주주총회결의 부존재 확인 청구의 소
1. The Defendant’s total number of shares issued by the Defendant at a special shareholders’ meeting on December 29, 2015 is 10,000,000 shares.
The defendant is a corporation incorporated with capital of 50,000,000 won (ordinary share 100,000,000 won per share) for the purpose of planning and developing design and manufacturing industry on July 26, 201.
The transfer of the general assembly of this case, the plaintiff and the non-party representative director C are those who held 50% of the shares issued by the defendant respectively.
The reasoning of each of the instant resolutions is as follows: (a) the Defendant prepared the minutes of the general meeting of shareholders on December 29, 2015, stating that (i) the Defendant made a resolution to amend the articles of incorporation with the total number of shares to be issued by the Defendant from 400,000 to 10,000 shares; and (ii) the minutes of the general meeting of shareholders, stating that the Defendant made a resolution to issue new shares of 90,000 shares, without a notice to convene a general meeting of shareholders, and without a real resolution, on December 10, 2015; and (iii) received a notarized authentication on the said minutes on January 4, 2016.
In accordance with each of the instant resolutions, registration of change in accordance with each of the instant resolutions was completed on January 4, 2016, with the content that “10,000,000 shares for total number of shares to be issued, 1,000,000 shares for total number of outstanding shares, 1,000,000 shares for common shares, and 50,000,000 won for capital.”
Article 429 of the Commercial Act provides that the invalidity of issuance of new shares may be asserted only by a lawsuit within six months from the date of issuance of new shares only by shareholders, directors or auditors. Thus, even if there is a defect in the cancellation or invalidity of the resolution of the board of directors or the general meeting of shareholders, the lawsuit can only be instituted by a lawsuit over invalidity of issuance of new shares after the issuance of new shares takes effect. However, in special circumstances where there are extremely serious defects in the resolution of the general meeting of shareholders to the extent that the issuance of new shares does not exist due to the lack of issuance of new shares, the lawsuit for confirmation of absence of a lawsuit against the resolution of the general meeting of shareholders concerning the above issuance of new shares is sought during the period of filing a lawsuit over invalidity of