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red_flag_2(영문) 서울고등법원 2010. 9. 30. 선고 2010나17392 판결

[대의원회결의무효확인][미간행]

Plaintiff and appellant

Plaintiff 1 and 44 others (Law Firm Chungcheong, Attorney Song Jong-hun, Counsel for the plaintiff-appellant)

Defendant, Appellant

Korea Medical Association (Law Firm Gyeong & Yang, Attorneys Lee Gyeong-hwan, Counsel for the plaintiff-appellant)

Conclusion of Pleadings

August 26, 2010

The first instance judgment

Seoul Western District Court Decision 2009Kahap9034 Decided February 4, 2010

Text

1. Revocation of a judgment of the first instance;

2. Ascertainment that the resolution of amendment of the articles of association stated in attached Table 1, which was made at the representative meeting of the defendant on April 26, 2009, is null and void.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

It is as set out in paragraphs 1 and 2 of this Decree.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of this court's decision is as stated in the reasoning of the judgment of the court of first instance, except for adding the judgment under Paragraph 2 below, and therefore, it is cited by the main text of Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the parties' arguments

(1) Summary of the plaintiffs' assertion

As at the time of the resolution of this case, the resolution of this case is null and void, since the registered representatives falling under the quorum for proceedings under the Articles of Incorporation 243 and 162 did not reach the attendance of 2/3 or more.

(2) Summary of the defendant's assertion

At the time of the resolution of this case, the resolution of this case is valid inasmuch as the attendance of not less than 243 registered representatives who correspond to the intention and the quorum under the Articles of Incorporation 243 and not less than 162 persons who are 2/3 of the present representatives and with the approval of not less than 162 persons who are 1

In other words, the Defendant did not specify the names of the representatives present at the time of making a resolution on a certain agenda, but tried to identify the number of the representatives present at the meeting and identify them through the proceeding members. This was the method of selecting representatives from time to time to time at the general meeting that it is difficult for them to record the names of the representatives present at each agenda on a daily basis. The Defendant has already passed a resolution to amend the articles of incorporation in the above way. At the time of the resolution of this case, the resolution was made until it is confirmed that 162 persons actually attended at the meeting through the proceeding members, taking into account the number of the representatives present at the meeting.

(b) Markets:

On the other hand, according to Article 19(3) of the Articles of Incorporation, the amendment of the Articles of Incorporation at the General Meeting of Representatives requires the attendance of not less than 2/3 of registered representatives and the approval of not less than 2/3 of the representatives present at the General Meeting of Representatives. It is recognized by the statement of evidence No. 2 of the Article 19(3). Whether the resolution of this case satisfies the quorum under Article 19(3) of the

However, in addition to the statements in Eul evidence 13 and the testimony of non-party 1 of the party witness non-party 1, it is found that the Speaker did not confirm the names of the representatives present at the time of the resolution in this case and confirmed the number through the members present at the meeting in this process, and it is not specifically identified until now. The above fact of recognition alone is difficult to deem that there was a legitimate resolution meeting the quorum at the time of the resolution in this case, and it is insufficient to recognize it solely by the statements in Eul evidence 13 and 15.

Ultimately, the resolution of this case is null and void unless there is any evidence to acknowledge whether 243 representatives are present at the meeting of 162 representatives, who are registered representatives, who are 2/3 or more of 243 and 162 stipulated in the articles of association,

3. Conclusion

Therefore, the resolution of this case is null and void, and as long as the defendant contests the validity of the above resolution, it is recognized that there is a benefit to seek confirmation from the plaintiffs. Thus, the plaintiffs' claims seeking confirmation of invalidity of the above resolution shall be accepted with merit, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by accepting the plaintiffs' appeal and confirming its invalidity.

[Attachment]

Judges Kim Jong-ju (Presiding Judge)