A. Requirements for establishing an unfair juristic act under Article 104 of the Civil Act

(b) In cases of transfer of stocks by repurchase agreement, or transfer of stocks by means of a repurchase agreement, the subject to whom voting rights and other public interests rights accrue (=Buyer or transferee); and

A. The provision on unfair legal acts under Article 104 of the Civil Act is intended to regulate an act of brushing, rashing, or inless experience by a person in a position of the weak. Thus, even if the injured party was in a state of brush, rash, or inless experience, it is not established as an unfair legal act in the absence of a bad faith with the other party being aware of the circumstances on the part of the victimized party.

B. It is true that the sale under a special contract for repurchase has the economic function of collateral security, but even if so, the creditor does not merely acquire the security right, but only acquires the ownership of the object, and only the debtor (seller) has the burden of reserving the right to repurchase within the repurchase period. As such, the buyer who acquired the shares with a repurchase agreement and completed a transfer transfer of ownership on the register of shareholders can exercise the shareholder's voting rights and other public interest rights. Even if the transfer of the shares is made in the manner of collateral security and the transferee is not the mortgagee, in relation to the company, the mortgagee is qualified as a shareholder in relation to the company, and the voting rights and other public interest rights should also be attributed to the transferee

A. Article 104 of the Civil Code, Article 372 of the Civil Code, Article 335 of the Commercial Code

A. Supreme Court Decision 80Da2012 Decided December 22, 1981 (Gong1988, 1265) 91Da5907 Decided September 9, 1991 (Gong1991, 2121)

Plaintiff 1 and three others

Dok Development Co., Ltd. and 1 other Defendants, defendants et al., Counsel for the defendant-appellant-appellee

Busan High Court Decision 90Na10216 delivered on November 21, 1991

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. In light of the records, the fact-finding of the court below on the grounds of this case is justified, and the court below's act of acquiring shares from the plaintiffs of non-party M&D Co., Ltd. (hereinafter "M&D") and the act of transferring shares to the defendant Dong-gu Co., Ltd. (hereinafter "the defendant Dong-gu") on the ground of this decision is the exercise of existing claims against the defendant Culture D&D Co., Ltd. (hereinafter "the defendant Culture D&D"), and it is just to the defendant's action that did not recognize the plaintiff's assertion that the terms of this case's composition are null and void in violation of the terms and conditions of this case's composition, and according to various evidences, Gap evidence Nos. 3-20, 22, and Eul No. 1-46, 47 and other evidence presented by the court below, it can be recognized that funds are loaned to the defendant Culture D&D under the loan agreement as stated in the judgment of the court below

As the court below found, it cannot be viewed as exercising the existing claim against the defendant Doz. on the ground that a meritorious deed transferred all the shares held by the defendant Doz. to the defendant Doz. after the redemption period has expired. Thus, it cannot be viewed as null and void because it violates the composition condition that it does not exercise the claim against the defendant Doz.

2. According to the facts established by the court below, the transfer of the shares of this case to the merit of the plaintiffs was based on a repurchase agreement between the parties, and there may be room to view that there was a brusian situation or shareholders including the plaintiffs at the time of the contract as to the transfer of the repurchase agreement. However, the court below seems to have rejected the plaintiffs' assertion that the transfer of shares of this case to the merit was null and void by taking advantage of an unfair legal act since there was no evidence to acknowledge that meritorious was in bad faith to use such circumstance. The provisions regarding unfair legal act under Article 104 of the Civil Act regarding unfair legal act of this case are aimed at regulating the act of brusing, rashing, or experience of a person in the brusal position. Thus, even if the damaged parties were in the state of brus, brusor or experience, it was not constituted an unfair law without bad faith (see Supreme Court Decision 91Da5907, Jul. 9, 191).

3. It is true that the sale under a special contract for repurchase has the economic function of securing claims. However, even so, even if the creditor (seller) does not acquire the security right merely, the creditor acquires the ownership of the subject matter, and only has the burden of reserving the right to repurchase within the redemption period. Therefore, the person of merit, who acquired shares with repurchase agreement and completed a change of entry in the register of shareholders, can exercise voting rights and other public interest rights as a shareholder.

As the author asserts, even if the transfer of the shares in this case is made in the meaning of the transfer by means of transfer by security and the meritorious service is merely made to the mortgagee, in relation to the company, the mortgagee is entitled to the shareholder qualification and the voting rights and other public interest rights should also belong to the meritorious service, which is the secured party, in relation to the defendant Culture Dr. Therefore, the same applies to the exercise of voting rights, and the exercise of voting rights of meritorious service may not be deemed null and void in violation of the "3.14 alcohol orders" of the Dong head of the Dong-gu.

4. According to the facts established by the court below, the plaintiffs transferred all of their shares to the defendant Culture Price by the repurchase agreement to meritorious service and the repurchase period has expired, and since meritorious service transferred all of their shares to the defendant East Sea Business, the plaintiffs do not have a shareholder status. Therefore, the judgment of the court below that there is no benefit to claim the confirmation of existence of the resolution of the shareholders' general meeting of this case on the premise that the plaintiffs are shareholders, and there is no error of law by misunderstanding the rules of evidence or misunderstanding the legal principles on the transfer of shares.

5. Thus, there is no violation of the rules of evidence in the judgment of the court below, and there is no reason to discuss the legal principles such as the theory of lawsuit.

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 on the bench.

Justices Kim Jong-soo (Presiding Justice)