In a case where a person dismissed from office as a representative director by a resolution of the board of directors is dismissed from office by a valid resolution of the board of directors after the resolution of the board of directors was adopted, whether there is a benefit of action to seek the non-existence of a resolution of the board of directors on dismissal of the representative director

Article 250 of the Civil Procedure Act, Articles 376 and 380 of the Commercial Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Jeon-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Jong-il, Counsel for plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Hanra, Attorneys Go Ho-soo et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2004Na1129 decided June 10, 2005

The judgment of the court below reversed the claim for nullification of the resolution of the board of directors, and the judgment of the court of first instance is revoked, and the lawsuit is dismissed. The remaining grounds of appeal are dismissed. The costs of appeal and the total costs of appeal are assessed against the plaintiff.

1. We examine the grounds of appeal on the claim for nullification of the resolution of the general meeting of shareholders.

In full view of the adopted evidence, the court below rejected the plaintiff's assertion that the defendant company's shares were transferred 70% of the shares of the defendant company, on May 19, 2003 (hereinafter "the shareholders' general meeting of this case"), on the ground that the plaintiff and the shareholders of the defendant company could not be deemed null and void even if the resolution of the shareholders' general meeting of this case was made without the resolution or convocation procedure required by the board of directors, and that the non-party 1 and the non-party 2 attended the shareholders' general meeting of this case and abolished the joint representative system of this case without raising any objection to the holding of the general meeting of this case and made an unanimous decision to dismiss the plaintiff from office. The court below rejected the plaintiff's claim that the plaintiff's shares were transferred 70% of the shares of the defendant company, on the ground that there is no evidence to acknowledge that the transfer contract was concluded between the plaintiff and the shareholders of the defendant company. Accordingly, the court below rejected the plaintiff's claim for this part of this case's judgment, and it did not err in the facts finding or the grounds for appeal.

In addition, even if the defendant company's termination of the contract for construction work entered into with the Yang Construction Co., Ltd. does not have any legitimate ground for termination, the above resolution does not affect the validity of the above resolution. Thus, the ground of appeal which argues that the court below's decision on the validity of the contract is erroneous without any need for further review.

2. We examine ex officio the ground of appeal on the claim to nullify the resolution of board of directors.

If a person who was dismissed from office as a representative director by a resolution of the board of directors is dismissed from office by a valid resolution of the board of directors after the resolution of the board of directors was made, even if there are any defects in the resolution of the board of directors concerning the dismissal of the representative director, unless there are special circumstances such as absence or invalidity due to procedural defects other than the defect of the general meeting called by an unentitled person, or the cancellation of the resolution, the absence or invalidity of the resolution or the cancellation of the resolution shall be deemed to lack of the requirements for protection of rights as a lawsuit seeking confirmation of past legal relations or legal relations (see Supreme Court Decision 96Da24309 delivered on October 11, 196, etc.).

According to the records, it can be acknowledged that the resolution of the general meeting of shareholders of this case was made after the resolution of the board of directors on May 16, 2003, that the plaintiff is dismissed from the office of joint representative and the non-party 3 is appointed as a new joint representative director, and the joint representative director system was abolished at the general meeting of shareholders of this case, and that the resolution of the general meeting of this case was made after the resolution of the board of directors (hereinafter referred to as the "board of directors of this case"). There is no evidence to deem that the resolution of this case is non-existence or invalid due to procedural defects other than the defect of the general meeting convened by the unentitled person, or there are special circumstances such as the cancellation of the resolution, and as seen above, the above resolution is deemed to be valid. Thus, this part of

Nevertheless, it is illegal to maintain the judgment of the first instance court that dismissed the plaintiff's claim for this part of this part by putting it over and examining the merits.

3. Conclusion

Therefore, the part of the judgment of the court below for nullification of the resolution of the board of directors is reversed, and this part is directly decided by this court pursuant to Article 437 of the Civil Procedure Act. Since the judgment of the court of first instance which dismissed the plaintiff's claim on this part is obvious to be unlawful for the above reasons, the judgment of the court of first instance is revoked, and the corresponding part of the lawsuit is dismissed, and the remaining appeal is dismissed, and the costs of appeal of the appeal and the total costs of appeal of

Justices Kim Hwang-sik (Presiding Justice)