[감사지위확인가처분][공2006.1.15.(242),89]
[1] Whether an appointed person acquires the status of an auditor immediately without entering into an employment contract with the company only by a resolution of a general meeting of shareholders (negative)
[2] Whether the whole legal act is null and void in a case where the content of a condition itself is null and void or it is not allowed to attach a condition in a conditional legal act (affirmative)
[3] The case affirming the judgment of the court below which held that, in case where the representative director of the company's company's company's offering for an audit appointment contract to a person appointed as an auditor at a general meeting of shareholders becomes null and void in itself or in addition to the conditions, the expression of offer is null and void as well as the entire expression of offer becomes null and void, even if the appointed person expressed his/her consent, it cannot be
[1] A resolution of a general meeting of shareholders on appointment of an auditor is merely an internal decision of the company to the effect that the person to be appointed shall be an auditor who is the institution of the company, so the person to be appointed shall not acquire the status of an auditor immediately on the ground that there was a resolution of appointment of an auditor at a general meeting of shareholders, but only the representative institution of the company can perform the duties as an auditor by taking over the position of an auditor by making an offer of an appointment contract and accepting the appointment of the appointed person upon the resolution of appointment at a general meeting of shareholders. Thus, a resolution of appointment of an auditor at a general
[2] In a case where the content of a condition in a conditional juristic act itself is illegal and thus becomes null and void, or where a condition is attached to a juristic act for which the attachment of a condition is not allowed, the condition cannot be separated and null and void, and the entire juristic act shall be null
[3] The case affirming the judgment of the court below which held that, in case where the representative director of the company's company's company's offering for an audit appointment contract to a person appointed as an auditor at a general meeting of shareholders becomes null and void in itself or in addition to the conditions, the expression of offer is null and void as well as the entire expression of offer becomes null and void, even if the appointed person expressed his/her consent, it cannot be deemed
[1] Articles 382(2), 409(1), and 415 of the Commercial Act; Article 680 of the Civil Act / [2] Articles 137 and 151(1) of the Civil Act / [3] Articles 382(2), 409(1), and 415 of the Commercial Act; Articles 137, 151(1), and 680 of the Civil Act
[1] Supreme Court Decision 94Da31440 delivered on February 28, 1995 (Gong1995Sang, 1458)
Creditor (Law Firm Sejong, Attorneys Yellow-sik et al., Counsel for the plaintiff-appellant)
Seoul Radrid Co., Ltd.
Seoul High Court Order 2005Ra124 dated May 19, 2005
The reappeal is dismissed.
1. A resolution of a general meeting of shareholders on the appointment of an auditor is merely an internal decision of the company that the person to be appointed shall be an auditor who is the institution of the company. Thus, the person to be appointed does not acquire the status of an auditor immediately on the ground that there was a resolution of appointment of an auditor at a general meeting of shareholders, but can perform his duties as an auditor only by the representative institution of the company, upon the resolution of appointment at a general meeting of shareholders, making an offer of an appointment contract and accepting it by the appointed person. Thus, the person who only made a resolution of appointment at a general meeting of shareholders, but did not conclude an appointment contract with the company, shall not be deemed to have acquired the status as an auditor (see Supreme Court Decision 94Da314
The court below rejected the creditor's claim that the creditor acquired the status of auditor even if a separate appointment contract was not concluded, since the resolution at the provisional general meeting of shareholders of the debtor who appointed the creditor as auditor has a creative effect, and in itself constitutes an offer for an audit appointment contract or an act subject to the creditor's consent, it is correct in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the validity of a resolution by the general meeting of shareholders for
2. According to the records, it is recognized that the representative director of the debtor has made an offer for an audit and appointment contract under the condition that he/she will not abuse the status of auditor for the benefit of a specific shareholder in relation to a dispute over management rights between shareholders and to file a lawsuit claiming a loan against the creditor who is a director, and that he/she will not abuse the status of auditor for the benefit of a specific shareholder. Thus, the decision of the court below that the debtor's expression of intent is conditional, is justified, and there
3. In a case of a conditional juristic act, the content of the condition itself is illegal and thus becomes null and void, or in a case where the condition is attached to a juristic act for which it is not allowed to attach any condition, the condition cannot be separated and null and void, and the entire juristic act shall be deemed null
The court below held that if the representative director of an obligor's expression of intent in addition to the obligor's expression of intent to offer an offer is null and void or added to the obligor's expression of intent to offer an offer to the obligee as alleged by the obligee, the entire expression of intent to offer is null and void as well as the obligor's expression of intent to offer is null and void, and thus, even if the obligee expressed his/her consent, it cannot be deemed that the audit contract was formed. The judgment of the court below is correct in accordance
4. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)