2014Na3895 Confirmation of non-existence of a general meeting of shareholders

A

Posi-gu Seongbuk-gu, North Korean at Port

Attorney Nam-tae et al., Counsel for defendant

Seocho-gu, Ansan-gu, canwalk

Audit Agent C

Attorney Lee Sang-gil, Counsel for the defendant-appellant

Daegu District Court Decision 2013Gahap850 decided August 22, 2014

July 10, 2015

July 23, 2015

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's temporary general meeting on February 26, 2013 confirmed that there is no resolution that the representative director and in-house director D, auditor C should resign, representative director and in-house director C, and auditor E should be appointed.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Defendant Company is a company engaged in manufacturing and selling ready-mixeds, etc., and the Plaintiff is an internal director and a shareholder of Defendant Company.

B. The register of shareholders of the Defendant Company is listed as shareholders who hold F, C, and the Plaintiff’s shares 20%, 50%, and 30% of each issued shares. The former representative director D of the Defendant Company is F’s children, G is F’s fraud, and the Plaintiff is G’s children, and the actual shareholders of F and the Plaintiff’s shares are G. The actual shareholders of F and the Plaintiff’s shares are G, and the actual shareholders of C’s shares are ECC’s shares.

C. On February 26, 2013, the minutes of the extraordinary shareholders’ meeting were prepared with the consent of 7,000 share out of 10,000 shares and total number of shares issued by two shareholders present at the general shareholders’ meeting of this case (hereinafter referred to as the “general shareholders’ meeting of this case”) and with the consent of 7,000 share of 10,00 shares, that the representative director and director D, auditor C resign, and that the representative director and director C and auditor E are appointed (hereinafter referred to as the “resolution of this case”).

D. According to the resolution of the instant case, on March 4, 2013, the representative director and in-house director D and the auditor C resigned on February 26, 2013, and the date the representative director and in-house director C and auditor E were registered as appointed on March 4, 2013.

E. Meanwhile, on February 8, 2013, the Defendant Company filed an application for commencing rehabilitation procedures with the Daegu District Court (2013 Gohap 7). On March 12, 2013, the said court rendered a decision to discontinue rehabilitation procedures on December 23, 2013.

F. Of the articles of incorporation of the Defendant Company, the contents of this case are as follows.

[Main Contents of Articles of Incorporation]

(2) Except as otherwise provided in Acts and subordinate statutes, the convocation of a general meeting of shareholders shall be convened by the representative director, if necessary, at least 10 days before the date and time of the general meeting, and the notification in writing stating the purpose of the meeting shall be sent to bearer shareholders, or by means of electronic documents with the consent of all the shareholders, before the general meeting: Provided, That this period may be shortened by a written statement, telegraph or electronic document before the general meeting: (3) The general meeting of shareholders may be convened without the convocation procedure if all the shareholders consent; (4) The general meeting of shareholders shall be convened by a majority of the total voting shares and at least 1/4 of the total voting shares issued by the shareholders present at the general meeting, with the consent of all the shareholders; and (4) The general meeting of shareholders shall be convened by a majority of the total voting shares issued by all the directors present at the general meeting of shareholders. (4) The resolution of the general meeting of shareholders may be substituted by a resolution of the general meeting of shareholders with the consent of all the shareholders present at the general meeting of shareholders.

【Fact-finding without a dispute over the ground for recognition】 Each entry of Gap evidence 2 through 8, 11, and 13 (if there are serial numbers, referring to the following: hereinafter the same shall apply), part of witness E of the first instance trial, and the purport of the whole pleadings

2. Determination as to the existence of the instant resolution

A. Determination on the cause of the claim

1) Relevant legal principles

In the case of a so-called one-called one-called company with total shares in a stock company, it is evident that such a shareholder will take place as the general meeting of all the shareholders and that such a shareholder will take place as the sole shareholder. Thus, even if there was no other maximum fact in fact, if the minutes of the general meeting were to have been prepared by the one-person shareholder, it can be deemed that there was a resolution, barring any special circumstances. The same applies to a case where one-person registered another person as a shareholder by lending his name, but such person actually owns all the shares in the quality of the total shares. However, in a case where the ownership of shares is substantially distributed, if the minutes of the general meeting are falsely prepared as if the minutes of the general meeting without going through the actual procedure of the general meeting and the resolution of the general meeting of shareholders without going through the procedure of the general meeting of shareholders, it shall be deemed that one-party general shareholder has the majority of all the shares and even if the minutes of the general meeting of shareholders were prepared by the other-party shareholders, it shall be deemed that there was no resolution (see, e.g., Supreme Court Decision 2007Da27.

2) Determination

In light of the above legal principles, as to the instant case, since the Defendant Company G (the Plaintiff’s father and F’s fraud), and E (C) actually own 50% of each issued and outstanding shares, the ownership of shares is substantially distributed. D, which was the representative director of the Defendant Company prior to the instant resolution, did not attend the instant general meeting of shareholders, and there was no fact that the Defendant Company’s representative director did not attend the instant general meeting of shareholders, and the fact that the actual meeting procedure was not completed is recognized in full view of the overall purport of the pleadings and arguments as to the result of the Defendant Company’s personal examination on the representative director D of the Defendant Company, the Defendant Company entered the evidence No. 4, and the overall purport of the pleadings. Thus, the instant resolution was considerably defective to the extent that there was no dispute between the parties, or that there was a false preparation of the minutes of the general meeting of shareholders without undergoing the actual convocation procedure and the meeting procedure by a legitimate

Therefore, the resolution of this case should be deemed nonexistent.

B. Determination as to the assertion by the Defendant Company

1) The defendant company's assertion

On February 15, 2013, before the resolution of this case, the temporary shareholders meeting held with the attendance of all shareholders on February 15, 2013 agreed to change D and E to C the custodian and representative director, and the plaintiff was granted the right of recourse. On February 20, 2013, the plaintiff discussed the problem of appointment of the custodian and representative director again at the second meeting with the attendance of all shareholders on February 20, 2013, but the plaintiff expressed his/her intention to re-determination, and thereafter, the plaintiff expressed his/her intention to re-determination. After notification of the call of D's wire, the decision of this case was made on February 26, 2013, and E received related documents from D and prepared the minutes of the temporary shareholders' meeting. Thus, the resolution of this case did not exist, and even if there was a family defect, the defect that did not notify the plaintiff as to the plaintiff does not constitute a ground for revocation and cannot be deemed a re-determination or grounds for invalidation.

2) Determination

It is insufficient to recognize that C was a representative director on February 15, 2013 only with the testimony of Eul evidence 8-2, Eul evidence 12, Eul evidence 12, and witness E of the first instance court, or that C was a decision to appoint a representative director on February 20, 2013 by holding a temporary general meeting without the consent of all shareholders on February 20, 2013, there is no other evidence to acknowledge that C was a decision to appoint a representative director. Furthermore, there is no evidence to recognize that the extraordinary general meeting minutes were prepared on February 15, 2013, and February 20, 2013, there is no evidence to recognize that D was a representative director of the defendant company prior to the resolution of this case, or that the plaintiff was a representative director of the defendant company, as seen earlier, did not notify a temporary general meeting, and did not attend the general meeting, and since the resolution of this case did not go through the actual meeting procedure, the argument of the defendant company above exists.

3. Determination on the legitimacy of the instant lawsuit

A. Determination on the assertion of the resolution of the special shareholders’ meeting on February 15, 2013

The defendant company first asserted that the lawsuit in this case is unlawful since there was a resolution to appoint C as a custodian or a representative director at the temporary general meeting of shareholders held on February 15, 2013, with D, E’s consent, and the plaintiff’s objection to the appointment of C as a custodian or a representative director.

In light of the fact that the minutes of the resolution of this case were prepared as of February 26, 2013, the minutes of the special shareholders' meeting on February 15, 2013 were not prepared, and if there was a resolution of the special shareholders' meeting as of February 15, 2013 as the defendant's assertion, there is no reason to prepare the minutes of the resolution of this case as of February 26, 2013, although the minutes of the resolution of this case were prepared as of February 26, 2013, some testimony of the witness E of the first instance trial as of February 26, 2013 is difficult to believe as it is, and only with the statement of subparagraph 12, it is insufficient to recognize that the provisional shareholders' meeting was actually held on February 15, 2013, or that there was a resolution that was made as to February 15, 2013 as alleged by the defendant company, the defense of the defendant company is without merit.

B. Legal determination under the management agreement dated February 6, 2014

1) Defenses of the defendant company

The defendant company also concluded a management agreement with the representative director of the defendant company Cro and auditor as G on February 6, 2014. Thus, the defendant company asserted that "the lawsuit of this case is unlawful because there is no benefit to seek confirmation of the non-existence of the resolution of this case since it can substitute the resolution of the provisional shareholders' meeting of the defendant company with the agreement, or even without such agreement."

2) Relevant legal principles

Even if a special general meeting of shareholders of a corporation was conducted without any specific resolution or convocation of the board of directors required by statutes and the articles of incorporation, if all shareholders on the list of shareholders attend the general meeting and consent to hold the general meeting and without any objection, the resolution is valid unless there is a special reason (see, e.g., Supreme Court Decision 2008Do1044, Jun. 26, 2008).

In a case where a new resolution was adopted at a general meeting after a false resolution was adopted at the general meeting, or where there was a new resolution on the contents of the previous resolution, seeking confirmation of invalidity of the previous resolution is merely seeking confirmation of the past legal relationship or right conflict, barring special circumstances such as the invalidity of the resolution at the general meeting again held even if the previous resolution is null and void (see, e.g., Supreme Court Decisions 97Da27596, Oct. 28, 1997; 2009Da63694, Oct. 28, 201).

In order to seek confirmation of invalidity of a resolution of the appointment of a director against a director who had been appointed by a resolution of the board of directors but has already lost the status as a director by dismissal or resignation, there is no interest in the lawsuit because it was attributable to seeking confirmation of the past legal relationship or legal relationship (see, e.g., Supreme Court Decision 96Da37206, Dec. 10, 1996).

3) Determination.

A) In full view of the overall purport of the pleadings in the statement No. 11 of Eul, it is recognized that, on February 6, 2014, the actual shareholders of the defendant company (G, E) and the interested parties of the defendant company, the plaintiffs, D, and C, etc. attend the meeting to appoint the representative director of the defendant company as C from the resolution of this case on February 6, 2014, the representative director of the defendant company shall be assigned to C, and the auditor shall also have made a management agreement (referred to as the "management agreement of this case") with the content that he/she will take charge of G, and a notary public shall prepare a written certificate No. 169, such as the General Law Office for Port and Port.

Therefore, with respect to the nature and validity of the management agreement of the defendant company as a resolution of the general meeting of shareholders, ① The proviso of Article 27(1) of the Articles of incorporation of the defendant company provides that "it may hold a general meeting without convocation of a general meeting," and Article 30(4) of the Articles of incorporation provides that "it may substitute for a resolution of the general meeting of shareholders with written consent of all shareholders". ② The facts that Articles of incorporation 34 and 42 of the articles of incorporation provide that "the representative director and the auditor shall be appointed at the general meeting of shareholders" are as follows: (3) since the articles of incorporation of the defendant company stipulate that the agreement of the general meeting of shareholders cannot be held without convocation of the general meeting of shareholders with consent of all shareholders; (4) since the contents of the agreement of the resolution of the general meeting of shareholders cannot be seen as having been prepared with consent of all shareholders; (5) The total amount of the resolution of the general meeting of shareholders cannot be seen as having been prepared with consent of all shareholders present at the general meeting of shareholders.

However, as seen earlier, the resolution of the instant general meeting of shareholders was made to appoint the representative director of the Defendant Company as C in the same manner as the resolution of the instant general meeting of shareholders was made. Thus, even if there was a defect in the Plaintiff’s assertion at the general meeting of shareholders, if the resolution of the instant general meeting of shareholders was followed by a new resolution that is identical to the contents of the instant resolution in the management agreement of the Defendant Company on February 6, 2014, or if the resolution of the instant general meeting of shareholders was made by the agreement even if not, barring special circumstances such as the absence or invalidity due to procedural defect or the revocation of the resolution, seeking nullification or invalidity even if the resolution of the first general meeting of shareholders is null and void, is seeking confirmation of past legal relations or legal relationships, and thus, it is unlawful as there is no benefit in protecting rights.

In addition, as seen earlier, E was appointed as an auditor by the resolution of the general meeting of shareholders of this case, but thereafter, in the management agreement of this case, at the unanimous agreement that all shareholders will attend and arrange G as an auditor of the defendant company, E was dismissed from or resigned from the audit, thereby losing its status as an auditor. Therefore, seeking confirmation of invalidity of the resolution of appointment of auditor for E who has already lost its status as an auditor is attributable to seeking confirmation of past legal relations or legal relationship, and thus, it is unlawful as there is no interest in the lawsuit.

However, there is no evidence to acknowledge that there is any defect in the management agreement of this case as a resolution of the general meeting of shareholders, and C was legally appointed by the resolution of the general meeting of shareholders in the form of the management agreement of this case as the representative director of the defendant association, and G as the auditor.

B) As to this, the Plaintiff asserts that “The instant management agreement does not take effect because the representative director C of the Defendant Company did not perform the obligations included in the instant management agreement, or C shall waive the management right of the Defendant Company and return the shares to the Plaintiff, etc. pursuant to Article 11 of the management agreement.”

However, as seen earlier, the nature and effect of the management agreement in this case as a resolution of a new general meeting of shareholders of the defendant company is as follows. Even though C claims for damages or claims for dismissal against non-performance of the management agreement in this case, C shall not be deemed null and void a resolution of appointment of each of the representative directors of the defendant company included in the management agreement in this case, on the ground that C shall not perform the management agreement in this case, and the resolution of appointment of representative director and auditor included in the management agreement in this case shall not be deemed null and void, and it shall be deemed null and void a resolution of appointment of representative director and auditor due to defects in the procedure and contents, and the plaintiff's above assertion is without merit.

C) Therefore, since the above defense of the Defendant Company is well-grounded, the instant lawsuit is unlawful as there is no legal interest in the legal rate to seek confirmation.

4. Conclusion

Therefore, the lawsuit of this case is dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

(Presiding Judge)

E. E. H.L.

authorized crimes