[주주총회결의부존재확인청구사건][고집1976민(2),121]
Whether a person who violates a mandatory provision may exercise his/her right to assert the invalidity of the violation, in violation of the principle of good faith.
The provisions on the convocation and resolution method of the general meeting of shareholders under the Commercial Act shall be a mandatory law, and it would result in the loss of the purpose and utility of the compulsory provisions under the Commercial Act if the person who violated the compulsory provisions voluntarily asserts that the violation is null and void by accepting the resolution of the general meeting of shareholders in violation of the compulsory provisions.
Article 2 of the Civil Act, Articles 362, 363, 364, 365, and 368 of the Commercial Act
Supreme Court Decision 68Da1323 delivered on September 6, 1968 (Supreme Court Decision 163Da19 delivered on September 6, 196, Supreme Court Decision 202Da206 delivered on September 6, 196)
Plaintiff
Defendant corporation
Seoul Central District Court (74Gahap3238,3786) in the first instance trial
(1) The part of the original judgment against the defendant shall be revoked.
(2) At the general meeting of shareholders of the defendant company on May 3, 1974, the non-party 1 and the non-party 2, etc. resigned on the same day. The non-party 3, the representative director of the company, the plaintiff et al. retired on February 28, 1973 respectively from office on May 3, 1974, and the non-party 6, 7, and 3 as the director, and the non-party 8 as the auditor do not exist.
(3) On May 3, 1974, the board of directors of the defendant company confirmed that a resolution that appointed Nonparty 6 as the representative director is invalid.
(4) All the costs of lawsuit are assessed against the defendant in the first and second trials.
The same shall apply to the order.
The shareholders of the defendant company are not only three persons (317,160 shares) who are their husband and the non-party 1 (12,595 shares) who are re-existent to the plaintiff. The representative director of the defendant company is the non-party 3, and the plaintiff was in office as the auditor of the above company, and there is no dispute between the parties, No. 1, No. 2, No. 3, 5, and No. 3, and No. 4 of the defendant company's statement that the non-party 1 had been held on the non-party 6's shareholders' meeting at the time of the above transfer of the company's shareholders' meeting. The non-party 6's shareholders' meeting cannot be held on the non-party 3's non-party 1's non-party 4's non-party 1's non-party 6's non-party 1's non-party 3's non-party 1's non-party 6's non-party 1's non-party 9's non-party 1's shares.
As seen earlier, Defendant 3, the husband of the company, actively participated in the agreement on the transfer of management rights between the non-party 6 and the non-party 6, and thereafter, did not hold the above regular shareholders' meeting or the resolution by the board of directors, etc. to transfer his seal to the non-party 3 without any objection. Further, the non-party 1, one of the shareholders of Defendant company, also acknowledged the agreement on the transfer of management rights and the resolution by the board of directors, etc., and eventually, the above resolution by the general shareholders' meeting is valid consistent with all shareholders of the defendant company, and thus, the plaintiff violated the above principles of good faith, and thus, the plaintiff's claim for non-existence of such right against the above resolution by the general shareholders' meeting cannot be asserted to be unfair since it violated the principle of trust and good faith, and thus, the non-existence of the above resolution by the defendant's general shareholders' meeting cannot be viewed as null and void as a legitimate resolution of the non-existence of the above resolution by the non-existence of the general shareholders' meeting.
Therefore, on the ground that the plaintiff did not have a general meeting of shareholders as stated in the Disposition No. 2 by the defendant against the defendant, the plaintiff's claim for confirmation of non-existence of the claim against the defendant, and the claim for a lawsuit seeking confirmation of its invalidity on the ground that the plaintiff's non-existence of a general meeting of shareholders was a resolution as stated in the Disposition No. 3 of the Disposition No. 3, which is composed of non-existence of a general meeting of shareholders (this does not have a resolution in fact) and the plaintiff's claim for a lawsuit seeking confirmation of its invalidity on the ground that it is a non-existence of a resolution as stated in the Disposition No. 3 of the Disposition No. 386 of the Civil Procedure Act, shall be accepted since the judgment
Judges Kim Hong (Presiding Judge)