Co., Ltd.

1.2 1.2

Busan District Court Order 2019Ra2382 dated October 25, 2019

1. The decision of the first instance shall be revoked;

It shall be permitted to convene a temporary general meeting of the principal of the case, the purpose of which is to elect the Speaker from among the 1st application of the representative director of the case, the dismissal of 2 other than the application, and the removal of the 2nd director, the successor representative director, the appointment of directors,

2. The total cost of the lawsuit shall be borne by the principal of the case.

The same shall apply to the order.

1. Basic facts

The record reveals the following facts.

A. The principal of this case is a company with the purpose of real estate development and consulting business, and the applicant owns 21,300 shares out of 30,000 shares issued by the principal of this case on the register of shareholders (hereinafter “instant shares”).

B. On March 29, 2019, the applicant filed a request with the representative director of the principal of the case to convene an extraordinary general meeting of shareholders for the purpose of the meeting. However, the principal of the case does not follow the procedure of convening an extraordinary general meeting of shareholders until now.

2. Determination

A. According to Article 366(1) and (2) of the Commercial Act, a shareholder who holds shares representing no less than 3/100 of the total issued and outstanding shares may file a request with the board of directors for convening an extraordinary general meeting by submitting a document or electronic document stating the purpose of the meeting and the grounds for convening the meeting, and when a company fails to take the procedure for convening the general meeting without delay after the above request, the shareholder who filed the request may convene the general meeting with the permission of

According to the above facts, although the applicant is a shareholder who holds 71% of the total number of outstanding shares of the principal of this case and requests a convocation of a temporary general meeting for the purpose of the meeting, the principal of this case does not take the procedure of convening a temporary general meeting without delay. Thus, it is reasonable to permit the convocation of a temporary general meeting for the purpose of the meeting in accordance with Article 366 (2) and (1) of the Commercial Act.

B. As to this, the principal of the case asserts that the applicant is the mortgagee of the shares of this case, and the secured debt has been extinguished by repayment, and thus, the application of this case constitutes abuse of rights.

Even if shares are transferred to a company for the purpose of securing a claim and the transferee is merely a mortgagee (see Supreme Court Decision 93Da8719, Dec. 28, 1993); voting rights and other public interest rights belong to a transferee who is a secured party (see Supreme Court Decision 92Da84, May 26, 1992). In addition, not only where the transferor has yet to enter his/her shares in the register of shareholders but also where the transferee takes over or takes over the shares of a company under another’s name, but also where the transferee takes over or completes the entry in the register of shareholders under another’ name, only the shareholders listed in the register of shareholders can legally exercise their voting rights, such as voting rights, in relation to the company, barring any special circumstance. Even if a person entered in the register of shareholders has not been able to exercise voting rights in the register of shareholders, a shareholder who seeks to take over or take over the shares cannot exercise voting rights in the register of shareholders, based on the principle of good faith, at least 20 shareholders cannot exercise voting rights in the register of a company.

On the other hand, the minority shareholder’s right to request the convocation of an extraordinary general meeting under Article 366 of the Commercial Act refers to the right that minority shareholders may exceptionally form the company’s intent with the initiative of the minority shareholder in order to reflect their own intent in the company’s business. Considering the nature and supervisory function of the right to request the convocation of an extraordinary general meeting, it is reasonable to permit the application for the convocation of a general meeting as long as it does not constitute an abuse of rights, such as where there is no benefit from the convocation of the general meeting or where permission is granted for the convocation of a general meeting, it is obvious that the company would cause more complicated and serious legal disputes, and rather, it would cause more harmful consequences. Furthermore, since the final decision on important matters of the company is made at the general meeting of shareholders, the court should be careful to dismiss the application for the convocation of a general meeting by deeming it as

According to the records of this case, the applicant Nonparty 1, etc. appears to have offered the stocks of this case to the applicant as a security for transfer. However, in light of the above legal principles, the applicant may still be deemed to be the owner of the stocks of this case, unless such measures are taken, and the applicant may not be deemed to be the shareholder of the principal of this case or the applicant’s application of this case constitutes an abuse of rights. The above assertion of the principal of this case cannot be accepted.

3. Conclusion

The application of this case is justified, and the decision of the court of first instance is unfair with different conclusions, so the decision of the court of first instance shall be revoked and the applicant shall be permitted to convene a temporary general meeting of the principal of this case, the subject of which is the subject of the meeting. It is so decided as per Disposition.

Judges Park Jong-young (Presiding Judge) (Presiding Judge) Kim Jong-hee