Plaintiff Co., Ltd. (Attorney Kang Jae-hwan, Counsel for plaintiff-appellee)

National Bank Co., Ltd. (Law Firm Pung, Attorney Yoon Young-young, Counsel for the defendant-appellant)

March 9, 2006

Seoul Central District Court Decision 2004Ga343256 Delivered on May 6, 2005

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant will implement the procedure for registration of cancellation of the registration of establishment of the establishment of the neighboring real estate, which was made on October 2, 2002 by the Seoul Central District Court of Seoul Central District Court No. 61576.

1. Basic facts

In this part, the reasons why the members of the party are required to state are as follows: (a) the “(number 1 omitted)” stipulated on the second 5th (number 2 omitted) of the judgment of the court of first instance is the same as the written judgment of the court of first instance, and therefore, (b) it shall be accepted by Article 420 of the Civil Procedure

2. The assertion and judgment

A. The parties' assertion

As seen earlier, the plaintiff dismissed the non-party 1, the non-party 5, and the non-party 7, respectively, by the Seoul Central District Court Decision 2003Gahap70220, and dismissed the non-party 6 as directors and the representative director, the non-party 4 as directors, and the non-party 8 as auditors, respectively. As such, the resolution of the general meeting of shareholders was confirmed on September 13, 2002 that the non-party 6 signed with the defendant as the representative director of the plaintiff was concluded by a person who is not authorized to represent the plaintiff company. Thus, the non-party 6 asserts that the registration of the establishment of the mortgage as to the non-party claim stated in the purport of the above mortgage contract should

Meanwhile, even if the judgment for confirmation of existence of the resolution of the above general meeting of shareholders is retroactively effective, the plaintiff company cannot deny the validity of the above mortgage contract by external appearance theory pursuant to Article 39 of the Commercial Act, and the above mortgage establishment registration is valid as a registration consistent with the substantive relationship.

On the other hand, when a judgment on confirmation of existence of the resolution of the general meeting of shareholders becomes final and conclusive, the judgment shall be effective as against the third party (Article 380 of the Commercial Act and the main text of Article 190 of the Commercial Act), and the representative director appointed by the resolution shall lose his qualification retroactively, and the act of the representative director before the judgment on existence of the resolution of the general meeting of shareholders becomes final and conclusive shall be null and void as

However, in a case where a judgment on confirmation of existence of a resolution of a general meeting of shareholders that appoints directors after a third party believed and traded as a legitimate representative director of the company, the company cannot deny the validity of the transaction to a bona fide third party (see Supreme Court Decision 73Da1070, Feb. 12, 1974). Even if a judgment on cancellation of the resolution of the general meeting of shareholders becomes null and void retroactively, the other party who trades with the representative director whose resolution of appointment is revoked may be protected by the application or analogical application of Article 39 of the Commercial Act. In the case of registration of a corporation, the applicant for registration is the company itself, and the applicant for registration is the applicant for registration is the company, and the registration of appointment of directors completed by the representative director appointed by the revoked resolution of the general meeting of shareholders constitutes a defective registration under Article 39 of the Commercial Act (see Supreme Court Decision 2002Da19797, Feb. 27, 2004).

In this case, according to the above facts, the non-party 2, who led the appearance of the resolution of the general meeting of shareholders as of September 13, 2002, such as changing the plaintiff's list and preparing a temporary general meeting minutes, was not registered as the plaintiff's shareholder, but led the establishment of the plaintiff together with the non-party 1, holding 50% of the plaintiff's shares in the name of the non-party 3 and 4. The non-party 6, who was appointed as the representative director by the resolution of the general meeting of shareholders as of September 13, 2002, was registered as the representative director of the plaintiff company on the corporate register as of September 16, 200, and was registered as the representative director of the plaintiff company until the non-existence decision of the general meeting of shareholders became final and conclusive, and the defendant, the non-party 6, who was the other party to the corporate register, concluded a mortgage contract with the non-party 6 representative director of the plaintiff company as of September 16, 2002.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges or higher-ranking (Presiding Judge)