2. The plaintiff 1 confirms that he is in the position of inside director of the defendant new industry corporation, and the plaintiff 2 is in the position of auditor of the defendant new industry corporation.

3. Of the costs of lawsuit, the portion arising between the Plaintiffs and the Defendant New Daily Industry Co., Ltd. shall be borne by the Plaintiffs, and the portion arising between the Plaintiffs and the Defendants 2, 3, and 4 shall be borne by the Plaintiffs.

First Preliminary Claim: Defendant New Industries Co., Ltd will make the conclusion of an in-house director appointment contract to Plaintiff 1, and make each expression of intent to conclude an audit appointment contract to Plaintiff 2.

Preliminary Claim 2: At a temporary general meeting of shareholders held on December 1, 2014, it confirms that the resolution that Defendant New Daily Industry Co., Ltd. appoints Plaintiff 1 as an internal director, and Plaintiff 2 as an auditor is valid.

A. Status of the parties

(1) Defendant New Industry Co., Ltd. (hereinafter “Defendant Co., Ltd”) is a corporation that mainly engages in the manufacture, sale, service business, etc. of electrical appliances, related organizations, etc., and is a listed corporation at the Korea Stock Exchange.

(2) Defendants 2 and 3 are co-representative directors and intra-corporate directors of the Defendant Company, and Defendant 4 are each registered as auditors of the Defendant Company. Defendant 2 filed a provisional disposition order on March 10, 2015, but the above court dismissed the appeal on September 21, 2015, while the above Defendants filed a provisional disposition order on September 21, 2015, which is the Seoul High Court Decision 2015Ra20218, which was dismissed on September 21, 2015.

(b) Decision on permission to convene a special general meeting;

The non-party 3, the non-party 4, and the non-party 2 (hereinafter collectively referred to as "the plaintiffs") who are shareholders of the defendant company obtained a decision to permit the convening of a temporary shareholders' meeting of the defendant company which is the subject of the meeting (hereinafter referred to as "decision to permit the convening of the meeting of this case") by filing an application for permission for the convening of a temporary shareholders' meeting of 2014 non-hap105 of this Court.

C. Holding of the general meeting of this case

(1) On November 12, 2014, the Plaintiffs held a temporary general meeting of shareholders (hereinafter “instant general meeting of shareholders”) of the Defendant Company at Pyeongtaek-si ( Address omitted) ○○○ Underground Hotel (hereinafter “the president of the general meeting”) around 09:0 on December 1, 2014 following the public notice of convening the general meeting of shareholders on November 12, 2014.

(2) From 07:00 on the same day to maintain the order within the general meeting place, the Plaintiffs asserted that, at the entrance of the general meeting place, the number tickets were issued to the shareholders subject to attendance at the general meeting place, the number tickets were obtained, and confirmed whether the shareholders were the shareholders, and that some shareholders, including Defendant 2, Defendant 3, and Defendant 4 (hereinafter collectively referred to as “Defendants”) were admitted in one order, one of the following. From around 08:13 on the same day, the Plaintiffs’ measures were obstructed from entering the general meeting place of shareholders, and deprived Defendant 2, the representative director of the Defendant company, were in the near place of the general meeting place. Of that, at around 08:55 on the same day, Defendant 2 rejected the Plaintiff prepared in advance before the general meeting place of shareholders, and rejected the Plaintiffs’ right to participate in the general meeting at the general meeting of shareholders from around 17:7 of the same day to the effect that they were deprived of the Plaintiffs’ right to participate in the meeting at the general meeting of shareholders.

(3) Meanwhile, around 09:10 on December 1, 2013, Nonparty 5, an agent of the Plaintiffs, who is the person entitled to convene the instant general meeting, opened the instant general meeting and immediately referred to the case of appointing the Speaker pro tempore. Nonparty 6 was appointed as the Speaker pro tempore with the consent of the majority of the shareholders present. Accordingly, Nonparty 6 notified that the instant general meeting of shareholders was duly constituted, as the Speaker pro tempore, and declared the opening of the general meeting of shareholders, and then proceeded as a matter of the proposed general meeting of shareholders permitted by the court.

(4) At the time of November 5, 2014, the date of the instant general meeting of shareholders, the total number of shares issued by the Defendant Company was 54,256,324 shares. On December 1, 2014, the instant general meeting of shareholders, which was held on December 1, 2014, was present at the meeting of shareholders of 25,771,840 shares equivalent to 47.5% of the shares issued above. The shareholders present at the meeting of shareholders, who were 25,730,348 shares of the shareholders, dismissed Defendant 2 from the directors of the Defendant Company, and appointed Plaintiff 1 as a director after the appointment of Plaintiff 1, a resolution was passed with the assent of the agenda that approved the appointment of Defendant 4 as an auditor of the Defendant Company and appointment of Plaintiff 2 as an auditor.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1, 4, 5, 7, 8, Eul evidence Nos. 1, 3 through 6, the video (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination as to the claim against Defendant 2, Defendant 3, and Defendant 4 among the instant lawsuit

The plaintiffs seek confirmation of the status of director and auditor (main claim) against Defendant 2, Defendant 3, and Defendant 4 as an individual and seek confirmation of the validity of a resolution (the second preliminary claim). Thus, the plaintiffs' first preliminary claim is obviously against the defendant company, and the above part of the plaintiffs' claim is legitimate ex officio.

In a lawsuit for confirmation, it is acknowledged that a person who has the interest in confirmation of the claim has standing to sue, and a person who has an objection to such confirmation has standing to sue, and the interest in confirmation is the most effective and appropriate means to judge the plaintiff's legal status when there is a dispute between the parties as to the legal relationship subject to confirmation and the plaintiff's legal status is unstable and dangerous (see Supreme Court Decision 2003Da55059, Dec. 22, 2005, etc.).

However, a lawsuit seeking the affirmative confirmation of the status of representative against an individual who belongs to an organization without regard to an organization, or seeking the confirmation of the validity of a resolution that the representative is appointed by the organization, even if the judgment citing such a claim is declared, the judgment cannot be deemed to have an effect to an organization, and thus, it cannot be the most effective and appropriate method to resolve the dispute between the low parties (see Supreme Court Decision 97Da4104 delivered on November 27, 1998, etc.). Therefore, in the part of the claim for confirmation of the status of director and auditor and the claim for confirmation of the validity of a resolution in the lawsuit in this case by the plaintiffs, the defendant company only has the standing to be the defendant, and the part of the claim against the defendant 2, defendant 3, and defendant 4, who are an individual, is unlawful as there is no benefit

3. Determination as to the primary claim against the defendant company

A. The parties' assertion

The Plaintiffs, at the general meeting of shareholders of this case, passed a resolution that appoints Plaintiff 1 as a director and Plaintiff 2 as an auditor, and thereby, the Plaintiffs acquired the status of director and auditor of the Defendant Company. Accordingly, they sought confirmation from the Defendant Company.

In regard to this, the general meeting of shareholders of the defendant company is not a general meeting of shareholders of the defendant company, but merely an assembly held unlawfully by the plaintiffs, and even if there exists a resolution of appointment of directors and auditors at the general meeting of shareholders of the defendant company, since the plaintiffs did not enter into an employment contract with the representative director of the defendant company, the above resolution alone argues that the plaintiffs cannot be viewed as acquiring the status of directors and auditors of the defendant company

B. Whether the resolution of the general meeting of shareholders of this case is valid

Even if a general meeting of shareholders convened by a minority shareholder, a person designated by the articles of incorporation of the company shall be the chairperson of the general meeting of shareholders. Article 16(1) of the Articles of incorporation of the defendant company provides that "the representative director shall be the chairperson of the general meeting of shareholders." Thus, in the case of the general meeting of shareholders of this case convened and held in accordance with the decision to permit the convocation of this case, the defendant 2, who is the representative director of the defendant company, is the design right of the general meeting of shareholders of this case

Meanwhile, the purpose of the right to demand a convocation of a general meeting of shareholders by minority shareholders under Article 366 of the Commercial Act is to enable them to form a company's will with the lead right to protect the rights of minority shareholders (see Supreme Court Order 2000Ma3536, Mar. 29, 2001). Since the general meeting of shareholders convened upon the request of minority shareholders according to the court's decision to permit the convocation of a general meeting of shareholders is convened by minority shareholders as a result of the opposition of the board of directors, even if the court did not appoint the Speaker at the request of interested parties or ex officio, it is possible to elect those who are not stipulated in the articles of incorporation as chairperson, and further, the defendant 2, the chairman of the general meeting of shareholders, under the articles of incorporation, can exercise only the preliminary authority to appoint the Speaker, who is the agenda of the general meeting of shareholders.

In light of the following circumstances, it is reasonable to view that Defendant 2 voluntarily renounced the right of the president of the general meeting of shareholders pursuant to the Articles of incorporation of the Defendant Company by refusing the attendance of the general meeting of shareholders of this case without any justifiable reason, by comprehensively taking into account the facts acknowledged earlier and the purport of the entire arguments, which are acknowledged as a whole in light of the aforementioned facts

① On November 18, 2014, part of the shareholders of the new industry, including Defendant 2 and Defendant 3 (hereinafter “Defendant 2, etc.”) filed an application for provisional disposition to the effect that Defendant 2, etc. shall prohibit the Plaintiffs from interfering with their attendance at the shareholders’ general meeting of this case and verification of the authenticity of power of attorney, etc. to be conducted at the shareholders’ general meeting of this case. Defendant 2, etc. filed a request for provisional disposition to appoint a person to be engaged in holding the general meeting and appointment of the Speaker pro tempore. The above court granted only the prohibition of interference with the exercise of voting rights by Defendant 2, etc., and decided to dismiss the rest of the application.

② Accordingly, for the orderly operation of the general meeting of shareholders, the Plaintiffs, the person holding the authority to convene the general meeting of shareholders of this case, issued the number tickets when confirming the status of the shareholders who want to enter the general meeting of this case, and did not prohibit the Defendant’s entry to the general meeting of shareholders. Defendant 2, who convened the general meeting of this case by Defendant 2, did not prohibit the Plaintiffs from entering the general meeting of shareholders. Defendant 2, who changed the general meeting of this case, had the general meeting of this case interfered with the free entry of shareholders. Defendant 2 refused to attend the general meeting of this case. Defendant 2 decided that some of the shareholders who want to present their opinions, by gathering them at a separate place other than the general meeting of shareholders, which is the initial place where the general meeting of shareholders was convened, and rejected or discarded all of the items of the general meeting of this case (the representative cannot convene the general meeting of this case as to the same agenda as the one for which the general meeting of this case was approved).

Therefore, even if Defendant 2, who is not the president under the articles of incorporation, but Nonparty 6, who was appointed by proxy of the plaintiffs, opened a general meeting and proceed with the resolution, such circumstance alone is difficult to deem that there is a defect in the resolution of the general meeting of shareholders in this case. Even if there is a defect, it constitutes a reason for revocation of the resolution (see Supreme Court Decision 76Da2386, Sept. 28, 197). However, the above resolution is valid unless the shareholder, director, or auditor of the defendant company filed a lawsuit for revocation of the resolution of the general meeting of shareholders from December 1, 2014 to Article 376(1) of the Commercial Act within two months from the date of the resolution of the general meeting of shareholders.

C. Whether the plaintiffs acquired the status of director and auditor of the defendant company by resolution of the general meeting of shareholders of this case

The plaintiffs asserted that the plaintiffs acquire the status of director and auditor of the defendant company by the resolution of the general meeting of shareholders of this case, even if the resolution of the general meeting of shareholders of this case was made by the defendant company, the plaintiffs cannot acquire the status of director and auditor unless the representative director of the defendant company concludes an

The defendant company's assertion that only if the representative institution of the company concludes an appointment contract with the appointed person, it shall assume the position of director or auditor of the company, even though the resolution of the general meeting of shareholders on the appointment of director or auditor was adopted, it shall not be accepted in the following respect.

① The Commercial Act provides that directors and auditors shall be appointed at a general meeting of shareholders, thereby granting the right to appoint directors and auditors, which, as inherent authority of the general meeting of shareholders, cannot be granted to the representative director or a third party, even through a resolution of the general meeting of shareholders or a resolution of the general meeting of shareholders. However, there is no problem in cases where the management of the company is in the same manner as the resolution of the general meeting of shareholders, but there is a problem in cases where the management of the company objects to the conclusion of appointment contracts with directors appointed at the general meeting of shareholders, different from the resolution of the general meeting of shareholders. In such cases, if the representative director of the company is unable to obtain the status of directors if he/she does not make an offer for appointment contracts, the right to refuse to appoint directors would result in the representative director of the company, and ultimately, the right to appoint

② In particular, in the event that there is a dispute over management right as in the instant case, if the appointment contract with the representative director of the company is required for the appointment of directors and auditors, it would be the same as granting the representative director an approval for the appointment of directors and auditors. Ultimately, the existing management, who failed to make a plenary session’s plenary session’s plenary session’s plenary session, has the power to defend the management right by simple omission, which does not make an offer for appointment to the appointed officer. This is contradictory in that the existing management, who is opposed to the management, seeking to acquire the management right, can acquire the management right only with the cooperation of the representative director, even though it is impossible in itself to obtain the cooperation of the representative director, and furthermore, it is contrary to the essence of the governance structure of the corporation, which grants the board of directors the right to make a decision on the management of the company and grants the shareholders the right to appoint directors

(3) In addition, in order to secure the independence of auditors, Article 409(2) of the Commercial Act provides that “three percent (3%) rule shall not be applied to any shareholder who holds more than 3/100 of the total number of issued and outstanding shares other than nonvoting shares.” If a representative director refuses to enter into an appointment contract with an auditor appointed at a general meeting of shareholders, the term “three percent rule” under Article 409(2) of the Commercial Act does not have any meaning.

④ In addition, Article 382(2) of the Commercial Act provides that the provisions on delegation of the Civil Act shall apply mutatis mutandis to the relationship between a company and a director, and Article 415 shall apply mutatis mutandis to an auditor. Such provisions are meaningful only when an appointment contract is not concluded between a director or an auditor at a general meeting of shareholders and a company. According to the opinion that it is necessary to conclude an employment contract, the delegation contract exists between the company and the director or auditor at any time, and such provisions do not have any meaning.

⑤ If the representative director of a company refuses to conclude an appointment contract with the appointed director, he/she may take account of the methods such as requesting the representative director to compensate for damages under Article 401 of the Commercial Act or tort liability under Article 750 of the Civil Act, or requesting the court to suspend the performance of duties of the representative director so that the representative director is selected, or requesting the new representative director to convene a general meeting of shareholders to dismiss the representative director and expect the new representative director to conclude an appointment contract. However, such methods cannot be deemed as effective remedy for rights under the following reasons. Even if the representative director does not conclude an appointment contract, it is extremely difficult to specify the amount of damages incurred to the shareholders, even if there is no special resolution for the appointment of the representative director at the general meeting of shareholders, and even if it is extremely difficult for the existing representative director to do so, it is difficult for the board of directors to request the new representative director to conclude an appointment contract at the general meeting of shareholders to appoint the representative director at the general meeting of shareholders. Even if there is no possibility to accept the new representative director at the meeting of shareholders to appoint the representative director at the general meeting of shareholders.

(6) In the instant case, in a case where the Plaintiffs’ primary claim is dismissed on the premise that the appointment contract is deemed necessary in order to obtain the status of director and auditor, the Plaintiffs are dismissed on the basis of the same logic as the primary claim and the secondary claim. In the end, even though the Defendant Company’s general meeting of shareholders was appointed as director and auditor at the Defendant Company’s general meeting of shareholders, the Plaintiffs are placed in an unfair situation in which they are unable to perform their duties as director and auditor solely on the ground that the Defendant Company’s management did not cooperate in the appointment procedure. In such a situation, the Defendants are only taking the position that the appointment contract needs to be concluded in order for the Plaintiffs to acquire director and auditor without disregarding the resolution of the instant general meeting of shareholders and failing to make an offer for the appointment contract.

Therefore, even though a resolution of a general meeting of shareholders on appointment of directors and auditors was made, it is difficult to see that the representative director of the company acquires the status of director and auditor only if he/she concludes an appointment contract with the appointed person, and it is reasonable to view that the resolution itself constitutes a sole act under which the appointment of director and auditor is made under the condition that the appointment of the appointed person is suspended.

Ultimately, when the plaintiffs accepted the appointment of director and auditor on the part of the defendant company, they acquire the status of director and auditor immediately. According to the overall purport of the statements and arguments as stated in the evidence Nos. 6 and 9, the plaintiff 1 sent to the defendant 3 on December 3, 2014 a letter of content-certified mail demanding the convocation of board of directors and the registration of director and auditor, and the plaintiff 2 sent to the defendant 3 on the same day a letter of cooperation in the performance of duties as auditor. Accordingly, the plaintiffs accepted the appointment of director and auditor on the part of the defendant company. Thus, the plaintiff 1 is the director of the defendant company, and the plaintiff 2 is the auditor of the defendant company.

4. Conclusion

Therefore, the part of the plaintiffs' claim against the defendant 2, 3, and 4 is unlawful, and thus, it is dismissed. Since the main claim against the defendant company is reasonable, it is so decided as per Disposition (as the main claim against the defendant company is accepted in entirety, it is not decided as to the first and second preliminary claim).

Judges, vibration (Presiding Judge) Kim Jong-sung

1) The first preliminary claim seeking the declaration of intent to enter into an employment contract for directors and auditors is merely a person who has no relationship with the company and the representative director before the appointment contract is entered into, and thus, is no reason to believe any right against the company, and the defendant company is not obligated to bear any obligation. The second preliminary claim seeking the confirmation that the resolution of the general meeting of shareholders in this case is valid, even if it is confirmed that the resolution of this case is valid, the plaintiffs cannot acquire the status of director and auditor of the defendant company unless they enter into the employment contract with the defendant company, and thus, it cannot be deemed that there is a legal interest in confirmation.