In a case where the minutes of a general meeting of shareholders were prepared because no resolution was made by a single-person company to hold a general meeting of shareholders, whether it may be asserted that there was no resolution due to formal reasons (negative)

One company holding the total shares in a stock company shall be established as the whole general meeting if the shareholder attends the general meeting of shareholders as the sole shareholder and it is obvious that the resolution will be made according to the intent of the shareholder. Therefore, the procedure for convening the general meeting shall be unnecessary. Even if there is no fact that the general meeting has been held, if the minutes of the general meeting have been prepared as a resolution by one shareholder, it shall be deemed that the contents of the resolution had been made, barring any special circumstances, and it shall not be asserted that there has

Articles 363 and 368 of the Commercial Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Defendant-Appellee] Plaintiff 1

New Development Co., Ltd.

Seoul High Court Decision 92Na543 delivered on December 15, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. We examine the reasoning of the judgment of the court below in light of the records. The defendant company is the so-called one company in which the non-party 1 actually owns all of its shares, and the plaintiff is only the trustee of the name of its shareholder, and it cannot be viewed that there was an error of law of misconception of facts due to a violation of the rules of evidence, such as the theory of lawsuit, etc., and there is no ground for argument.

2. One company in which a person who has issued the total shares of the company in the case of a stock company holds the shares of the company shall be established as the general meeting of shareholders only when the shareholder attends the general meeting of shareholders, and since it is evident that the general meeting of shareholders will be resolved according to its shareholders, the procedure of convening the general meeting shall not be required. Even if there is no fact that the general meeting of shareholders was held, if the minutes of the general meeting of shareholders were prepared as a resolution by one shareholder, the contents of the resolution shall be deemed to have existed unless there are special circumstances, and it shall not be argued that there was no resolution due to formal reasons (see, e.g., Supreme Court Decisions 74Da1755, Apr. 13, 197; 91Da19500, Jun. 23, 199

In this regard, the court below's decision that the defendant company is a real one-person company, and the above non-party 1's intent as its sole shareholder is the resolution of the general meeting of shareholders. Thus, even if the general meeting of shareholders was not held through legitimate convocation procedure, so long as the minutes of the general meeting of shareholders on December 20, 1989 that the non-party 2 decided to appoint the non-party 2 as director of the defendant company on the basis of the above non-party 1's intention were prepared, the above resolution cannot be viewed as a case where the above resolution itself is not in existence, and there is no such unlawful ground as misunderstanding of legal principles

In addition, a lawsuit seeking confirmation of invalidity of a resolution of a general meeting of shareholders is allowed only when the contents of the resolution are in violation of the statutes or the articles of incorporation, and it cannot be asserted that the resolution of the general meeting of shareholders is null and void on the ground that the legitimate procedure for convening the general meeting of shareholders is decided. Therefore, it cannot be said that the dissenting opinion

3. In addition, according to the legal reasoning of the court below, the defendant company's board of directors of December 20, 1989 was not held through legitimate convocation procedure. However, there is a oral agreement between all the directors of the defendant company including the plaintiff and the non-party 2, who were present at the same time, to resign the director and appoint the above non-party 2 as a successor director, and appoint the above non-party 1 as a successor representative director. Accordingly, the above non-party 1 was decided to appoint the above non-party 1 as the representative director, and the registration of the change of the corporation was completed. Thus, even if the board of directors of the defendant company was not held through convocation procedure as prescribed by the law or the articles of incorporation, the above agreement shall be deemed valid by the resolution of the board of directors of the defendant company, unless there are any special circumstances. Accordingly, the judgment below to this purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the non-party 1.

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice)