2019 Du207510 Verification of the absence of a resolution of the special shareholders' meeting

1. A stock company;

2. B

[Judgment of the court below]

C. Stock Company

[Judgment of the court below]

Attorney Gyeong-chul et al.

December 19, 2019

February 6, 2020

1. The plaintiff A's lawsuit is dismissed. 2. The plaintiff B's claim is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

On the other hand, it is confirmed that there is no resolution that the company director and the representative director should be dismissed at the special shareholders' meeting on June 13, 2019, and that the company director and the representative director should be appointed D as the in-house director, and that there is no resolution that there is no resolution that the resolution that the company director and the representative director should be dismissed at the special shareholders' meeting on June 13, 2019 is invalid.

1. Basic facts

A. The Defendant is a company established on August 16, 2016 for the purpose of real estate development business, etc., and the total number of issued and outstanding shares is 100 common shares and the total amount of capital is 10 million won.

B. On December 26, 2018, the Defendant’s shareholder registry listed E 300 shares (30 percent shares), D 250 shares (25 percent shares) and F 450 shares (45 percent shares) as shareholders. On January 17, 2019, Plaintiff B was appointed as the Defendant’s internal director and the representative director on December 13, 2019. Meanwhile, E, D and F removed Plaintiff B from the Defendant’s internal director and the representative director on June 13, 2019, and prepared a written resolution (hereinafter “written resolution”).

D. The Defendant’s shareholder registry on June 13, 2019 entered E 200 shares (20%) in the shareholder registry, D 400 shares (40 percent shares), and F 400 shares (40 percent shares) as shareholders, and the aforementioned shares by shareholder are the same as on the date of closing of argument in the instant case.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 5, 15, 16, and the purport of the whole pleadings

A. At the time of January 10, 2019, the Defendant’s shareholders held 300 shares in E, D, and F, 30 shares in E, D, 250 shares in D, and 450 shares in F, respectively. Of them, E, 230 shares in E, and F, 270 shares in Plaintiff A (hereinafter “Plaintiff A”). Accordingly, Plaintiff A owned 500 shares in Defendant’s shares (50% shares).

B. However, E, D, and F forged the register of shareholders on June 13, 2019, and forged the above list of shareholders.

Based on the written resolution of this case by all shareholders, the plaintiff Eul was dismissed from office director and representative director of the defendant, and Eul was appointed as the defendant's internal director. The written resolution of this case did not have a resolution of the board of directors for the convocation of the general meeting of shareholders, and the plaintiff A did not consent to the written resolution of this case. Thus, the defect of the written resolution of this case is serious since the plaintiff A did not consent to the written resolution of this case. In addition, the F and the former representative director Eul, who were the defendant's representative director, are obligated to allow the plaintiff A to enjoy full rights or benefits in relation to the above shares, and the plaintiff A, who is the transferee of the above shares, violated such obligation, denied the status of the plaintiff Eul as the transferee of the above shares, and made the written resolution of this case against the good faith principle. Therefore, the defect of the written resolution of this case is significant.

D. Therefore, the Plaintiffs seek confirmation of the absence of the written resolution of this case against the Defendant and confirmation of invalidity in the preliminary case.

3. Judgment as to the defendant's defense against the plaintiff A prior to the merits

A. Defendant’s defense prior to the merits

The defendant is not registered as a shareholder in the defendant's shareholder registry, and there is no legal interest in seeking confirmation of absence of the written resolution of this case or seeking confirmation of invalidity thereof.

B. Relevant legal principles

1) A lawsuit seeking confirmation of invalidity or non-existence of a resolution of a general meeting of shareholders is deemed to have standing to sue in a lawsuit if no legal interest exists with respect to the confirmation of invalidity or non-existence of a resolution (see, e.g., Supreme Court Decisions 79Da2267, Oct. 27, 1980; 2015Da66397, Jul. 22, 2016). However, the benefit of confirmation in a lawsuit for confirmation is recognized only when the judgment of confirmation is the most effective and appropriate means to eliminate the Plaintiff’s rights or legal status and risks (see, e.g., Supreme Court Decisions 2009Da93299, Feb. 25, 2010; 2017Da216271, Jul. 11, 2017).

2) In a case where not only a transferor is indicated as a shareholder, but also a person who acquires or intends to acquire shares by means of lending another person’s name but also takes over or takes over shares of a company, the register of shareholders may legitimately exercise shareholder rights, such as voting rights, as a shareholder in relation to the company. The legal doctrine that only the shareholders listed in the register of shareholders are entitled to exercise shareholder rights in relation to the company is likewise applicable to the company, as well as to the company, barring any special circumstance, barring special circumstances, the company cannot recognize the exercise of shareholder rights by a person listed in the register of shareholders, who denies the exercise of shareholder rights or fails

Therefore, barring special circumstances, a person who is lawfully entered in the register of shareholders may exercise a shareholder’s right, such as voting right, in relation to the company. A company may not deny the exercise of a shareholder’s right by a shareholder on the register of shareholders, regardless of having known the existence of another person who actually acquired or intended to acquire shares, other than a shareholder on the register of shareholders, and cannot be recognized as exercising a shareholder’s right by a person who did not complete the entry in the register of shareholders. In cases where a shareholder’s right can be exercised in relation to the company without completing the entry in the register of shareholders, an exceptional circumstance is acknowledged, such as where entry in the register of shareholders or a request for change of shareholders was unfairly delayed or rejected. Furthermore, a company’s shareholder may file a lawsuit against the company for cancellation, invalidation, and non-existence of the resolution of the general meeting of shareholders (see Articles 376 and 380 of the Commercial Act). This constitutes part of a shareholder’s right recognized as a shareholder for the management supervision of the company (see, e.g.,

C. Determination

According to the statement of evidence No. 9, it is recognized that Plaintiff A prepared a sales contract for the transfer and acquisition of shares with the content that “A transfers 230 shares of the Defendant’s shares owned by E to Plaintiff A” between E on January 10, 2019, and that Plaintiff A prepared a sales contract for the transfer and acquisition of shares with the content that “A transfers 270 shares of the Defendant’s shares owned by F between F and F on the same day to Plaintiff A.”

However, as seen earlier, the facts that Plaintiff A was not recorded in the Defendant’s shareholder registry from the time of the written resolution in this case to the date of the closing of argument are as follows. The following circumstances, namely, ① there is no evidence that Plaintiff A requested to enter or transfer the Defendant’s 50 shares in the Defendant’s shareholder registry with respect to the Defendant’s 500 shares, but there is no evidence to deem that the Defendant unduly delayed or rejected the request. ② The Plaintiffs asserted that the Defendant’s shareholder registry (Evidence A 15) was forged on June 13, 2019. However, the Defendant’s seal affixed to the Plaintiff’s shareholder registry on June 13, 2019, which was written by the Plaintiff and the Defendant on December 13, 2018, appears to be the same as the Defendant’s seal affixed to the Defendant’s written resolution (Evidence A3) and thus, it cannot be deemed that the Plaintiff’s legal interest in the Plaintiff’s present shareholder registry or the Plaintiff’s defense cannot be seen as being unlawful by the Defendant’s present shareholder registry.

4. Determination as to the plaintiff B's claim

A. Judgment on the main claim

1) Article 363(4) of the Commercial Act provides, “A company, the total amount of capital of which is less than one billion won, may hold a general meeting without due process, if all shareholders consent to do so, and may substitute for a resolution of the general meeting of shareholders by written resolution.”

2) We examine the following circumstances, which are acknowledged by comprehensively taking into account the aforementioned provisions and the overall purport of arguments as seen earlier, i.e., the total capital of the Defendant is less than 10 billion won, and as seen earlier, insofar as the Plaintiff cannot be deemed to have been in the position of shareholder entitled to exercise shareholder rights against the Defendant at the time of the written resolution in this case, the Defendant’s shareholder at that time is only E, D, and F3. Thus, the Defendant’s consent can be substituted for the resolution of the general meeting of shareholders without the convocation procedure. ② According to the written resolution in this case, the Plaintiff’s dismissal of the Plaintiff B from the Defendant’s internal director and the representative director, and the appointment of D as the Defendant’s internal director; ③ the Defendant’s shareholder registry was forged on June 13, 2019; ④ The Plaintiff’s exercise of shareholder rights cannot be deemed to have violated the principle of good faith, even if the Plaintiff’s exercise of shareholder rights against the transferor’s name and thus, the Plaintiff’s exercise of shareholder rights cannot be seen as being in the Plaintiff’s shareholder registry.

B. Determination on the conjunctive claim

On the other hand, the lawsuit seeking confirmation of invalidity of the resolution of the general meeting of shareholders is based on the ground that the contents of the resolution are in violation of the law (Article 380 of the Commercial Act). The remaining claims of Plaintiff B, other than the assertion of defects arising from the violation of the good faith principle, are about the convocation of the written resolution in this case and the procedural defects of the resolution, and cannot be deemed invalid in the lawsuit seeking confirmation of invalidity of the resolution of the general meeting of shareholders. In addition, as seen in the above paragraph (a), the written resolution

5. Conclusion

The plaintiff A's lawsuit is unlawful and dismissed, and all of the plaintiff B's main and conjunctive claims are dismissed as it is without merit. It is so decided as per Disposition.

The judges of the presiding judge;

Judges Shin Jin-jin

Judges Yoon Young-chul