2010Na117469 Revocation of resolution of the general meeting of shareholders

00 (00000 - 000000)

00 Si 00 00 Dong 000 - 00,000

Attorney Seo-sik et al., Counsel for the defendant

00 Industrial Co., Ltd.

00:00 00 Dong 000 - 000 00 Pable block 00

Representative In-house Directors' Rights0

Law Firm Sejong (Law Firm Doz., Counsel for defendant-appellant)

[Defendant-Appellee]

Suwon District Court Decision 2010Gahap3060 Decided November 4, 2010

April 21, 201

May 19, 2011

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The decision that the defendant dismissed the plaintiff from the director at the special shareholders' meeting on February 19, 2010 shall be revoked.

2. Purport of appeal

The order is as set forth in the text.

1. Basic facts

This part of the judgment of the court of first instance cites the corresponding column of the judgment of the court of first instance, except for the correction as 'Y 00' as 'Y 00'.

2. Determination.

A. Whether the convocation procedure is defective

This part refers to the statement in the column of the judgment of the first instance.

B. Whether the method of resolution was defective

The plaintiff, who was the representative director of the defendant company (the total number of issued and outstanding shares 30,000 shares), was present at the office of this case listed in the notice of convening a general meeting of shareholders, but the defendant company did not include the voting rights of the plaintiff (9,000 shares) and JeonO (3,000 shares) delegated by the preceding 00 shares in the voting rights of the shareholders present at the meeting and declared that the agenda of this case was passed with the consent of the shareholders' lecture, right0, right00, and right00 (6,000 shares, respectively), and therefore, the resolution of this case, upon which the agenda of this case was passed, should be revoked on the ground that there was a defect in violation of the provisions of the Commercial Act stipulated in the quorum for dismissing directors at the time of the general meeting of shareholders.

Article 385 (1) of the Commercial Act provides that "Directors may dismiss any director at any time by a resolution adopted at a general meeting of shareholders in accordance with Article 434." Article 434 of the Commercial Act provides that "the number of votes of shareholders present at the meeting and 1/3 or more of the total number of issued and outstanding shares shall be the number of votes of shareholders present at the meeting."

However, in light of the above basic facts, ① the notice of convening a general meeting of shareholders of this case stated that the general meeting of this case was held at the office of this case, ② the plaintiff arrived at the office of this case on February 19, 2010 and did not leave the office of this case until the end of the general meeting of shareholders of this case. ③ The defendant's articles of incorporation provide that the representative director shall be the chairman of the general meeting of shareholders, ③ even if the plaintiff can attend the general meeting of shareholders with the agreement of shareholders, it cannot be deemed that the notary public has the authority to confirm the status and qualification of the shareholders. Therefore, even if the plaintiff refused the request of confirming the identity of the notary public, such facts cannot affect the plaintiff's exercise of voting right, ④ the plaintiff appears to have expressed an objection about the resolution of the general meeting of this case, ④ the plaintiff did not participate in the general meeting of shareholders of this case, and it is reasonable to view that the plaintiff did not participate in the meeting of this case.

Therefore, the Plaintiff is a shareholder who attends the general meeting of shareholders of this case and the number of the Plaintiff’s holding number of 9,000 shall be included in the number of voting rights of shareholders present.

However, as to whether the number of voting rights held by the Plaintiff is included in the number of voting rights held by the shareholders present at the meeting of 3,000 weeks, and Article 368(3) of the Commercial Act, the shareholder shall be entitled to exercise his voting rights by proxy. In this case, the proxy shall submit to the general meeting of shareholders a document certifying his power of representation. Article 20 of the Articles of incorporation of the defendant company shall also provide that the proxy may exercise voting rights by proxy. The proxy shall submit to the Speaker a document proving his power of representation before voting. The above provision aims to clarify the legal relationship as to the existence of the power of representation and to facilitate the adoption of the resolution of the general meeting of shareholders (Supreme Court Decision 94Da34579 delivered on February 28, 1995). Therefore, even if the Plaintiff was delegated with voting rights at the general meeting of shareholders, if the Plaintiff did not submit the power of proxy to the Speaker at the general meeting of shareholders, the proxy shall not be included in the number of voting rights held by the Plaintiff before the general meeting of shareholders and the Plaintiff at the meeting of 30000 shareholders.

Although the Plaintiff alleged that another shareholder was aware of the Plaintiff’s possession of the power of representation of the NA, there is no evidence to acknowledge this. Even if other shareholders were aware of the fact that the Plaintiff had the power of representation of the NA, the Plaintiff’s power of representation of 00 was not present at the general meeting of shareholders and the Plaintiff did not exercise the power of proxy of NA00, the Plaintiff may not include NA0 to the shareholders present at the meeting.

Ultimately, the instant case’s agenda was resolved with the consent of 18,00 shares (5,00,000 shares) corresponding to 2/3 of the number of the voting rights of the shareholders present at the meeting (Plaintiffs 9,000, 00, 6,000 shares, and 6,000 shares), and thus, the instant resolution was passed with the consent of 18,00 shares (50, 000, 6,000 shares, 6, and 00 shares). Thus, there is no defect in violation of the provisions of the Commercial Act under the resolution of the general meeting of shareholders.

Furthermore, in light of the articles of incorporation, the chairperson of the general meeting of shareholders is the plaintiff who is the representative director, and the representative director is the Speaker pro tempore who is the Speaker pro tempore, and as seen above, the plaintiff appears to have expressed his intention not to participate in or not to exercise voting rights in the proceedings, etc. of the general meeting of shareholders of this case. Thus, since the right00 is not a justifiable reason for cancellation of the resolution of the general meeting of shareholders, it does not constitute a reason for cancellation of the resolution of the general meeting of shareholders.

3. Conclusion

Therefore, the judgment of the court of first instance is unfair with different conclusions, and it is so revoked and dismissed. It is so decided as per Disposition by the plaintiff.

Judges Lee Jae-won et al.

Judges Han Han-chul

Judges Lee Jong-chul