Whether there is a legal interest in seeking confirmation of invalidity of the initial appointment resolution, if a director is dismissed prior to the expiration of his/her term of office by a resolution of the general meeting of shareholders for replacement of an executive officer and the appointment of the latter director was later appointed by the latter, but such appointment was deemed non-existence of the resolution of the general meeting of shareholders

If a director is dismissed from office before the expiration of his/her term of office by a resolution of the general meeting of shareholders of the replacement of an officer, and the latter director is appointed after that resolution, even if the first director's replacement resolution is invalid after that resolution, it would result in the lack of the requirements for protection of rights as a lawsuit for confirmation. However, if a resolution of the general meeting of shareholders who appointed the latter director is deemed non-existent due to procedural defect other than that of the general meeting convened by an unentitled person, and the contents of the resolution is deemed non-existent, it is directly related to the determination of invalidity of the initial appointment resolution. In this case, there is a legal interest to seek confirmation of invalidity of the initial appointment resolution.

Articles 380 and 386 of the Commercial Act, Article 228 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 158 (Gong1, 1992, 496) (Law No.1992, 235)

Plaintiff 1 and two others, Plaintiffs Kim Young-soo, Counsel for the plaintiff-appellant-appellee)

Busan Construction Co., Ltd., Counsel for the defendant-appellant-appellee and one other

Seoul High Court Decision 90Na21119 delivered on January 23, 1991

The part of the judgment below regarding incidental appeal shall be reversed and remanded to the Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged that the above non-party 1 was dismissed from office as a director at the temporary general meeting of shareholders held on January 12, 1990 when the non-party 1 was appointed at the defendant's temporary general meeting of shareholders held on August 26, 198, and the registration of dismissal was completed on January 13, 199, and that the non-party 2 and the non-party 2 were appointed as a director and made registration until the following day. If all the officers appointed at the general meeting of shareholders in a lawsuit to nullify the resolution of the general meeting of shareholders held that there is no legal interest in seeking the invalidity of the resolution of the above general meeting of shareholders, if all the officers appointed at the general meeting of shareholders resign from office or dismissed from office and appointed a new officer after being appointed, there is no legal interest in seeking the invalidity of the resolution of the general meeting of shareholders. This is also the same as in the case where a new resolution of the general meeting of shareholders held on the grounds of invalidity of the resolution of the above general meeting of shareholders.

2. However, even if a director is dismissed from office before the expiration of his/her term of office by a resolution of the general meeting of shareholders on the replacement of an officer, if a director is appointed after the date of his/her former term of office, it would result in the lack of the requirements for protection of rights as a lawsuit seeking confirmation of legal relations or legal relationship in the past, even though the initial resolution on the replacement of a director would be null and void. However, in cases where a resolution of the general meeting of shareholders who appointed the former director is deemed non-existent due to procedural defects other than the defect of general meeting convened by an unentitled person, the determination on the invalidity of the initial resolution on the appointment of the former director is directly related to the determination of the current officer, and in this case, there is a legal interest to seek confirmation of invalidity of the initial resolution on the appointment (see Supreme Court Decision 90Meu158, Dec. 13, 191).

According to the records, in addition to the dispute over the validity of the resolution of the provisional shareholders' meeting as of August 26, 198 by the defendant who appointed the non-party 1 as a director, the plaintiffs argued that there is no resolution of the provisional shareholders' meeting as of January 12, 1990 by the defendant who dismissed the non-party 1 as a separate lawsuit. In the provisional shareholders' meeting as of January 12, 1990, the above non-party 3, the non-party 4, and the non-party 5 who resigned as a director as of January 12, 1990 was resolved to appoint the non-party 2, the non-party 6, and the non-party 7 as the non-party 1, the non-party 1, the non-party 1, the non-party 1, and the non-party 1, the non-party 1, the non-party 1, as of January 12, 1990, which did not reach the above resolution of the general shareholders' meeting.

Therefore, without further proceeding to decide on the remaining grounds of appeal, among the judgment below, the part concerning the plaintiffs' incidental appeal (the decision to appoint directors as of August 26, 198 on non-party 1) is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)