[1] Time of incorporation of a company under incorporation

[2] The elements for a corporation under incorporation to be subject to the rights and obligations acquired by the promoters before the corporation's substantive establishment

[1] A company under incorporation is established only when the articles of incorporation is prepared and the promoters have subscribed at least one share of shares.

[2] The rights and duties acquired by promoters prior to the incorporation of a company in the process of incorporation are attributed to the promoters’ individual or promoters’ association according to the specific circumstances. In order to revert the rights and duties reverted to them to the company after establishment, special transfer, such as takeover or acquisition of the status of policyholders, should be required.

[1] Article 172 of the Commercial Act / [2] Article 172 of the Commercial Act

[1] [2] Supreme Court Decision 90Nu2536 delivered on December 26, 1990 (Gong1991, 660) Supreme Court Decision 93Da50215 delivered on January 28, 1994 (Gong1994Sang, 830) / [1] Supreme Court Decision 90Nu2734 delivered on November 23, 1990 (Gong191, 254)

Gyeong-Sa Co., Ltd. (Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

Defendant

Busan High Court Decision 97Na1280 delivered on November 13, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the second ground for appeal

The court below held that the plaintiff's claim in this case between the non-party who was the representative of the promoters of the plaintiff company and the defendant on October 4, 1988 on the ground that the validity of the agreement was vested in the plaintiff company. The rights and obligations acquired and borne by the promoters for the establishment of the company are attributed to the company at the same time as the incorporation of the company. However, the company in the process of incorporation is established only when the articles of incorporation was prepared and at least one share shares were acquired by the promoters. The rights and obligations acquired by the promoters prior to the establishment of the company is attributed to the individual promoters or promoters according to specific circumstances. Thus, the transfer of rights and obligations belonging to them should be done in order to belong to the company after the establishment of the company. Based on the facts established only on January 11, 1989, the plaintiff company's articles of incorporation did not have the substance of the company during the establishment of the company, and there is no special ground for rejection of the plaintiff's claim for transfer of ownership as to the non-party 1 and the non-party 2 company.

2. Regarding ground of appeal No. 1

As seen earlier, as long as it is obvious that the Plaintiff did not acquire the right under the instant agreement, it is unnecessary to determine whether the content of the agreement is a sale or acceptance of use, and thus, even if the lower court rejected the Plaintiff’s claim without determining as to it, it cannot be said that the lower court failed to render a decision, and therefore, there is no reason for

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)