瑕疵가 補完될 수 없는 分割合倂無效의 訴에 대한 裁量棄却 대상판결 : 대법 2010. 7. 22. 선고 2008다37193 판결

Abstract

This judgement may be considered in two aspects in other words 'the freedom and limit in transfer of shares' and 'the requirements and effectiveness on litigation of nullity at division-merger'. First, the contents of 'the freedom and limit in transfer of shares' are the problem that is the restrictions for the transfer of shares if there is agreement of the parties relating to the transfer of shares which can be recognized to the extent that, such transfer of shares the transferee of the shares was made to request for inspection of shareholders' list, and to exercise freely claim under the current commercial code. Second, the contents of 'the requirements and effectiveness on litigation of nullity at division-merger' are the problem that is in the case of that at the general shareholder's meeting for approval of division-merger what defects is that the company do not take notice of draft to the minority shareholders, and that is the revocation reason what the minority shareholders can not exercise the appraisal right because the minority shareholders do not receive notice of draft from the company, and that the court can sentence discretion-dismissal in the case of that the defects can not be cured on litigation of nullity at division-merger. In this paper, we focused on these issues in the target shall determine the adequacy of the judgment. Consequentially the court can sentence discretion-dismissal even though the defects can not be cured on litigation of nullity at division-merger.