[2] The legal nature of the resolution of a general meeting of shareholders and whether the resolution of a general meeting of shareholders is defective in the validity of the resolution of a general meeting of shareholders where the resolution of a general meeting of shareholders is not adopted (negative)

[3] In a case where a dispute arises as to whether the contents of the resolution on the amendment of the articles of incorporation at a general meeting of shareholders constitute "where a certain class of shareholders will inflict losses on a certain class of shareholders" and the company explicitly refuses to hold the general meeting of shareholders, the method of disputing the effect of

[2] In amending the articles of incorporation to damage a certain class of shareholders, a resolution of a general meeting of shareholders required additionally in addition to a resolution of a general meeting of shareholders to amend the articles of incorporation is a single special requirement to create the legal effect of an amendment of the articles of incorporation. Thus, if a resolution of a general meeting of shareholders has not yet taken place with respect to an amendment of the articles of incorporation, it is merely that such amendment of the articles of incorporation does not take effect yet, and there is no defect

[3] In a case where a company explicitly refuses to hold a general meeting of shareholders due to a dispute as to whether the contents of a resolution to amend the articles of incorporation are likely to cause damage to a certain class of shareholders, if a shareholder of such class of shareholders files a lawsuit for confirmation of the general meeting of shareholders in civil procedure against the company, it is sufficient to confirm that the amendment of the articles of incorporation is null and void on the ground that the special requirements necessary for the amendment of the articles of incorporation were not met, and it is not necessary to seek confirmation of such an "uneffective condition" by making a resolution of the general meeting of shareholders, which is the contents of the amendment of the articles of incorporation, a situation in which the amendment of the articles of incorporation does not take effect (the so-called uneffective condition).

Article 435(1) of the Commercial Act provides that "where a company has issued several classes of shares, thereby causing damage to a certain class of shareholders by amending the articles of incorporation, a resolution of the general meeting of shareholders shall be required in addition to the resolution of the general meeting of shareholders." The purport of the above provision is to prevent minority shareholders holding a certain class of shares from being subject to unfair disadvantages in cases where the company can unilaterally amend the articles of incorporation in a manner that causes damage to the minority shareholders holding a certain class of shares in case where a number of shareholders holding a common share issued several classes of shares other than common shares, and where the company can amend the articles of incorporation in a manner that causes damage to the minority shareholders holding a certain class of shares." In this context, the phrase "when a certain class of shares is damaged to a certain class of shareholders" includes not only cases where a certain class of shareholders are directly disadvantaged, but also cases where a certain class of shareholder status is formally equal, even if it is favorable to the amendment of the articles of incorporation.

In this regard, the court below held that, when comparing the two changes in the articles of incorporation of this case in comparison with the two changes in the articles of this case, the amendment of the articles of this case takes place only the difference between the existing preferential shareholders to be newly allocated by capital increase without compensation, etc., and there is no difference except for the difference. Since the contents of the preferential shareholders to be allocated in the future can not be converted to ordinary shareholders even after 10 years, unlike the former preferential shareholders, it is unfavorable to the amendment of the articles of incorporation, while the status of the preferred shareholders who were to acquire voting rights due to the conversion into common shares is disadvantageous to the amendment of the articles of incorporation, while the preferential shareholders who did not have interest in acquiring voting rights is less than 10 years, and more interest is guaranteed at any time without being limited to 10 years, and there is no benefit in the status of the preferred shareholders who were more interested in dividend, and then the resolution of the general shareholders' meeting composed of the preferred shareholders is just and acceptable, and there is no error in the misapprehension of legal principles as to "the kind of damages" under Article 435 of the Commercial Act.

2. Where a resolution of the general meeting of shareholders is not adopted, the legal relationship subject to the request for confirmation.

A. In light of the language and text of Article 435(1) of the Commercial Act, in amending the articles of incorporation to the effect that damages to a certain class of shareholders, a resolution of a general meeting of shareholders required additionally in addition to a resolution of a general meeting of shareholders to amend the articles of incorporation is a single special requirement to create the legal effect of a resolution to amend the articles of incorporation. Thus, if a resolution of a general meeting of shareholders to amend the articles of incorporation has not yet been adopted, it is merely that such amendment does not take effect, and there is no defect in the validity of the resolution of a general

Therefore, in a case where the resolution of the general meeting of shareholders is not made by the defendant (Counterclaim Plaintiff, hereinafter referred to as the "party to counterclaim") on the main defense of the safety of the defendant, namely, in a case where the resolution of the general meeting of shareholders is not made, the defect must be disputed by the lawsuit for the revocation of the resolution of the general meeting of shareholders under the Commercial Act, as long as the legal period for the revocation of the resolution has already been expired, it is reasonable to dismiss the plaintiff's claim as unlawful, and to leave the judgment on the merits.

B. However, in a case where a company explicitly refuses to hold a general meeting of shareholders due to a dispute as to whether the contents of a resolution to amend the articles of incorporation are likely to cause damage to a certain class of shareholders, if a shareholder of such class of shareholder files a lawsuit for confirmation of a general civil lawsuit against the company, it is sufficient to confirm that the amendment of the articles of incorporation is null and void on the ground that the special requirements necessary for the amendment of the articles of incorporation have not been met, and it is not necessary to seek confirmation of that the resolution of the general meeting of shareholders is in such an “uneffective condition” by making a sense that the resolution to amend the articles of incorporation does not take effect on the ground that the resolution to amend the articles of incorporation does not take effect on the ground that the special requirements for the amendment of the articles of incorporation were not met. It is not necessary to seek confirmation of that resolution is in such an “uneffective condition.” A particular foreign theories or precedents created or developed in accordance with the legal system and regulations of that country, and to invoke or apply the theory to a Korean lawsuit under such other legal system should be

On the premise that a resolution of a general meeting of shareholders is an additional requirement to bring about the effect of a resolution of a general meeting of shareholders itself, the court below held that the resolution of a general meeting of shareholders itself is in an ineffective state while the resolution of a general meeting of shareholders is not adopted in cases where a resolution of a general meeting of shareholders is required in addition to the resolution of the general meeting of shareholders. On the other hand, it cannot

However, in this case, the plaintiff sought confirmation that the second amendment of the articles of incorporation was null and void in the sense that the second amendment of the articles of incorporation in the judgment of the court below did not take effect, and the second amendment of the articles of incorporation, which contains the second amendment of the articles of incorporation, also seeks selective combination without setting the order of priority. If the second amendment of the articles of incorporation takes effect unless the resolution of the general meeting of shareholders takes effect, the second amendment of the articles of incorporation, which is the contents of the resolution, shall not take effect. Therefore, the claim for confirmation that the non-effective effect of the resolution of the general meeting of shareholders does not differ in the claim for nullification of the amendment of the articles of incorporation and its substantial contents, and the second amendment of the articles of incorporation in the judgment of the court below requires a resolution of the general meeting of shareholders, and the second amendment of the articles of incorporation in the judgment of the court below is whether the second amendment of the articles of incorporation requires a resolution of the general meeting of shareholders, and the plaintiff's appeal cannot be accepted on the ground of legal principles as seen earlier. Therefore, the above's appeal is groundless.

3. Whether the amendment of the first articles of incorporation as stated in the original judgment is null and void

According to the facts established by the court below, the amendment of the first articles of incorporation as well as the amendment of the second articles of incorporation in the judgment of the court below is more favorable and unfavorable to the existing preferred shareholders in the contents of the priority principle that they will be allocated to the future by gratuitous capital holders (the acquisition of voting rights is advantageous to the amendment of the second articles of incorporation, while the voting rights are advantageous to the status of the preferred shareholder that they would acquire voting rights, and it is disadvantageous to the status of the preferred shareholder that there is no interest in voting rights and has been interested in dividend). Therefore, in order to take effect of the amendment

On the other hand, under the premise that the amendment of the first articles of incorporation as stated in the holding of the court below is valid, the defendant made an amendment of the second articles of incorporation as stated in the judgment of the court below to delete paragraph (5) which is part of Article 8 of the articles of incorporation amended by the amendment of the first articles of incorporation as stated in the judgment of the court below, thereby making the preferred shareholders trust that the amendment of the first articles of incorporation is valid, and if the first articles of incorporation should be resolved at the first articles of incorporation, the first articles of incorporation shall constitute priority shareholders by convening the first class shareholders' general meeting to determine the effect of the amendment of the first articles of incorporation, and thus, it shall be deemed that there is a position to resolve the legal uncertainty or risk of the first articles of incorporation, and then seek the confirmation of the invalidity of the first articles of incorporation amendment as stated in the judgment of the court below on the ground that the defendant in such position did not have a resolution of the first class shareholders' general meeting

Although the court below's explanation on the claim for confirmation of invalidity of the amendment of the first of the preliminary counterclaim of this case and the claim for confirmation of non-existence of the resolution of the first general meeting of shareholders is somewhat inappropriate, it is just in its conclusion that each of the above preliminary counterclaim of this case was dismissed, and there is no violation of the law as

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)