In respect of a corporation, the person holding the board meeting

Even if the articles of incorporation of a stock company limits a person entitled to convene a board of directors only by the representative director, interpretation in accordance with the purpose of Article 390 of the Commercial Act requires the representative director to act as to the convening of the board of directors which each director can do with the intent of Article 390 of the Commercial Act, so it cannot be refused if the representative director makes a request for convening the board of directors due to a justifiable reason. If the representative director refuses to convene the board

Article 390 of the Commercial Act

Supreme Court Order 74Ma595 delivered on February 13, 1975 (Supreme Court Decision 10896 Decided 1086, Supreme Court Decision 23 ① civil 54, Decision 390(1)743, Court Gazette 510No8346 Decided February 13, 1975

Applicant

Respondent Co., Ltd. and one other

The applicant's claim is dismissed.

(1) The respondent 2 shall not perform the duties of representative director of the respondent company until the judgment on the merits of the claim for confirmation of existence by the resolution of the board of directors No. 74 or 310 between the respondent and the respondent company becomes final and conclusive.

(2) The applicant did not retire from the respondent company by a resolution of dismissal of the board of directors held on February 10, 1974 at the Respondent company until the judgment on the merits became final and conclusive, and held the status of the representative director of the Respondent company as before.

(3) The respondent 2 shall not have access to the office of the representative director (the president) of the respondent company (the chief director) in the Jeonju-si Co., Ltd. (hereinafter omitted) during the above period, and shall not interfere with the performance of the duties of the representative director of the applicant. The purport of the above order shall be announced in an appropriate manner.

In summary of the summary of the reasons for filing an application, only the representative director may convene a board of directors under Article 28 of the Respondent's articles of incorporation, but the board of directors of the defendant company held on February 10, 1974, held on February 10, 1974, convened the meeting of the board of directors of the Respondent 2 and 5 directors of the Respondent 2 and the board of directors convened the meeting without convening the meeting of the Respondent 2, a representative director, passed a resolution to dismiss the applicant as the representative director,

Since the above board of directors was convened due to the convocation procedure in violation of the Respondent's articles of incorporation, the above board of directors does not legally exist, and it is necessary to suspend the performance of duties of the Respondent 2 or recover the status of the Respondent.

First, it is reasonable to view that the above convocation procedure of the board of directors is illegal.

According to Article 390 of the Commercial Code, "the board of directors shall be convened by each director. However, this shall not apply to the case where a director convened by a resolution of the board of directors is determined." According to Article 28 of the Respondent's Articles of Incorporation, "the board of directors shall

Therefore, according to the above provisions, only the representative director can convene a board of directors, and he can hold a board of directors until when the representative director does not convene a board of directors.

However, since the board of directors is an executive officer of a company, there should be no cases where the execution of the company's business should be suspended because a director who has the authority to call for the company's business execution is not convened, so the representative director's meeting should not be interpreted as a limited provision that only the representative director can call and no other director can participate in the convocation of the board of directors in accordance with the main provision of the above Commercial Act, not a provision that allows a certain director to conduct the convening of the board of directors to act on behalf of the director for the purpose of systematic unification of the board of directors (the same as the representative director), so the director designated as the convocation of the board of directors should be interpreted as a provision that allows another director to convene the board of directors on behalf of the director (the same as the representative director).

Therefore, if another director makes a legitimate request for a meeting, he/she shall carry out the convocation procedure on behalf of the director who requested the meeting, unless there is a special reason. If the director does not comply with it, the director who requested the meeting does not act on behalf of the other person, but can convene the meeting on his/her own.

In addition, it is because the function of the board of directors having the character of standing and standing character of a corporation is marin and therefore, it may result in the malibity of the corporation itself. Moreover, Article 28 of the Respondent's Articles of Incorporation should be interpreted in the above meaning.

However, according to the various supporting documents bound in the records, five directors, among nine directors, excluding Respondent 2, 1, 2, 3, 4, and 5, who are directors on January 7, 1971, excluding Respondent 1, 1974, 5, who were the representative director at the time of the filing, shall again be the applicant who had had the representative director at the time of the filing

(1) The dismissal and re-resolution of the representative director's expenses and the remuneration of members;

(2) Measures against the violation of the representative director's standing

(3) Whether the measure of employee personnel is legitimate under the private law

(4) Adjustment of the disposal of company vehicles following energy saving;

(5) The increase of subscription fees and the adjustment of personnel expenses

(6) Improvement of all officers including the representative director

(7) In respect of the applicant who requested the convocation of the board of directors on the ground of other issues concerning the management of the company as an agenda item, the applicant who had been the representative director; and

(1) The distribution of shares is not yet determined because the lawsuit between the non-applicant 6 and the non-applicant 1 on the transfer of shares held by the director is pending in the court.

(2) On December 21, 1973, with respect to a resolution to dismiss an applicant who is a representative director by a resolution of the 8th meeting of the board of directors, the applicant filed a provisional disposition application such as holding the status above and the lawsuit to revoke the above resolution of the board of directors. Thus, the status of the representative director

(3) 6 shareholders and 2 directors have claimed to withhold the convening of the board of directors.

(4) The issue of the adjustment, etc. of company vehicles following the saving of energy saving of the subscription price of employees is already resolved by the board of directors, etc., and thus, the above five directors, on February 16, 1974, notified each director of the convocation of the 10th board of directors on February 16, 1974. The board of directors, with the consent of a majority of the directors, dismissed the applicant from office as the representative director and appointed the respondent 2 as the representative director.

However, there are some agenda items of the directors who requested the above convocation, but the above arguments of the applicant who rejected the request are not a special reason to refuse the meeting of the board of directors.

The discussion is free, and if the case is not supported by the board of directors because the agenda is inappropriate, it is only decided by the board of directors with the support of the board of directors. If it is decided to be implemented by the board of directors with the support of the majority shareholders, it will be regarded as having received support from the majority shareholders, and it will be consistent with the nature

Therefore, the respondent 2 et al. cannot be called a defective board of directors convened by those who do not have the authority to call a meeting of the board of directors directly. Thus, the applicant's objection application based on the premise of invalidation or non-existence of the board of directors resolution is dismissed without any other explanation to acknowledge the existence or necessity of the preserved right.

Judges Park Young-young (Presiding Judge)