[주주총회결의부존재확인][공1983.2.15.(698)280]
Whether a director who is not a expired shareholder is standing to sue in a lawsuit seeking nullification or non-existence of a resolution of a general meeting of shareholders (affirmative)
A director dismissed by a resolution of a general meeting of shareholders has a legal interest in seeking the non-existence of the relevant resolution of dismissal or the invalidity thereof, regardless of whether he/she is a shareholder, and, even if the contents of the resolution are not a resolution of dismissal of a director but a resolution of appointment after the expiration of the term of office, if he/she holds the rights and duties of a director until the appointment of a successor director under Article 386 of the Commercial Act, such a resolution of appointment of a successor director has a legal interest in seeking
Articles 386 and 380 of the Commercial Act
Department of Justice Cho Young-ho, Counsel for the defendant-appellant
Allocation Transportation Co., Ltd., Counsel for the defendant-appellant
Daegu High Court Decision 81Na774 delivered on May 14, 1982
The judgment below is reversed, and the case is remanded to the Daegu High Court.
Bain ex officio.
In this case, although the defendant did not convene a general meeting of shareholders on May 10, 1979, the plaintiff prepared a false minutes of the general meeting of shareholders as if he had passed a resolution to dismiss the plaintiff as a director at the general meeting of shareholders on the same day, and thus, the plaintiff primarily sought confirmation of non-existence of the resolution of the above general meeting of shareholders and sought confirmation of invalidity thereof as preliminary. Thus, the court below rejected the lawsuit on the ground that the plaintiff is not the plaintiff but the director's term of office expires on April 25, 1979.
However, a director dismissed by a resolution of a general meeting of shareholders has a legal interest in seeking the non-existence of the relevant resolution of dismissal or the invalidity thereof, regardless of whether he is a shareholder, and even if the contents of the resolution are not a resolution of dismissal of a director but a resolution of appointment of a director after the expiration of the term of office (as stated in subparagraph 1, this case is the case where the resolution of the general meeting of shareholders of this case is immediately made), if a director retired by the expiration of term under Article 386 of the Commercial Act holds the rights and duties of a director after the expiration of term of office, such a director shall have a legal interest in seeking the non-existence of
Ultimately, the judgment of the court below that denied the plaintiff's qualification on the ground that the term of office is not expired, is erroneous in the misapprehension of legal principles as to the non-existence of a resolution of the general meeting of shareholders or the plaintiff's standing to sue in a lawsuit seeking nullification, which constitutes grounds for reversal under Article 1
Therefore, the judgment of the court below is reversed and the case is remanded to the Daegu High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Lee Sung-soo (Presiding Justice)