2010Ra2148 Suspension of the performance of duties and appointment and provisional disposition of acting directors

1. Kim○-○

○○-dong ○○-dong, Young-si

2. Kim○-○

OO-dong O-dong O-dongO

3. Kim○-○

○○-gu ○○-dong ○ ○

4. Kim○-○

Seoul ○○-gu ○○○ ○○

5. Kim○-○

Sungnam-si ○○○ Dong 00

Creditor Lee & Lee LLC et al., Counsel for defendant-appellant

[Defendant-Appellant]

○ Kim

Sungnam-si ○○○ Dong 00

Law Firm Nai, Counsel for the plaintiff-appellant

Attorney Park Jong-il

Suwon District Court Order 2010Kahap297 dated October 21, 2010

March 22, 2011

1. The obligees' appeals are all dismissed;

2. Costs of appeal shall be borne by creditors.

The decision of the first instance court shall be revoked. The obligees' obligation to make a resolution at the ordinary meeting on December 2, 2009 against the obligees' ○○ door.

Until the judgment on the merits of the case becomes final and conclusive, the debtor shall not perform the duties of the representative of the above documents.

(The obligees shall not be entitled to file a lawsuit on the merits of the case in which the absence of representative status is confirmed in the trial.

The attorney designated by the court during the period of suspension of the above execution of duties

Among the door, the representative shall be appointed as the acting representative.

1. The following facts are clearly explained in full view of the records of the case and the overall purport of the questioning by the clan representative, etc.

A. Of the ○○ family (hereinafter referred to as “the clan of this case”), the family is composed of the 31-year old descendants of the OO, the ○○ clan, Eul, and the descendants of the 22-year old descendants, who are the 131-year old descendants of the OO. The obligees of the clan of this case are the members of the clan of this case.

B. On December 2, 2009, the instant clan held a general meeting of shareholders (hereinafter “general meeting of this case”) and passed a resolution to appoint a debtor as the president who is a representative (hereinafter “the instant resolution”).

2. Summary of creditor's assertion;

Since the clan of this case did not call a notice of convening a general meeting to the members of the clan including the female clan while holding the general meeting of this case, the resolution of this case is null and void. In addition, the articles of association of this case provide that the clan of this case shall pass a resolution with the consent of a majority of the members present and present. According to the clan of this case, more than 50 members of the clan of this case are more than 38 members of the clan, the resolution of this case is null and void

3. Determination

A. Judgment on the defects of a notification for convening a meeting (1) is held at a meeting of the clan, that is, the general meeting, in principle, at the general meeting of the clan members, but if the members of the clan regularly gather at a certain place at a certain time each year in accordance with the rules and practices of the clan and agree in advance to handle the clan members' properties at a certain place, a resolution of the meeting shall not be null and void even if the notification for convening a meeting is not separately made (see Supreme Court Decision 87Meu194 delivered on October 13, 1987).

However, according to the records of this case, the clans of this case set up the articles of association after the opening of a memorial service at the cemetery of the Jung-gu, Seoul on October 16, 190, which is located in ○○○○○ Dong, and the completion of the memorial service, discussed the members of the clan to discuss the religious affairs of the clan, and the need for the enactment of the charter, which was made on December 2, 1990, and enacted the articles of association after the completion of the memorial service. Article 11 (2) of the articles of association of this case set the "general meeting" as the second day of October, 16 of every year. "The general meeting was set forth in the regulations," and it can be recognized that the general meeting held after the completion of the memorial service on October 16 of every year.

According to the above facts, the clan of this case shall be deemed to have a provision in its articles of incorporation that holds a general meeting of shareholders at the place of the Si/Gun/Gu on the date of each year, so there is no need to give notification to the clan members of this case to convene the general meeting of shareholders.

Therefore, the resolution of this case cannot be deemed null and void on the ground that the clan of this case did not give notice of convening a general meeting to the members of the clan including the female clan while holding the general meeting of this case ( October 16, 2009).

(2) The obligees asserts that the resolution of this case is null and void, since the clan of this case does not have qualification for a woman who has left the clan" in the proviso of Article 5 of its articles of incorporation. Since the clan of this case excludes the attendance of the general meeting of female clan members, it is invalid.

According to the records of this case, the proviso of Article 5 of the articles of incorporation of the clan of this case, enacted on December 2, 1990, has no qualification for membership of the woman who left the clan. It is clearly explained that the above proviso has been maintained without being amended.

However, after the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 was rendered, adult females who are the descendants of a common ancestor are eligible for membership of a clan, and the provisions of the articles of association of a clan which arbitrarily limits the qualification of some members of a clan are null and void in violation of the essence of a clan (see Supreme Court Decision 96Da25715, Nov. 14, 1997). Since the above provisions of the proviso are null and void in violation of the essence of a clan, the above provisions of the proviso shall be deemed null and void as argued by creditors after July 21, 2005.

However, even if the clan did not take procedures to delete the proviso that became null and void by amending its articles of association after the decision was rendered by the en banc decision, it is difficult to view that it interfered with or excluded the attendance of the general meeting of female clan members, and there is no other supporting materials to recognize otherwise.

Therefore, the obligees' argument that is premised on the exclusion of the attendance of female clan members from the general meeting is without merit.

B. (1) According to the records of this case, Article 11 of the articles of association of the clan of this case, which was enacted on December 2, 1990 and certified on December 21, 1993, shall be decided by the majority of the incumbent members and the majority of the members present at the general assembly," which shall be decided by the chairperson in the case of the number of votes of approval and disapproval. "The general assembly shall be decided by 30 or more incumbent members, 20 or more incumbent members, and the general assembly shall be formed with the attendance of 20 or more incumbent members." However, Article 11 of the articles of association of the clan of this case, which was partially amended at the general assembly of this case and certified on March 22, 2010, shall be established by the majority of the incumbent members, and shall be decided by the chairperson in the case of the majority of the members present at the general assembly of this case, and it shall be explained that there is no provision in paragraph (5).

However, according to the records of this case, only 40 members of the clan were present at the ordinary meeting of December 2, 1990, which was enacted by the articles of incorporation of the clan of this case. On the other hand, the general meeting of this case passed a resolution on the amendment of the articles of association while 38 members of the clan were present at the general meeting of this case. On the other hand, the minutes of the resolution on the amendment of the articles of association are proved as the facts supporting the facts stated only as "the facts stated as" from 1 to 2 of Article 2, Article 7, and the provisions of the amended articles of association of this case were limited to Article 7, which are the provisions concerning the purpose of the articles of association, and there is no other evidence to deem that the resolution on the amendment of the articles of association of this case was made. In addition, in light of the fact that the number of members of the clan attending the general meeting of this case is merely 40, it is difficult to deem that the quorum of this case or the quorum of the general meeting of this case has increased its contents.

Therefore, Article 11 of the Articles of Incorporation of the instant clan certified as of March 22, 2010 should be determined as a simple clerical error that occurred in the process of certifying the amended Articles of Incorporation, as alleged by the debtor, and the provisions on the quorum and the quorum of the general meeting shall continue to exist without any amendment from the time of the enactment of the articles of incorporation.

(2) On the other hand, if the text of the articles of incorporation does not violate one another or clearly reveal the objective meaning of the text, it is necessary to reasonably interpret the contents of the articles of incorporation in accordance with logical and empirical rules, and common sense of society by comprehensively examining the details and purpose of the establishment of the articles of incorporation, general customs, etc.

However, with respect to the quorum of the general meeting of shareholders, Article 11 of the articles of incorporation of the clan of this case provides that "2/3 of the incumbent members is stipulated", and Paragraph 5 of the same Article provides that "not less than 30 incumbent members are stipulated," and thus, it is mutually contradictory to the contents of the clan, so a reasonable interpretation is necessary.

The general customs of the Republic of Korea is that it is necessary for the head of the clan or the head of the clan to convene a majority of the members of the adult or more notified among the members of the clan in accordance with the rules and the customs of the clan in selecting the representative of the clan, and to select by the resolution of the members of the clan in accordance with the rules and the customs of the clan (see Supreme Court Decision 91Da44902 delivered on January 26, 1993). As seen above, the clan of this case, as seen above, was enacted as a norm of the clan culture that discussed the members of the clan and discussed the members of the clan every year, and enacted its articles of association. The majority of all members of the clan did not attend before and after the establishment of the articles of association, and the quorum of the clan of this case appears to be practically impossible to hold the general meeting. Considering the fact that Article 11 of the articles of association of the clan of this case is reasonable to interpret that the quorum of the general meeting of the members of the clan of this case is "not less than 30 registered members".

Therefore, the articles of association of the clan of this case shall be deemed to set the quorum of the general meeting of the members "as to the attendance of not less than 30 registered members", and the quorum "as to the affirmative votes of a majority of the members present" (in the case of the numbers of votes of approval and disapproval,

(3) According to the records of this case, the clan of this case held a general meeting on December 2, 2009, while 38 members of the clan were present, and it is proved that the resolution of this case was made to appoint the debtor as chairperson with the consent of all members present.

According to the above facts, the resolution of this case was made with the consent of a majority of the members present while not less than 30 members of the clan, and all the quorums and the quorums stipulated in the articles of incorporation of the clan of this case were met.

(4) Therefore, the obligees' assertion that the resolution of this case is valid, and the quorum is defective is without merit.

4. Conclusion

Thus, the obligees' motion for provisional disposition of this case shall be dismissed in entirety as the obligees' motion for provisional disposition is groundless.

The decision of the first instance court is justified as the conclusion is consistent with this, and it is so decided as per Disposition by all of the obligees' appeals.

Judges old-gu et al.

Mad Mad Mad Doz.

The Board of Foreign Affairs shall: