2010A. 1128 Invalidity, etc. of Resolution of Extraordinary General Meeting

Han 00

Busan East-gu

Seoul High Court Decision 201Na1448 delivered on May 1, 201

1. MPM Co., Ltd.;

Kim Jong-si

Maximum 00

2. Gamb○ (name)

Jinju City

3. Maximum○○ (AAAA) (AAA);

Kim Jong-si

Defendant 2 and 3’s attorney Kim Jong-sung, Law Firm Kim Jong-chul, Counsel for the defendant-appellant-appellee)

Attorney Yellow Tae-jin

September 22, 2011

2011, 11, 10

1. Of the Plaintiff’s lawsuit against Defendant MMMM Co., Ltd., the part concerning the Plaintiff’s claim for the performance of the registration procedure for the appointment of the representative director on September 1, 2009 and the decision for the appointment of the representative director on December 14, 2009 by the board of directors of the board of directors on December 14, 2009, each claim for confirmation of invalidity of the resolution for the appointment of directors on the appointment of the representative director on December 24, 2009 at the temporary general meeting of shareholders on December 24, 2009, and each claim for confirmation of absence of the non-existence of the resolution for the appointment of the representative director on the Defendant largest ○○○, which

2. Defendant MMM Co., Ltd shall pay to the Plaintiff 8,10,000 won with 5% interest per annum from September 22, 2011 to November 10, 201, and 20% interest per annum from the next day to the day of full payment.

3. The Plaintiff’s remaining claims against Defendant MMMM Co., Ltd. and the Plaintiff’s claims against Defendant 1, 200 and 300 are all dismissed.

4. Of the costs of lawsuit, 70% of the portion arising between the Plaintiff and Defendant MMMM Co., Ltd. shall be borne by the Plaintiff, and the remainder 30% shall be borne by the Plaintiff, respectively, by Defendant MMM Co., Ltd., and the part arising between the Plaintiff, Defendant Gambling, and maximum0

5. Paragraph 2 can be provisionally executed.

Defendant MMMM Co., Ltd. confirms that the position of the representative director and the Plaintiff was the same. The Plaintiff’s registration procedure for the appointment of the representative director is implemented on September 1, 2009. The board of directors of Defendant MMMM Co., Ltd. decided to hold an extraordinary general meeting on December 24, 2009, and the resolution on the appointment of directors and the appointment of the auditor for ○○○○○○○○○○○, which was made at the extraordinary general meeting on December 24, 2009, confirmed that the resolution on the appointment of directors and the appointment of the auditor for ○○○○, which was made at the extraordinary general meeting on December 24, 2009, is invalid. The Defendants did not have a resolution on the appointment of the representative director for the Defendant ○○○, who was made at the board of directors on September 1, 200, with respect to the Plaintiff’s maximum amount of KRW 300 million,000,000 per annum from the following day of the instant notice to 205% per annum.

1. Basic facts

A. Status of the parties

Defendant MMMM Co., Ltd. (hereinafter referred to as “Defendant Co., Ltd.”) is a company established on July 27, 1998 for the purpose of engaging in the business of publishing O newspapers, etc. The Defendant Park ○ was a representative director of the Defendant Co., Ltd. on May 3, 2007 and completed the registration of resignation as of May 24, 2009, and the Defendant ○○○ was a representative director of the Defendant Co., Ltd. on December 24, 2009. Meanwhile, the Plaintiff, a shareholder of the Defendant Co., Ltd, was appointed as a director at a temporary general meeting of shareholders of the Defendant Co., Ltd. on September 1, 2009 and was appointed as a representative director at the meeting held on the same day.

B. As of September 1, 2009, the shareholders and directors of the defendant company held 500 shares of the defendant company among 20,000 shares issued by the defendant company, the plaintiff was appointed as directors of the defendant company on November 7, 200, the plaintiff was 3,50 shares of the defendant company, the 2,000 shares of the defendant Park Jong, the 2,00 shares of the 4,00 shares of Kim Jong, the 2,00 shares of the 2,00 shares of Kim Jong, the 2,00 shares of the 2,00 shares of the 2,00 shares of the 2,00 shares of the 2,00 shares of the 2,00 shares of the defendant company, and the 2,000 shares of the 2,00 shares of the 2,00 shares of the 2,00 shares of the 2,00 shares of the 2,000 shares of the 3.

(1) On September 1, 2009, five members, including the Plaintiff, Defendant Park ○, Kim○, Kim○, and Ko○○, who are shareholders of the Defendant Company, held a temporary general meeting of shareholders and passed a resolution to appoint the Plaintiff as a director of the Defendant Company.

(2) In addition, four directors of the defendant company including the plaintiff, including the plaintiff, such as the defendant Park O, SDO, and Kim 00, held a board of directors on the same day and held a resolution that "the defendant Park ○, who was the representative director at the time of", resigned from office as the representative director and the president; the defendant Park ○ as the representative director and the president; the plaintiff as the representative director and the president; and the defendant Park ○ as the adviser of the defendant company."

(3) On September 1, 2009, the Plaintiff announced the resignation on the same day, and thereafter, through the 1st page of MMM on September 2, 2009, known the fact that the Plaintiff was appointed as the president and the representative director, and on the other hand, 300 persons, such as the National Assembly members and the head of the administrative agency, etc. in the 00 wedding hall located in the city of Kimhae, 2009 and 300 persons, such as the head of the local National Assembly and the head of the administrative agency, performed their duties as the representative director of the Defendant company, such as the issuance of MMM, personnel appointment, and attendance at external events.

(d) Resolution of the board of directors on November 25, 2009;

(1) On November 18, 2009, the Plaintiff issued a notice of convening the board of directors on November 25, 2009 to the directors of the Defendant Company.

(2) On November 25, 2009, Defendant Park ○, ○○, Kim○○, and Kim○○, held a board of directors without the Plaintiff’s attendance on November 25, 2009, and adopted a resolution stating that four of the five seat directors among the five seat directors (i.e., Kim○ is a person whose term of office has already expired, and, in fact, three of the four seat directors were approved by three directors), the Plaintiff’s representative director and the qualification of the president is null and void, and Defendant Park ○ is still the representative director, and he does not recognize inside and outside of the country, and declares that it should be published inside and outside the country.).

(e) Resolution of the board of directors on December 14, 2009

Defendant Park Jong-young convened a board of directors 209, 12, 14, and expressed his/her intention to resign at the representative director of the Defendant company (in fact, excluding Kim○-○, a de facto director) in the presence of five persons, such as Defendant Park Jong-○, ○○, and Kim○, and Kim Il-○, on the other hand, he/she passed a resolution to appoint Defendant ○○ as the representative director of the Defendant company, with the consent of all the present directors, and passed a resolution to hold a temporary general meeting of shareholders on December 24, 2009 with the consent of all the present directors.

F. A resolution of an extraordinary general meeting of shareholders and a resolution of a board of directors on December 24, 2009

(1) The notice of convening a temporary general meeting was issued in accordance with the resolution of the board of directors on December 14, 2009, and the provisional general meeting was held in the meeting room of the head office of the defendant company on December 24, 2009. The general meeting of shareholders was appointed from directors, Kim ○, from the auditor, from the director, and from the auditor, Kim ○, from the director, and from the auditor, Kim ○ and Kim ○ were appointed as the auditor respectively. On the other hand, each resolution of the board of directors was ratified on November 25, 2009 and December 14, 2009.

(2) On the other hand, the board of directors was held in the meeting room of the defendant company after the above general meeting of shareholders was held, and the defendant ○○ was re-appointed as the representative director of the defendant company, with the consent of four remaining excluding the female ○ among the directors present.

(3) According to the above provisional shareholders' meeting and each resolution of the board of directors, Kim ○ and Kim ○ on the same day were completed registration as a director of the defendant company, and the defendant Choi ○○ completed registration as a representative director.

G. A resolution of a special shareholders’ meeting on May 24, 2010

On May 5, 2010, Defendant ○○○○ issued a temporary general meeting of shareholders to shareholders of Defendant Company with the contents of “the amendment of the articles of incorporation, appointment of directors, change of audit, and business normalization,” and on May 24, 2009, a temporary general meeting of shareholders was held at the meeting room of Defendant Company’s head office. At the time, Park O, Kim, the representative Kim, Kim, the representative Kim ○, Kim ○, Kim ○, and Kim ○, the representative Kim ○, Kim ○, and Kim ○, the representative of the ○○○, Kim ○, the representative of the ○○, Kim ○, and Kim ○, the representative of the ○○, the ○○, the ○○, and the ○○○, the representative of the ○○, the ○○, and the ○○, and the ○○, the 14,000 shareholders at each of the 18,400 shareholders at each meeting.”

H. Resignation and resignation of the representative director, Kim 00, Kim 00

(1) On May 16, 201, Defendant ○○○ (hereinafter “○○”) resigned from office as the representative director on the same day, and he/she took office as the representative director on the same day. Accordingly, Defendant ○ (hereinafter “○○”) completed his/her resignation registration, and Defendant ○ (hereinafter “○○”) completed his/her appointment registration, respectively.

(2) On May 16, 2011, Kim○-○, an outside director, and Kim○-○, respectively, resigned from the inside director, and accordingly completed the registration of resignation on June 1, 201. Meanwhile, on May 16, 2011, in the company director of the Defendant Company, the appointment of the Defendant Company as the inside director, and completed the registration of appointment on June 1, 201.

(1) On March 9, 2007, the Plaintiff entered into an investment agreement with the Defendant Company on the condition that the Plaintiff invests KRW 50,000,000 as the managing director of the Defendant Company on the condition that the Plaintiff invests KRW 50,000,00, and that the Plaintiff would be paid KRW 700,000 per month interest on the investment principal, and paid KRW 50,000 to the Defendant Company on March 207 in accordance with that agreement.

(2) Meanwhile, while performing duties as representative director, the Plaintiff lent KRW 10,000,000 to the Defendant Company for the purpose of using the Defendant Company’s bonus, etc. as bonus, etc. due to financial difficulties of the Defendant Company, its employees, etc., and KRW 5,00,000 on February 12, 2010, respectively.

(j) Articles of incorporation of the defendant

The main contents of the articles of incorporation (Evidence A 2) of the defendant company are as follows:

(1) The ordinary shareholders’ meeting shall be convened within three months from the day following the end of the business year, and the extraordinary shareholders’ meeting shall be convened whenever necessary, and the convocation of the meeting shall be convened by the representative director by a resolution of the board of directors (Article 18), except as otherwise provided

(2) A resolution of the general meeting of shareholders shall be adopted by a majority of the voting rights of the shareholders present and by not less than 1/4 of the issued and outstanding shares, except as otherwise provided in Acts and subordinate statutes or the articles of incorporation

(3) The shareholder may have a proxy exercise the voting right. When the proxy exercises the voting right, he shall submit to the Speaker a document proving his authority before voting (Article 21); and

(4) The minutes of the general meeting of shareholders shall contain the summary and result of the proceedings and be signed and sealed by the Speaker and the directors present at the meeting (Article 22).

(5) Appointment of directors of a company shall be governed by the resolution under Article 20 above (Article 24).

(6) The board of directors shall be convened by notifying each director and auditor not later than one week prior to the date set for the meeting of the board of directors, if any, the board of directors shall be the representative director or the board of directors. However, the meeting may be omitted if all the directors and auditors agree (Article 28).

(7) The board of directors shall be organized, and shall be important for the appointment of the representative director and the execution of the business of the company. The method of resolution by the board of directors shall be limited to the attendance of a majority of the directors and the attendance of the majority of the

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 14, Eul evidence Nos. 1 through 40 (including each number), witness No. 00, female testimony and the purport of the whole pleadings

2. Whether the part of the plaintiff's lawsuit against the defendant company claiming the execution of the registration procedure for the appointment of the representative director on September 1, 2009 is legitimate

살피건대, 대표이사 등의 취임으로 인한 변경등기 등은 그 대표자가 이를 증명하는 서면 등을 첨부하여 단독으로 신청할 수 있으므로(상업등기법 제17조 제2항, 제81조), 등기청구권의 대상이 되지 아니하고, 피고 m㎜m㎜㎜㎜ 주식회사를 상대로 대표이사의 지위가 원고에게 있음의 확인을 구하는 이 사건 소에서, 원고로서는 그 확인의 소에 대한 승소확정판결을 받은 후 그에 기하여 피고 MMMMMM 주식회사의 대표자로서 그 대표이사취임등기를 단독으로 마칠 수 있으므로, 결국 피고 회사를 상대로 원고의 2009. 9. 1.자 대표이사 취임등기절차의 이행을 구하는 부분은 소의 이익이 없어 적법하지 아니하다.

3. Of the lawsuit against the defendant company, the resolution of the representative director appointment of the defendant ○○○, which was made by the board of directors on December 14, 2009, the part of each claim for nullification of the resolution of appointment of directors against Kim○ and Kim○, which was made at the temporary general meeting of shareholders on December 24, 2009, and the part of the claim for confirmation of non-existence of a resolution of appointment of representative director against the defendant ○○○, which was made by the board of directors on December 24, 2009, is legitimate

A. Although a director was appointed by a resolution of the board of directors, seeking confirmation of invalidity of a resolution of the appointment of a director against a director who had already lost his/her status by dismissal or resignation after dismissal or resignation has not been an interest in litigation because it was attributable to seeking confirmation of the past legal relationship or legal relationship (see Supreme Court Decision 96Da37206, Dec. 10, 196).

B. In light of the above legal principles, Defendant ○○○, each of whom was appointed as the representative director at the board of directors on December 14, 2009 and December 24, 2009, respectively, shall resign from the representative director on May 16, 201, and the registration of resignation was completed on June 1, 201, Defendant ○○○ and Kim○, each of which was appointed at the special shareholders’ meeting on December 24, 201, shall resign from the director on May 16, 201, respectively. The fact that the resignation registration was completed on June 1, 201 is as mentioned above. Ultimately, seeking confirmation on the invalidation or absence of each of the resolutions on appointment of Defendant ○○○○ and Kim○, each of which was already resigned, is merely seeking confirmation of legal relations or legal interests in the past, and thus, this part of the lawsuit by the Plaintiff is not legitimate.

4. Plaintiff’s representative director and Plaintiff’s claim for confirmation of status of president against Defendant Company

(1) The plaintiff's assertion

On September 1, 2009, Defendant Park ○○ (2,000), the agent Kim○, Kim○○ (2,000), and Kim○○ (4,000), the Plaintiff (3,500), etc., held a provisional general meeting of shareholders at the president office of the Defendant Company on September 1, 2009, appointed the Plaintiff as a director of the Defendant Company. On the same day, four directors of the Defendant Company, including the Plaintiff, were held to appoint the Plaintiff as the representative director and appointed the Plaintiff as the representative director at the board of directors. Since then, the Plaintiff externally notified the Plaintiff of this fact by going through one of the face of MMM, and eventually caused the Plaintiff to perform duties as the representative director, the Plaintiff is in the position of the representative director concurrently of the Defendant Company.

(2) The defendants' assertion

The provisional shareholders' meeting of September 1, 2009 did not have a legitimate notice for convening a convocation, and there is no evidence to prove that Kim ○○, Credit, etc. was delegated the power of representation from 00 and Kim ○○, etc. at the time. In light of the fact that the shareholders who actually attended were only the plaintiff (3,500 shares) and the defendant Park ○○ (2,00 shares), and that there is no signature or seal of the directors in the minutes, the above provisional shareholders' meeting is null and void. In addition, the board of directors on the same day did not have a notice for convening a convocation, and only three directors, such as the defendant Park○, S○○, S○○, and Kim ○, were present (three directors and one auditor were not present) and did not meet the quorum for holding the meeting (the plaintiff, other than directors, was present at the board of directors and exercised a voting right. Thus, the above provisional shareholders

B. Determination

(1) The validity of the resolution of the special shareholders' meeting on September 1, 2009

On the other hand, the following circumstances, i.e., ① there was no resolution of the board of directors for convening an extraordinary general meeting of shareholders as of September 1, 2009; Defendant Park ○○, a person holding the above provisional general meeting of shareholders, failed to observe the convocation procedure as stipulated in the articles of incorporation, such as not giving legitimate notice for convening an extraordinary general meeting of shareholders to the shareholders of the Defendant company; ② the above provisional general meeting of shareholders, including Plaintiff 3,500 out of total issued shares, 100, 200, 4,000 shares, and 9,50 shares, respectively. ③ The Plaintiff appears on behalf of 200,000 (2,000 shares) at the time, on behalf of 9,00,000 shares, and the Plaintiff did not present a provisional general meeting of shareholders on behalf of 9,000 shareholders, but did not present a document that proves that 20,000 shareholders present at the above provisional general meeting of shareholders (3,000 shares).

(2) The validity of the resolution of the board of directors on September 1, 2009

In light of the following circumstances, i.e., (i) according to the articles of incorporation of the defendant company, the board of directors shall notify each director and auditor before the date set for the meeting, and (ii) failure to observe the convocation procedure set forth in the articles of incorporation, such as failing to give notice to the directors at the time of September 1, 2009, (iii) failure of the above board of directors to attend the board of directors; (iv) a temporary general meeting of shareholders held on September 1, 2009 by which the plaintiff was appointed as the director; (iv) the plaintiff was present at the board of directors without such qualification; and (iv) the board of directors held voting rights with the representative director who was not a director; and (v) the meeting of the defendant company was held by the defendant company as the representative director at the time of September 1, 2009; and (v) the plaintiff did not meet the quorum set at the board of directors meeting for a certain period other than the above majority of the defendant company's meetings, and therefore, the plaintiff did not have any defect in fact that it did not meet the quorum set at the above.

(3) Sub-decisions

Therefore, it is reasonable to view that both the resolution of the provisional shareholders' meeting and the resolution of the board of directors on September 1, 2009, who appointed the plaintiff as the director, were null and void. Therefore, the plaintiff's claim seeking confirmation that the representative director and the president are in the position of the defendant company cannot be accepted.

5. As to each claim to nullify the invalidity of a resolution on appointment of auditors at the temporary shareholders' meeting of December 24, 2009, which was adopted by the board of directors of December 14, 2009, among the lawsuits against the defendant company, to hold an extraordinary shareholders' meeting on December 24, 2009, and at the temporary shareholders' meeting of December 24, 2009

A. The parties' assertion

(1) The plaintiff's assertion

Despite the Plaintiff’s representative director, the former representative director of the Defendant Company held the board of directors on December 14, 2009 at his own discretion without any doubt or notification from the Plaintiff. Accordingly, the resolution of the board of directors held on December 12, 2009, which was convened by Defendant Gamb○, without legitimate authority to convene, is null and void. In addition, the interim general meeting of shareholders held on December 24, 2009, which was null and void, was convened by Defendant Lb○, who was not authorized to convene a meeting by the resolution of the board of directors on December 14, 2009, and thus, the said interim general meeting of shareholders is null and void.

(2) The defendants' assertion

The resolutions of the special shareholders' meeting and the board of directors of the 2009, 9, 1209, who appointed the plaintiff as directors and the representative director are null and void (or, the board of directors of November 25, 2009, the board of directors of November 25, 2009, adopted a non-Confidence resolution with respect to the appointment of the plaintiff's representative director and the president of the board of directors), and the defendant Park ○ still is a legitimate representative director of the defendant company. Therefore, the board of directors of the 2009, 12, and the special shareholders' meeting of December 24, 2009, which were convened according to the intention of the defendant Park

B. Determination

On September 1, 2009, the provisional general meeting of shareholders and each resolution of the board of directors, which appointed the plaintiff as the director and the representative director respectively, is null and void as seen above. Thus, it is reasonable to view that the representative director of the defendant company at the time of the defendant company is still the defendant Park ○○. [It is reasonable to view that the resignation remains null and void since the defendant Park ○○ expressed his/her intention to resign the representative director of the defendant company at the board of directors on September 1, 2009, but if the representative director of the corporation resigns, it takes effect when the declaration of intention to resign is delivered to the person who will act as the representative director as the representative director (see Supreme Court Decision 2007Da7256, May 10, 207). Thus, the plaintiff cannot be deemed to have lawfully appointed the representative director, and there is no other material to deem that the declaration of intention to resign has reached the person who will act as the representative director, and therefore, the plaintiff Park ○ was called a temporary general meeting of shareholders.

6. As to the claim for loans, loans, damages for delay against Defendant Company: (a) on March 9, 2007, the Plaintiff’s position as managing director of Defendant Company on condition that the Plaintiff invests KRW 50,00,000; (b) on March 25, 2007, the Plaintiff paid KRW 50,000 to Defendant Company around March 200; (c) on the basis that the agreement was reached between 10,000 won and 20,000 won per annum; (b) on March 2007, the agreement was reached between 10,000 won and 30,000 won per annum from 20,000 won per annum; (c) on the grounds that the agreement was concluded between 10,000 won per annum and 20,000 won per annum, 30,000 won per annum, 20,000 won per annum for the purpose of using the Plaintiff’s bonus, etc.

B. As to this, the plaintiff was paid only 2.5 million won for a month after he/she was appointed as the representative director, and thereafter did not receive any benefits from October 1, 2009, which was later. Since the defendant company dismissed the plaintiff on November 25, 2009, which was before the expiration of the term of office without justifiable grounds, the defendant company is liable to compensate the plaintiff for damages equivalent to 87,500,000 won for the director's term of office (in accordance with Article 26 of the Articles of incorporation of the defendant company), (2,50,000 won x 35 months). However, as seen above, since the special shareholders' meeting and the board of directors' resolution were invalid on September 1, 2009, each of which was appointed as the director and the representative director, the plaintiff's assertion in this part on the premise that each of the above resolutions is valid is without merit.

7. As to the defendants' claim of consolation money

After the temporary general shareholders' meeting and the board of directors of September 1, 2009 were duly appointed as the representative director, the plaintiff made a notification to the public through MMM, and even though the representative director inside and outside of the country had been engaged in the normal business division, the defendant YO tried to deprive the plaintiff's representative director without any justifiable reason within three months after the plaintiff was appointed as the representative director. The defendant YO tried to deprive the plaintiff of the plaintiff's representative director's status as the representative director without any justifiable reason. Since the defendant ○○ was well aware of such circumstances, he was well aware of it, the defendants are responsible for compensating the plaintiff for mental damages caused by defamation. However, as seen above, since the provisional general shareholders' meeting and the board of directors' resolution were invalid as of September 1, 2009, the plaintiff's assertion that each of the above resolutions is valid, this part of the plaintiff's assertion on the premise that the above resolution is valid is also without any justifiable reason.

8. Conclusion

Therefore, among the plaintiff's lawsuits against the defendant MMMM corporation, the part of the plaintiff's claim for the registration procedure for the appointment of representative director on September 1, 2009 and the decision for the appointment of representative director on December 14, 2009 with respect to the defendant last ○○○○, which was made by the board of directors on December 14, 2009, the part of the claim for invalidity confirmation as to the resolution for the appointment of directors on the defendant lastO and Kim at the temporary general meeting of shareholders on December 24, 2009, and the part of the claim for confirmation as to the absence of representative director's appointment as to the defendant lastO made by the board of directors on December 24, 2009 and all of the claims against the defendant last MOMM corporation are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges of the presiding judge;

Judges Kim Gung-sung

Judges Kim Young-ju

1) Comprehensively taking account of the overall purport of the pleadings with each testimony of the witness ○○○ and Kim○○○, recognition of the fact that he attended the extraordinary general meeting of shareholders on September 1, 2009.

may be filed.

2) The plaintiff alleged that there was no notice of convening the board of directors, but in full view of the overall purport of the arguments in each testimony of the witness Kim ○ and Lee ○○.

may be recognized.

3) Of the total issued shares of the Defendant Company 20,000 shares, 2,00 shares in each of the 2,000 shares, 3,000 shares in Western, 3,00 shares in each of the 2,00 shares in each of the 2,00 shares in each of the Defendant Company, 200 shares in

Notes, ○○, 4,00 shares, 60 shares, 4,200 shares, 4,200 shares, 50 shares, 500 shares, 1,000 shares for Kim○, 1,00 shares, respectively.

There was a significant reason.