[2] The case holding that a shareholder cannot exercise his/her voting right directly on the ground that the shareholder has given up his/her shareholder's right for a certain period and agreed to delegate the shareholder's right to exercise voting right to another person

[2] The case holding that a shareholder cannot exercise his/her voting right directly solely on the ground that the shareholder has given up his/her shareholder's right for a certain period and agreed to delegate the shareholder's right to exercise voting right to another person

A. The facts acknowledged by the court below are as follows.

(1) The Defendant, as the so-called one-called one-person company whose substantial shareholder is Nonparty 1, entered into an agreement between the employer and the Defendant’s trade union, including Nonparty 1 and the Defendant’s representative director at the time of Nonparty 3, on August 3, 1998, to waive shareholder rights and management rights for the following seven years, not to trade or transfer shares, and to delegate the rights to exercise shareholder rights to Plaintiff 1 as a shareholder.

(2) On November 2, 199, Nonparty 1 opened a temporary general meeting of shareholders on November 2, 199, and resolved to appoint himself, Plaintiffs 1, 3, and 2 as directors, and Plaintiff 4 as auditors. On that day, Nonparty 1 opened a board of directors with Plaintiffs 1, 3, and Plaintiff 2 as the representative director and appointed Plaintiff 1 as the representative director. However, upon Plaintiff 1’s submission of a resignation letter of representative director on May 10, 200, the Plaintiffs reserved Plaintiff 1’s resignation by holding a board of directors on May 22, 200 and appointed Plaintiff 2 as an additional representative director.

(3) However, at the temporary general meeting on June 21, 200, Nonparty 1 prepared the minutes of Nonparty 1 and Nonparty 2 from the director who is the representative director; Nonparty 3 from the director; Nonparty 4 from the auditor; Nonparty 2 and Nonparty 3 from the director; Nonparty 4 from the auditor; and Nonparty 4 from the audit; and completed the registration of change of the Defendant’s legal entity on June 22, 2000, along with these minutes. Nonparty 1’s temporary general meeting on March 2, 2001, removed Nonparty 3 and Nonparty 2 from the auditor; Nonparty 5, Nonparty 6, and the Defendant’s Intervenor 1 and Nonparty 2 from the auditor; and prepared the minutes of the board of directors meeting with the contents that Nonparty 5 was appointed as the representative director on March 12, 2001.

B. The court below acknowledged the above facts, and held that even if the provisional general meeting of the defendant on June 21, 200 and March 2, 2001 did not go through legitimate convocation procedures, the minutes of the general meeting of the shareholders were prepared by Nonparty 1, who is the defendant's single shareholder, and thus, the minutes of the general meeting of shareholders do not exist in principle. However, as long as the non-party 1 entered into an agreement on the exercise of voting right by proxy of the shareholder on August 3, 1998 which allows the plaintiff 1 to act on behalf of the plaintiff 1 to operate the defendant, the non-party 1 can not exercise the voting right as a shareholder, and the defendant's assertion that this agreement was terminated, the above provisional general meeting of shareholders cannot be accepted, and it is non-existent as a resolution of the board of directors of the temporary general meeting of shareholders.

2. The judgment of this Court

A shareholder's right shall be forfeited only on the grounds prescribed by Acts, such as transfer or retirement of stocks, and no special agreement or waiver of a shareholder's right shall be lost merely by the parties, and its exercise shall not be restricted, barring any special circumstances (see Supreme Court Decision 9Da14808 delivered on July 23, 199).

In this case, on August 3, 198, Nonparty 1 gave up the right of shareholders and the right of management for the following seven years, did not sell, sell, or transfer shares, and agreed to delegate the right of voting as a shareholder pursuant to the articles of incorporation to Plaintiff 1 to exercise the right of voting as a shareholder. Accordingly, even though Plaintiff 1 was able to exercise the right of voting as a shareholder of Nonparty 1 by proxy, it cannot be deemed that Nonparty 1 was unable to exercise the right of voting as a shareholder.

Nevertheless, the court below determined that the resolution of a provisional shareholders' meeting on June 21, 200 and March 2, 2001 on March 2, 2001 did not exist on the premise that Nonparty 1 cannot exercise voting rights as a shareholder. The court below erred by misapprehending the legal principles on exercise of voting rights and waiver of shareholders' rights, which affected the conclusion of the judgment, and the grounds for appeal pointing this out are with merit. Meanwhile, as long as the judgment of the court below that there was no resolution of a provisional shareholders' meeting on March 2, 2001, the court below did not have a resolution of the board of directors composed of the directors appointed by such resolution, the court below

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed and the case shall be remanded to the court below.

Justices Zwon (Presiding Justice)