April 19, 2018

2. The plaintiff's first preliminary claim is dismissed.

3. All of the plaintiff's primary claims and the second preliminary claims shall be dismissed.

4. The plaintiff is responsible for total costs of litigation between the plaintiff and the defendant.

1. Purport of claim

A. The primary purport of the claim

The plaintiff confirms that he is in the defendant's audit status.

B. First preliminary claims

The defendant declares his intention to conclude an audit contract with the plaintiff.

C. Secondly preliminary claims

On December 1, 2014, the Defendant confirms that a resolution that appoints the Plaintiff as an auditor is valid at a temporary general meeting of shareholders held by the Defendant.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked. The plaintiff's claim against the defendant is dismissed in entirety.

(a) Status of a party;

1) The Defendant is a corporation that mainly runs the business of manufacturing and selling electrical appliances, related organizations, etc. and is listed on the Korea Stock Exchange.

2) The Plaintiff is a person appointed as the Defendant’s auditor at the Defendant’s temporary general meeting of shareholders on December 1, 2014 as follows.

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

On September 16, 2014, Nonparty 1, Nonparty 3, and Nonparty 4 (hereinafter “Nonindicted 1, etc.”) who are the Defendant’s shareholders filed an application for a temporary general meeting of shareholders with Suwon District Court 2014 non-hap105, which was the Defendant’s shareholder. On October 17, 2014, Nonparty 1, Nonparty 3, and Nonparty 4 (hereinafter “third parties, etc.”) decided to allow the Defendant to convene a temporary general meeting of shareholders, which is the subject of the meeting, (i) the appointment of the Speaker pro tempore, (ii) the Defendant’s appointment of Nonparty 5 and Nonparty 2, and (iii) the appointment of new directors and auditors, etc.

(c) Holding general meetings;

1) On November 12, 2014, Nonparty 1 and three others, according to the above decision of permission for convocation, publicly announced the convocation of a general meeting of shareholders on November 12, 201, and on December 1, 2014, the Defendant’s temporary general meeting of shareholders (hereinafter “instant general meeting of shareholders”) was held at Pyeongtaek-si ( Address omitted) around 09:00.

2) The general meeting of shareholders of this case adopted a resolution on the agenda that Nonparty 2 dismissed Nonparty 2 from the Defendant’s audit and appointed the Plaintiff as the succeeding audit (hereinafter “the resolution of the general meeting of shareholders of this case”).

(d) Demanding the conclusion of appointment contracts;

On April 1, 2015, the Plaintiff sent a document demanding the Defendant to conclude an audit contract in accordance with the resolution of the general meeting of shareholders of this case.

(e) The auditor's term;

The defendant's articles of incorporation provide for the term of office of the auditor as follows:

The term of office of the auditor (the term of office of the auditor) of the attached Table 32-2 (the term of office of the auditor) included in the main sentence shall be until the closing of a regular general meeting of shareholders in respect of

【Unsatisfy-founded facts, Gap’s evidence Nos. 1, 2, 4, 18, Eul evidence Nos. 1, 3 through 6 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the main claim

A. Summary of the parties' assertion

1) Plaintiff

The general meeting of shareholders of this case duly adopted a resolution to appoint the plaintiff as the defendant's auditor, and thereby the plaintiff acquired the defendant's audit status, thus seeking confirmation that the plaintiff is the defendant's audit status.

2) Defendant

Since the term of office of the plaintiff has expired, there is no interest in the lawsuit to seek confirmation of the audit status.

B. Determination

1) In a case where an auditor is appointed at a general meeting of shareholders, if only the resolution of appointment and the consent of the person to be appointed are obtained the status of auditor regardless of whether the person to be appointed entered into a separate appointment contract with the representative director (see, e.g., Supreme Court Decision). However, as seen earlier, a resolution was passed to appoint the Plaintiff as the auditor at the general meeting of shareholders of this case, and on April 1, 2015, the Plaintiff requested the Defendant to enter into an audit contract in writing pursuant to the resolution of the general meeting of shareholders of this case, and thus, the Plaintiff shall be

2) Meanwhile, the Defendant’s term of office of the auditor under the Defendant’s articles of incorporation is until the end of a regular general meeting of shareholders regarding the last period for the settlement of accounts within three years after his/her inauguration. From April 1, 2015 to March 23, 2018, Nonparty 6 was appointed as the next auditor after the ordinary general meeting of shareholders was held on March 23, 2018. The fact that the registration of his/her appointment was completed on March 30, 2018 can be recognized by each of the statements in evidence No. 19, 20, and 21, because there is no dispute between the parties or that the Plaintiff’s term of office is terminated by the closing of the ordinary general meeting of shareholders as of March 23, 2018.

4) On this ground, the Plaintiff alleged that “the date of Plaintiff’s appointment of auditor shall be March 23, 2017, which recognized the Plaintiff’s position as auditor by the Supreme Court, or the provisional disposition of appointment of auditor acting for the auditor shall be taken on June 7, 2017, or that the Defendant shall take office by recognizing the Plaintiff’s status as auditor or be the final and conclusive market price of the instant judgment.” However, as stated in the judgment of remand, where an auditor is appointed at a general meeting of shareholders as determined in the judgment of remand, the appointed person shall be deemed to have acquired the status of auditor regardless of whether the appointment resolution and the consent

The plaintiff also asserts that "the defendant's assertion that he denies the plaintiff's audit status and allow the defendant to file a lawsuit by refusing to take an audit office violates the principle of good faith." However, the defendant's assertion that his term of office expires cannot be viewed as contrary to the principle of good faith. Thus, the defendant's assertion that his term of office expires cannot be

5) The Plaintiff’s term of office on the basis of the resolution of the instant general meeting of shareholders expired on March 23, 2018, and the Defendant’s latter auditor was appointed at the Defendant’s general meeting of shareholders on March 23, 2018 and completed the registration thereof. Unless there is any evidence suggesting that the absence or invalidation of the general meeting of shareholders or the revocation of the resolution was made on March 23, 2018, the Plaintiff’s claim for this portion of the Plaintiff’s claim is nothing more than seeking confirmation of the past legal relationship or legal relationship.

6) Therefore, the Plaintiff’s primary claim is unlawful.

3. Determination on the conjunctive claim

A. Determination on the first preliminary claim

1) Summary of the parties’ assertion

A) Plaintiff

Since the plaintiff was appointed as auditor in the resolution of the general meeting of shareholders of this case, the defendant is obligated to express his intention to conclude the audit appointment contract with the plaintiff.

B) Defendant

Since the term of office of the plaintiff has expired, the first preliminary claim is unlawful.

2) Determination

A) As seen earlier, the Plaintiff’s term of office expired according to the resolution of the general meeting of shareholders of this case, and the remaining auditor was appointed and completed the registration thereof. Therefore, the Defendant cannot be deemed to have the obligation to conclude an audit contract with the Plaintiff.

B) Therefore, the Plaintiff’s primary claim is without merit (the Defendant asserts to the effect that the primary claim seeking the declaration of intent to conclude an audit contract is unlawful, as the Plaintiff’s term of office expires, but the Plaintiff’s claim for this part of the claim cannot be deemed unlawful solely on the ground that the Defendant requested the Plaintiff to perform the obligation on the premise that the Defendant was liable to express the intent to conclude the audit contract, and that the said claim is deemed unlawful.)

B. Determination on the second preliminary claim

1) Summary of the parties’ assertion

A) Plaintiff

The general meeting of shareholders of this case seeks to confirm that the resolution to appoint the plaintiff as the defendant's auditor was valid since the resolution was made lawfully.

B) Defendant

Since the Plaintiff’s term of office expires, there is no interest in legal action to seek confirmation of validity of the resolution of the general meeting of shareholders.

2) Determination

A) In a lawsuit seeking confirmation of non-existence or invalidity of a resolution of appointment of an officer at a general meeting of shareholders or seeking revocation of such resolution, the officer appointed by such resolution shall no longer hold the position of the officer, and thereafter, if an officer appointed by a new resolution of the general meeting of shareholders has been completed and then the registration of appointment has been completed, the new resolution of the general meeting of shareholders shall be deemed to have no benefit of lawsuit seeking confirmation of non-existence or invalidation of the resolution or revocation of the resolution, even though there is any defect in the resolution of appointment of an officer at the first general meeting of shareholders, unless there are special circumstances, such as the absence or invalidity due to a defect in the procedure or content other than the defect of the general meeting called the general meeting convened by an unentitled person or the revocation of the resolution, barring special circumstances (see, e.g., Supreme Court Decisions 94Da50427, Feb. 24, 1995; 2008Da321, Aug. 11, 2008; 2014Da73838, Apr. 23, 2015).

B) In the instant case, the Plaintiff’s auditor’s term of office based on the resolution of the instant general meeting of shareholders expired on March 23, 2018, and the Defendant held a general meeting of shareholders on March 23, 2018 and appointed the Plaintiff’s successor auditor on March 23, 2018 and completed the registration of appointment on March 30, 2018. There is no evidence to deem that the resolution of the general meeting of shareholders was nonexistent or invalidated, or that the resolution was revoked. Therefore, seeking confirmation of the validity of the resolution of the instant general meeting of shareholders that appointed the Plaintiff as the auditor should be deemed as having no benefit of lawsuit.

C) Therefore, the Plaintiff’s second preliminary claim is unlawful.

4. Conclusion

The plaintiff's preliminary claim is dismissed as it is without merit, and the primary claim and the secondary preliminary claim are illegal and all of them are dismissed. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's preliminary claim is dismissed, and the plaintiff's primary claim and the secondary preliminary claim are dismissed. It is so decided as per Disposition by the assent of all.

Judges Kim Jong-chul (Presiding Judge) Kim Jong-si official map