(영문) 서울고등법원 2015.10.15 2015나2012695

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(영문) 서울고등법원 2015.10.15 2015나2012695

주주총회결의부존재확인의소

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1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

1..

Reasons

1. The reasoning of the court's explanation concerning this case is as follows, except for the addition of "the judgment on the defense prior to the merits of the defendant" as stated in paragraph 2 of the same Article, and therefore, it is identical to the reasoning of the judgment of the court of first instance. Thus, it is citing it as it is in accordance with the main sentence of Article

2. The Defendant asserts to the effect that seeking confirmation of the absence of the resolution of this case is unlawful as there is no benefit of confirmation, since the Defendant held a temporary shareholders’ meeting on March 5, 2015, which was following the resolution of this case, and passed a resolution appointing E, P, and H as the Defendant’s director, and J as the Defendant’s auditor.

In a lawsuit seeking confirmation of invalidity or non-existence of a resolution to appoint an officer of a certain organization on the ground that there is a defect in the resolution to appoint the officer, if the person appointed by the resolution is no longer in the position of the officer due to the expiration of the term of office or resignation, etc., and the new officer is appointed thereafter, the lawsuit seeking confirmation of invalidity or non-existence of the resolution to appoint an officer is incidental to seeking confirmation of the past legal relations or legal relationship, and thus failing to meet the requirements for protection of rights, unless there are special circumstances, such as the absence or invalidity due to procedural defect

(see, e.g., Supreme Court Decisions 96Da24309, Oct. 11, 1996; 2002Da25310, Nov. 13, 2002; 2013Da37753, Sept. 4, 2014) in light of the foregoing legal doctrine, the Defendant held a temporary general meeting of shareholders on March 5, 2015 and appointed E, P, and H as the Defendant’s director, and J as the Defendant’s auditor.

However, comprehensively taking account of the overall purport of the arguments in Gap evidence No. 15, the defendant held a temporary general meeting of shareholders on March 5, 2015 and appointed E, P, H as a director, and J as an auditor.

참조조문

-민사소송법 제420조

참조판례

-대법원 1996. 10. 11. 선고 96다24309 판결

유사 판례

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