The effect of a general meeting of shareholders held without sending a notice for convocation to most shareholders.

Unless there are any special circumstances, the general meeting of shareholders held without sending a notice for convening a notice to all or most shareholders shall be deemed to be difficult to recognize the formation of the general meeting as it is too defective in the process of its formation.

Article 363 of the Commercial Act

Plaintiff 1 and five others (Attorney Lee Dong-ho, Counsel for defendant-appellant)

Youngcheon Market Corporation

Seoul High Court Decision 78Na205 delivered on May 24, 1978

The original judgment is reversed, and the case is remanded to the Seoul High Court.

Judgment on the Plaintiffs’ grounds of appeal by the Plaintiffs,

According to the reasoning of the judgment of the court of first instance cited by the original judgment, the defendant company composed of eight shareholders, including plaintiff 1 and the deceased non-party 1, etc. on May 16, 1963. The defendant company acquired 213 shares and 150 shares, and the above non-party 1 and the deceased non-party 3 acquired 19 shares and 49 shares, and paid 1,207 shares, such as the takeover by the lessee of the defendant company's shop, and thereafter paid 1,20 shares, and then accepted 10 shares and 4 shares again on August 20, 1965. The non-party 1 did not know that the non-party 1 did not issue 10 shares to the non-party 1 at the time of establishment or issuance of new shares, and that the non-party 1 and the non-party 1 did not transfer the shares to the non-party 1 at the time of the plaintiff's general meeting of shareholders on the ground that the non-party 1 and the non-party 1 were not present at the plaintiff's general meeting of shareholders.

However, it is reasonable to view that the general meeting of shareholders held without sending a notice to all or most shareholders, unless there are special circumstances, is too serious in the process of its formation, and thus it is difficult to recognize the establishment of the general meeting itself by social norms. In this case, the plaintiffs' assertion was held without sending a notice to all legitimate shareholders, including the plaintiffs, and the plaintiffs were not present at the general meeting. The court below decided that the plaintiff 1, the deceased non-party 1, the deceased non-party 3 and other issuers were the original shareholders at the general meeting of this case, and that the above plaintiffs 1, the non-party 1, the deceased non-party 3, and the non-party 3 were not dispatched a notice to convene the general meeting of this case.

If so, the court below should have tried to determine how the method of convening a notice to the defendant company was used or what method was used, and whether the rest of the issuer was sent a notice to them, and whether or not the person with the authority to give a notice was given with the authority to give a notice to them. In addition, the court below should have judged it after this year. As seen above, the court below's judgment on the premise that the burden of proof is all of the plaintiffs, as seen above, is erroneous by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the establishment of the general meeting of shareholders, or by misunderstanding the legal principles on the establishment of the general meeting of shareholders. Therefore, the argument on this issue is without merit.

Therefore, the original judgment is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Han-jin (Presiding Justice)