2. Costs of appeal shall be borne by the obligee;

3. Of the decision of the first instance, the debtor’s indication “stock company (mutual omission)” shall be corrected to “Seoul (mutual omission)”.

According to the records, the following facts are recognized.

A. The debtor is the company established by the deceased non-party 1 as the company, the non-party 2 as the representative director of the debtor's own 160,000 shares issued by the non-party 1, the non-party 32,00 shares (20%) among the non-party 1's total number of shares issued by the non-party 1, the non-party 3 as the wife of the non-party 1, the non-party 4 and the non-party 1 as the director of the debtor, the non-party 5 as the non-party 6's wife of the non-party 1, the non-party 23,200 shares (14.5%) and the non-party 7 as the wife of the debtor's director of the non-party 1, the non-party 6's office of the non-party 1, the non-party 1 as the wife of the non-party 1, the non-party 6's director of the debtor, 10,057 shares (6.3%)

B. The creditor, upon resignation on May 25, 2004 by the non-party 9, who was in office as the debtor's auditor, was appointed as the auditor at the debtor's temporary general meeting of shareholders held on October 22, 2004, with the consent of the non-party 4, non-party 5, non-party 7 and non-party 8 (in accordance with Article 409 (2) of the Commercial Act, by limiting the exercise of voting rights to the shares exceeding 3/100 of the total number of issued shares, all shareholders of the debtor exercised voting rights).

C. The creditor attended the above provisional shareholders’ meeting and consented to the acceptance of audit, and on October 26, 2004, sent a written consent of audit appointment to the debtor.

D. On October 29, 2004, Nonparty 2, the representative director of the debtor, sent a letter of subscription for audit contract to the creditor accompanied by a written consent for audit appointment. The main contents of the said letter of subscription are to actively carry out the business in which the creditor files a lawsuit claiming the return of the loan against the shareholders in the name of the debtor, and to subscribe for audit appointment contract with the condition that the creditor should not abuse the status of auditor for the interest of a specific shareholder in the future.

In addition, the letter of acceptance of an audit attached to the above letter of acceptance of an audit shall include the following: (i) the obligee promises, without delay after audit and inspection, to file a lawsuit claiming the return of a loan on behalf of the obligor against all the directors of the obligor; (ii) the obligee shall submit to the obligor along with a letter of acceptance of appointment, a letter of acceptance, evidentiary materials, and the power of attorney granting the authority to receive the complaint to Nonparty 10, who is an employee of the obligor, as evidence of the above letter of acceptance; (iii) the above lawsuit is not voluntarily withdrawn; and (iv) the entire data and information acquired in the course of audit and inspection are not provided to the specific shareholders; and (v) the obligor shall be paid 30 million won for each violation; and (iv) the obligor shall be compensated for the total amount of damages if the extinctive prescription of the loan claims against the obligor's directors is completed due to delay in filing a suit by the obligee;

E. On November 3, 2004, the creditor accepted the acceptance of audit acceptance, but the conditions presented in the above offer sent to the debtor a written consent of audit acceptance stating that the conditions presented in the above offer cannot be accepted.

(f) The debtor thereafter is not registered as an auditor in the corporate register of the debtor, notwithstanding the creditor's repeated request made by the creditor;

2. The assertion and judgment

A. First, a creditor asserts that a resolution at a provisional general meeting of shareholders of a debtor who appoints a creditor as an auditor is deemed to have a creative effect, and in itself, it is deemed to fall under an offer for an audit appointment contract or an act that is subject to the creditor’s consent. Thus, the creditor acquired the status as an auditor by declaring that he/she accepts an audit even if a separate appointment contract is not concluded with the debtor.

On the other hand, a resolution of a general meeting of shareholders on the appointment of auditors is merely an internal decision of the company to the effect that the person to be appointed is an auditor who is an institution of the company, and thus, the person to be appointed does not acquire the status of auditor immediately on the ground that there was a resolution of appointment at a general meeting of shareholders. The representative institution of the company, upon the resolution of appointment at a general meeting of shareholders, can assume the position of auditor and perform the duties as auditor only by taking over the position of auditor by the appointment of the representative institution of the company, upon receiving an offer of an appointment contract and accepting the appointment. Thus, a resolution of appointment at a general meeting of shareholders was only made at a general meeting of shareholders, but a person who does not conclude a contract of appointment with the company shall not be deemed to have acquired the status of auditor (see Supreme Court Decision 94Da31440 delivered on February 28, 195). As examined below, in this case where it cannot be deemed

B. In addition to a resolution of appointment of a general meeting of shareholders, even if a separate appointment contract is required in order for a creditor to acquire the status of auditor, the creditor asserts that the representative director of the debtor's company and the debtor formed an audit appointment contract between the creditor and the debtor since the contents of the condition added when the creditor expresses his/her intent to subscribe to the creditor are contrary to the provisions of the Commercial Act or without legal grounds. Moreover, in addition to the above conditions, it is null and void in violation of Article 409 (1) of the Commercial Act, which is a mandatory law, which provides for the appointment of the auditor as a resolution of the general meeting of shareholders.

On the other hand, in case of conditional legal acts, the content of the condition itself is illegal and thus null and void, or in case where the condition is attached to a legal act for which it is not allowed to attach the condition, the condition cannot be separated and null and void, and the whole legal act shall be null and void. As asserted by the obligee, if the representative director of the obligor’s expression of intent to subscribe to the obligee and the contents of the added condition are null and void or added to the condition, the expression of intent to subscribe is null and void, as well as the entire expression of intent to subscribe is null and void. Thus, even if the obligee expressed his/her intention to consent, it cannot be deemed null and void, and therefore

3. Conclusion

Thus, the decision of the court of first instance is justified and dismissed as the creditor's appeal is dismissed as it is without merit. The debtor's "stock company (mutual omission)" among the decision of the court of first instance is obvious that it is a clerical error in Seoul (mutual omission). Thus, it is decided as per Disposition.

Judges Clerks (Presiding Judge)