[1] Whether a company may refuse delegation of voting rights by shareholders to exercise voting rights by proxy (affirmative with qualification), and whether a company may refuse delegation of voting rights by shareholders to exercise voting rights by proxy for non-united exercise of voting rights by proxy (affirmative)

[2] The case holding that the crime of interference with business is established in a case where a shareholder's proxy who participated in the general meeting of shareholders refuses a representative director's request to leave the general meeting of shareholders by dividing the proxy voting rights for a part of the shares owned into others and delegates them to the general meeting of shareholders, and the representative director's refusal to leave the meeting of the representative director

[3] The case holding that a crime of search and seizure is established on the ground that it cannot be deemed a justifiable act under Article 20 of the Criminal Act where a proxy who attended a general meeting of shareholders finds books that he wants to behind a company office

[4] Whether a shareholder who attends a general meeting of shareholders constitutes a justifiable act under Article 20 of the Criminal Code in cases where a shareholder, who took part in the meeting of shareholders, took a company office behind the company's office and forced to find an account book (negative)

[1] In order to guarantee the free exercise of shareholder's voting rights, a proxy appointment for exercising shareholder's voting rights is not unlimited, and the company may refuse such appointment in special circumstances where the exercise of shareholder's voting rights by proxy is likely to unreasonably impede the holding of the general meeting of shareholders or to unfairly infringe the company's interests. In order to exercise shareholder's multiple voting rights in a uniform manner, the company shall notify the company in writing at least three days prior to the day set for the meeting. In addition, the company may refuse the exercise of shareholder's voting rights, except where the shareholder has accepted the trust of shares or holds shares on behalf of another person. Thus, if the shareholder intends to appoint several proxy for the ununited exercise of voting rights without meeting the above requirements, the company may also refuse such appointment.

[2] The case holding that the crime of interference with business is established on the ground that the representative director may lawfully refuse the proxy to attend the general meeting of shareholders on the ground that the proxy at the general meeting of shareholders may refuse the representative director's request to leave the general meeting of shareholders by dividing the proxy voting rights for a part of the shares owned to others, and the proxy at the general meeting of shareholders would be able to refuse the representative director's request to leave the meeting of the general meeting of shareholders and to waive the progress of the representative director's general meeting of shareholders, and that the delegation of proxy voting rights is intended to obstruct the progress of the general meeting of shareholders by excessively considering the above, and that the matters requested by the proxy

[3] The case holding that the crime of real-time search is established on the ground that it cannot be deemed a justifiable act under Article 20 of the Criminal Code in case where a proxy who attended a general meeting of shareholders finds books that he wants to behind a company office

[4] Even if a shareholder is legally present at the general shareholders' meeting, he/she shall request the company to inspect the company's specific account books or documents in accordance with Article 466 of the Commercial Code, etc. separately for the purpose of inspecting the company's specific account books or documents by going beyond the ordinary scope of exercise of rights at the shareholders' general meeting of shareholders such as questioning, speaking at the general shareholders' meeting of shareholders, and exercising voting rights. If the company refuses to do so without justifiable cause, he/she can request the court to perform it, and can access the company's account books, etc. according to the result, and can not access the company's account books by force against the company's will because it is the place of the shareholders' general meeting of shareholders. Even if the snow company suffered damages to the minority shareholders due to improper operation of the company, the above circumstance alone does not lead to a legitimate act that permits the shareholders to go back

[1] Articles 368 (3) and 368-2 of the Commercial Act / [2] Article 314 (1) of the Criminal Act, Articles 368 (3) and 368-2 of the Commercial Act / [3] Articles 20, 321 of the Criminal Act, Articles 368 (3) and 368-2 of the Commercial Act / [4] Articles 20 and 321 of the Criminal Act, Article 466 of the Commercial Act

Defendant

Prosecutor

Seoul District Court Decision 2000No8777 delivered on May 17, 2001

The judgment below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. Summary of the facts charged in this case

The Defendant, in collusion with Nonindicted 4, in order to collect materials favorable to the lawsuit, in collusion with Nonindicted 2, who was the Defendant’s small part of the Defendant and the representative director of Nonindicted Company 1, and who was the Defendant’s father, Nonindicted 3, and Nonindicted 4, who was the Defendant’s father, were pending in the claim of five rents, etc. between Nonindicted 4, who was the Defendant’s father, and the Defendant’s father.

A. At around 12:00 on March 24, 1999, at the office of the above company located in Jung-gu Seoul, Seoul, the chairman of the general meeting of shareholders, from Nonindicted 2, who was the chairman of the general meeting of shareholders, the defendant, and the defendant, who was not involved in the general meeting of shareholders against three persons who were not involved in the above company's shareholders' meeting, refused to accept the request, "I am am al.," and his father would be al.e., "I am al., I am al.? I am al.? I am al.? I am al.? I am al.? I am 'I am al.? I am. I am.'. The above name poor will be 'I am.', and the above name poor will be 'I am.', so I am.

B. At the same place around that time, the above non-indicted 2 renounced the opening of the general meeting of shareholders and opened the meeting of the non-indicted 4 as the chairman of the temporary general meeting of shareholders and opened the accounting book, such as the cash book of the above company, to the Do governor, etc., who is the accounting personnel of the above company. When the above accounting personnel refuse to do so, the defendant followed Non-indicted 2's book and the book of the best response as the executive director of the above company. On the other hand, the defendant and the Lee Jong-il continued to reverse the document files on the above accounting personnel's book, and Non-indicted 4 searched the room possessed by Non-indicted 2 by preventing them from speaking to the best response.

2. The judgment of the court below

For the following reasons, the lower court upheld the first instance judgment that acquitted each of the charges of this case under Article 325 of the Criminal Procedure Act.

A. As to interference with business

According to the facts found in the judgment of the first instance court, even if Non-Indicted 2, the representative director of Non-Indicted 1 corporation, and the defendant's side, they did not physically conflict with each other. Furthermore, as Non-Indicted 2, who is the chairperson of the first instance court, was duly delegated voting rights from Non-Indicted 3 and Non-Indicted 4 and requested the defendant, etc. to leave the place of the general meeting, and was refused, the non-Indicted 2 did not unilaterally proceed with the general meeting of shareholders by leaving the place of the office, which is the place of the general meeting of shareholders. Since Non-Indicted 2 did not waive the general meeting of shareholders by force of the defendant, etc., the defendant, etc. cannot be deemed as impeding the general meeting of shareholders.

B. As to the search in a room

Although the Defendant followed the above documents and the liability of Nonindicted 2 and employees on the books of the above company, which is the place of the general meeting of shareholders, on the books of the state of female employees, the above company’s capital and the liability of the representative director. However, this purpose was to find out accounting materials, etc. to the effect that Nonindicted 2, the representative director of the above company, who is a family company, was unable to operate the company and thereby, was damaged by Nonindicted 3 and Nonindicted 4, who is the defendant’s family member, in order to find out the cause of the failure and prevent the occurrence of the loss. Moreover, the Defendant did not actively participate in following the books, paintingss, etc., and the Defendant did not participate in the examination of various circumstances including the circumstances, purpose, means, intentions, etc. leading the Defendant to the instant case, the Defendant’s act of following the above documents, etc. on the books constitutes a justifiable act under Article 20 of the Criminal Act, and thus, constitutes a justifiable act under Article 20 of the Criminal Act.

3. Judgment of the Supreme Court

However, it is difficult to accept the fact-finding and judgment of the court below for the following reasons.

A. As to interference with business

In order to guarantee the free exercise of voting rights by a shareholder, a proxy appointment for the exercise of voting rights by a shareholder is not unlimited, and in special circumstances where the holding of a general meeting of shareholders is likely to be unduly impeded or corporate interests are likely to be unduly infringed upon due to exercise of voting rights by proxy, the company may refuse such appointment. In addition, in order to exercise a multiple number of voting rights held by the shareholder, the company shall notify the company in writing at least three days prior to the day set for the meeting. In addition, the company may refuse the ununited exercise of voting rights by a shareholder, except where the shareholder has accepted the trust of shares or holds shares on behalf of another person. Thus, if the shareholder intends to appoint several proxy for the ununited exercise of voting rights without meeting the above requirements, the company may refuse such appointment.

As to the instant case, it is difficult for the lower court to have a dispute over Nonindicted Co. 1 and minority shareholders, who were represented by Nonindicted Co. 2 and Nonindicted Co. 3 and Nonindicted 4, regarding the operation of the said company. However, Nonindicted Co. 4, who owns 240 shares out of six shareholders of the said company, can not be deemed to have been present at the general shareholders’ meeting on March 24, 199 for the purpose of seeking documents regarding the audit report of the said company, which can be used as evidence for the said pending lawsuit, even if the said general shareholders’ meeting had been present at the shareholders’ meeting, because it is difficult for the lower court to view that there were many shareholders to have been present at the above general shareholders’ meeting and to have been present at the shareholders’ general shareholders’ meeting, and that it was difficult for Nonindicted Co. 2 to legally delegate the voting rights to one share out of the shareholders’ general shareholders’ meeting and to have been present at the shareholders’ general meeting on behalf of Nonindicted Co. 4, who were represented by the said representative, for the reason that it did not constitute an exercise of voting rights by proxy.

Nevertheless, the lower court concluded that Nonindicted 2 did not waive the general meeting of shareholders due to the power of the Defendant, etc. so it cannot be deemed that the Defendant, etc. interfered with the general meeting of shareholders. The lower court erred by misapprehending the facts against the rules of evidence and misapprehending the legal doctrine on delegation of the exercise of voting rights by the shareholders, thereby adversely affecting the conclusion of the judgment. The allegation in

B. As to the search in a room

As seen earlier, the Defendant, who was delegated by Nonindicted 4, a shareholder, to exercise voting rights on one share of the shares owned by him/her as an agent for a legitimate exercise of voting rights unless it is recognized by the company. Thus, it is difficult to view that the Defendant, who became no longer related to the shareholders’ general meeting upon the request from the head of the shareholders’ general meeting to get back the above company’s office, which is the place of the shareholders’ general meeting, does not constitute an act that can be accepted by social norms. Meanwhile, even if the Defendant, as Nonindicted 4, is a shareholder who was lawfully present at the shareholders’ general shareholders’ general meeting, he/she goes beyond the ordinary scope of exercise of rights such as questioning, proceedings, speaking, exercise of voting rights, etc. in order to inspect the company’s specific accounting books or document files. If the Defendant refuses it without any justifiable reason, he/she can request the court to allow him/her to inspect the company’s account books, etc. as a result, and it cannot be found that the shareholders of the company were forced to inspect the company’s account books against the shareholders’ general meeting.

Nevertheless, the court below erred by misapprehending the facts against the rules of evidence or misunderstanding the legal principles as to a legitimate act, which affected the conclusion of the judgment, as it constitutes a justifiable act acceptable by social norms. The ground of appeal pointing this out is with merit.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)