[주주총회결의부존재확인청구사건][하집1984(2),127]
1. Whether there is a benefit to obtain confirmation of non-existence of the resolution of the general meeting of shareholders from the purchaser of registered shares;
2. Whether any creditor has a benefit to seek confirmation of absence of resolution of the general meeting;
1. If a resolution of the general meeting of shareholders is valid, each shareholder shall be bound by the resolution, so if there is no such resolution, the shareholder shall have the benefit of seeking confirmation of non-existence. However, even if the acquisitor's name and address are not entered in the register of shareholders, and even if the transfer of registered shares was made by the shareholder of the company, it cannot be asserted against the company, so long as the transferee cannot oppose the transfer of shares, it is merely a creditor against the company, and it cannot be said that there is a benefit of confirmation in seeking confirmation of absence of the general meeting of shareholders or resolution of directors of the company.
2. A lawsuit for confirmation of non-existence of a resolution at a general meeting of shareholders is ordinarily a litigation for confirmation, and therefore, a person who has a benefit of confirmation is eligible to be the plaintiff. Thus, even a creditor of a stock company may request confirmation of non-existence of a resolution at a general meeting of shareholders if he has a benefit of confirmation, but in this case there is benefit of confirmation, it is limited to the case where the resolution
Article 380 of the Commercial Act
[Plaintiff-Appellant] 1114 decided May 17, 1962, 4294; 735(4); Ka694; 380(4); 740; Ka6693); 69Da2018 decided Feb. 24, 1970 (Article 380(13); 741; Ka4381 house 18; 14381 house 18; 146); 79Da1322 decided Jan. 29, 1980 (Article 380(2) of the Commercial Act; Article 380(2)78; 628; 12592); Article 380(4); 79Da2677; 3785, Oct. 27, 1980; Article 3681 of the Commercial Act (II; Article 36375 of the Commercial Act)
Plaintiff
Integrified Development Corporation
1. All of the instant lawsuits are dismissed.
2. Litigation costs shall be borne by the plaintiff.
(1) On February 14, 1981, at a general meeting of shareholders, the defendant dismissed directors Kim Jong-chul, directors Lee Chang-soo, directors and Lee Jong-chul-man respectively. The defendant appointed each example of directors Lee Tae-hee, the highest order of directors, the directors' senior spawn, the directors' senior spawn, the directors' senior spawn, the directors' senior spawn, the directors' senior spawn, the directors' senior spawn, the directors' Kim Jong-nam, and the auditors' senior. The defendant revised Article 1 of the defendant's articles of incorporation to change the spawn tourism company into Young-do Leisure Korea, the directors' senior spawn as the representative director; (2) on March 31, 1981; (3) on September 9 of the same year, the general meeting of shareholders amended Article 6 of the defendant's articles of incorporation to change the total number of shares to 210,000 shares
The plaintiff asserts as follows as the cause of the claim of this case.
In other words, as if the above resolution was made on February 14, 1981, the defendant company prepared a temporary meeting minutes of the shareholders' general meeting as if it had been lawfully held to make a resolution as stated in paragraph (1) above, and completed the procedure for registration of alteration. However, as of the same day, the shareholders of the defendant company were two (4,900) shareholders, who were shareholders of the 10,000 shareholders, and the representative director rules, were the representative director rules, and the director rules did not hold a board of directors for convening the above general meeting and did not have a notice for convening the shareholders' general meeting (the representative director, who was not the shareholders, was also the shareholders of the above company, and the non-party 1 did not know that the above resolution was held by the shareholders' general meeting (the non-party 2 and the non-party 1, who was also the shareholders of the above company, were also the shareholders of the defendant company, and there was no resolution by the defendant 1,000 shareholders' general meeting as stated in the above resolution of the shareholders' general meeting.
As to this, the defendant company is not only a shareholder of the defendant company at the time of the above resolution, but also a shareholder, as well as a creditor who has a legal interest in each of the above resolutions, so the plaintiff is not entitled to seek confirmation of non-existence of each of the above resolutions, and therefore the plaintiff is not entitled to be the plaintiff.
However, if a resolution of the general meeting of shareholders is valid, each shareholder shall be bound by the resolution, so if there is no resolution, the shareholder shall have the interest to seek confirmation of non-existence. On the other hand, the transfer of registered shares shall not oppose the company unless the acquisitor's name and address are entered in the register of shareholders. If the transferee cannot oppose the company even if he received the transfer of shareholder's right from the shareholder of the company, the transferee is merely a creditor of the company and it cannot be viewed that there is a benefit of confirmation (see Supreme Court Decision 4294Da114 delivered on May 17, 1962, and Supreme Court Decision 4294 delivered on April 114, 198). Thus, the plaintiff cannot seek confirmation of the non-existence of the share certificates from the defendant company at the time of the transfer of the shareholder's share certificates, but the plaintiff cannot seek confirmation of the non-existence of the share certificates from the non-party company at the time of the transfer of the shareholder's shares.
Next, since a lawsuit for confirmation of non-existence of a resolution at a general meeting of shareholders is ordinarily a litigation for confirmation, a person who has an interest in confirmation shall be eligible to be the plaintiff. Thus, even a creditor of a stock company may make a claim for confirmation of non-existence of a resolution at a general meeting of shareholders if he has interest in confirmation, but this case has interest in confirmation only if the resolution at a general meeting of shareholders specifically infringes the creditor's rights or legal status and directly affects it (see Supreme Court Decision 79Da2267 delivered on October 27, 1980, Supreme Court Decision 79Da2267 delivered on January 27, 1980). The plaintiff has a claim equivalent to the same amount against the defendant company by lending or investing the total amount of KRW 1,160,989,815 to the defendant company from January 1, 1980 to February 1, 1981, it is difficult to claim that there is no legal interest of the plaintiff in each of the above defendant company as a creditor of each of this case.
Therefore, the plaintiff is not entitled to seek confirmation of the absence of the resolution of this case because there is no interest in seeking confirmation of the non-existence of the resolution of this case. Thus, all of the lawsuit of this case is unlawful, and thus, it is decided as per Disposition with the burden of the losing plaintiff.
Judges Lee Lee-hoon (Presiding Judge)