[1] In a case where a judgment revoking the resolution of the general meeting of shareholders becomes final and conclusive, the qualification of the representative director selected by the above resolution as the directors (i.e., loss of class) and the validity of the act done by the representative director before the judgment revoking the resolution

[2] Whether registration of appointment of a director by a representative director appointed as a director by a resolution of the general meeting of shareholders revoked constitutes a fraudulent registration under Article 39 of the Commercial Act (affirmative)

[3] The case holding that the company is liable for false registration under Article 39 of the Commercial Code in case where a judgment revoking the resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive

[1] Where a judgment revoking a resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive, the representative director selected by the board of directors composed of the directors appointed by the resolution shall lose his qualification retroactively, and the representative director's act committed before the judgment revoking the resolution of the general meeting of shareholders becomes final and conclusive shall be null and void as an act committed by the

[2] Even if a judgment revoking a resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive and such resolution becomes retroactively null and void, the other party to the transaction with the representative director whose resolution of appointment is revoked may be protected by the application or analogical application of Article 39 of the Commercial Act. In the case of the registration of a corporation, the company shall file an application for registration with its representative, but the applicant for registration is itself the company, and the registration of appointment of directors completed by the representative director appointed by resolution of the general meeting of shareholders

[3] The case holding that where a judgment revoking a resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive, the company's liability for false registration is recognized under Article 39 of the Commercial

[1] Articles 190 and 376 of the Commercial Act / [2] Articles 39 and 376 of the Commercial Act / [3] Articles 39 and 376 of the Commercial Act

[2] Supreme Court Decision 73Da1070 decided Feb. 12, 1974 (Gong1974, 7731)

Cho Jaesan Co., Ltd. (Attorney Ansan-tae et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Shin-gil, Counsel for the defendant-appellant)

Busan High Court Decision 2001Na12379 delivered on March 7, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

Where a judgment revoking a resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive, the representative director selected by the board of directors composed of the directors appointed as directors by such resolution shall lose his/her qualification retroactively, and the representative director shall be deemed to be null and void, unless the representative director has no power of representation, before the revocation judgment becomes final and conclusive

In a different view, the lower court erred by misapprehending the legal doctrine regarding the retroactive effect of a judgment revoking a resolution of the general meeting of shareholders to dismiss directors of this case, on the grounds stated in its reasoning, that the effect of the judgment is not retroactive.

2. Regarding ground of appeal No. 2

However, even if the judgment revoking the resolution of the general meeting of shareholders becomes final and conclusive and the resolution becomes retroactively null and void, the other party to the transaction with the representative director whose resolution of appointment is revoked may be protected by the application or analogical application of Article 39 of the Commercial Act. In the case of the registration of a corporation, the company shall file an application for registration through the representative, but the applicant for registration is itself the company, and the registration of appointment of directors completed by the representative director who is appointed by the resolution of the general meeting of shareholders is subject

According to the reasoning of the judgment below, the court below duly acknowledged the fact that the non-party 1, who was appointed as the representative director by the general meeting of shareholders of this case, was registered as the representative director of the plaintiff company on the corporate register on the same day until the judgment revoking the general meeting of shareholders becomes final and conclusive, the non-party 2, the opposite contractual party, entered into a mortgage-backed contract with the non-party 1, the representative director of the plaintiff company on the corporate register at the time when the judgment revoking the general meeting of shareholders of this case, and the defendants, including the non-party 2, did not know at all the fact that the non-party 1 was not a legitimate representative director of the plaintiff company until the judgment revoking the resolution of this case became final and conclusive, and determined that the plaintiff company should be liable for the mortgage-backed contract concluded with the plaintiff company and the non-party 2, and all other transactions based on the mortgage-backed and all other transactions. In light of the above legal principles, the court below's fact-finding and judgment is just and there

3. Conclusion

Therefore, the judgment of the court below is not erroneous, which affected the conclusion of the judgment, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Zwon-won (Presiding Justice)