Plaintiff (Attorney Dong-sung et al., Counsel for plaintiff-appellant)

CSK Co., Ltd. and one other

March 12, 2010

Incheon District Court Decision 2008Gahap18525 Decided July 2, 2009

1. Revocation of a judgment of the first instance;

Defendant 2 is dismissed from office as a director of Defendant CSK.

2. The total costs of the lawsuit are borne by the Defendants.

The same shall apply to the order.

1. Basic facts

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance, and thus cite it as it is in accordance with Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. Summary of the plaintiff's assertion

1) Defendant 2, the representative director of the Defendant Company, did not give public notice and notification under Articles 418 and 419 of the Commercial Act to the Plaintiffs, Nonparty 1, and 2 (hereinafter “Plaintiffs, etc.”) who are the existing shareholders in the process of issuing new shares, and did not give notice under Articles 418 and 419 of the Commercial Act. Although the Plaintiff, etc. did not give up the subscription of new shares, the Plaintiff, etc. forged a written waiver of the subscription of new shares in the name of the Plaintiff, etc.

2) Defendant 2 pretended to make payment without actually paying the share price at the time of issuance of the instant shares.

3) Accordingly, Defendant 2 must be dismissed from office as a director of the Defendant Company in accordance with Article 385(2) of the Commercial Act.

B. Summary of the defendants' assertion

Even if the plaintiff et al. was well aware of the issuance of the new shares of this case and did not notify the plaintiff et al. in the course of the survey, it does not constitute a reason for removal of directors merely because of minor procedural defects.

3. Determination

Article 385(2) of the Commercial Act provides that when a director refuses to dismiss him/her at a general meeting of shareholders even though he/she has committed an unlawful act in connection with his/her duties, or a serious violation of Acts and subordinate statutes or the articles of incorporation, any shareholder who holds shares representing no less than 3/100 of the total issued and outstanding shares may request the court to dismiss such director. Here, the term “material facts violating the statutes or the articles of incorporation” refers to cases where a director intentionally violates the statutes or the articles of incorporation and causes damage to the company by neglecting his/her duty of loyalty to the company, so as

In this case, there is no dispute between the parties that the defendant 2, the representative director of the defendant company, proposed the payment without realizing the payment of the stock price at the time of issuance of new shares. Thus, the act of payment of provisional payment is an act of violation of Article 628 of the Commercial Act and an act of violation of Article 385 (2) of the Commercial Act, and there is "an act of misconduct in connection with its duties or a serious fact of violation of the laws and regulations" under Article 385 (2) of the Commercial Act. Nevertheless, in the temporary general shareholders' meeting held on October 30, 2008, the dismissal of defendant 2 was rejected, so the plaintiff'

Therefore, it is reasonable to dismiss the defendant 2 from the office of director of the defendant company.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so decided as per Disposition by cancelling it and dismissing defendant 2 from the office of director of the defendant company.

Judges Jo Nam-dae (Presiding Judge)