Article 374 subparagraph 1 of the Commercial Act which requires a special resolution of the general meeting of shareholders, where the meaning of “transfer of all or part of the business” and the disposal of the business property of the general meeting of shareholders results in the transfer or closure of all or part of the business (affirmative)

For the purpose of Article 374 subparagraph 1 of the Commercial Act which requires a special resolution of the general meeting of stockholders, the term “transfer of the whole or essential part of the business” means a transfer of the whole or important part of the business which is organized and functiond as an organic whole for a certain business purpose, and this shall require a special resolution of the general meeting of stockholders because the transferr’s succession to the whole or important part of the business activities by the transferr must be accompanied by the transferr’s succession to the whole or important part of the business activities. However, where the disposal of the business property results in the same result as the transfer or closure

Article 374 subparagraph 1 of the Commercial Act

Supreme Court Decision 64Da569 decided Nov. 25, 1969 (No. 1749 decided Jun. 9, 1987) (Gong137 decided Apr. 12, 1988) 87Meu1662 decided Apr. 12, 1988 (Gong1988,834)

Lee Jae-young et al., Counsel for the plaintiff-appellant

Maximum salary-gu

Seoul High Court Decision 89Na39053 delivered on September 14, 1990

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

1. We examine the first ground for appeal.

(1) For the purpose of Article 374 subparagraph 1 of the Commercial Act where a special resolution of the general meeting of shareholders is required, the term “transfer of the whole or essential part of the business” means a transfer of the whole or essential part of the business which is organized and systematically integrated for a certain business purpose. Since the transfer of the whole or essential part of the business activity of the transferring company by the transferee must be accompanied by the succession of the whole or essential part of the business activity of the transferring company, the mere transfer of the business property does not constitute the transfer of the business property. However, in case where the disposal of the business property results in the same result as the transfer or closure of the whole or part of the business, a special resolution of the general meeting of shareholders is required (see Supreme Court Decisions 64Da569, Nov. 25, 1969; 86Meu2478, Jun. 9, 1987).

(2) According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim that the above non-party company's provisional registration and transfer registration with the non-party company's provisional registration and transfer registration with the non-party company's whole property and the non-party company's 151 households including the apartment of this case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's apartment, etc.'s case's case's case's case's case's case's case's case's case's establishment and judgment are just and there are no errors in the rules of evidence or misunderstanding of legal principles as to the special resolution of the general meeting of shareholders under Article 374 of the Commercial Act.

2. We examine the second ground for appeal.

According to the records, the court below is justified in rejecting the defendant's claim that the above 53 households should be appropriated for payment of the above debt amounting to KRW 802,00,00,000, and the amount appropriated for payment of the above debt amounting to KRW 145,035,574, and it is hard to believe that the market price of the remaining 53 households of the apartment except the apartment of this case among the 68 households where provisional registration and ownership transfer registration is made in the future of the defendant is KRW 700,480,00,00, and above all, there is no evidence to prove that the defendant had settled the settlement procedure that the above 53 households should be appropriated for payment of the above bonds as the substitute payment for the above bonds, etc., and there is no evidence to prove that both the defendant's secured claim and security right were extinguished. It is not erroneous in the misapprehension of facts due to the violation of the rules of evidence.

The issue is groundless.

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

Justices Lee Chang-chul (Presiding Justice)