205Na13783 Penalties

1. 000 (*****************))

Busan

**********************)

Busan

[Judgment of the court below]

**********************)

Busan

Law Firm ○○, Counsel for the defendant-appellant

○○, ○○, ○○, ○○○

(************************))

Busan

Attorney ○-○, et al.

3. ○○○○ (*****************))

Ulsan (Ulsan)

Attorney ○-○, et al.

Busan District Court Decision 2004Gahap19695 Delivered on July 13, 2005

December 7, 2006

January 11, 2007

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants pay to each of the Plaintiffs ○○○○ KRW 50 million, each of the Plaintiff ○○○○○○○ KRW 50 million, and 20% interest per annum from the day following the delivery of the copy of the instant complaint to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole arguments in the statements in Gap 1, 3, 13, 14, 15, Gap 2-1, 2, 3, Eul 2, Eul 5-1, and Eul 2.

(a) Establishment of ○ Cable Telecommunication Co., Ltd. with ○○○ Broadcasting;

(1) On July 28, 2001, the Plaintiff established ○○ Cable Broadcasting Co., Ltd. (hereinafter referred to as “○○○ Cable Broadcasting”) around July 28, 2001 by investing in kind broadcasting facilities owned by each machine with ○○○, ○○, ○○, ○○○, and ○○○○○○, etc., a person who operated a cable broadcasting business at the Busan Suwon-gu and Southern-gu, Busan-gu, and operated the cable broadcasting business as a type of money, but inside the existing cable broadcasting stations, the Defendants registered the same type of business as a type of money and operated it as an independent acid.

(2) The shareholders of ○○○ Broadcasting established ○○○○ Broadcasting, and applied for the recognition of a CATV broadcast to the Korea Broadcasting Commission, and the Korea Broadcasting Commission approved it as a condition prohibiting the change of the major shareholders within three years, which is the effective period of approval, and the said shareholders submitted a written pledge to the effect that they will not dispose of the shares from the approval date to the expiration date of the approval period.

B. Details of the instant agreement

(1) The ○○ Cable Broadcasting Co., Ltd. and ○○ Cable Broadcasting Co., Ltd., which operated the ○○ Cable Broadcasting Co., Ltd. (hereinafter “○○○○○”) became a new major shareholder of the ○○○ Cable Co., Ltd., a shareholder of the OOO broadcast, and ○○ Cable Co., Ltd., and the major shareholder of the ○○○ Cable Co., Ltd...., and accordingly, the shareholders who hold 52% of the total number of outstanding stocks of the ○○ Cable Co., Ltd. were the shareholders of the ○○○○○ Cable Co., Ltd., and the ○○ Cable Co., Ltd., Ltd., and the ○○○○ Cable Co., Ltd., Ltd., and the ○○○ Cable Co., Ltd., Ltd., were subject to the following agreements to prevent the hostile M&A on July 31, 202. The ○○ Cable Co., Ltd.’s agreement was signed and sealed by each of the following agreements.

Article 1 (Purpose)

The purpose of each shareholder who has signed the agreement between shareholders is to actively cooperate as a community for the development of the company and the rights and interests of minority shareholders as a joint entity that has jointly established the OO broadcasting, and to bear responsibility and to act together in any case for mutual interest.

Article 2 (Contents of Agreement)

1. No one may act in any manner that may affect the transfer, free transfer, provision of security and ownership of shares owned by the sign-up shareholders individually to a third party other than the sign-up shareholders of the contract, including the rights to acquire shares and shares additionally acquired in the future.

2. If a shareholder who has signed the agreement intends to commit an act falling under the aforesaid paragraph (1) in whole or in part, he/she shall request the meeting, and if all the Signatorys attend a meeting at the time of reflect and determine whether to approve it, he/she shall have the right to preferential purchase by the shareholder who has the intention to purchase, and if there are two or more shareholders who have the intention to purchase, the number of stocks sold shall be divided by the number of stocks sold to each shareholder who has the intention to purchase;

3. When there is no shareholder who has an intention to underwrite the shares for sale and transfer them to a third party, all the matters pertaining to the decision on the level of price and the selection of the purchaser shall be decided by the unanimous order of the Signatory shareholders.

4. If the issue of continuing community operation has occurred due to hostile M&A; or due to acquisition of shares, or if all of the Signatorys consent, all shares of each shareholder will be sold collectively to a third party purchaser at the same price per share by an agreement of the Signatorys.

5. The exercise of voting rights at the general meeting of ○○ Broadcasting is to ensure that the voting rights of the sign shareholders can be exercised uniformly by delegation of decision-making to a specific shareholder among the sign shareholders immediately after the date of conclusion of the agreement agreement.

6. The sale price of shares between the Signatory shareholders shall be determined by mutual agreement at full value.

Article 3 (Term of Contract)

1. The period of the agreement shall be from the date on which the signature and seal is affixed to August 20, 2007.

2. The period may be extended through consultation three months prior to the expiration date.

Article 4 (Penalty)

In the event that a Signatory violates any of the obligations to assign stocks for consideration, transfer without consideration, hold provision, and choose preferential purchase between the Signatorys in violation of the above provisions of the agreement, and all of the causes likely to cause the transfer of ownership are committed, the Signatorys shall calculate the shares of the remaining shareholders excluding the shares held by the violator at KRW 50,00 per share, and shall pay the total amount as penalty, and shall pay the amount equivalent to the number of each shares to the relevant shareholders within one month, and if they violate the obligations under Article 2(5), the same shall apply to the same penalty.

Article 5 (Supplementary Regulations)

A written agreement shall take effect from the time of signing and sealing, and shall be notarized to a notary public in order to make sure of the written agreement, and shall be kept in one copy, respectively.

(2) The shareholders of the OO Broadcasting, including Won and the Defendant, signed and sealed in the instant agreement, did not notify other shareholders of the same content as above.

C. Sale of the Defendants’ shares

(1) Around November 16, 2002, Defendant ○○○○ sold 84,367 shares, equivalent to 9.07% of the total number of shares issued by ○○○○○○○○○, which he owned, to KRW 2.4 billion (price of KRW 28,447 per share).

(2) On February 11, 2003, Defendant ○○○○ sold 50,603 shares, which are owned by himself, to the ○○○○○ side and are equivalent to 5.74% of the total number of shares issued by ○○○○○○ broadcast, to KRW 1.4 billion (price of KRW 27,660 per share).

(3) Around March 5, 2003, Defendant ○○○ (hereinafter “○○”) sold KRW 50,603 per share to KRW 1.85,571 (price of KRW 35,571 per share) equivalent to 5.74% of the total number of shares of ○○○ Broadcasting’s possession on the ○○○ side.

(4) The Defendants did not call a meeting for the preferential purchase of shares or suggest the purchase of shares to the other shareholders who signed and sealed the instant agreement with respect to the said sale.

D. The plaintiffs' holding shares

At the time when the Defendants sold the shares of ○○ Broadcasting, Plaintiff ○○○ owned 126,442 shares issued by ○○○ Broadcasting, and Plaintiff ○○○○ owned 101,516 shares respectively.

2. Determination as to the cause of action

According to the above facts of recognition, unless there are special circumstances, the defendants violated the obligation of preferential sale among shareholders under the agreement of this case. Thus, according to the agreement of this case, the plaintiffs are obliged to pay the amount for which the plaintiffs are claimed among the penalty for the number of stocks owned by the plaintiffs at the time of transfer.

3. Judgment on the defendants' assertion

A. The defendants' assertion

The Defendants: (1) The instant agreement is null and void as it entirely limits a shareholder’s transfer of shares in violation of Article 335(1) of the Commercial Act or public order and good morals; (2) the instant agreement is null and void by participating in the agreement between ○○○ and Defendant ○○○○; and (3) the instant agreement was replaced by the agreement between the shareholders on August 20, 2002. Since the agreement between the shareholders on August 20, 202 was reversed at the shareholders’ general meeting of ○○○○ Broadcasting held on March 28, 2003, the Plaintiff cannot file a claim for penalty; and (4) the agreement between the Defendants and ○○○○○○○○○○ does not become null and void, and thus, the Plaintiffs’ claim on the premise that the said transfer of shares is valid, and the Plaintiffs also lost their shareholder status by disposing of their shares, and thus, the Plaintiff’s claim for damages to the Plaintiff’s right to purchase shares was contrary to the principle of good faith or the principle of good faith.

B. Determination

(1) Determination as to the assertion that a violation of Article 335(1) of the Commercial Act or public order and good morals is invalid

In light of the purport of Article 335 (1) of the Commercial Act, it is invalid to entirely prohibit the transfer of shares by the company's articles of incorporation or by an agreement between the company and the company and the shareholders. However, in the case of a share transfer restriction agreement between shareholders who give up their own interest and participate in the contract, there is no structural weak person in need of mandatory regulations under the Commercial Act, and there is no reason to protect shareholders who participate in the contract, and in principle, there is no reason to protect shareholders who participate in the contract. Therefore, in principle, the agreement imposing penalty for breach of such restriction is valid as a matter of principle between the parties to the contract (in such a case, the restriction agreement is merely effective between the parties to the contract, and the transfer of shares is valid in principle if the transfer of shares was made in violation of such restriction, so the company should recognize the effect of the transfer of shares by the third party. However, even if the transferor, who is a breach of the contract, bears the duty of compensation or the payment of penalty, it shall be deemed null and void in light of the purpose and purpose of the restriction.

Furthermore, we examine whether the content of the instant agreement violates the obligation of shareholders to collect capital completely or violates the public order and good morals. ① Since the instant agreement was concluded by some shareholders to secure a large number of shares after the establishment of ○○○ Broadcasting, it cannot be said that the purpose of the agreement is unlawful. ② It is premised on the fact that the content of the agreement is likely to prohibit the transfer of shares to a third party in some of the terms of the agreement. However, if the agreement is transferred to a third party, it is intended to prohibit the transfer of shares to the third party without the consent of the third party, and thus, it is difficult to conclude that the agreement would be unreasonable for the third party to sell shares to the third party, and thus, it is difficult to consider that the agreement would be unreasonable for the third party to sell shares at the price no longer than for the third party to sell shares. ③ It is difficult to consider that the agreement would be unreasonable for the third party to have agreed to sell shares to the third party and that the agreement would be unreasonable for the third party to sell shares.

(2) Determination on the assertion that the participation of non-shareholders is invalid

The Defendants asserted that ○○○○ and Defendant ○○ participated in the agreement at the time of the agreement of this case, and that the agreement of this case was null and void. Defendant ○○ asserted to the effect that it did not have the effect of this case since ○○○ was not a shareholder of OO broadcast at the time of the agreement of this case, they did not have the effect of this case.

According to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ shareholder’s title 3, 4-1, and 2 of the ○○○○○○○○○○○○○○○○○○○○○○○ shareholder’s title at the time of the instant agreement, it may be acknowledged that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ shareholder’s right was not listed in the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ shareholder’s right. However, in full view of the overall purport of the pleadings, Defendant ○○○○○○○ shareholder’s right to participate in the establishment of the ○○○○○○○○○ shareholder’s title.

(3) Determination on the assertion that it is an unfair juristic act is null and void

Defendant ○○, even though he did not know the content of the instant agreement and signed and sealed on the instant agreement, he asserts that his expression of intent indicated in the instant agreement is null and void as it has considerably lost fairness. However, there is no evidence to acknowledge it, the said assertion is without merit.

(4) Judgment on the assertion that the substitute agreement was reversed

The Defendants asserted to the effect that the agreement of this case was invalidated on the grounds that the shareholders of ○○ Broadcasting, including the Plaintiff and the Defendants, prepared an agreement between the shareholders of ○○ Broadcasting on August 20, 202 after the conclusion of the agreement of this case, and replaced the agreement of this case. The Defendants asserted to the effect that the agreement of this case was reversed at the general shareholders’ meeting of ○○ Broadcasting held on March 28, 2003.

Therefore, as to whether the agreement of this case was replaced by the agreement of August 20, 202, 200. 3rd shareholders of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

However, (1) The purpose of this Agreement is to conclude an agreement with ○○ 20 shareholders, including the Defendants, for the purpose of checking ○○ 20 shareholders who are part of the ○○○○○○○○ 2 shareholders, and thereby externally binding their rights of management. On the other hand, the agreement concluded on August 20, 202 with ○○ 20 shareholders, including the Defendants, was to prevent the sale of shares to a third party, not ○○○○○○ 2 (○○○○○ or ○○ Cable, etc.). Even if the agreement was concluded on August 20, 200, there was no difference between ○ 20 and ○○ 20 shareholders who were not ○○○○○ 20 shareholders, and thus, it appears that the agreement was concluded with ○○ 20 shareholders who were not ○○○○○○ 20 shareholders, and there was no difference between the Defendants, i.e., the parties to the agreement.

(5) Determination on the assertion that the instant share transfer contract is null and void

The Defendants asserted that the share transfer contract of this case between the Defendants and ○○○○○○ does not have effect on the company without the approval of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and thus, the Plaintiffs’ claim based on the premise that the above share transfer is valid is groundless. Accordingly, according to Article 27 of the OO’s Articles of incorporation amended on March 25, 2002, the Defendants and ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s transfer of shares was invalid. Thus, the Defendants’ assertion that the above provision of this case’s transfer of shares did not have effect.

(6) Judgment on the assertion that the plaintiffs lost the source of claim by disposing of their shares

The Defendants also lost their status as shareholders by selling their own shares to ○○○○○○○○○○. As such, the Plaintiffs’ claim is asserted to have become extinct, or contrary to the good faith principle, and thus, in full view of the record of No. 11 and the fact-finding results on Trode Broadcasting Co., Ltd. at ○○○○○○○○ on March 31, 2005, sold 80,933 shares to ○○○○○○ on one’s own (784 won per share price) KRW 630,000,000 (7,784 won per share price). The Defendants’ claim for sale of shares to ○○○○○○○○○○○○○○○○○○○○○○○○○’s shares after acquiring shares to ○○○○○○○○○○○○○○’s shares on the ground that the Defendants had already lost their rights to acquire shares to ○○○○○○○’s shares on the ground of breach of trust agreement.

(7) Judgment on the assertion that the exercise of preferential purchase right was notified

At the general meeting of ○○○○○○○ held on August 8, 2002, when all the shareholders and executives attend the meeting, Defendant ○○○○○○○ may not share with other shareholders, including Defendant ○○○○, while determining whether to exercise the preferential purchase right, and even after two months thereafter, Defendant ○○○○ transferred shares to ○○○○○○○○○○ as there was no shareholder expressing the preferential purchase intent. Thus, he asserts that he did not violate the preferential sale obligation between shareholders. Therefore, in light of the fact that Defendant ○○○○○ signed and sealed on August 20, 202 after the above general meeting of ○○○○○○○○○○○○○○○○’s signature and seal, it is insufficient to acknowledge that ○○○○○○○○ issued a preferential purchase order as alleged above, and there is no other evidence to acknowledge that ○○○○○○○’s signature and witness’s testimony did not necessarily follow the agreement, and thus, there is no reason to acknowledge that it did not necessarily have any other shareholder’s opinion.

(8) Determination on the assertion that the plaintiffs did not have suffered losses

The Defendants asserted to the effect that the damages of this case were not caused by the development of ○○ Broadcasting, which caused the increase in the value of shares held by the Defendants, and thus, the claim for the penalty of this case premised on the damages is without merit. However, it is not sufficient to acknowledge that the Plaintiffs did not incur damages due to the transfer of shares by the Defendants, and there is no other evidence to acknowledge otherwise. The agreement of penalty for breach of contract is presumed to be liquidated damages pursuant to Article 398(4) of the Civil Act. In the event of nonperformance of obligation, the scheduled amount of damages under the above provision is set in advance to exclude the difficulty in proving the facts of damages and the amount of damages, and to ensure the performance of obligation by psychologically giving a warning to the obligor in addition to preventing disputes in advance and preventing the occurrence of damages. Thus, the obligor is not obligated to pay damages or to prove the estimated amount of damages. Thus, the above assertion is without merit, even if the obligor does not actually cause damages, and the obligor does not have to do so.

4. Reduction of estimated amount of damage compensation;

Therefore, according to the agreement of penalty included in the agreement of this case, the Defendants are obligated to pay the damages amount of KRW 6,322,100,000 per share ( KRW 126,442 x 50,000) to each of the Plaintiff ○○○○○○○○, respectively, as well as KRW 5,075,80,000 ( KRW 101,516 x 50,000). However, the Defendants are obligated to pay the damages amount of KRW 27,60 per share, Defendant ○○○○○, KRW 27,660 per share, KRW 27,660 per share, and KRW 35,571 per share, and Plaintiff ○○○○○ sold its shares at KRW 7,784 per share, KRW 6,00 per share, and KRW 38,00 per share to each of the Defendants’ intent and damages amount of KRW 300 per share.

5. Conclusion

Therefore, according to the contract of penalty of this case, the defendants are obligated to pay 632,210,00 won to ○○○○○ (126,442 won x 5,000 won) and 507,580,000 won (101,516 note x 5,000 won) to each plaintiff ○○○○○○, and damages for delay after the lapse of one month from the date on which their shares are sold. Since the plaintiffs are part of the above amount, they claim 50,000 won and damages for delay against the defendants, each of the above amount is 50,000 won and damages for delay, the defendants' claims against ○○○○○○, each of which was delivered to ○○○○, and 50,000 won and damages for delay from 10,0000 won to 20,000 won, 20,0000 won and 10,01,01.

Park Jong-nam (Presiding Judge)

Park Jong-sker

Kim Kim