(영문) 서울고등법원 2020.02.05 2019나2035221

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(영문) 서울고등법원 2020.02.05 2019나2035221

임시주주총회결의 부존재 확인 등

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1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. The reasoning of the judgment of the court of first instance citing the Defendant’s appeal is not significantly different from the argument in the court of first instance, and the judgment of the court of first instance citing the Plaintiff’s primary claim is justifiable even if each evidence and the result of pleading submitted in the court of first instance were examined.

Therefore, this court's reasoning, including the allegations and evidence of the parties added in the trial, shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act, as it is stated in the reasoning of the judgment of the first instance, except for the further determination by supplementing the reasoning of the judgment of the first instance as stated in the following

2. The Defendant’s argument that the issuance of new shares in this case is valid shall be invoked as it is, inasmuch as the first instance court’s judgment was just and added to it, and there is no additional attachment.

In light of the circumstances that the above agenda was resolved at a temporary general meeting of shareholders regardless of whether there was any objection against the plaintiff, the defendant asserts that even if there was no regular voting procedure at the temporary general meeting of shareholders on July 21, 2016 (hereinafter “the first general meeting of shareholders”), the resolution in the attached Form 1 of the judgment of the first instance (hereinafter “the resolution in this case”) made at the general meeting of shareholders cannot be deemed as a serious defect to the extent that the resolution in the first general meeting of shareholders cannot be deemed as exist.

However, if the ownership of shares is substantially distributed, if the minutes of the shareholders' meeting are prepared falsely as if the resolution of the shareholders' meeting was made without the actual convocation procedure and resolution procedure, the minutes of the shareholders' meeting are prepared as the majority of the total shares and there was a resolution by the controlling shareholders.

Even if there is a serious defect that could not be seen as having existed the resolution, the general meeting of shareholders is held.

참조조문

-민사소송법 제420조

유사 판례

-서울고등법원 2020.02.05 2019나2035221

-대법원 2018.06.19 2017도21783

-대법원 2018. 6. 19. 선고 2017도21783 판결

-대법원 2007. 2. 22. 선고 2005다73020 판결

-서울남부지방법원 2020.05.22 2019가합110361