2016 Gohap23089 Action in respect of the Company

A person shall be appointed.

A person shall be appointed.

April 26, 2017

June 14, 2017

1. The lawsuit of this case is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

On July 8, 2016, the Defendant’s temporary general meeting of shareholders reveals that there is no resolution to dismiss AA, AAB, and AAC as an internal director, and that there is no resolution to appoint AA as an auditor. On July 8, 2016, the board of directors confirms that there is no resolution to appoint AA as the representative director. The Defendant’s temporary general meeting of shareholders on August 31, 2016 that there is no resolution to change the total number of shares issued and to increase capital.

1. Basic facts

A. The Defendant is a company that operates scraping business with its place of business in Ulsan-gu D (Seongdong) and is dismissed at the Defendant’s temporary general meeting of shareholders on July 27, 2016 while serving as the Defendant’s internal director.

B. AA convened the Defendant’s temporary shareholders’ meeting on July 8, 2016 (hereinafter “the first temporary shareholders’ meeting”). At the first temporary shareholders’ meeting held accordingly, the Defendant adopted a resolution to appoint AA, AB, and AAC as internal directors and as auditors (hereinafter “the first temporary shareholders’ resolution”). AA was a shareholder holding 11,700 shares of the Defendant at the time of convening the first temporary shareholders’ meeting, but was not the Defendant’s representative director or director.

C. On July 8, 2016, the Defendant: (a) held a board of directors on the same day in the presence of the Defendant’s internal director AA, AAB, AAC, and auditor who was appointed at the first interim general meeting of shareholders on July 8, 2016; and (b) passed a resolution to elect AA as the Defendant’s representative director (hereinafter “the instant board of directors resolution”).

D. On August 12, 2016, AA convened a temporary shareholders' meeting on August 31, 2016 (hereinafter referred to as "second temporary shareholders' meeting"). At the second temporary shareholders' meeting held accordingly, the Defendant changed the total number of shares issued from 22,50 to 45,000 shares, thereby increasing its capital from 225,00,000 to 450,000 won (hereinafter referred to as "second temporary shareholders' meeting").

E. On November 27, 2002, the Plaintiff transferred 10 million won shares to A and 2002, but the Plaintiff’s divorce lawsuit (Seoul District Court Decision 2012D 13156) confirmed on January 22, 2013, and divorced. After which the Plaintiff filed a claim for property division against the Plaintiff under Ulsan District Court 2013Ra250, Ulsan District Court 16,750 shares issued to the Defendant as property division, and notified the Plaintiff of 10 million won shares transfer and 10 percent shares transfer to 16,750 shares and 10 percent shares transfer to 30 percent shares to 20,000 won and 10 percent shares transfer to 10,000 won and 10 percent shares transfer to 20,000 won and 10 percent shares transfer to 20,000 won each of the above 16,000 shares transfer to 20,000 won.

F. On December 16, 2016, AA filed an application for an order to make special cash (transfer) with the U.S. District Court 2016TTTT14065 against the Defendant’s shares held by the Plaintiff in order to obtain reimbursement of the Plaintiff’s claim following the above decision to divide the division of property. The above court rendered a decision to the effect that “A shall transfer 6,750 shares owned by the Defendant to AA in lieu of payment of KRW 67,50,00,00 among the shares owned by the Defendant’s common shares of KRW 150,000,000,000, the amount of KRW 150,000 issued by the Defendant.” On February 21, 2017, the above court rendered a decision to the effect that “AA shall transfer 6,750 shares owned by the Defendant to B,” which became final and conclusive on February 15, 2017.

G. At the time AA convened the first provisional shareholders' meeting, the Plaintiff held 6,30 shares in the Defendant's shares, but the entire shares 6,300 shares in the Defendant's shares were transferred to AA according to the decision on the said Special Cash Order (Transfer) Order, and the Plaintiff came to hold no longer the Defendant's shares in April 20, 2017. At the time of the first provisional shareholders' meeting and around April 21, 2017, the status of the Defendant's shares held in the Defendant's shares on the Defendant's list of shareholders as listed below.

A person shall be appointed.

H. On April 20, 2017, the Defendant: (a) held a temporary general meeting of shareholders in all shareholders of the Defendant (AA, AB, and AAC) and made a resolution of ratification of the resolution of the first general meeting of shareholders with the consent of all shareholders present; (b) the resolution of the instant society; (c) the resolution of the second general meeting of shareholders; and (d) the resolution of the provisional general meeting of shareholders that dismissed the Plaintiff from the Defendant’s internal director on July 27, 2016 (hereinafter referred to as “each of the instant resolutions”) (hereinafter referred to as “the resolution of the temporary general meeting of shareholders of this case”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 7, the purport of the whole pleadings

2. The plaintiff's assertion

The first provisional general meeting of shareholders was convened by AA, which is a shareholder of the defendant who is not the representative director of the defendant who is not the convening authority under the articles of incorporation, and thus, AA, AB, and AAC are removed from office directors, and the first provisional general meeting of shareholders, which is so serious that the resolution of the general meeting of shareholders cannot be deemed to exist in the convocation procedure or the method of resolution. Since the first provisional general meeting of shareholders has no resolution of the general meeting of shareholders, there is no resolution of the first provisional general meeting of shareholders, the first provisional general meeting of shareholders, which is composed of AA, AB, AAC, etc. elected by the resolution of the first general meeting of shareholders, the board of directors of this case, which is composed of AA elected by the resolution of the first general meeting of shareholders, AA as the representative director of the defendant, as long as there is no resolution of the first provisional general meeting of shareholders and the board of directors of this case, AA is not the representative director of the defendant, so the second general meeting of shareholders convened by AA also has no special resolution.

3. Determination as to the legitimacy of the instant lawsuit

A. Determination as to the legitimacy of the Defendant’s claim seeking the confirmation of the existence of a resolution dismissing the Plaintiff who is an internal director at the temporary general meeting of shareholders on July 8, 2016

ex officio, we examine the legitimacy of this part of the lawsuit.

The benefit of confirmation in a lawsuit for confirmation is the case where there is a dispute between the parties in connection with the present rights or legal status, and thereby, it is determined to be the most effective and appropriate means to determine the legal status of the plaintiff as a confirmation judgment to eliminate the uncertainty and danger when the plaintiff's legal status is unstable and dangerous (see Supreme Court Decision 2009Da93299, Feb. 25, 2010, etc.).

In the instant case, according to the facts, including the contents of the resolution of the provisional shareholders’ meeting in this case and the date of dismissal on the Defendant’s corporate register, and the evidence revealed earlier, the Defendant appears to have passed a resolution to dismiss the Plaintiff from the Defendant’s internal director at the temporary shareholders’ meeting held on July 27, 2016. There was no resolution to dismiss the Plaintiff, who is the Defendant’s internal director, at the primary temporary shareholders’ meeting held on July 8, 2016. Therefore, on the premise that there was a resolution to dismiss the Plaintiff, who is the Defendant’s internal director, at the primary temporary shareholders’ meeting, the first temporary shareholders’ meeting held on July 8, 2016, the claim seeking confirmation of absence due to the serious defect in the procedures for convening the provisional shareholders’ meeting or the method of resolution, seeking confirmation of absence on the Plaintiff, which did not have any appearance as a defective removal decision, and thus, the Plaintiff’s claim for removal of this part of the Plaintiff’s rights and legal status cannot be seen as an unlawful means.

B. Determination on the defense prior to the merits

1) Summary of the defendant's assertion

On April 20, 2017, the Defendant held a temporary general meeting of shareholders of this case while all shareholders of the Defendant were present, and adopted a resolution for ratification of each of the instant resolutions with the consent of all shareholders of the Defendant. Therefore, even if each of the instant resolutions did not exist because there is no serious defect in the convocation procedure or the method of resolution, as long as each of the instant resolutions was ratified at the temporary general meeting of shareholders of this case thereafter, seeking confirmation of the absence of each of the instant resolutions is merely seeking confirmation of the past legal relationship or the relation of interest, and thus there is no benefit of confirmation. Accordingly, the Plaintiff’s lawsuit of this case is unlawful.

2) Determination

If there is a legitimate ratification resolution with respect to an invalid previous resolution, it shall be deemed to have been a new resolution with the same contents as the previous resolution, and even if the previous resolution is null and void, it is to seek confirmation with respect to the past legal relations or legal relationship, and it is deemed that it lacks the requirements for protection of rights as a lawsuit for confirmation (see Supreme Court Decisions 9 delivered on April 11, 1995; 20 delivered on February 24, 199, etc.).

In light of the above legal principles, as seen earlier, the defendant recognized that the provisional shareholders' meeting of this case was adopted to ratification each resolution of this case at the provisional shareholders' meeting of this case where all members of the defendant were present on April 20, 2017. This can be seen as the same as the defendant made a new resolution of this case with the consent of all shareholders at the provisional shareholders' meeting of this case. Thus, even if each resolution of this case where the plaintiff seeking confirmation of its absence exists in the convocation procedure or method of resolution, it is to seek confirmation of non-existence of the resolution as a lawsuit for confirmation, and thus, it is to seek confirmation of the past legal relationship or legal relationship, and therefore, the requirements for protection of rights as a lawsuit for confirmation (the plaintiff is seeking confirmation of non-existence of a resolution to dismiss the plaintiff who is a director at the temporary shareholders' meeting of this case on July 8, 2016, but the defendant appears to have dismissed the plaintiff's claim of this case from the above temporary shareholders' meeting of this case on the ground that it lacks the above requirements for protection of rights.

Furthermore, as long as there exists an illegal appearance caused by the registration of the Defendant’s corporate entity completed according to each of the instant resolutions, the Plaintiff asserts that there exists a benefit in confirmation of the absence of each of the instant resolutions. However, the Plaintiff’s written evidence No. 2 alone is insufficient to deem that the Plaintiff was dismissed from the Defendant’s position as the Defendant’s director on July 27, 2016, and that the Plaintiff was the Defendant’s internal director on July 8, 2016, and that there was a dispute over the Plaintiff’s current rights or legal status or any disadvantage to the Plaintiff as a result of the entry that the Plaintiff was appointed as the Defendant’s auditor, and there is no evidence to acknowledge otherwise. Accordingly, the instant lawsuit cannot be deemed the most effective and appropriate means to remove the Plaintiff’s rights or legal status’s current anxiety or risks. Therefore, the instant lawsuit is unlawful on the grounds that there is no benefit in confirmation.

4. Conclusion

Thus, the plaintiff's lawsuit of this case is unlawful and thus, it is decided to dismiss it as per Disposition.

Judges in the future;

Judge Lee Jong-soo

Judge Lee Jong-chul

1) Even in the minutes of the first extraordinary general meeting of shareholders, the Defendant adopted a resolution to dismiss the Plaintiff from the Defendant’s position of director at the first special meeting of shareholders.

not stated the facts (No. 4-1).

2) A special shareholders’ meeting with the same contents as each of the instant resolutions is newly established due to the resolution of the special shareholders’ meeting of this case ratified each of the instant resolutions.

As long as it can be seen that the defect of each of the instant resolutions is serious, it is irrelevant to the legitimacy of the instant suit.

I will see that it is.