[1] Standard for determining whether the exercise of shareholder's right to peruse and copy account books and documents, etc., and, in a case where a shareholder who has exercised the right to appraisal files a claim for perusal and copy of account books to exercise shareholder's right while having not received the purchase price of shares from the company, whether the claim can be deemed unjust solely on the ground that he/she exercised the right to appraisal

[2] The degree of clarity to have the text of the judgment

[3] The case holding that in case where Eul, a shareholder of Eul corporation, filed a lawsuit seeking perusal and copy of the accounting books and documents of Eul corporation, but during the lawsuit, Eul corporation exercised Eul's appraisal right in the process of transferring Eul corporation's factory site and factory building to Byung corporation, Eul who did not reach an agreement on the purchase price of shares, and Eul corporation filed an application for determination of the purchase price of shares with the court, and thereafter Eul filed a shareholder representative lawsuit against Eul corporation's director and filed a fraudulent act revocation lawsuit against Eul corporation, and each lawsuit is pending, it is unfair that Eul filed a lawsuit seeking perusal and copy of the accounting books on the ground that Eul corporation had a right to claim perusal and copy of the accounting books to the extent necessary for calculating the purchase price of shares and the execution of the shareholder representative lawsuit, but filed a fraudulent act revocation lawsuit

[1] In a case where a shareholder’s request for inspection and copying of accounting books, documents, etc. under Article 466(1) of the Commercial Act is made, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection and copying is unjust should be determined by comprehensively taking into account all the circumstances, including the background leading up to the exercise of shareholder’s right, the purpose of the exercise, and the existence of bad faith. In particular, where the exercise of shareholder’s right to inspection and copying is likely to undermine the company’s business operation or the common interest of shareholders, or to use the information acquired by the shareholder as a competitor in light of the company’s competitive business, or exercise the shareholder’s right to inspection and copying at an excessively unfavorable time against the company, the exercise of shareholder’s right to inspection and copying of accounting books, etc. Meanwhile, where it is necessary to exercise shareholder’s right while receiving the purchase price of shares from the company without receiving the purchase price of shares, barring any special circumstance, the company’s right to inspection and copying of accounting books is still held for the company’s legitimate purpose.

[2] The text of the judgment must be specified and the text itself must be specified.

[3] In a case where Party B, a shareholder of Party A, filed a lawsuit seeking perusal and reproduction of the company’s account books and documents, and Party B, during the lawsuit, exercised the appraisal right of Party B in the process of transferring the company’s factory site and factory building to Party B, Party B, who did not reach an agreement on the purchase price of shares, is pending in the trial by filing an application for determination of the purchase price of shares with Party B, and Party B, who filed a lawsuit for revocation against Party B, and each lawsuit is pending in the lawsuit, the case affirming the lower court’s determination that Party B’s status is a shareholder unless the purchase price of shares is paid after exercising the appraisal right, and that Party A’s account books and documents necessary for calculating the purchase price of shares need to be perused and copied as long as the purchase price of shares was not paid after the exercise of the appraisal right, and as Party B filed a lawsuit seeking perusal and reproduction of the company’s financial status as stated in the company’s financial statements, it is difficult to view that Party B’s claim against Party A was unlawful solely on the ground that Party B’s claim for revocation was filed against Party B, etc.

[1] Article 466 of the Commercial Act / [2] Article 208 of the Civil Procedure Act / [3] Article 374-2, 403, and 466 of the Commercial Act; Article 406 of the Civil Act

[1] Supreme Court Order 2003Ma1575 Decided December 24, 2004 (Gong2005Sang, 232) Supreme Court Order 2013Ma657 Decided July 21, 2014 (Gong2014Ha, 1767) / [2] Supreme Court Decision 82Nu294 Decided March 8, 1983 (Gong1983, 669)

Plaintiff (Law Firm Tae, Attorneys Kim Young-hoon, Counsel for the plaintiff-appellant)

M Chemical Co., Ltd. (Attorney Park Jong-dae, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2016Na16014 decided September 13, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the grounds of appeal on the permission and scope of reading and copying

(1) In cases where a shareholder’s request for inspection and copying of accounting books, documents, etc. prescribed under Article 466(1) of the Commercial Act is made, the company may refuse such request by proving that it is unreasonable. Whether the exercise of shareholder’s right to inspection and copying is unjust should be determined by comprehensively taking into account all the circumstances, including the background leading up to the exercise of shareholder’s right, the purpose of exercise, and the existence of bad faith. In particular, where the exercise of shareholder’s right to inspection and copying is likely to impair the company’s business or shareholders’ common interests, or where the shareholder exercises shareholder’s right to inspection and copying of information acquired as a competitor, or where the company exercises shareholder’s right to inspection and copying of information excessively disadvantageous to the company, it should be deemed unfair by attaining justifiable purposes (see Supreme Court Order 2003Ma1575, Dec. 24, 2004; Supreme Court Order 2013Ma657, Jul. 21, 2014). 201>

(2) The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(A) The Defendant is a company established by Nonparty 1 and Nonparty 2 for the purpose of manufacturing concrete mixtures and wholesale and retail business around July 1999. The Plaintiff is a shareholder holding 100,000 shares out of 482,00 shares issued by the Defendant.

(B) On February 18, 2001, the Plaintiff entered into a partnership agreement with Nonparty 1 and Nonparty 2 on the Defendant’s operation (hereinafter “instant partnership agreement”). From February 18, 2009 to June 201, the Plaintiff lent a total of KRW 247,000 to the Defendant, and was the Defendant’s auditor from March 25, 201 to March 31, 2013.

(C) On October 2013, the Plaintiff asserted that the Defendant did not provide the Defendant with the payment of the remuneration stipulated in the instant trade agreement and did not provide the Defendant with an access to the accounting book, and requested the submission of the shareholders’ meeting, the minutes of the board of directors, the accounting data, etc.

(D) On December 4, 2015, when the first instance lawsuit of this case was pending, the Defendant notified the Defendant of convening a temporary general meeting of shareholders on the grounds that the company’s site and factory facilities are transferred to the shareholders, including the Plaintiff, in order to renounce the manufacturing business and convert the company into a sales corporation. On December 15, 2015, the Plaintiff notified the Defendant of the opposition to the transfer of the company’s site and factory facilities.

② On December 18, 2015, the Defendant passed the above agenda at a special general meeting of shareholders held on December 18, 2015, and on December 23, 2015, the Plaintiff requested the Defendant to purchase the Plaintiff’s shares (hereinafter “instant shares”).

(E) On December 29, 2015, the Defendant completed the registration of transfer of ownership on the grounds of sale on the same day with respect to the land for a factory ( Address 1 omitted), 17,600 square meters, ( Address 2 omitted), 350 square meters of land for a factory, and buildings on each of the above land (hereinafter the above land and buildings combined with each of the above land and buildings) on the non-party company on the same day.

(F) On the other hand, on January 25, 2016, the Plaintiff filed an application with the Daejeon District Court for the determination of the purchase price of the instant shares at No. 2016 non-conforming2000, as the purchase price of the instant shares was not agreed upon with the Defendant, and the judgment is still pending.

(3) The lower court, on the grounds indicated in its reasoning, determined as follows.

(A) The Plaintiff is in the position of shareholders as long as not receiving the purchase price for the instant shares after exercising the appraisal right, and the Defendant’s account books and documents necessary for calculating the purchase price of the said shares need to be perused and copied.

(B) Even if the Plaintiff had exercised the right to peruse and copy the accounting books before exercising the appraisal right, it is possible to exercise the right again according to the need by exercising the new appraisal right, and even if the Plaintiff filed an application for the determination of the purchase price of shares with the court and filed multiple lawsuits against the Defendant, the need is not denied.

(C) Therefore, the order of the Plaintiff or his agent to allow the Defendant to peruse and copy the accounting books and documents listed in the attached Form 3 list of the lower judgment (hereinafter “attached Form”) and the daily compensation for the violation shall be KRW 1,00,000.

(4) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the interest in the lawsuit, the scope of allowing shareholders and perusal and reproduction under Article 466 of the Commercial Act, and the abuse of rights, etc. In addition, the allegation in the grounds of appeal that the assistant chief of the account is not present and does not exist, as alleged in the grounds of appeal, is a new assertion that only comes before the final

B. As to the ground of appeal on the clarity of the text

(1) The text of the judgment must be specified and its contents must be specified in the text itself (see Supreme Court Decision 82Nu294 delivered on March 8, 1983, etc.).

(2) According to the lower judgment, the following facts are revealed.

(A) The lower court’s order refers to the accounting books and documents subject to allowing the Defendant to peruse and copy them to the Plaintiff, and the attached list 3 states, “In order to prepare the Defendant’s statement of accounts for the Defendant’s provisional settlement of accounts as of November 30, 2015, during the period from January 1, 2012 to November 30, 2015, all accounting documents are listed in the phrase “as of November 30, 2015,” and the overall title is indicated as “where each of the documents listed in paragraphs (2) and (3) of the attached Table 2 are also included within the scope of the foregoing accounting documents.”

(B) Section 2 of the attached list 2 states that “The transaction between the Defendant and MK companies is related to the transaction, (a) substitution and entry/delivery related to the account titles of advance payment and payment fees, (b) documents, and evidence of payment, such as a contract by which the specific details of the advance payment and payment fees can be known, and (c) a copy of the monetary transaction passbook between the Defendant and MK companies.” Paragraph 3 states that “A copy of the passbook stating the account details of the Defendant’s internal director’s transaction in SC bank (Account Number omitted)”.

(C) However, the accounting documents specified in the separate sheet 3 does not contain a copy of the passbook.

(3) According to the above order, the documents listed in paragraphs (2) and (3) of the attached Table 2 list are as follows: for the Defendant’s statement of financial position as of November 30, 2015 for the preparation of the Defendant’s statement of financial position, the term “for the period from January 1, 2012 to November 30, 2015,” regardless of the name, if the documents fall under any of the documents listed in the attached Table 3 list; and in particular, the scope of the accounting documents that the Defendant should allow the Plaintiff to peruse and copy, as it is unclear whether the copies of the passbook listed in paragraphs (2) and (3) of the attached Table 2 list are included.

Therefore, the above order is unlawful because it does not meet the clarity. The ground of appeal assigning this error is with merit.

2. Plaintiff’s ground of appeal

A. On the grounds indicated in its reasoning, the lower court determined that: (a) on the ground that the Plaintiff, who exercised the appraisal right, filed a shareholder representative lawsuit against Nonparty 1, etc. based on the issue of transfer of the instant real estate; and (b) filed a lawsuit seeking revocation of fraudulent act in order to preserve the Defendant’s claim against the purchase price of the instant shares; and (c) on the ground that the Plaintiff filed a lawsuit seeking perusal and copy of the remainder other than those listed in the separate sheet

B. However, according to the reasoning of the lower judgment and the evidence duly admitted, the following circumstances are revealed.

(1) (A) On December 29, 2015, the Defendant sold the instant real estate to Nonparty Company at KRW 3,800,000,000 in the purchase price, which was the appraised value as of March 13, 2014 (6,045,938,600).

(B) Nonparty 3’s representative director is Nonparty 4 of the Defendant’s internal director and the auditor is Nonparty 4 of the Defendant’s internal director, and the location of the head office is the same as the location of the Defendant’s head office.

(2) According to the Defendant’s standard balance sheet, on June 30, 2015, prior to the transfer of the instant real property, the net assets of KRW 9,082,069,386, and the liabilities of KRW 6,548,259,957 were KRW 2,533,809,429, and the assets were KRW 2,569,282,253, and the liabilities of KRW 2,466,595,421, and the liabilities of KRW 2,468,313,168, exceed the net assets of KRW 2,631,12,597, as the assets were transferred immediately after the transfer of the instant real property.

(3) In addition, in the statement of financial position of the defendant prepared as of December 31, 2016, the amount of the defendant's debt exceeds KRW 102,837,598, and the amount of the debt exceeds KRW 934,150,227, respectively, and the amount of the debt exceeds KRW 831,312,629.

(4) (A) On November 29, 2016, pursuant to Article 403 of the Commercial Act, the Plaintiff filed a shareholder representative lawsuit against Nonparty 1, Nonparty 4, the Defendant’s director, seeking compensation for damages incurred to the company due to the transfer of the instant real estate by the said director (hereinafter “instant shareholder representative lawsuit”), and is currently pending in the lawsuit.

(B) In addition, on December 15, 2016, the Plaintiff filed a lawsuit seeking revocation of a fraudulent act against the Defendant with the Seoul Central District Court 2016Kahap57448, and the lawsuit is still pending.

(5) Meanwhile, the Plaintiff, while serving as a tax official, retired from office around July 2004 and continues to conduct a tax business up to now.

C. Examining the above circumstances in light of the legal principles as seen earlier, the following is determined.

The Plaintiff exercised the appraisal right, but did not receive the purchase price of shares, and still has the status of shareholders, and the Defendant sold the instant real estate at a price much lower than the market price, and renounced the manufacturing industry, one of the main purposes of the Defendant’s establishment. The Defendant’s financial status sharply aggravated.

In such a situation, the Plaintiff filed the instant shareholder derivative suit to enforce the responsibility of directors as a shareholder. As such, the Plaintiff has the right to request the Defendant to peruse and copy the account book to the extent necessary to confirm the developments leading up to the aggravation of the financial status indicated in the Defendant’s financial statements until December 31, 2016 and to conduct the instant shareholder derivative suit.

Furthermore, just because the Plaintiff’s exercise of appraisal rights and filing a multiple lawsuits against the Defendant prior to filing the instant shareholder representative lawsuit, such claim cannot be deemed unfair, and it is difficult to deem that the Plaintiff, who runs a tax business, might use the information acquired as the Defendant’s competitor for competitive business.

D. Nevertheless, the lower court determined that it was unreasonable to request the Defendant to peruse and copy the account books for the sake of the shareholder derivative suit in this case on the sole ground of the circumstances contrary thereto. In so doing, the lower court erred by misapprehending the legal doctrine on the shareholder’s right to peruse and copy the account books under Article 466 of the Commercial Act, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal

However, it is difficult to view that a lawsuit seeking revocation of a fraudulent act was filed in the position of a shareholder as a monetary creditor against the Defendant. Therefore, the lower court’s determination that the Plaintiff, on the ground that the Plaintiff brought a lawsuit seeking revocation of a fraudulent act, made a request for perusal and copying of account books is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine regarding shareholder’s right to inspect and copy

3. Conclusion

The judgment of the court below is reversed, 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 Cho Jae-chul (Presiding Justice)