(영문) 대법원 2016.2.18.선고 2015다5491 판결

1. Although a lawsuit for confirmation does not necessarily have a legal relationship between the parties, but can be the object thereof, the legal relationship between one of the parties and a third party or between third parties may be the legal relationship. However, in order for a company to have the interest in confirmation of such legal relationship, there should be existing risks or proposals in its rights or legal status according to such legal relationship. In order to eliminate such risks or apprehensions, it is necessary to immediately determine the legal relationship by a confirmation judgment intended for confirmation of the legal relationship, and it should be the most effective and appropriate means (see, e.g., Supreme Court Decision 94Da10238, Jun. 14, 1996). A shareholder of a stock company has an interest in the management of the company as its owner, but it cannot be said that the company has a specific or legal interest merely with respect to the company’s property relationship, and as such, it can only affect the company’s business through a resolution of the general meeting of shareholders or a shareholder’s right to supervise the company without direct participation in its management.

2. According to the reasoning of the lower judgment and the record, the Plaintiff, a shareholder of the Defendant Company B (hereinafter “Defendant Company”) and the Plaintiff’s purchase of the shares of the Defendant Company from its shareholders, constitutes an acquisition of treasury shares prohibited under Article 341 of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201). Thus, the Plaintiff’s purchase of shares of the Defendant Company constitutes invalid, and thus, the Plaintiff’s purchase of shares of the Defendant Company constitutes an acquisition of treasury shares prohibited under Article 341 of the former Commercial Act. Accordingly, the Plaintiff’s purchase of shares again purchased

However, in light of the aforementioned legal principles, the dilution of the value of shares with the disposal of treasury shares to a third party and with the reduction of proportional interests (voting rights, etc.) of existing shareholders in the company is merely a factual and economic interest like the increase of proportional interests of existing shareholders by acquiring treasury shares and increasing the proportional interests of existing shareholders. Thus, the lawsuit of this case seeking confirmation of invalidity of each purchase and sale contract between the defendant company, defendant C, and D is unlawful as there is no benefit of confirmation.

Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on the interest in confirmation, thereby making a judgment on the merits, deeming the instant lawsuit lawful.

3. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed without further proceeding to decide on the grounds of appeal, and this case is sufficient to be directly tried by the court. Thus, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and the total costs of the lawsuit are borne by the plaintiff. It is so decided as per Disposition by the assent of all participating