[1] In a case where the transfer of shares before the issuance of share certificates takes place six months after the incorporation of the company, whether the transferee of shares can solely prove the transfer of shares and file a claim for the transfer of shares with the company (affirmative in principle)

[2] Criteria for determining the heat between dual assignees of shares before issuance of share certificates / The meaning of arrival of notice of stock transfer, and the time when notification takes effect where the other party refuses to receive the notice without justifiable grounds

[1] Articles 335(3) and 337(1) of the Commercial Act / [2] Articles 335(3) and 337(1) of the Commercial Act

[1] Supreme Court Decision 99Da67529 delivered on March 23, 2000 (Gong2000Sang, 1032) Supreme Court Decision 2005Da45537 Delivered on September 14, 2006 (Gong2006Ha, 1726) / [2] Supreme Court Decision 2005Da45537 Delivered on September 14, 2006 (Gong2006Ha, 1726) Supreme Court Decision 2008Da19973 Delivered on June 12, 2008

Plaintiff (Attorney Sung-tae et al., Counsel for the plaintiff-appellant)

Osan-gun Passenger Transport Co., Ltd. (Attorney Han-soo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2014Na43820 decided October 30, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. The judgment of the court below

In citing the reasoning of the judgment of the first instance court, the lower court: ① (a) pursuant to Article 335(3) of the Commercial Act, shares before the issuance of share certificates may be transferred according to the method of transferring nominative claims; and (b) pursuant to Article 335(3) of the Commercial Act, the Defendant Company may assert its rights to the Defendant Company to be notified to the Defendant Company; and (c) pursuant to the amendment of the articles of incorporation on May 27, 2010, the Defendant Company newly established a provision that limits the transfer of shares requires the approval of the board of directors when transferring shares; and (d) registered the above contents in the corporate register on the same day; (c) as the Plaintiff alleged that the shares were transferred by the Nonparty against the Defendant Company, the fact of transfer

2. Judgment of the Supreme Court

Before determining the grounds of appeal, we find it difficult to accept the above judgment of the court below for the following reasons.

In the event that the transfer of shares before the issuance of share certificates takes place six months after the incorporation of the company, the transferee of shares can independently prove that he/she acquired shares without the transferor's cooperation, barring any special circumstance, and then request the change of ownership against the company (see, e.g., Supreme Court Decisions 9Da67529, Mar. 23, 200; 2005Da45537, Sept. 14, 2006).

According to the reasoning of the judgment below, since the Plaintiff acquired the shares of the Defendant Company from the Nonparty on January 18, 2010, according to the above legal principles, the Plaintiff may request the Defendant Company to change its title, and the Defendant Company newly established a provision on the restriction of transfer to the effect that the transfer of shares must be approved by the board of directors on May 27, 2010, thereafter, the Plaintiff shall not refuse to change its title.

Nevertheless, the lower court determined that the Plaintiff cannot claim the status of the transferee on the ground that the Nonparty, the transferor, was not notified of the transfer of shares. In so doing, the lower court erred by misapprehending the legal doctrine on the transfer of shares before the issuance of share certificates, thereby adversely affecting the conclusion of the judgment

In addition, in a case where a double transfer of shares becomes an issue before the issuance of share certificates, it is in principle that the notice of transfer with a fixed date arrives at the company as the case of double transfer of nominative claims, or after the date of consent with a fixed date with the date and time of acceptance (see, e.g., Supreme Court Decision 2005Da45537, Sept. 14, 2006). Here, the arrival refers to a case where the other party is in an objective state where the other party can know the contents of the notice under social norms. As such, the other party does not need to receive the notice or know the contents of the notice (see, e.g., Supreme Court Decision 82Meu439, Aug. 23, 1983). If the other party refuses to receive the notice without any justifiable reason, it shall be deemed that it becomes effective when the other party is in an objective state where the contents of the notice can be known (see, e.g., Supreme Court Decision 2008Da1973, Jun. 12, 208).

3. Conclusion

The judgment of the court below is reversed without examining the allegation in the grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)