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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Plaintiff is a shareholder who owns 11,000 shares out of the total number of shares issued by C (hereinafter “C”) 40,000 shares, and the Defendant is a C’s representative director from January 5, 2005 to March 31, 2014 (the representative director of C from March 25, 2005 to March 31, 2014).
B. On July 18, 2017, the Plaintiff filed a lawsuit seeking compensation for damages with the intent to enforce the Defendant’s responsibility by withdrawing KRW 438,685,594 from the Defendant’s account in the name of a person who was a shareholder of at least 1% of the C’s issued stocks, pursuant to Article 403(1) of the Commercial Act, with the receiver C (the Defendant in charge of internal directors) pursuant to Article 403(1) of the Commercial Act (hereinafter “the Plaintiff filed a lawsuit seeking compensation for damages to the effect that the Defendant caused damage to C by embezzlement (hereinafter “instant claim”), and the said written claim reached C around that time.
C. However, the Plaintiff did not file a lawsuit against the Defendant 30 days after C filed the instant lawsuit. The Plaintiff filed the instant lawsuit.
[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 3 (Ga number omitted, hereinafter the same shall apply) and the purport of the whole pleadings
2. Judgment on the main defense of this case
A. Under Article 394(1) of the Commercial Act, where a company files a lawsuit against a director, an auditor represents the company and receives a claim pursuant to Article 403(1) of the Commercial Act. However, since the Plaintiff’s representative at the time of filing the instant lawsuit against C, i.e., the inside director B who is not an auditor at the time of filing the claim against C, that is, the Defendant, it is unlawful as the instant lawsuit based on Article 403(1) of the Commercial Act is not a legitimate claim under Article 403(1) of the Commercial Act, and thus, Article 394(1) of the Commercial Act is unlawful.
§ 403. Company