2019Gahap196 Confirmation, etc. of Non-existence of Resolution of the General Meeting of Shareholders

1. A;

2. B

[Defendant-Appellant] Defendant 1 et al.

[Defendant-Appellee]

C. Stock Company

Shina Law LLC, Counsel for the defendant-appellant

Attorney Lee Han-ro

November 28, 2019

January 9, 2020

1. All of the plaintiffs' primary claims are dismissed.

2. The Defendant’s resolution on March 28, 2019 at the ordinary shareholders’ meeting as of March 28, 201 is revoked. 3. Costs of lawsuit are borne by the Defendant.

The primary purpose of the claim is to confirm that there is no respective resolutions listed in the separate sheet as stated in the defendant's regular general meeting of shareholders (hereinafter referred to as "general meeting of shareholders of this case") on March 28, 2019.

Preliminary purport of claim: It is as stated in paragraph (2).

1. Basic facts

A. Status of the parties

The defendant's total number of shares issued by the company with the purpose of nursing business, social welfare business, etc. is 20,000 shares, and the total amount of capital is 100,000,000 won per share (5,000 won per share), and the plaintiffs are shareholders of the defendant and employees who are in office as nursing staff of the defendant company.

B. The number of shares held by the Defendant’s shareholders and the Defendant’s shareholders and shares in the register of shareholders prepared as of December 31, 2018 are as follows:

A person shall be appointed.

A person shall be appointed.

C. Holding and resolution of the general meeting of this case

1) On March 28, 2019, the Defendant held the instant general meeting of shareholders. On March 28, 2019, the Defendant declared that D’s representative director D of the Defendant, who was the president at the said general meeting of shareholders, was passed (hereinafter referred to as “instant resolution”) by the resolution (hereinafter referred to as “instant resolution”).

2) 이 사건 주주총회에서 작성된 의결서(을 제2호증, 이하 '이 사건 의결서'라고 한다)에는 '참석인원: 재적인원 18명 중 17명(총주식 20,000주 중 18,000주), 불참인원: 1명(주식 2,000주), 의결여부: 가결'이라고 각 기재되어 있고, 의결사항과 관련하여 주주가 서명을 하고 가 · 부를 표시하는 란(이 사건 각 안건별로 분리되어 있지는 않고 단순히 "의결사항"이라고만 되어 있다)이 있는데, 이에 관하여 D, E, G, H, K, R, P, Q, S(보유주식수 합계 12,000주)는 각 "가"에 표시를 하였고, F, J, 원고 B, L, M, N, O, I에 관하여는 T이 수임인임을 표시하며 가 · 부를 표시하지 않고 "표결 강행으로 부결 및 무효 주장", "안건 설명 없이 표결 강행으로 무효임", "주주총회 주식수 정리 안 된 상태에서 결의한 것으로 부결 및 무효” 등 이라고 기재하였으며, 원고 A 또한 가·부를 표시하지 않고 "안건 설명 없이 표결 강행 무효임"이라고 기재하였다. 한편 F에 관하여 그 이름 옆에 "※ 위임장 없음 ⇒ 불참처리"라고 기재되어 있으나, F은 이 사건 주주총회에 참석하였다.

3) The minutes concerning the general meeting of shareholders of this case have been prepared, and the above minutes include 17 shareholders: 18,00 shares of shareholders present: 18,00 shares of shareholders present: 20 shares of the total number of issued shares: 20,000 shares of the total number of issued shares. ① The cases of approval of the report of settlement of accounts have been resolved with the consent of 12,000 shares, ② The cases of change of officers (in the case of internal directors: D, G, outside directors: S, and auditor: U) have been resolved with the consent of 12,00 shares or more of the total shares present and 12,00 shares or more of the total shares issued, ③ the cases of change of the representative director (representative: D) have been resolved with the consent of 2/3 or more of the shares present and 12,00 shares or more of the total shares issued.

D. Articles of incorporation of the defendant

The contents related to this case in the defendant's articles of incorporation (as of September 17, 2010) are as follows:

(2) Except as otherwise provided in Acts and subordinate statutes, the convening of the general meeting of shareholders shall be convened by the representative director according to a resolution of the board of directors.Article 19 (Notice of Convocation and Public Notice) ① The date, time, place, and the purpose of the meeting shall be dispatched in writing to the shareholders two weeks prior to the general meeting. ② The convening of the general meeting of shareholders shall be substituted by a notice in writing to the shareholders who hold not more than 1/100 of the total number of issued voting shares and the purpose of the meeting. ② The signing of the general meeting of shareholders shall be substituted by a notice in writing. ② The signing of the general meeting of shareholders shall be made by the representative director within three months after the end of each business year. ② The signing of the general meeting of shareholders shall be made by the representative director. ② The signing of the general meeting of shareholders shall be made by the second or more of the total number of issued voting shares and the signing of the meeting shall be made by the representative director(the chair of the general meeting of shareholders). ② The signing of the meeting of shareholders shall be made by the second or more than two-fourth.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 4, the purport of whole pleadings

2. Summary of the plaintiffs' assertion

The plaintiffs are primarily seeking confirmation of the absence of the resolution of this case, and the revocation of the resolution of this case is preliminary, as the resolution of this case was defective in the following important procedures:

A. Although the resolution of the board of directors is required to convene a defective general meeting of shareholders, the defendant did not go through the resolution of the board of directors for the convocation of the general meeting of this case, and the defendant did not comply with this although the date, time, place, and the purpose of the meeting should be notified to the shareholders in writing two weeks before the date of the general meeting, in order to convene the general meeting. However, D, the chairman of the general meeting of shareholders, did not lawfully present each of the instant items, infringed the shareholders' right to ask questions and discussions by preventing the questions and discussions of the shareholders, and declared the resolution without legitimate voting procedure for each of the instant items.

3. Judgment on the main defense of this case

A. Summary of defendant's defense

Inasmuch as the Plaintiffs seek confirmation or revocation of the absence of claim without specifying the resolution by the general meeting of shareholders of this case, the instant lawsuit is unlawful as it does not specify the purport of claim. Furthermore, even if the Plaintiffs specified the resolution seeking revocation through amendment of the purport of claim thereafter, it is unlawful as it exceeds the period of filing a lawsuit seeking revocation (2 months).

B. Determination

As seen earlier, the general meeting of shareholders of this case was held on March 28, 2019. Although the plaintiffs filed the instant lawsuit on May 28, 2019, which was within two months from the date of the general meeting, the plaintiffs confirmed that there is no resolution of the general meeting of shareholders held by the defendant on March 28, 2019. Preliminaryly, the defendant stated that the resolution of the general meeting of shareholders held on March 28, 2019 is revoked." At least seven months from the date of the general meeting, at least seven months after the date of the general meeting, the correction of the purport of the instant claim was stated in the corrected list in the correction list, and it is apparent that each of the instant claims of this case was accompanied by each resolution recorded in the separate list.

However, it is reasonable to determine whether a corrected claim has been complied with at the time of receipt of the complaint, rather than at the time of receipt of the complaint, to supplement and correct the purport of the claim in order to clarify it where it is unclear in the complaint (see Supreme Court Decision 2005Da74863, Feb. 1, 208).

In full view of the aforementioned legal principles and the evidence and the purport of the entire pleadings, or the following circumstances which can be recognized or clearly recorded, the Plaintiffs submitted as evidence the materials stated in each of the instant items (items 5) at the time of filing the instant lawsuit, and have a serious defect in the resolution on the agenda item (5) above, so the said resolution must be nonexistent or revoked. The instant general meeting of shareholders stated that only each of the instant items was resolved, and the Defendant did not separately hold a separate general meeting on the agenda other than the instant general meeting of shareholders on March 28, 2019. In full view of the following circumstances, it is reasonable to view that the Plaintiffs, at the instant general meeting of shareholders, specified the scope and purport of the claim as seeking confirmation or revocation of the absence of the resolution on all of the instant items at the instant general meeting of shareholders, and subsequently, specified the contents of the agenda items at the instant general meeting of shareholders upon the application for correction of the purport of the instant

Therefore, the purport of the lawsuit in this case was specified, and it can be seen that the plaintiffs filed the claim for the cancellation of the resolution of the general meeting of shareholders before the filing deadline. Therefore, the defendant's defense is without merit.

4. Judgment on the merits

A. Whether there is a defect in the resolution of this case

1) Whether the board of directors’ resolution to convene a general meeting is defective in the convocation procedure

According to Article 362 of the Commercial Act and Article 18 of the Articles of Incorporation, a resolution of the board of directors is required for the convocation of the general meeting of shareholders. The defendant asserted that the board of directors held on March 12, 2019 passed a resolution for the convocation of the general meeting of shareholders. However, according to the evidence No. 1 of the above board of directors, it is only recognized that the above board of directors presented an agenda item identical to each item of the instant case and made a resolution, and there is no evidence to acknowledge whether there was a resolution for the convocation of the general meeting of shareholders. Therefore, the convocation procedure of the general meeting of shareholders of this case should be deemed to be a defect that was made without the resolution of

In relation to this, the defendant argued that the general shareholders' meeting of this case was held on the last day of March every year as a regular shareholders' meeting, and that the contents of the agenda also were general and foreseeable, so even if there was no resolution of the board of directors, it is not illegal. However, according to the Commercial Act and the defendant's articles of incorporation, the general shareholders' meeting is convened without distinguishing the general shareholders' meeting from the temporary shareholders' meeting, and according to the defendant's articles of incorporation, the general shareholders' meeting is convened within three months after the end of each business year, and there is no evidence to acknowledge that the defendant decided to proceed with the general shareholders' meeting on the last day of March every year, and the general shareholders' meeting of this case was held on the last day of March, not on the second day of each year. Further, it cannot be concluded that the contents of each agenda of this case include not only the approval of the business report or the approval of the business plan for its resolution, but also the contents of the election of officers were included in the general and foreseeable contents. Even if so, it cannot be corrected without the resolution procedure.

In addition, the Defendant asserts to the effect that the defect in the convocation procedure without the resolution of the board of directors was cured because 90% of the shareholders present at the general meeting of shareholders at the time of the instant case and no objection was raised against the absence of the resolution of the board of directors. However, even if the shareholders including the Plaintiffs did not raise any objection against the absence of the resolution of the board of directors on the day of the instant general meeting of shareholders, barring any circumstance, such as the attendance at the general meeting of shareholders and the consent of the general meeting and the adoption of the unanimous resolution without any objection (see, e.g., Supreme Court Decision 2000Da6927, Dec. 12, 2002) by the Defendant’s assertion that the defect in the convocation procedure of the general meeting of shareholders without the resolution of the board of directors was cured.

Therefore, the above argument of the defendant is without merit, and eventually, there is a defect in the convocation procedure of the general meeting of shareholders without the resolution of the board of directors.

2) Whether to recognize the defect in notification to the shareholders among the defect in the convocation procedure

According to Article 363 of the Commercial Act and Article 19 of the Articles of Incorporation, in order to convene a general meeting of shareholders, notice shall be given in writing to the shareholders at least two weeks prior to the date of the general meeting. According to the evidence No. 5, the defendant sent notice to the shareholders on March 14, 2019, which contains the date, time, place, and summary of the purpose of the meeting of this case. On March 14, 2019, the above sending date, the date and time of the general meeting of shareholders, the date and place of the meeting of this case, and the subject matter of the meeting of this case, are apparent in fact. Accordingly, there is a defect in failing to observe the convocation notice period in the convocation procedure of the general meeting of this case.

3) Whether the method of resolution was defective

In light of the above facts and circumstances, i.e., the 3rd shareholders' right to attend the meeting and the 2nd shareholders' right to attend the meeting, which are the 0th shareholders' meeting and the 0th shareholders' right to attend the meeting, and the 2nd shareholders' right to attend the meeting and the 0th shareholders' right to attend the meeting, which were the 0th shareholders' right to attend the meeting and the 0th shareholders' right to attend the meeting. However, the 2nd shareholders' right to attend the meeting and the 0th shareholders' right to attend the meeting were not stated in the 0th shareholders' right to attend the meeting, and the 2nd shareholders' right to attend the meeting were not stated in the 0th shareholders' right to attend the meeting, and the 3nd shareholders' right to attend the meeting were not stated in the 0th shareholders' right to attend the meeting, and the 4th shareholders' right to attend the meeting were not stated in the 0th shareholders' right to attend the meeting.

B. Determination as to the primary claim

1) Relevant legal principles

If a resolution of the general meeting of shareholders is adopted by a legitimate convening authority, the convening authority did not have a resolution of the board of directors at the meeting of the general meeting of shareholders, and the convening authority did not observe the statutory period as a notification of verbal convocation without written notice, and even if some of the shareholders were omitted a notice of convening the general meeting, the defect in the convocation procedure is merely a ground for revocation of the resolution of the general meeting of shareholders and does not constitute a ground for non-existence (see, e.g., Supreme Court Decision 86Da553, Apr. 28, 1987). In addition, as long as the general meeting of shareholders convened by a legitimate convening authority and duly held, the defect in the method of resolution is merely a ground for revocation of the resolution of the general meeting of shareholders (see, e.g., Supreme Court Decision

2) Determination

In light of the above legal principles, even if there is a defect or defect in the method of failing to observe the convocation notice period without the resolution of the board of directors in the convocation procedure of the general meeting of this case, as seen earlier, since the notice of convening the meeting was issued by the representative director D, a legitimate convening authority, and the general meeting of shareholders of this case was held and the resolution of this case was adopted, such defect is merely a cause for revocation of the resolution of the general meeting of shareholders, and it cannot be deemed as a serious defect to the extent that the resolution of this case

Therefore, the plaintiffs' primary claims are without merit that there are serious procedural defects to the extent that the resolution is nonexistent at the general meeting of shareholders of this case. The judgment on the conjunctive claims is without merit.

1) There is a defect in the convocation procedure of the instant general meeting without undergoing a resolution of the board of directors and the method of resolution, which constitutes grounds for revocation of the resolution of the general meeting of shareholders. Accordingly, the Plaintiffs’ preliminary claim that the instant resolution should be revoked due to the defect in the convocation procedure and method of resolution of the general meeting of shareholders.

2) In regard to this, the defendant's assertion of dismissal of the claim at his discretion, but Article 379 of the Commercial Act, stating that the claim may be dismissed at the court's discretion in a lawsuit for revocation of the resolution of the general meeting of shareholders, provides for the purpose of preventing damage to the company or damage to the company by revoking the resolution when there is no particular benefit from the cancellation of the resolution, or preventing abuse of the lawsuit for revocation of the resolution when there is a defect in the resolution procedure, since Article 379 of the Commercial Act, which states that the resolution can be revoked at the court's discretion, is not beneficial to the company or shareholders even if the resolution was revoked, or since the resolution was already executed, it is exceptionally provided for in order to prevent the abuse of the lawsuit for revocation. In light of the contents of the resolution of this case, the defendant's current status and overall circumstances,

5. Conclusion

Therefore, the plaintiffs' primary claim is dismissed as it is without merit, and the conjunctive claim is accepted as it is with merit. It is so decided as per Disposition.

The presiding judge, judges and salary paths;

Judges, Yellow Infant Birth Leave, which cannot affix a name or seal;

The presiding judge

Judges

Judges Park Jong-young