Plaintiff (Attorney Lee Young-young et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Attorney Yu Jae-sik, Counsel for defendant-appellant)

October 5, 2007

Jeonju District Court Decision 2006Gahap90 Decided March 23, 2007

1. Revocation of a judgment of the first instance;

2. On December 15, 2005, the defendant dismissed the plaintiff on December 15, 2005 from the representative director, and confirmed that the resolution of the board of directors which appointed the non-party 1 as the representative director

3. The total cost of the lawsuit shall be borne by Nonparty 1.

The same shall apply to the order.

1. Determination on this safety defense

The defendant asserts that the plaintiff has no interest in seeking confirmation of invalidity of the resolution of the board of directors on December 15, 2005 by the defendant company (hereinafter the resolution of the board of directors in this case).

On the other hand, if there is a ground for invalidation of a resolution of the board of directors, there is no provision in the Commercial Act, so interested parties may assert invalidation at any time or in any way. Even if the plaintiff is the representative director or director of the defendant company, there is no dispute between the parties as to whether the plaintiff is the representative director or director of the defendant company, and the plaintiff has a significant interest in the resolution of the board of directors of this case, which is the removal and appointment of the representative director of the defendant company. Therefore, the plaintiff has a interest in seeking nullification of the resolution of the board of directors of this case, and the defendant's above assertion has no merit

2. Judgment on the merits

(a) Basic facts;

The following facts can be acknowledged in light of the whole purport of the argument of this case in the testimony of Non-Party 2 and Non-Party 3 as Gap evidence Nos. 1 and 11, Eul evidence No. 10, and witness Nos. 10, and witness Nos. 2 and 3 of the first instance court (except

(1) At the time of December 15, 2005, the resolution of the board of directors of the instant case was adopted by the Defendant Company for the purpose of passenger transport service, etc., the Plaintiff was appointed as the representative director, the director as Nonparty 1, 3, 4, and the auditor as Nonparty 2.

(2) On December 15, 2005, the Defendant Company convened a board of directors for the settlement of accounts (hereinafter in this case’s board of directors), and deliberated and resolved on the settlement of accounts at the meeting of the Plaintiff, Nonparty 1, 2, 3, and 4. After deliberation on the settlement of accounts, Nonparty 2 requested that the Plaintiff make an urgent proposal to the Plaintiff. Upon the Plaintiff’s request, Nonparty 2 presented the agenda that the Plaintiff would be a social person and would dismiss the Plaintiff from the representative director of the Defendant Company and appoint Nonparty 1 as a new representative director, and announced that the said agenda was resolved with the consent of Nonparty 1 and 4.

(3) On the other hand, the non-party 3 went to the meeting room on the ground that it is personal after the deliberation of the above settlement of accounts was completed. The resolution of the board of directors of this case was proposed in the absence of non-party 3, and was adopted.

B. The plaintiff's assertion and judgment on this issue

The plaintiff argues that the resolution of the board of directors of this case is invalid due to serious defects in the convocation procedure and resolution method.

According to the articles of incorporation (Evidence 15) of the defendant company, when there are a representative director or a director separately determined by the board of directors, the director shall notify each director and auditor of the convocation (Article 27), and the resolution of the board of directors shall be made with the attendance of a majority of the directors and the consent of a majority of the members present (Article 28). Thus, in order for the resolution of the board of directors to be lawful, a notice for convening the board

However, according to the above facts of recognition, the resolution of the board of directors of this case was presented at the meeting without the non-party 3 who is a director, and it constitutes a case where there is a serious defect in the convocation procedure and method of resolution of the board of directors of this case (the defendant asserts that the non-party 3 delegated all the rights to the resolution of this case to the non-party 1, but the testimony of the non-party 2 and 3 of the non-party 3 of the first instance court corresponding thereto is not trustable and there is no other evidence to recognize it. In addition, in principle, the board of directors shall be present at the meeting of the director himself and shall participate in the resolution and shall not delegate

On the other hand, according to Article 391-2 (1) of the Commercial Act, the auditor can only attend the board of directors to state his opinion, and may not convene the board of directors or present an agenda, and according to the above facts of recognition, the resolution of the board of directors of this case was presented by the auditor of the defendant company by the non-party 2, and as such resolution was passed, there is a significant defect in the method of resolution in this regard [it is alleged that the defendant was present at the board of directors of the defendant company as the director of the defendant company, but the auditor cannot concurrently be a director pursuant to Article 411 of the Commercial Act, and even if the non-party 2 attended the defendant company's qualification as the director of the defendant company and presented an agenda for the resolution of this case to the board of directors, the resolution of the board of directors of this case is still null and void because he did not obtain the consent of a majority (the consent of only the plaintiff 1, 2,

Therefore, the resolution of the board of directors of this case is null and void because of a serious defect in the convening procedure and the method of resolution. Therefore, the plaintiff's assertion seeking nullification is with merit.

3. Conclusion

Therefore, the claim of this case shall be accepted as reasonable, and the judgment of the court of first instance shall be revoked as it is unfair to conclude otherwise, and the plaintiff's appeal is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Donsung (Presiding Judge) Lee Ho-ho