[퇴직위로금청구사권][고집1968민,481]
Where retirement consolation benefits are paid to directors;
As retirement consolation benefits for directors are a kind of remuneration, they cannot be paid without a resolution or consent of the general meeting of shareholders.
Article 388 of the Commercial Act
Plaintiff
East Maritime Insurance Corporation
Seoul Central District Court (67A7012) in the first instance trial (Supreme Court Decision 67Da7012)
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The defendant shall pay to the plaintiff 50 million won with an annual interest rate of 5% from October 18, 1964 to the full payment date.
The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.
The defendant's attorney is seeking a judgment as shown in the Disposition.
On August 25, 1962, the Plaintiff was assigned to office as executive director of the Defendant Company and retired on October 17, 1964, and the fact that at the time, the Plaintiff was receiving KRW 40,000 and KRW 50,000 as remuneration, and KRW 10,000,00 as job allowances, as remuneration, did not conflict between the parties.
According to the rules on the payment of retirement consolation benefits, in case where the plaintiff company is an executive director, the retirement consolation benefits shall be paid for 4 months per year for the number of years of service, and in case where the number of years of service is less than 6 months, the retirement consolation benefits shall be paid for 1/2 of the number of months of payment per year if the number of years of service is less than 6 months. In this case, in addition to the salary, the work allowances shall be included in the calculation. Thus, as prescribed in the above provisions, the plaintiff asserted that the retirement consolation benefits for 2 years and 1 months (10 months of the plaintiff's salary at the time of retirement) were requested to be paid at the principal meeting of the plaintiff company. According to the Commercial Act Article 388, the above provisions on the payment of retirement consolation benefits for the defendant company, such as the defendant company, are not established by the resolution of the general meeting of shareholders, and the above provisions on the payment of retirement consolation benefits for the plaintiff company cannot be established without the plaintiff's consent of the above 2's resolution of the general meeting of shareholders.
A person who intends to join a company again takes into account the amount of salaries after joining the company, the advancement period, and the conditions of retirement allowance, etc., and on the other hand, the company's selection of excellent members can not be an exception. The existence of bylaws cannot be called a conditional employment contract under which the rules are mutually observed between the company and its employees, and there is no objection against the payment of retirement allowances from the previous company's shareholders' meeting. Thus, within the defendant company, the payment of retirement allowances as stipulated in the articles of incorporation is a duty to respond to the request of the plaintiff's principal office, and the refusal of the payment of retirement allowances is a violation of the plaintiff's expectation right under the premise of compliance with the above rules, and the defendant's payment of retirement allowances can only be determined at the general meeting of shareholders, and the defendant's payment of retirement allowances can not be acknowledged as an infringement of the plaintiff's duty under the above provisions, as long as the above provisions were not approved by the plaintiff's general meeting of shareholders.
Therefore, since the plaintiff's claim of the principal lawsuit is reasonable and it is necessary to dismiss it, the judgment of the court below with different conclusions shall be deemed to have been filed for the purpose of its prevention, so the plaintiff's claim shall be revoked pursuant to Article 386 of the Civil Procedure Act, and the costs of lawsuit shall be borne by applying Articles 96 and 89 of the same Act to the burden of litigation.
Judges Kim Jung-so (Presiding Judge)