2015Da14365 Invalidity, etc. of the resolution of the clan General Meeting

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

Gronrones

Daegu High Court Decision 2013Na4020 Decided January 13, 2015

April 12, 2016

The part of the lower judgment on the Defendant’s claim for confirmation of invalidity of the resolution on extraordinary general meeting of December 13, 2012 is reversed, and that part of the case is remanded to the Daegu High Court. The remaining appeals are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the premise that the decision of the court below to correct is unlawful

The Plaintiffs re-appealed against the lower court’s decision to dismiss the lower court’s decision (Supreme Court Decision 2015Ma2167), but the Supreme Court dismissed the Plaintiffs’ re-appeal on April 7, 2016. Therefore, the grounds of appeal premised on the lower court’s decision to dismiss the lower court’s decision cannot be a legitimate ground of appeal.

2. As to the ground of appeal on the premise that the decision of the court below to correct is legitimate

A. As to the first ground for appeal

(1) In this case, the plaintiffs asserted that the defendant is a clan whose 11-year-old passenger N is a common ancestor (hereinafter referred to as the "N's family for convenience"). On the other hand, the J who was appointed as the chairperson of the defendant as the special general meeting resolution of the defendant on December 13, 2012 is asserting that the defendant is a clan whose 16-year-old passenger V is a common ancestor of M (hereinafter referred to as the "J's family for convenience").

(2) The plaintiffs' grounds of appeal on this part are as follows: while viewing the defendant as NB, the court below viewed the defendant as the defendant's representative, the court below deemed the defendant as the Class V's representative, and therefore, the J was only appointed as the representative of Class V and thus, the court below did not have the authority to conduct the lawsuit as the representative of the defendant (NJ). However, the court below's recognition of the defendant's representative status as the defendant is inconsistent with the legal principles on the power

(3) However, in a lawsuit seeking confirmation of invalidity of a resolution selected by an association which is not a juristic person under the Civil Act, the representative of the organization is the representative elected by a resolution subject to a claim for confirmation of invalidation (see, e.g., Supreme Court Decision 95Da31348, Dec. 12, 1995). It is evident in the record that the plaintiffs, who were the defendant among G documents, seek confirmation of invalidity of a resolution selected by the J as the chairperson of the G documents, and therefore, the representative of the defendant G documents in the lawsuit in this case shall be J.

Meanwhile, according to the reasoning of the judgment of the court below, the court below held that the plaintiff deemed the plaintiff's "the defendant in the complaint as the class N," and that the court below did not judged that the plaintiff's "the class N" used the class N as the class N. In addition, the court below held that the above resolution was made by the class V, and that the plaintiff's intent was the class V member of the class V, and that the judgment of the court below was not the judgment of the court below that the class V used the class V. Therefore, it is difficult to see that the reasoning of the judgment of the court below is inconsistent.

(4) Ultimately, the court below did not err in the misapprehension of legal principles or inconsistent reasoning as to the power of representation, contrary to what is alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

(1) Under the premise that the forest land of this case is owned by the Class V, and that the "G text, the title holder of each forest land of this case, or the registration of ownership preservation" is Class V, J, as the representative of Class V, sold each of the forest land of this case on behalf of Class V and held each of the general meetings of this case, which is an extraordinary general meeting of Class V, in order to advance the registration of ownership transfer, and the resolution of each of the general meetings of this case was adopted at each of the different meetings of this case. Thus, each of the general meetings of this case is not the "N-type" (hereinafter the same shall apply) but the "N-type general meeting resolution of this case" of Class V, and if the plaintiffs seek confirmation of each of the general meetings of this case on the premise that the resolution of each of the general meetings of this case is a resolution of Class V of this case, the court below determined that the plaintiffs of this case is legally null and void as the resolution of each of the general meetings of this case on the premise that each of the plaintiff Class V of this case is an invalid resolution of each of this case.

(2) However, we cannot accept the judgment of the court below for the following reasons.

(A) The reason for the plaintiffs' claims is not the legitimate representative of the G literature, and furthermore, the J made a notification of convening only to some of the members of the G literature, and the resolution of each of the instant general meetings is null and void because there is a serious defect in the convocation procedure. In other words, the plaintiffs, who are not the legitimate representative of the clan, convened a clan general meeting, and requested confirmation of the invalidity of the resolution of the general meeting on the ground that some members of the clan were defective in the convocation procedure of the general meeting by convening a notification of convening only to some members of the clans.

(B) First, we examine ① determination.

A claim for confirmation of non-existence or invalidity of a resolution adopted at a general meeting of a company under the Commercial Act is identical in that all the claims for confirmation of non-existence or invalidity of a resolution adopted at a general meeting of a company are to be confirmed as not having existed at the present time. For example, a general meeting of members was not convened by a legitimate convening authority, and it is merely an assembly held by a person who is not a legitimate member, and thus cannot be viewed as a legally non-existence of the resolution. Even if a claim for confirmation of invalidity of a resolution is filed, it is reasonable to say that it is the purport of a claim for confirmation of invalidity in the meaning of confirmation of non-existence of the resolution (see Supreme Court en banc Decision 82Meu1810, Mar. 22, 1983). Such a legal principle is equally

The court below held that if the plaintiffs sought confirmation of invalidity of each of the resolution of the general assembly of this case by the lawsuit of this case under the premise that each of the resolution of the general assembly of this case is a defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant defendant's resolution, the lawsuit of this case is sought confirmation of invalidity of each of the resolution of the general assembly of this case, and thus there is no legal interest in seeking confirmation of invalidity. However, even though each of the resolution of this case is not legally nonexistent because the resolution of the general assembly of this case is a serious defect in the convocation procedure or method of resolution of the general assembly of this case, it is reasonable to view that the plaintiffs' claim of this case is a claim for confirmation of invalidity of the meaning that there is no resolution of each general assembly of this case.

(C) Next, we examine the judgment.

According to the records, each general meeting of this case is convened in the name of the G, and the resolution of the general meeting is made in the name of the G, and the contents thereof also sell the forest of this case in the name of the G (hereinafter referred to as "the resolution of the first general meeting"), dismiss the plaintiffs who were executives in G literature and appointed the J as the chairman (hereinafter referred to as "the resolution of the second general meeting"), and after the resolution of each general meeting of this case, the real estate registration register of the owners in relation to each of the instant forest of this case has completed the registration of changing the representative from A to J from J to the G after the resolution of each general meeting of this case. Thus, each general meeting resolution of this case is obvious that the resolution of this case is a resolution of the general meeting of this case. In addition, the reason for the plaintiffs' claims is not the legitimate representative of the G literature, and furthermore, the JJ's convening a notice of convening only some descendants to some of the members of the G court of this case, and each of the above resolutions of this case is null and void.

Nevertheless, the lower court determined, on the ground that the resolution of each general assembly of this case constitutes the substance of the resolution, that the resolution of each general assembly of this case constitutes the V-class resolution of each general assembly of this case. Accordingly, the lower court did not have any legal interest in seeking confirmation of invalidity of each general assembly resolution of this case, which is the resolution of each general assembly of this case, since it could not affect the legal status as the owner of each forest of this case and the legal status as the executives of the plaintiffs as to each forest of this case as to the defendant-class.

In addition, the court below erred by misapprehending the legal principles on the interests of clans in confirming the invalidity of the resolution of the general assembly by pointing out that each of the resolution of the general assembly in this case is a resolution of the general assembly in appearance and that the plaintiffs seek confirmation of invalidity of the resolution of the general assembly in G.

(3) However, even if the judgment on confirmation of invalidity of the resolution of the first general meeting became final and conclusive, the court below determined that the registration of ownership transfer cannot be cancelled under the name of the non-party company with respect to each forest of this case and the non-party company should separately seek cancellation of the registration of ownership transfer against the non-party company. Thus, the court below's decision is just with respect to the claim for confirmation of invalidity of the resolution of the first general meeting, which decided to sell each forest of this case. Therefore, the court below's dismissal of the lawsuit seeking confirmation of invalidity of the resolution of the first general meeting is just, and there is no error of law that affected the conclusion of the judgment due to insufficient deliberation, etc., contrary to

Although the plaintiffs asserted to the effect that the confirmation of invalidity of the resolution of the first general meeting is an effective and appropriate means to resolve the disputes over ownership of each forest of this case, and thus, it cannot be deemed that the hostile effect is recognized in the judgment of confirmation of invalidity of the resolution of the first general meeting of clans which are non-corporate associations under the Civil Act (see Supreme Court Decision 98Da26187, Jan. 28, 2000). However, even if the judgment of confirmation of invalidity of the resolution of the first general meeting of shareholders becomes final and conclusive, insofar as it does not affect the non-party company, the judgment of confirmation of invalidity of the first general meeting of shareholders cannot serve as a means to resolve the invalidity of the resolution of the first general meeting of shareholders in legal sense with respect to the disputes over ownership between the company and the non-party company, and it is difficult to view that there is a benefit to seek confirmation of invalidity of the resolution of the first general meeting of shareholders in order to prevent the reorganization of each forest of this case based on the resolution

(4) Ultimately, the lower court’s dismissal of the part seeking confirmation of invalidity of the resolution of the first general meeting among the instant lawsuit is justifiable. However, the lower court’s dismissal of the part demanding confirmation of invalidity of the resolution of the second general meeting is erroneous by misapprehending the legal doctrine on the interest in confirmation of invalidity of the resolution of the clan, and thereby adversely affected the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, the part concerning the claim for confirmation of invalidity of the resolution of the second general meeting among the judgment below is reversed without examining the remaining grounds of appeal, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok