[1] Legislative intent of applying Article 190 of the Commercial Act mutatis mutandis to a lawsuit seeking confirmation of absence of a resolution of a general meeting of shareholders

[2] The scope of non-existence of a resolution of a general meeting of shareholders applicable mutatis mutandis under Article 190 of the Commercial Act

[1] Article 380 of the Commercial Act provides that Article 190 of the Commercial Act shall apply mutatis mutandis to a lawsuit seeking confirmation of the absence of a resolution of a general meeting of shareholders, so that the decision shall not affect the rights and obligations of a third party to a transaction with the company before the judgment becomes final and conclusive, even if the judgment becomes final and conclusive, such judgment shall not affect the rights and obligations of the third party. The legislative intent is to protect the third party who believed and transacted outside the company which has gone through the internal decision of the

[2] The existence of a resolution in a lawsuit for confirmation of existence of a resolution under Article 380 of the Commercial Act, which applies mutatis mutandis to the provision of Article 190 of the Commercial Act, refers to a case where a resolution is held as a general meeting of shareholders of the company in an external form, and a resolution has been adopted, but the convocation procedure or method of resolution has a serious defect and it cannot be seen as the absence of legal resolution. It does not constitute a case where it is difficult to recognize the existence of a resolution of the general meeting of shareholders of the company in external form, such as the case where a meeting is prepared at all without convening a general meeting of shareholders or holding a meeting which cannot be seen as a general meeting of shareholders of the company in external form. However, even if the latter does not hold a majority of the company's stocks or hold a majority of the company's stocks, if it is deemed that the external appearance of the resolution of the general meeting of shareholders is related to the company, such as a case where the company actually controls its operation

[1] Articles 190 and 380 of the Commercial Act / [2] Articles 190 and 380 of the Commercial Act

[1] [2] Supreme Court Decision 91Da39924 delivered on August 18, 1992 (Gong1992, 2741) Supreme Court Decision 91Da33926 delivered on September 14, 1993 (Gong1993Ha, 2738), Supreme Court Decision 95Da1302 delivered on September 15, 1995 (Gong195Ha, 3392)

EfCoa Korea Co., Ltd. (Attorney Kim Jong-ju, Counsel for the plaintiff-appellant)

Korea Exchange Bank (Law Firm Han-dong Law Office, Attorney Park Jong-hee, Counsel for the defendant-appellant)

Seoul High Court Decision 93Na30121 delivered on February 8, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

Article 380 of the Commercial Act provides that the provision of Article 190 of the same Act shall apply mutatis mutandis to a lawsuit seeking confirmation of existence of a resolution at a general meeting of shareholders so that the decision does not affect the rights and obligations of a third party who transacted with the company before the decision becomes final and conclusive, even if the decision becomes final and conclusive. This purpose of the legislation is to protect the third party who believed and transacted outside the company which has undergone internal decision-making effective, and on the other hand, the existence of a resolution in a lawsuit seeking confirmation of existence of a resolution at a general meeting of shareholders under Article 380 of the Commercial Act which applies mutatis mutandis under Article 190 of the same Act refers to a case where a resolution was convened at the general meeting of shareholders of the company in question, but the procedure or method of the resolution was established but it cannot be seen as the absence of legal resolution, and it does not constitute the case where a majority of the company is in fact unable to recognize the existence of a resolution at the general meeting of shareholders, such as where the minutes are prepared at the general meeting of shareholders of the company in question or where it is held more than 19.

The court below acknowledged the facts as stated in its holding after compiling evidence and admitted the facts. The court below held that the plaintiff company's claim of this case cannot be accepted on the premise that all of the above mortgage contract were concluded by the non-authorized representative and that the above mortgage contract is null and void. In light of the records, the court below's above recognition and decision is just and acceptable, and it did not err in the misapprehension of the rules of evidence, incomplete deliberation, misapprehension of legal principles, incomplete reasoning, incomplete reasoning, and violation of the Supreme Court's precedents, etc., such as the violation of the rules of evidence, incomplete reasoning, incomplete reasoning, incomplete reasoning, and incomplete reasoning, etc., which are applied mutatis mutandis by Article 380 of the Commercial Act.

In light of the records, the court below did not make any judgment on the plaintiff's assertion that the defendant bank did not have a provisional shareholders' meeting and a board's resolution as of May 31, 1990 at the time of the above contract to establish a collateral security agreement and the modification thereof, and that the non-party who entered into the above contract refers to the representative of the plaintiff company, who was aware of or could have known that the non-existence of the above contract was not a legitimate representative of the plaintiff company. Thus, the non-existence of the above resolution of shareholders' general meeting cannot be seen as a bona fide third party. However, according to the records, the defendant bank appears to be a third party in good faith at the time of each of the above contracts, and thus, the court below's assertion that there

There is no submission of any ground of appeal as to the judgment below which dismissed the claim for the registration of establishment of each of the instant lawsuits and the registration of cancellation of the right to collateral security. Therefore, the appeal on this part is bound to be dismissed.

Therefore, the plaintiff's appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)