The validity of a resolution of a general meeting of shareholders made without any objection, even though it was made without going through the resolution or convocation procedure required by Acts and subordinate statutes or the articles of incorporation;

Even if the general meeting of shareholders of a corporation was conducted without going through the resolution or convocation of the board of directors required by Acts and subordinate statutes or the articles of incorporation, if all the shareholders attend the meeting and raise any objection, the resolution is valid unless there are special circumstances.

Articles 376 and 380 of the Commercial Act

Supreme Court Decision 78Da1794 Decided June 26, 1979 (Gong1993Sang, 1086) 92Da48727 Decided February 26, 1993, Supreme Court Decision 92Da48727 Decided February 26, 1993 (Gong1993Sang, 1086) 96Da24309 Decided October 11, 1996 (Gong196Ha, 3321)

Plaintiff (Appointed Party)

Saemangeum Tourist Hotel Corporation

Gwangju High Court Decision 2001Na6243 delivered on January 25, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (appointed party).

1. A. The lower court acknowledged the following facts.

(1) On August 30, 1999, Nonparty 1, a representative director of the company, established the Defendant with the full amount of the capital alone and, after having been operating the Defendant as the representative director, assumed that the Defendant’s entire shares he owned by the financial institution was transferred to the Plaintiff (hereinafter “Plaintiff”) in order to obtain a loan from the bank due to difficulties in transaction with the financial institution. On the same day, Nonparty 1 prepared a false stock transfer and takeover contract to that effect. On the same day, the Plaintiff was appointed as the representative director of the Defendant, Nonparty 2, and Nonparty 2, and Nonparty 3 as the Defendant’s director. However, the Plaintiff and Nonparty 2 demanded the Defendant’s creditors to perform the Defendant’s obligation, such as filing a lawsuit against the Defendant, and resigned the representative director and the director on September 18, 199.

(2) On January 10, 200, Nonparty 1 transferred part of the Defendant’s shares, which he owned, to Nonparty 4, Nonparty 5, and Nonparty 6, and completed the transfer process.

(3) On March 26, 200, the Defendant’s director Nonparty 3 decided to hold a provisional shareholders’ meeting, and notified Nonparty 1, Nonparty 4, Nonparty 5, and Nonparty 6, the shareholders of the time, to convene a general shareholders’ meeting on April 13, 200. Accordingly, on April 13, 2000, the Defendant attended the general shareholders’ meeting, including Nonparty 1, and dismissed Nonparty 2, the Defendant’s representative director and the appointed director, and the Nonparty 1 and Nonparty 4 were appointed as the directors. On the same day, the board of directors held the general shareholders’ meeting, which was held on May 10, 200, passed a resolution to dissolve the Defendant.

B. The court below recognized the above facts, and judged that the share transfer agreement between the non-party 1 and the plaintiff is null and void as a false declaration of intent, and there is no error in violation of the rules of evidence as alleged in the grounds of appeal. Therefore, this part of the grounds of appeal cannot

2. Even if a general meeting of shareholders of a stock company was conducted without going through a resolution or convocation procedure of the board of directors required by statutes or the articles of incorporation, if all the shareholders attend the meeting and without any objection, and if a resolution was reached with the assent of all the shareholders to hold the general meeting, such resolution is valid unless there are special circumstances (see Supreme Court Decisions 92Da48727 delivered on February 26, 1993, 96Da24309 delivered on October 11, 1996, etc.).

In this case, the provisional general meeting on April 13, 200 by the defendant was convened independently by the non-party 3, who is not authorized to convene the general meeting without the resolution of the board of directors. The convocation procedure is unlawful. However, since all shareholders of the defendant attend the general meeting and without any objection, the resolution of the general meeting is valid, since all shareholders of the defendant agreed to convene the general meeting and decided to appoint directors.

Although the lower court erred in determining that the general meeting of shareholders was convened through due process on April 13, 2000 by the Defendant, it is reasonable to conclude that the resolution was valid. Therefore, the lower court’s determination on this part of the grounds of appeal that the lower court erred by misapprehending the legal doctrine or by violating the precedents cannot be accepted.

3. Meanwhile, the assertion that the resolution of the general meeting or the board of directors is unlawful, since the place of convening the general meeting of this case or the place of authentication of the minutes of the general meeting of this case is not an area adjacent to the defendant's principal office or its adjacent thereto is not a legitimate ground for appeal.

4. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)