A. Whether Article 380 and Article 190 of the Commercial Act apply to a legal relationship between a third party and a third party who is not a company with the validity of a resolution of the general meeting of shareholders in a lawsuit (affirmative) and whether a party may assert the invalidity or non-existence of a resolution of the general meeting of shareholders in the lawsuit in question (negative)

B. The meaning of a judgment for confirmation of existence of a resolution of the general meeting of shareholders and whether Article 190 of the Commercial Act shall apply mutatis mutandis to a case where there is a serious defect in preparing a false minutes of the general meeting of shareholders to the extent that the resolution can not be deemed to exist, without going through the actual convocation procedure and the procedure of meeting (negative)

(c) Requirements for a company to be liable for any act of the representative director which is expressed by him under Article 395 of the Commercial Act.

D. Whether the absence of a resolution of the general meeting of shareholders constitutes a non-existence of a resolution of the general meeting of shareholders where a resolution of the general meeting of shareholders is prepared by a person delegated by a large shareholder who owns a large number of shares without actual convocation procedure

A. Where the validity of the resolution of the general meeting of shareholders becomes a preliminary question in a lawsuit between a third party, not the company, the parties may at any time assert that the resolution of the general meeting of shareholders is invalid or not existing from the beginning in the lawsuit at issue, and it does not necessarily require that the company be brought first against the company. As to the legal relationship between the third party, Articles 380 and 190 of the Commercial Act shall not apply.

B. Although a judgment on the existence of a resolution of a general meeting of shareholders under Article 380 of the Commercial Act is once a decision on the existence of an internal decision on the resolution of a general meeting of shareholders exists, it is reasonable to interpret that such a decision means a decision to confirm that the resolution cannot be deemed a resolution of a general meeting of shareholders legally effective because there is a serious defect in the procedure of convening a general meeting of shareholders or the method of resolution. In a case where there is a serious defect to the extent that the resolution cannot be deemed to exist, without actually undergoing the procedure of convening a general meeting and the actual procedure of meeting, a false copy of the minutes of the general meeting of shareholders shall be prepared and it shall not be deemed to constitute a judgment on the existence of

C. Under Article 395 of the Commercial Act, in order for a company to be held liable for the act of the representative director, the third party who believed the act of the representative director must have acted in good faith. In this case, in order for the company to have permitted the representative director actively or implicitly, it shall be limited to the case where the real representative director permits it, or the number of directors as stipulated in the articles of incorporation of the company for the formation of a resolution of the board of directors at least the number of directors for the company to have the resolution of the board of directors, and if there is no provision in the articles of incorporation, at least the number of directors shall be allowed actively or implicitly by the majority of the fixed number of directors. Thus, in a case where the person whose representative director was registered as the representative director is illegal and only the actual representative director, it shall first be examined whether the above representative director was responsible for the appointment of the representative director, and accordingly,

D. If a written resolution of the general meeting of shareholders is prepared without going through the actual convocation procedure and the meeting procedure, even if the written resolution was prepared by a person delegated by a large shareholder who owns a large number of shares, the said resolution shall be deemed nonexistent, and it shall not be deemed that it was merely a cause for revocation of the resolution of the general meeting of shareholders, as it was a defect to the extent that it did not notify the certain shareholders of

(d)Article 190, Section 380, Section 395, Section 363 of the Commercial Code;

B. Supreme Court Decision 91Da14369 delivered on August 18, 1992 (Gong1992, 2730). Supreme Court Decision 91Da39924 delivered on August 18, 1992 (Gong1992, 2741). Supreme Court Decision 76Da878 delivered on May 10, 197 (Gong197, 1079) (Gong1079 delivered on July 28, 1992)(Gong78Da1269 delivered on November 14, 1978).

Plaintiff 1 and 3 others, Counsel for the defendant-appellant-appellee et al.

Defendant 1 et al., Counsel for the plaintiff-appellant

Defendant 1 et al., Counsel for the defendant 1-appellant and 3 others

Daegu High Court Decision 87Na1101 delivered on December 27, 1990

All appeals are dismissed.

The costs of appeal are assessed against the defendant and the defendant joining the defendant.

The grounds of appeal are examined (to the extent of supplement in case of the supplemental appellate brief for the defendant and the supplementary appellate brief for the defendant's and the supplementary appellate brief for the defendant's supplementary appellate brief).

1. As to the part concerning the interpretation of Articles 380 and 190 of the Commercial Act among the part concerning the interpretation of Articles 380 and 190 among the part concerning the grounds of appeal Nos. 1, 3, and 4 by the defendant and the defendant joining the defendant, the part concerning the non-party No. 1's assertion that the non-party No. 1 is a legitimate representative director of the Nakdongcheon Tourism Corporation, the grounds of appeal by the defendant and the defendant joining the defendant

원심판결 이유에 의하면, 원심은 그 증거에 의하여 소외 2가 부산 남구 (주소 생략) 지상에 호텔경영을 위한 7층 건물의 공사를 진행 중 1980.1.16. 그 공사를 완공하여 관광사업을 목적으로 하는 주식회사 낙천관광(1982.3.25. 부산신라관광호텔 주식회사로 상호변경 되었다가 1985.5.21. 낙천관광 주식회사로 다시 상호가 변경되었다. 이하 낙천관광이라고만 한다)을 설립, 10,000주의 주식을 발행하여 자신 및 인척들의 명의로 5,000주를 인수하고, 소외 3이 역시 그 자신 및 타인들 명의로 5,000주의 주식을 인수한 후 함께 대표이사로 취임한 사실, 그 후 위 주식 중 일부는 소외 4, 소외 5 등에게 양도되고, 1982.2.25. 소외 6이 낙천관광의 대표이사로 취임한 후 50,000주의 신주를 발행하여 모두 스스로 이를 인수함으로써 1983.7.27. 총주식 60,000주 중 소외 6이 55,300주, 소외 2가 4,700주를 소유한 사실, 소외 6은 회사의 경영에 실패하여 같은 해 8.23. 소외 7과 소외 8에게 낙천관광의 경영 및 주주권의 행사에 관한 권한 일체를 위임한 채, 대표이사직을 사임 도피하였으며, 이에 소외 7은 낙천관광의 대표이사로 취임하고 소외 9를 끌어들여 경영의 합리화를 꾀하였으나 실패하자, 위 소외 9의 제의에 따라 금 340,000,000원을 지급하고 주식 31,800주와 회사의 경영권을 인수하겠다고 하는 소외 10을 받아들이기로 하여 1984.8.13. 자신은 대표이사의 직에서 사임하고 소외 10의 의사에 따라 소외 10을 대표이사로, 소외 11, 소외 12, 소외 13, 소외 14를 새로운 이사로 선임하였으나 소외 10은 위 주식양수금 등을 지급하지 못한 채 같은 해 10.30. 대표이사직을 사임, 소외 7이 재취임하였다가 같은 해 12.7. 소외 10의 요구로 그가 다시 대표이사로 복귀하였으나 수표부도 등으로 도피중인 사실, 이에 소외 7은 위 건물을 완공할 재력 있는 사람을 찾아 공사를 완료하든지, 아니면 위 건물을 양도하여 투하자본을 회수하려고 마음먹고 이에 장애가 되는 소외 10 등의 새로운 이사진을 퇴진시키고 경영진을 개편하고자 소외 1과 공모하여, 1984.12.12. 현재 소외 6의 명의수탁자인 소외 8이 55,000주, 자신이 300주, 소외 1이 4,700주의 주주라는 회사주주명부를 작성하고는, 임시주주총회는 이사회결의 기타 법규가 정하는 바에 의하여 소집할 수 있고, 대표이사는 이사회에서 선임할 수 있도록 하되, 경우에 따라서는 주주총회에서도 대표이사를 선임할 수 있으며, 이사는 주주총회에서 선임하고, 대표이사가 이사회를 소집하도록 한 낙천관광의 정관규정에 따른 임시주주총회나 이사회를 실제로 소집, 개최한 일이 없음에도 마치 바로 그날 주주총회가 개최되어 대표이사 소외 10과 이사들 중 소외 11, 소외 12, 소외 13, 소외 14를 모두 해임하고, 이사로 소외 1, 소외 15, 피고보조참가인 1을 새로 선임하기로 결의한 양 주주총회의사록을 허위작성한 후, 같은 날 새로 선임된 이사들로 구성된 이사회에서 기존의 이사인 소외 8을 대표이사로 선임한 것처럼 이사회의사록 또한 허위로 작성하고, 1985.1.4. 에는 다시 소외 1을 대표이사로 내세우기로 하여 종전이사나, 새로 선임된 이사들에 대한 소집통지는 물론 실제의 이사회를 개최한 일도 없이 새로이 구성된 이사회에서 소외 8이 대표이사직을 사임하고 소외 1을 대표이사로 선임하였다는 허위의 의사록을 작성한 후, 같은 달 8. 소외 1을 대표이사로 등기하였으며, 위와 같은 경위로 대표이사로 선임된 소외 1은 그 무렵 피고가 이 사건 호텔건물 신축공사에 따른 낙천관광의 각종 채무를 인수함과 아울러 자금을 투자하겠다고 나서게 되자, 같은 달 8. 피고와 사이에 낙천관광의 대표이사 자격으로 이 사건 호텔건물을 금 650,000,000원의 한도 내에서 기성고 감정가액에 따라 매도하기로 하는 내용의 매매예약을 체결하였으며, 피고는 이에 기하여 법원의 가등기가처분의 결정을 받은 후 같은 해 3.7. 위 호텔건물에 대하여 낙천관광명의의 보존등기를 경료함과 동시에 피고 명의의 소유권이전청구권보전을 위한 가등기를 경료한 사실, 한편 위 호텔건물에 대하여는 같은 해 5.10. 낙천관광의 채권자에 의한 신청에 의하여 강제경매가 개시되어 원고들이 1986.1.31. 경락허가결정을 받고 그 결정이 확정되어 같은 해 3.4. 경락대금을 완납한 사실 등을 인정한 후, 위 인정사실에 의하면, 위 1984.12.12.자 주주총회는 그 실제의 소집절차와 실제의 회의절차를 거치지 아니하여 도저히 그 결의가 존재한다고 볼 수 없을 정도로 중대한 하자가 있어 부존재한다고 할 것이고, 같은 날 및 1985.1.4.의 이사회 역시 그 소집절차와 이사들에 의한 구체적 회의를 거치지 아니한 채 이루어진 것으로서 무효(부존재)라고 할 것이므로 이와 같은 그릇된 절차에 의하여 선임된 소외 1은 낙천관광의 적법한 대표이사가 아니라고 할 것이고, 따라서 그가 피고와 사이에 체결한 위 매매예약은 더 나아가 살필 필요 없이 회사에 대하여 효력이 없고 이에 따른 피고 명의의 가등기 역시 원인무효라고 판시하고 있는바, 기록에 비추어 원심의 사실인정 및 판단은 정당하고 거기에 채증법칙을 위배하여 사실을 오인하였다거나 주주총회결의 부존재나 이사회결의 부존재에 관한 법리를 오해한 위법이 없다.

In addition, the court below's rejection of the defendant's assertion on the effect of the resolution of the general meeting of shareholders is just and there is no error of law by misunderstanding the legal principles as to the invalidity or absence of the resolution of the general meeting of shareholders and Articles 380 and 190 of the Commercial Act in a lawsuit between a third party, not the company, where the resolution of the general meeting of shareholders becomes invalid or non-existent at any time in the lawsuit at any time, and it does not necessarily require that the first lawsuit be brought against the company, and in legal relations between the third parties, Articles 380 and 190 of the Commercial Act shall not apply.

The Supreme Court Decisions are not appropriate in this case since the provisions of Articles 380 and 190 of the Commercial Act apply to a party member's claim as a lawsuit seeking confirmation of the invalidity or absence of a resolution of a general meeting of shareholders.

In addition, the judgment of confirmation of existence of the resolution of the general meeting of shareholders stipulated in Article 380 of the Commercial Act refers to the judgment that confirms that the resolution cannot be deemed a resolution of the general meeting of shareholders in force by law because there is a serious defect in the convocation procedure or method of resolution of the general meeting of shareholders, although the decision of confirmation of existence of the resolution of the general meeting of shareholders exists once the decision of the general meeting of shareholders is made, it is reasonable to interpret it as meaning a judgment that confirms that the resolution cannot be seen as a resolution of the general meeting of shareholders in force by law. Therefore, in the facts acknowledged above, Article 190 of the Commercial Act does not apply mutatis mutandis (see Supreme Court Decision

The argument is without merit.

2. Of the grounds of appeal Nos. 2 and 4 by the Defendant and the Intervenor 1, the part concerning the establishment of the apparent representative director among the grounds of appeal Nos. 2 and 4 by the Defendant and the Intervenor 1, and the Defendant’s Intervenor juk Tourism Co., Ltd.

Under Article 395 of the Commercial Act, in order for a company to be held liable for an act of the Apparent representative director, the third party who believed the act of the Apparent representative director must have acted in good faith, and the company shall be limited to cases where the Apparent representative director permits the Apparent representative actively or implicitly. In such cases, in order for the company to be held to have permitted the Apparent representative, the number of the directors as stipulated in its articles of incorporation at least for the formation of a resolution of the board of directors, or the number of the directors as stipulated in its articles of incorporation for the resolution of the board of directors at least for the resolution of the board of directors,

According to the reasoning of the judgment below, the court below held that since it is recognized that the non-party 1 was a representative director in appearance from January 8, 1985 to May 21, 198 of the same year, and most of them were conducted after concluding a pre-sale agreement, which is the cause of the provisional registration of this case, and such circumstances alone allow the non-party 1 to actively or impliedly allow the non-party 1's representative director's activities at the time of the pre-sale agreement, it is difficult to see that the defendant has negotiated with the non-party 1 by believing that the non-party 1 was not a legally appointed representative director at the time of the provisional registration of this case, according to each of the statements in No. 18-2, No. 18-2, No. 3, 5, 6, and 8, etc., it is recognized that the defendant was not a legally

The court below acknowledged the defendant as a malicious person that the non-party 1 was not a legitimate representative director as above. The above evidence is the statement of the non-party 1 and the non-party 7 and the indictment against the defendant who mainly admitted it. According to the records, the non-party 1 was convicted of perjury in relation to the above statement. In light of the above, it can be known that the above statements are false and the above statements are re-reconvened, each of the above evidences is hard to be easily believed. In light of the above evidence, the court below which concluded the defendant as a malicious person in violation of the rules of evidence. Further, in case where the person who was registered as the representative director was illegal as the representative director, the court below should first consider whether there was a company's reason for the appointment of the above representative director, and therefore, it should not be said that the court below failed to exhaust all necessary deliberations.

However, according to the above facts and records, at the time of the resolution of the board of directors on January 4, 1985 that the above non-party 1 was appointed as the representative director, there are seven directors who were illegally dismissed by the resolution of the general meeting of shareholders on December 12, 1984, and all non-party 1 were appointed by the non-party 7 and non-party 7 and non-party 8, and the above non-party 1 is eventually appointed by the non-party 7 and the non-party 8 among the legitimate directors. According to the articles of incorporation (A evidence No. 12-8), the resolution of the board of directors stipulated that the resolution of the board of directors shall be decided by a majority of all directors. Thus, the above circumstance alone does not allow the above non-party 1 as the representative director, and there is no other evidence that the non-party 1 was permitted to be the above non-party 1 as the representative director, and therefore, it is justified in the conclusion of the court below denying liability due to an expression representative director.

3. As to the ground of appeal No. 1 by the Defendant and the Intervenor 1’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Plaintiff’s Plaintiff’s Plaintiff’s allegation to the same effect among the grounds of appeal No. 2 by the Defendant and the Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Defendant 1’s Defendant and the Defendant’s Intervenor’s Intervenor’s Defendant

In light of the records, the court below's rejection of the assertion on the ground that the non-party 2, who is a shareholder, conferred the power to make such a resolution to the non-party 1, or ratified it later, in the resolution of the general meeting of shareholders of December 12, 1984 and the resolution of the general meeting of shareholders of January 28, 1985, there is no evidence to prove that the non-party 2 granted the power to make such a resolution to the non-party 1, and there

In addition, if a written resolution of the general meeting of shareholders is prepared without going through the convocation procedure and the actual meeting procedure, even though the written resolution of the general meeting of shareholders was prepared by the person delegated by the large shareholder who owns a large number of shares, the said resolution cannot be deemed non-existence of the said general meeting of shareholders, and it cannot be said that it is merely a reason for revocation of the resolution of the general meeting of shareholders because

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the absence of a resolution.

The argument is without merit.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the defendant and the defendant joining the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)