[1] The case where the interest in confirmation is recognized in a lawsuit for confirmation

[2] Where a limited liability company sets a specific amount of remuneration for a director in accordance with Articles 567 and 388 of the Commercial Act, whether a limited liability company may unilaterally reduce or deprive the remuneration of a director (negative in principle), and where a resolution to reduce or deprive the remuneration of a director already incorporated into the terms of an employment contract in a general meeting of members of a limited liability company has been made, whether such a resolution of general meeting of members affects the director's right to claim remuneration (negative)

[3] In a case where Eul et al., a member of Gap limited company Eul et al, was defective in a resolution to reduce Eul et al.’s remuneration by opening a general meeting of members, and sought confirmation of invalidity of the resolution to reduce remuneration against Gap et al., the case holding that seeking confirmation of invalidity of the resolution to reduce remuneration cannot be deemed as the most effective and appropriate means to eliminate anxietys and risks, such as Eul et al.,

[1] The benefit of confirmation in a lawsuit for confirmation is recognized only when the plaintiff's right or legal status is currently unstable and dangerous, and it is the most effective and appropriate means to remove anxiety and danger.

[2] If a limited liability company has determined specifically the amount of remuneration for a director in accordance with Articles 567 and 388 of the Commercial Act by a resolution of the articles of incorporation or a general meeting of members, the amount of remuneration shall be binding upon both the company and the parties to the employment contract. Thus, the resolution of the general meeting of members shall not affect the right to claim remuneration of the director regardless of the validity of the resolution itself, unless there are special circumstances to deem that the director explicitly consented to the change of remuneration, or that there was an implied consent to the change of remuneration system, at least, payment of remuneration in accordance with the contents of duties, or internal regulations or practices related to the remuneration system, which would be contingent upon the change of remuneration due to changes in the contents of duties, such as taking office, unless he/she takes office.

[3] In a case where Eul et al., a director of Gap limited liability company, et al., sought confirmation of invalidity of the resolution to reduce Eul et al.'s remuneration by opening a general meeting of members, the case holding that Eul et al., et al., cannot be seen as a means of seeking confirmation of invalidity and danger of Gap's remuneration, since the resolution to reduce remuneration itself cannot affect Eul et al.'s right to claim remuneration already incorporated into the employment contract, and it cannot be viewed that Eul et al., as a direct means of resolving disputes over Gap's right to claim remuneration, etc., which are not legally meaningful in terms of the status of members, or that the interests of Eul et al. as an employee are not likely to be infringed in light of the objective nature of the resolution, and it is not the duty of directors to voluntarily comply with the above resolution and pay the reduced remuneration to Eul et al., as a party to the employment contract, and it cannot be deemed that Eul et al., seeking the payment of reduced remuneration to Gap et al.

[1] Article 250 of the Civil Procedure Act / [2] Articles 388 and 567 of the Commercial Act / [3] Article 250 of the Civil Procedure Act, Articles 388 and 567 of the Commercial Act

[1] Supreme Court Decision 2009Da67115 Decided September 8, 201 (Gong2011Ha, 2052)

Plaintiff 1 and one other

Newly High Court Decision 201Na1484 decided May 1, 201

Busan High Court Decision 2015Na4092 decided April 28, 2016

The part of the judgment of the court below concerning the claim for nullification of the resolution to reduce the directors' remuneration shall be reversed, and the judgment of the court of first instance concerning this part shall be revoked, and the lawsuit concerning this part shall be dismissed.

Judgment ex officio is made.

1. In a lawsuit for confirmation, the benefit of confirmation is recognized only when the Plaintiff’s right or legal status is currently unstable and dangerous and obtaining a judgment of confirmation is the most effective and appropriate means to eliminate such apprehension and danger (see Supreme Court Decision 2009Da67115, Sept. 8, 201, etc.).

Meanwhile, if a limited liability company has determined specifically the amount of remuneration for a specific director by a resolution of the articles of incorporation or a general meeting of partners in accordance with Articles 567 and 388 of the Commercial Act, that amount of remuneration shall become the content of an appointment contract and shall be bound by both the company and the party concerned. Thus, the resolution of the general meeting of members shall not affect the right to claim remuneration of the director, regardless of the validity of the resolution itself, unless there are special circumstances to deem that the director explicitly consented to the change of remuneration, or that there was an implied consent to the change of remuneration system, at least, payment of remuneration in accordance with the contents of duties, or internal regulations or practices related to the remuneration system, which would be contingent upon the change in the contents of duties, was taken place while he/she was aware of the existence of any other internal regulations or practices.

2. According to the reasoning of the lower judgment and the record, the Plaintiffs, a member of the Defendant, who is a limited liability company, have opened a general meeting of members on December 30, 2014 and passed a resolution to reduce the Plaintiffs’ remuneration from KRW 2.5 million per month to KRW 1.2 million per month (hereinafter “the instant resolution to reduce remuneration”) were unilaterally reduced only against the Plaintiffs, and are obviously unfair and unfair as it abused the principle of majority, and thus, have sought confirmation of invalidity of the instant resolution to reduce remuneration against the Defendant.

3. However, in light of the aforementioned legal principles, the decision of the reduction of remuneration in this case cannot affect the plaintiffs' right to claim remuneration already included in the appointment contract itself, and therefore, the plaintiffs cannot be deemed to have any legal relationship bound by the decision of the reduction of remuneration in this case without any legal meaning as an employee, or to have any interest as an employee in light of the objective nature of the resolution contents, and it does not bear the duty of the director to voluntarily comply with the above resolution and to pay the reduced remuneration. In addition, it is merely for the factual and economic interest that the defendant may not pay the reduced remuneration in this case by the decision of the reduction of remuneration in this case, and it cannot be deemed that any risk or apprehension has occurred to the plaintiffs' rights or legal status. Moreover, seeking the payment of the reduced remuneration to the defendant is a direct means to resolve disputes over the plaintiffs' right to claim remuneration. Thus, seeking confirmation of invalidity of the resolution of the reduction of remuneration in this case cannot be deemed the most effective and appropriate means to eliminate the plaintiff's anxiety and risks.

Nevertheless, the lower court accepted the Plaintiffs’ claim seeking confirmation of invalidity of the instant reduction of remuneration on the ground of its stated reasoning on the erroneous premise that the instant resolution of reduction of remuneration becomes null and void if there is no consent of directors or any justifiable ground, and that there is a benefit to seek confirmation of invalidity of such resolution. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit of confirmation

4. Therefore, without further proceeding to decide on the grounds of appeal, the part of the judgment below on the claim for nullification of the resolution to reduce directors’ remuneration is reversed, and this part is sufficient to be directly tried by this court, and thus, the judgment of the court of first instance as to this part is revoked, and the lawsuit as to this part is dismissed, and the total costs of the lawsuit are borne by the plaintiffs. It is so decided as per

Justices Kim Shin (Presiding Justice)