by filing an application for dismissal of a liquidator under Article 539 (2) of the Commercial Act and seeking a new liquidator

The dismissal of a liquidator under Article 539 (2) and (3) of the Commercial Act is limited to a claim against the company and the liquidator in the court in which the principal office of the other party is located, and in case where there are circumstances in the above lawsuit, it can be applied for a provisional disposition under Articles 542 and 407 of the Commercial Act prior to the institution of the principal lawsuit, and the suspension of the execution of duties of such liquidator and the appointment of acting liquidator may be applied for. Thus, without resorting to the method of the lawsuit, to seek a new liquidator's prior appointment on the premise that the dismissal and dismissal of the liquidator would be accepted, it is unlawful and dismissed as

[Judgment of the court below]

Daegu High Court Order 74Ra23 dated December 3, 1975

The order of the court below shall be reversed. The decision of the court of first instance shall be revoked and the claim of this case shall be dismissed.

On the other hand, the second instance court dismissed the second instance court's appeal against this dismissal on the ground that the second instance court's decision falls under a case where the second instance court's dismissal of the second instance court's appeal is not a ground for dismissal under Article 179 of the Non-Contentious Case Litigation Procedure Act and the second instance court's dismissal of the second instance court's appeal against the second instance court's dismissal of the second instance court's dismissal under Article 539 (2) of the Commercial Code because the representative liquidator of Busan Fisheries Co., Ltd., the second instance court and the non-party 2 are clearly unfit to perform their duties and act of violating important duties.

However, Article 539(2) of the Commercial Act provides that "If a liquidator is clearly unfit for the execution of his/her duties or he/she has breached his/her material duties, any shareholder who holds no less than 5/100 of the total issued and outstanding shares may request a court to dismiss the liquidator," and Article 186(3) provides that "Article 186(3) provides that "the provisions concerning claims under the preceding paragraph shall apply mutatis mutandis to a lawsuit concerning the dismissal of the liquidator pursuant to the preceding paragraph." Thus, the dismissal of the liquidator pursuant to the above provision can only be requested by a lawsuit against the company and the liquidator at the court of the principal office of the other party, but if such lawsuit is instituted or in critical circumstances exist, a provisional disposition may be filed pursuant to Article 542 and Article 407 of the same Act prior to the institution of the principal lawsuit,

Thus, the court of first instance and the court of original instance have not reached this point, which is erroneous in the misapprehension of the legal principles of Article 539 of the Commercial Act, even though the application of this case filed by the re-appellant, which is obvious that the application of this case was not filed by the court of first instance and the court of original instance, seeking the dismissal of the liquidator, and sought the appointment of a new liquidator on the premise that the dismissal would be accepted, and it is clear that the above application of this case was not filed by the court

Therefore, the order of the court below shall be reversed, but it is recognized that the case is suitable for a direct judgment of the party members, and thus, the decision of the court of first instance shall be cancelled and the motion of this case shall be dismissed as per Disposition by the assent

Justices Shin Young-chul (Presiding Justice)