[1] The legal nature of retirement consolation benefits for directors and the articles of incorporation, etc. shall be determined by a resolution of the general meeting of shareholders, whether a director’s remuneration or retirement allowance may be claimed without a resolution of the general meeting of shareholders (negative)

[2] Whether the existence of a resolution is recognized in a case where the minutes of a general meeting of shareholders have been prepared even though a single-person company did not hold a general meeting of shareholders (affirmative), and whether the resolution can be deemed to have been made by evidence even if the minutes of the general meeting of shareholders have not been prepared (affirmative)

[3] The case holding that a resolution of the general meeting of shareholders can be deemed to have been made on the above provision if, although there was a resolution of the general meeting of shareholders on the payment of retirement allowances for executive officers or the minutes of the general meeting of shareholders were not written, retirement allowances under the above provision were paid customarily through approval and approval of the actual

[4] Purport of the provision of Article 385 (1) of the Commercial Code, and whether such provision can be inferred about the removal of the representative director by a resolution of the board of directors (negative)

[1] According to Article 388 of the Commercial Code, the remuneration of a director of a stock company shall be determined by a resolution of the general meeting of shareholders if the amount is not determined by the articles of incorporation. Thus, in a case where retirement consolation benefits for the director of a stock company are paid to a retired person from the office in compensation for the performance of his/her duties during his/her service and includes remuneration under Article 388 of the Commercial Code, and the articles of incorporation, etc. provide that the amount of remuneration or retirement benefits shall be determined by a resolution of the general meeting of shareholders, the director may not exercise his/her right to claim remuneration or retirement

[2] In the case of a so-called one-called one-person company whose total shares were owned by a person after its incorporation, it is obvious that the shareholder will be formed as the general meeting of all the shareholders if he attends the general meeting of shareholders as the sole shareholder and the resolution will be made according to the intent of the shareholder. Thus, no separate procedure of convening the general meeting is required. Even if there was no fact that the general meeting was held, if the minutes of the general meeting were to have been prepared by the one-person shareholder, then such a resolution may be deemed to have been made unless there were special circumstances. The same applies to the case of a single-person company, which is the general meeting of shareholders. Even if

[3] The case holding that a resolution of the general meeting of shareholders can be deemed to have been made on the above provision if, although there was a resolution of the general meeting of shareholders on the payment of retirement allowances for executive officers or the minutes of the general meeting of shareholders were not written, retirement allowances under the above provision were paid customarily through the approval and approval of the actual

[4] Article 385(1) of the Commercial Act provides that a director may be removed at any time by a special resolution of the general meeting of shareholders, and where a director whose term of office has been fixed is removed without any justifiable reason before his/her term of office, it shall be allowed to claim damages against the company so that the director can claim damages, thereby in harmony with the interests of the shareholders, such as securing the management right of the company and stabilizing the status of the manager, and it shall not be deemed that the principal purpose of guaranteeing the right to claim remuneration of the director is not to be applied by analogy even if the board of directors dismisses the representative director, and it shall not

[1] Article 388 of the Commercial Act / [2] Articles 363, 368, and 373 of the Commercial Act / [3] Article 388 of the Commercial Act / [4] Article 385 (1) of the Commercial Act

[1] Supreme Court Decision 79Da1599 delivered on November 27, 1979 (Gong1980, 12409) Supreme Court Decision 81Da343 delivered on March 22, 1983 (Gong1983, 728) Supreme Court Decision 92Da2828 delivered on December 22, 1992 (Gong1993, 560), Supreme Court Decision 99Da72484 delivered on December 26, 200, Supreme Court Decision 2003Da24123 Delivered on October 24, 203 [2] Supreme Court Decision 74Da1755 delivered on April 13, 197 (Gong1976, 1992; Supreme Court Decision 9Da28294 delivered on December 13, 194) 209, Supreme Court Decision 2009Da31979 delivered on June 13, 1976

Plaintiff (Attorney Lee Dong-young, Counsel for the plaintiff-appellant)

Ahovah Star Co., Ltd. (Law Firm Barun Law, Attorneys Hong-chul et al.)

Seoul High Court Decision 2003Na13835 delivered on April 13, 2004

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. As to the defendant's grounds of appeal (retirement allowances for officers)

A. According to the reasoning of the judgment of the court below, the above provision was prepared by the non-party 2, the non-party 3, and the non-party 1 operated by the non-party 4 and the non-party 1 (the non-party 2's representative director is the same as the non-party 1's retirement allowance under the above provision on the non-party 1's retirement allowance under the non-party 715 and 705's name. The non-party 1's above provision on the non-party 2's retirement allowance under the non-party 9's provision on the non-party 2's retirement allowance under the non-party 9's incorporation and the non-party 1's non-party 2's non-party 9's non-party 1's non-party 2's non-party 3's non-party 9's non-party 2's non-party 1's non-party 1's non-party 2's non-party 3'. The defendant 2's directors'

B. According to Article 388 of the Commercial Act, the remuneration of a director of a stock company shall be determined by a resolution of the general meeting of shareholders when the amount is not determined by the articles of incorporation. Thus, in a case where retirement consolation benefits for a director are paid to a retired person from his office in return for the performance of his/her duties, and are included in the remuneration under Article 388 of the Commercial Act, and the articles of incorporation, etc. provide that a resolution of the general meeting of shareholders concerning the amount, payment method, payment period, etc. of the director's remuneration or retirement benefits by a resolution of the general meeting of shareholders, the director cannot exercise his/her right to claim remuneration or retirement benefits (see Supreme Court Decisions 79Da1599 delivered on November 27, 1979, 92Da28228 delivered on December 22, 1992, 99Da72484 delivered on December 26, 200, 203).

However, in the case of a so-called one-called one-person company whose total shares were owned by a person after its incorporation, it is obvious that the shareholder will be formed as the general meeting and the resolution will be made according to the intent of the shareholder. Thus, even if there was no fact that a general meeting was held, if the minutes of the general meeting were to have been prepared by the one-person shareholder, it can be deemed that there was a resolution unless there were special circumstances (see, e.g., Supreme Court Decisions 74Da1755, Apr. 13, 1976; 93Da8702, Jun. 11, 1993; 91Da19500, Jun. 23, 1992). This applies likewise to the case of a single-person company, a general meeting of shareholders (see, e.g., Supreme Court Decision 91Da19500, Jun. 23, 192).

According to the court below's findings, with regard to an officer who is replaced by a non-standing executive officer within the defendant company, the agreement between the plaintiff and the defendant company on the payment of the retirement allowance for executive officers under the above provisions of the retirement allowance shall be deemed to have been impliedly reached, based on the practice of paying the retirement allowance under the above provision. The defendant company recognized the non-party 1 as one in fact and recognized as one in fact as one in the above non-party 1 and the non-party 1 as one in fact approved and approved the payment of the retirement allowance under the above provision, and it can be deemed that the resolution of the general meeting of shareholders was passed implicitly

C. The court below's decision is not appropriate to recognize the concept of "actual intention" which cannot be recognized legally as the authority or the effect of the act, or to state it as a custom which is a fact that the existence of an implied agreement for the payment of retirement allowances for officers is the existence of an implied agreement. However, it is reasonable to deem that the above non-party 1 was a controlling shareholder of the defendant company and there was an agreement for the payment of retirement allowances for officers or a resolution at a general meeting of shareholders in accordance with the defendant company's practice. Therefore, its conclusion is just, and it is not erroneous in the misapprehension of facts as to the existence of the rules for the payment of retirement allowances for officers or in the misapprehension of legal principles

2. As to the Plaintiff’s ground of appeal (claim for Damages)

A. According to Article 385(1) of the Commercial Act, the court below held that "a director may be removed from office at any time by a resolution of the general meeting of shareholders under Article 434 of the Commercial Act. However, in cases where the term of office of a director was determined and he is dismissed before the expiration of the term without justifiable reasons, the director may claim compensation for damages caused by his dismissal against the company." Although the plaintiff is not dismissed from office by a resolution of the general meeting of shareholders, it can be deemed that Article 385(1) of the Commercial Act can be applied by analogy if he is dismissed from office during the term of office without justifiable grounds, and if he is replaced with non-standing and non-standing directors, then the plaintiff can claim compensation for damages caused by de facto dismissal. Furthermore, the court below held that there is a justifiable reason for the removal of the representative director of the plaintiff on January 15, 2002.

B. However, the court below's decision that Article 385 (1) of the Commercial Act applies not only to the dismissal of a director by a resolution of a general meeting of shareholders, but also to the dismissal of a representative director by a resolution of the board of directors is not acceptable for the

On the other hand, a director of a corporation may appoint and dismiss the general meeting of shareholders and set a term of office not exceeding three years as a member of the board of directors, which is one of the decision-making organizations of the company. However, in principle, the representative director is selected and dismissed from among the directors, and in that it is an institution which represents the company and ordinarily sets a separate term of office, the director and the representative director may be dismissed at any time according to the business judgment, etc. of the board of directors. In addition, since Article 385(1) of the Commercial Act provides that the dismissal of the director and the dismissal of the representative director of the board of directors may be conducted at any time by a special resolution of the general meeting of shareholders. Article 385(1) of the Commercial Act provides that the director may claim damages against the company in order to harmonize the management right of the company and the interests of the director, such as securing the manager status, and the representative director's claim for remuneration of the director, it cannot be inferred that the plaintiff is dismissed from his office without any justifiable reason (see Supreme Court Decision 2004Da25611, Oct. 15, 2004).

C. The court below held that Article 385 (1) of the Commercial Act, which focuses on the plaintiff's right to claim remuneration, should be applied by analogy even when the board of directors dismisses the representative director. The court below erred in the interpretation and application of law, and Article 385 (1) of the Commercial Act, even where the board of directors dismisses the representative director, the plaintiff's claim for damages in this case, which is premised on the application or analogical application, is without merit. Thus, the plaintiff's ground

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)