Whether a de facto shareholder has a legitimate legal interest in seeking confirmation of absence of a general meeting of shareholders

The applicant is in de facto shareholder status by acquiring 7,000 new shares due to the increase in the capital of the Non-Party Cultural Price Development Corporation. Therefore, even if the applicant is not a legal shareholder since the above company issued the shares up to now, the applicant has a legitimate interest in seeking confirmation of existence of the company's shareholders' general meeting and resolution of resolution of resolution

Article 380 of the Commercial Act

69Da2018 decided Feb. 24, 1970 (Supreme Court Decision 4381; Supreme Court Decision 18Nu146 decided Feb. 24, 197; Decision 380(13)741 of the Commercial Act)

Applicant

Respondent

Busan District Court (69Ga265)

The appeal is dismissed.

Expenses for appeal shall be borne by the respondent.

The performance of duties by the representative director of the above company of the respondent (the head office of Busan Jin-dong 842) shall be suspended until the judgment on the merits of the case in which the request for confirmation of existence of the resolution of the general meeting of shareholders is filed between the applicant and the respondent of the court below is finalized.

The appropriate person during the period of the above suspension of duty shall act on behalf of the representative director of the company.

Litigation costs shall be borne by the respondent.

The part against the respondent in the original judgment shall be revoked.

The petitioner's request against the respondent is dismissed.

Litigation costs shall be borne by the applicant through the first and second trials.

First of all, the respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Lessee's 7,8 No. 1 and 2, No. 1 and 3's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's 400th Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's 90th Respondent's Respondent's Respondent's 17,00000 billion won's shares.

Then, the Respondent did not hold a general meeting of shareholders of the above company on March 31, 1968 and the meeting of the board of directors of the above company on 09:00 on that day, the Respondent held a special general meeting of shareholders at the office of this company 09:00 on that day and retired from office, and the Respondent 5, 6 retired from office and the Respondent 3, 7, 8, and 9 took office on the Respondent 11:40 on that day, the Respondent did not convene a meeting under Article 390 (2) of the Commercial Act with the consent of all directors at the same place as 11:40 on that day, and the Respondent operated the minutes of the special general meeting of shareholders and the minutes of the board of directors at the Busan District Court on April 2, 1968, the Respondent registered the Respondent as the representative director and the representative director of this company on the commercial register. The Respondent claimed that the Claimant claimed the suspension of the performance of duties and appointment of the representative director.

Furthermore, we examine the necessity of the provisional disposition of this case. The respondent did not have legitimate power of representation of this company as stated above, and the defendant did not have legitimate power of representation of this company; Gap evidence Nos. 4; Gap evidence Nos. 3-1, 2, 3-1, 5-2, and 3-1, 5-2, and 6-2 of the lawsuit which can be established by the testimony of non-party No. 3; the respondent did not have legitimate power of representation of this company; and the defendant did not have legitimate power of representation of the company No. 3860,00 won during the above company's representative director; the defendant did not appear to have legitimate power of representation of the company No. 1,2, 3, and 10; the defendant did not have legitimate power of representation of the company; the defendant did not appear to have been aware of the fact that there is no substantial confusion between the company and its representative director and the company No. 2, and there is no other substantial change in the company's testimony of this case.

In such a case, it is clear that if the act of an unincorporated representative director is neglected according to the current state of management of the above company, it is clear that the act of the above company is still likely to seriously harm internal and external transaction safety, and also the company suffers serious damage. Therefore, it is sufficient that the respondent's duty of representative director of the company is suspended, and the court appoints an acting representative and has him/her normalize the external relations of the company.

However, the respondent argues that if there is no resolution of appointment of the successor on the ground of the expiration of the term of office because he himself was the former representative director of the above company, he cannot continue his rights and duties until the representative director newly appointed under Articles 389(3) and 386(1) of the Commercial Act takes office, but even if there is no resolution of appointment of the above successor, since he is an official document, as long as the registration of appointment of the former representative director was made after the above resolution, as stated in subparagraph 1 of Article 389(3) and Article 386(1) of the Commercial Act, his rights and duties as the representative director shall be lost. The respondent's assertion is without merit. The respondent's assertion is based on the ground that the respondent embezzled 3860,000 won of the company, but even if such facts were in fact, it cannot be asserted that he had the right and duties of the representative director's claim on the duty of the representative director as an unlawful act, and it cannot be asserted that it had been rejected as a provisional disposition of Article 388(1) of the Commercial Act.

Therefore, the respondent's application for the suspension of the performance of duties of the representative director of the above company of the respondent and the objection of the applicant for the provisional disposition order for the appointment of the representative director of the above company shall be accepted until the judgment on the merits of the claim for confirmation of existence of the resolution of the Busan District Court 69Da204, which is the main part of the provisional disposition case of this case, becomes final and conclusive. As such, the original judgment with the same conclusion is justifiable, and the respondent's appeal is dismissed in accordance with Article 384 of the Civil Procedure Act, and the burden of litigation costs shall be decided as per Disposition

Judges Lee Jae-ho (Presiding Judge)