued by the Defendant (10% of the total issued shares, hereinafter “the instant shares”).

B. On March 29, 2017, the Plaintiff entered into a contract for transfer and acquisition of stocks and management rights of the company (hereinafter “instant contract for transfer of stocks and management rights”) with the purport that the Plaintiff would transfer all rights, such as the instant stocks and the Defendant’s management rights, to C Co., Ltd.

C. After that, on April 19, 2017, the Plaintiff resigned from the Defendant’s in-house director.

C Co., Ltd. has not implemented the procedure to change the shareholder name of the instant shares acquired from the Plaintiff until the closing date of pleadings.

[Grounds for recognition] The items of evidence Nos. 1 and 2 and the purport of the whole pleadings

2. The Plaintiff asserted that the Plaintiff delivered all documents and seals for changing the ownership of shares to C in accordance with the instant share and management right transfer agreement.

Nevertheless, C Co., Ltd has failed to implement the procedure for changing shareholder name such as the transfer procedure for the instant shares.

Accordingly, the plaintiff is likely to be liable for secondary tax liability for the defendant's tax liability as an oligopolistic shareholder.

Therefore, the plaintiff has a benefit to seek confirmation against the defendant that the plaintiff is not the defendant's shareholder.

3. 1) ex officio determination on the legitimacy of the instant lawsuit requires the benefit of confirmation as a requirement for the protection of rights in a lawsuit for confirmation. The benefit of confirmation is recognized when the Plaintiff’s right or legal status exists, and receiving a judgment of confirmation in order to cause risks or apprehensions. 2) However, even if the Plaintiff was rendered a favorable judgment in the instant lawsuit, it is not a party to the instant lawsuit.

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