[가처분이의][공1997.10.15.(44),3054]
[1] Where a resolution to continue the company and a new resolution to appoint a director has been made at a general meeting of shareholders after the suspension of the execution of duties of a liquidator and a provisional disposition to appoint an acting director of a corporation, whether the authority of a liquidator acting for
[2] Where a resolution of continuation of a company and a resolution of appointment of a new director is made at a general meeting of shareholders after a provisional disposition suspending the execution of a liquidator's duties, whether a liquidator, whose execution of duties was suspended, may file a lawsuit of objection against provisional disposition
[1] After a provisional disposition order to suspend the execution of duties by making a liquidator of a corporation under liquidation as the respondent and appoint an acting liquidator was rendered, the power of the liquidator acting for the liquidator is not extinguished as a matter of course by a resolution of the general meeting of shareholders on the ground that the appointed liquidator had a resolution to continue the company at the general meeting of shareholders convened at the request of shareholders, and that there was a resolution to appoint a new
[2] If there was a resolution to continue the company at the general meeting of shareholders called up after a decision to suspend the execution of duties of a liquidator and to appoint a person acting for a liquidator and a resolution to appoint a new director and an auditor, barring any special circumstance, the above decision to suspend the performance of duties and a provisional disposition to appoint a person acting for a liquidator shall be deemed to have been changed in circumstances that no longer need to maintain the above provisional disposition. Thus, the respondent whose execution of duties was suspended by the above provisional disposition may file a lawsuit of objection against the provisional disposition
[1] Articles 407, 408(1), 519, and 542(2) of the Commercial Act / [2] Articles 703, 706(1), and 715 of the Civil Procedure Act, Articles 407 and 542(2) of the Commercial Act
[1] Supreme Court Decision 92Da5638 delivered on May 12, 1992 (Gong1992, 1850) / [2] Supreme Court Decision 94Da56708 delivered on March 10, 1995 (Gong1995Sang, 155 others), Supreme Court Decision 94Da12371 delivered on April 14, 1995 (Gong195Sang, 1844)
Applicant 1 and two others (Law Firm Cheong, Attorney Kim Jung-up, Counsel for the applicant-appellant)
Respondent (Attorney Yu-soo et al., Counsel for the defendant-appellant)
Busan High Court Decision 96Na9409 delivered on January 31, 1997
All appeals are dismissed. The costs of appeal are assessed against the applicants.
We examine the grounds of appeal.
After a provisional disposition to suspend the execution of duties of a liquidator of a corporation being liquidated and appoint an acting liquidator has been decided, since there was a resolution to continue the company at the general meeting of shareholders convened at the request of shareholders and a resolution to appoint a new director and an acting director, the authority of the acting liquidator as a matter of course shall not be extinguished (see Supreme Court Decision 92Da5638 delivered on May 12, 1992). However, barring any special circumstance, the provisional disposition to suspend the execution of duties and appoint an acting director by a resolution of the above general meeting of shareholders is deemed to have been changed of circumstances no longer necessary (see Supreme Court Decisions 94Da56708 delivered on March 10, 195, 94Da12364 delivered on April 14, 1995, etc.). The respondent whose execution of duties was suspended by the above provisional disposition can file a lawsuit seeking the cancellation of the provisional disposition on the ground of the above change of circumstances.
Although the reasoning of the court below is somewhat insufficient, the decision of the court below to suspend the execution of duties of the liquidator of this case and to dismiss the application for provisional disposition by the applicant is just, and there is no error in the misapprehension of legal principles like the theory of lawsuit. All arguments are without merit.
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Don-hee (Presiding Justice)