(a) Purport that Article 380 of the Commercial Act applies mutatis mutandis to the provisions of Article 190;

(b) Where it is difficult to recognize the meaning of the existence of a resolution in a lawsuit for confirmation of existence of a resolution under Article 380 of the Commercial Act and the existence of a resolution at a general meeting of shareholders, but there is room to recognize the company's liability by applying Article 190 of the Commercial Act

C. Whether an act of a representative appointed as a resolution of the general meeting of shareholders prepared only by minutes without holding the general meeting of shareholders is attributable to the company with regard to the occurrence of the appearance of representative qualification by preparing the minutes, if the company takes responsibility pursuant to Article 395 of the Commercial Act (affirmative)

D. The meaning of “a special resolution of the general meeting of shareholders” under Article 374 subparag. 1 of the Commercial Act and “a suspension of business” in this case where the business was already discontinued or suspended at the time of disposing of the business assets which are the basis of the existence of the company (negative)

A. Article 380 of the Commercial Act provides that Article 190 of the same Act shall apply mutatis mutandis to a lawsuit seeking confirmation of existence of a resolution of a general meeting of shareholders, so that even if the judgment for confirmation of existence of a resolution becomes final and conclusive, the effect of the judgment shall not affect the rights and obligations of a third party who transacted with the company before the judgment becomes final and conclusive, and the purport of this decision is to protect the third party who believed and made a transaction with the company that the external act of the company which underwent decision-making inside the company is valid

B. 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 same Act, refers to a case where a resolution is held as a general meeting of shareholders of the relevant company, 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 a general meeting of shareholders of the relevant company in the appearance of the relevant company, such as where the minutes were prepared at all without convening the general meeting of shareholders or holding a meeting which cannot be seen as a general meeting of shareholders of the relevant company, or where a person who presented the appearance of the resolution of the general meeting of shareholders, such as preparing minutes, etc., holds a majority of the company or holds shares, even if it is not held by the majority of the company, if it is deemed related to the company at the appearance of the resolution of the general meeting of

C. Under Article 395 of the Commercial Act, the company is liable for the act of a representative of expression only when it explicitly or implicitly approves the use of the name of representative of expression. Thus, if the company is responsible for the act of a representative of expression without convening a general meeting of shareholders and without holding the minutes, it should be recognized that the company is responsible for the act of a representative of the representative of the meeting, who is appointed by a resolution of the general meeting of shareholders, without holding the meeting, is responsible for the act of the representative of the representative of the meeting.

D. A special resolution of the general meeting of shareholders under Article 374 subparagraph 1 of the Commercial Act is required in cases where the disposal of a company's business property, other than its own business, results in the transfer or discontinuation of the whole or important part of the company's business. However, in cases where the company has already discontinued or suspended its business at the time of disposal of the company's business property which is the basis of the existence of the above company, it cannot be said that the whole or part of the business has been discontinued or suspended only due to such disposal. Thus, a special resolution of the general meeting of shareholders does not require a special resolution. The above "suspension of business" refers to a situation corresponding to the discontinuance of business because it has waived its business and suspended all its business activities, and does not constitute a case where

(a)Article 380 and Article 190 of the Commercial Code; § 395 of the Commercial Code; § 374(1) of the Commercial Code;

A. (B) Supreme Court Decision 91Da39924 delivered on August 18, 1992 (Gong1992,2741); Supreme Court Decision 74Da1366 delivered on May 27, 197 (Gong1975,8462); Supreme Court Decision 76Da878 delivered on May 10, 197 (Gong197,1079) (Gong1992,2547) D. Supreme Court Decision 91Da35816 delivered on July 28, 1992 (Gong1992,2547) (Gong1963 delivered on June 11, 1985)

Sejong Trade Co., Ltd., Counsel for the plaintiff-appellant and one other

Jinyang Co., Ltd., Counsel for the defendant-appellant and one other

Seoul Trust Bank Co., Ltd., Counsel for defendant-appellee

Seoul High Court Decision 90Na29441 delivered on April 12, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the grounds of appeal Nos. 2 and 4 as well as the grounds of appeal for supplementary appeal after the Plaintiff’s disease.

(1) Article 380 of the Commercial Act provides that Article 190 of the same Act shall apply mutatis mutandis to a lawsuit for confirmation of existence of a resolution of a general meeting of shareholders, so that the judgment shall not affect the rights and obligations of a third party who has transacted with the company before the decision becomes final and conclusive, even if the judgment becomes final and conclusive, and it shall not be deemed to have an effect on the rights and obligations of the third party who has transacted with the company before the decision becomes final and conclusive. It shall not be said that the legislative intent is to protect the third party who has transacted with the company

However, Article 380 of the Commercial Act does not provide for all forms of lawsuits seeking confirmation of existence of a resolution of a general meeting of shareholders, which applies mutatis mutandis under Article 190 of the same Act, as a whole, in all forms of lawsuits seeking confirmation of existence of a resolution of a general meeting of shareholders, and rather provides that “an action demanding confirmation of existence of a resolution of a general meeting on the ground that there is a serious defect in the procedures for convening a general meeting or the method of resolution, which makes it difficult to see the general meeting of shareholders as having existed.” This is interpreted as a purpose of the above provision to the effect that, although the procedure and method of resolution were at least an internal decision of the relevant company, a serious defect in the method of convening a general meeting of shareholders could not be deemed as having existed, the aforementioned provision aims at the case where a person who does not have any relationship with the company or engages in the management control of the company did not participate in the preparation of minutes, thereby making the company liable as an act more effective even if the appearance of the resolution of the general meeting of shareholders is not related at all, and thus it violates equity.

Therefore, 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 same Act, the existence of a resolution in the lawsuit for confirmation of existence of a resolution shall be held as a general meeting of the company in an external form, and it shall be deemed that there is a serious defect in the convocation procedure or method of resolution, and only the absence of legal resolution shall be deemed to be the absence of a resolution. It shall be deemed that it does not constitute a case where it is difficult to recognize the existence of a resolution in the lawsuit for confirmation of existence of a general meeting of the company in external form, such as the case where the minutes were prepared without convening

However, even in the latter case, if the person who presented the appearance of the resolution of the general meeting of shareholders, such as preparing minutes, holds a majority of the company's shares or does not hold a majority shares, it should be deemed that the company is related to the appearance of the resolution of the general meeting of shareholders, such as the case of a shareholder who actually controls the operation of the company, there

The Supreme Court Decision 82Meu1810 Decided March 22, 1983 is related to a matter before the amendment by Act No. 3724 of April 10, 1984, and thus does not conflict with the above opinion.

(2) Examining the above real estate holding by Nonparty 1 and the above non-party 1 were appointed as the representative director of the above non-party 6, and the non-party 2 resigned on January 13, 1987, and only the above non-party 2 was appointed as the representative director on February 24, 1987, and the non-party 3 was appointed as the representative director on February 26, 1987, and the above non-party 6's non-party 9's non-party 1 and the non-party 6's non-party 9's non-party representative director's non-party 6's non-party representative director's non-party 7's non-party 9's non-party 6's non-party 9's non-party 6's non-party 9's non-party 6's non-party 7's non-party 9's non-party 6's non-party 1 and the above non-party 2's non-party 9's non-party 9'

(3) However, if the resolution of the general meeting of the Plaintiff on May 16, 1987 as of May 16, 1987 is not adopted at the meeting of the Plaintiff company, but it is not only for Nonparty 1, who is not the representative director at the time, to make the minutes by gathering the persons who are not shareholders, and to produce the appearance of the general meeting resolution, it shall not be deemed as the existence of the resolution under Article 380 of the Commercial Act as mentioned above.

However, the above non-party 1 is a shareholder holding 148,00 shares out of 400,000 shares issued by the plaintiff company at the time. If the majority shares are not the majority shares but actually controlled the operation of the plaintiff company, the liability of the plaintiff company may be recognized in accordance with the case of absence in substance. However, it is not clear whether the above non-party 1 continued to control the company even after resignation of the representative director of the plaintiff company.

Ultimately, without examining whether the non-existence of the resolution of the general meeting of shareholders as of May 16, 1987 of this case, which became final and conclusive by the court below, enters the category of non-existence of the above Article 380 of the Commercial Act, and recognizing the liability of the plaintiff company is subject to the application of Article 380 of the Commercial Act without examining whether the non-existence of the resolution of the general meeting of shareholders as of May 16, 1987 of this case, and therefore, it commits an error of law

(4) Under Article 395 of the Commercial Act, the company is liable for the act of a representative of expression only when it explicitly or implicitly approves the use of the name of the representative of expression by explicitly or explicitly (see, e.g., Supreme Court Decision 74Da1366, May 27, 197; Supreme Court Decision 76Da878, May 10, 197). Thus, as in this case, if the company is liable for the act of a representative of expression without convening a general meeting of shareholders or holding the minutes, it should be recognized that the company is responsible for the act of a person appointed as the representative of the resolution of the general meeting of shareholders who prepared the minutes only without holding the meeting of shareholders, if it intends to take the responsibility for the act of the representative of expression, the company is responsible for the act of the representative

However, according to the facts and records of the decision of the court below, at the time when Nonparty 1 prepared the minutes of the above general meeting and registered Nonparty 6 as the representative director, Dong is merely one of three directors on the company registry, and it can be known that Nonparty 3, the representative director, committed the above act against the intention of Nonparty 3. Thus, it is difficult to view that the above Nonparty 1 was responsible for withdrawing the appearance of representative qualification without authority for the Plaintiff company.

However, if the above non-party 1 actually controlled the operation of the company as a major shareholder, there is room for recognizing the reason attributable to the company's appearance of the representative qualification as above. However, it is not clear whether the judgment of the court below has become final and conclusive.

In conclusion, the court below held that the plaintiff company, who participated in the above non-party 1 as a major shareholder and registered the above non-party 6 as a representative director, cannot be exempted from liability for the non-party 9, etc. who transacted the above non-party 6 as a legitimate representative director, because there is an error of law that affected the conclusion of the judgment through the legal scenarios and incomplete hearing as to the requirements for the liability of the company under Article 395 of the Commercial Act.

2. We examine the grounds of appeal No. 1 of the Plaintiff’s Park Jong-chul, Counsel for the plaintiff’s attorney

(1) According to the reasoning of the judgment below, since the real estate and movable property in this case are the only property or important business property of the plaintiff company, its transfer requires a special resolution of the general meeting of shareholders pursuant to Articles 374 and 434 of the Commercial Act, each contract in this case and each of the business property transfer contracts dated May 20, 1987, without a special resolution of the general meeting of shareholders of the plaintiff company. Accordingly, each of the above contracts is asserted as null and void, since the real estate and movable property in this case are important business property which serves as the foundation for the existence of the plaintiff company, and each of the above contracts on May 20, 1987 and the 30th of the same month were concluded without a special resolution of the general meeting of shareholders of the plaintiff company, the court below rejected the plaintiff company's above disposal of the movable property in this case as the officers of the plaintiff company were completely suspended from its operation on February 26, 1987, while the plaintiff company's park was unable to receive wages until it was in fact non-party 1's right and the above disposal of the above movable property.

(2) However, even if the disposal of the company's business assets, other than the company's own business assets, results in the same result as the transfer or discontinuation of all or part of the company's business, a special resolution of the general meeting of shareholders under Article 374 subparagraph 1 of the Commercial Act is required in the disposal of the company's business assets. However, if the company has already discontinued or suspended its business at the time of disposal of the company's business assets which are the foundation of the company's existence, it cannot be said that the whole or part of the business is discontinued or suspended only due to such disposal, and thus, it does not require a special resolution of the general meeting of shareholders (see, e.g., Supreme Court Decisions 84Meu963, Jun. 11, 1985; 8Meu162, Apr. 12, 198).

As of the time of the original adjudication, even if the executive officers of the Plaintiff Company were to be in default on or around February 26, 1987 due to the occurrence of a large amount of insolvency, and the operation of the Plaintiff Company was completely suspended due to the failure of its executive officers to pay wages, and the Plaintiff Company did not engage in the business until May 20 of the same year due to the occurrence of the act of disposition in this case during farming, it can be deemed that the efforts to manage the default of executive officers' failure to pay taxes are for the removal of the aggravated financial situation, and it can be deemed that the efforts to continue the business was based on the premise of the continuation of the business. However, in the case of the above act of disposition in which the three months have passed due to the delayed payment of wages, it is difficult to view it as temporary suspension of business due to the aggravation of management status, just because of the above circumstances at the time of the original adjudication, it is difficult to view it as suspension of business corresponding to the discontinuance of business.

Ultimately, the court below erred by misapprehending the legal principles on the scope of transfer of business which requires a special resolution under Article 374 subparagraph 1 of the Commercial Act, which affected the conclusion of the judgment, and there is a ground for the discussion on this point.

3. Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)