Effect of the sole disposal of the assets of a corporation without a special resolution of the general meeting

These items, etc. are the sole business property of the non-party 1 and can not continue the business without any substance. It is obvious that the non-party 1 can not continue the business without any substance, and the sale of each substitute payment or repurchase agreement with the non-party 1 and the plaintiff and the intervenors is an act that results in the transfer or abolition of the whole or part of the business of the non-party 1. Thus, the above sale or the payment in kind without a special resolution of the general meeting of shareholders of the non-party 1 are invalid.

Article 374 of the Commercial Act

64Da569 decided Nov. 25, 1969 (Supreme Court Decision 845 decided Nov. 25, 1969; Supreme Court Decision 174Da29 decided Nov. 29, 196; Decision No. 374(8) of the Commercial Act

Plaintiff

Defendant corporation

Intervenor 1 and 2 others

Seoul Central District Court (64A1256) in the first instance trial (Supreme Court Decision 64Da1256)

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

Each claim of the parties intervenor, etc. is dismissed.

Of the costs of lawsuit, the part arising from the intervention shall be borne by the intervenor, etc., and the remainder shall be borne by the plaintiff in both the first and second instances.

The plaintiff's attorney shall deliver to the plaintiff the goods stated in the attached list.

The intervenor's request is dismissed.

The costs of lawsuit shall be assessed against the defendant and the intervenor, etc., and provisional execution shall be declared. The defendant's attorney shall dismiss the claims of the plaintiff and the intervenor.

The costs of the lawsuit are assessed against the plaintiff and the intervenor, etc., and the attorney, including the intervenor, etc., confirms that the goods listed in the attached Table are owned by the intervenor, etc.

The defendant shall deliver to the intervenor, etc. the articles listed in the attached list.

The costs of lawsuit are assessed against the plaintiff and the defendant, and provisional execution is declared.

The defendant¡¯s attorney shall revoke the original judgment.

The claim for warranty is dismissed.

All of the costs of lawsuit are decided by the court of first and second instances that the costs of lawsuit will be borne by the plaintiff.

The facts that the defendant company was in possession of the goods, etc. entered in the separate sheet (hereinafter referred to as this case's title) were originally owned by the non-party 1 corporation (hereinafter referred to as the "non-party 1 corporation"). The plaintiff purchased all the above goods, etc. from the non-party 1 corporation on March 20, 1962 and acquired them on June 9, 1962, and thereafter leased them to the non-party 2 corporation on October 5, 1962. The intervenor, etc. sought delivery of them to the defendant. The non-party 1 corporation was liable to pay wages to 65 employees due to the shortage of funds, and the intervenor, etc. took over all the above employees' claims against the plaintiff, etc. to transfer them to the non-party 1,200,000 won in lieu of the above employees' claims against the plaintiff and the intervenor, etc., and thus, the plaintiff shall acquire them together with the plaintiff's claim to transfer them to the plaintiff and the intervenor.

The plaintiff and the non-party 1-6 company's non-party 6 company's non-party 1-6 company's non-party 6 company's non-party 6 company's non-party 1-6 company's non-party 6 company's non-party 1-6 company's non-party 6 company's non-party 6 company's non-party 1-6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 1-6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 1's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 6 company's non-party 1 company's non-6 company's non-party 6 company's non-party 6 company's company's non-6 company'

However, the plaintiff and the intervenor, etc. are null and void since the sale and purchase of the other party's main goods by payment in kind or by special agreement for repurchase without a special resolution of the general meeting of shareholders under Article 245 of the former Commercial Act is subject to the special resolution of the general meeting of shareholders. Thus, since the only property of the corporation is disposed of, and the act resulting in the same result as the transfer or abolition of the whole or part of the company's business is required by a special resolution of the general meeting of shareholders, and the act without going through such procedure is null and void unless there are special circumstances (the same as disposal of the same property and the sale of other property). In this case, as mentioned in the former part, it is clear that the non-party 1 company cannot continue its business without this case's main property as the only business property of the non-party 1 company, and it is evident that the non-party 1 company's business was discontinued by losing its main goods, each act of the non-party 1 company and the intervenor, etc. with the non-party 1 company and the intervenor 1 are not subject to such special resolution.

Therefore, each claim based on the premise that the plaintiff and the intervenor, etc. obtained the ownership of the principal claim from the non-party 1 company by purchase or by payment in kind, and acquired the ownership of the principal claim, shall be without merit, and it shall be dismissed, respectively. Since the original judgment between the plaintiff and the defendant differs from the above conclusion, it shall be decided as per Disposition by applying Articles 386, 96, 89, and 93 of the Civil Procedure Act to revoke it.

Judges Kim Jung-tae (Presiding Judge)