Plaintiff 1 and one other (Seoul Central Law Firm, Attorney Jeong Young-cheon, Counsel for the plaintiff-appellant)

Newly High Court Decision 201Na1484 decided May 1, 201

April 14, 2016

Busan District Court Decision 2015Gahap99 decided July 17, 2015

1. Of the judgment of the first instance court, the part against the plaintiffs as to confirming the invalidity of the resolution below shall be revoked.

Of the resolution made at a temporary general meeting of members held by the Defendant on December 30, 2014, the Defendant confirms that the resolution on the reduction of remuneration for Plaintiff 1 and Plaintiff 2 is null and void.

2. The plaintiffs' remaining appeals are dismissed.

3. The total costs of the lawsuit are five minutes, which are one of which are borne by the plaintiffs, and the remainder by the defendant.

The judgment of the first instance court is revoked. It is confirmed that the “resolution on the reduction of remuneration and the change of the name of position for the Plaintiff 1 and Plaintiff 2” made at a temporary general meeting of members held by the Defendant on December 30, 2014 is invalid.

1. Facts of recognition;

A. Status of the parties

The representative director of the defendant company and the plaintiffs (the plaintiff 1's friendship, the plaintiff 2's wife, the non-party 1's wife, and the non-party 2's wife) were jointly invested in share to operate the company together. On April 29, 1994, the defendant company was incorporated as a limited liability company, the purpose of which is to sell alcoholic beverages, etc. on April 29, 1994. At present, the plaintiffs are members with 23% of the defendant's directors and interest, and the remaining 54% of the representative director is 34%, the non-party 1's wife 1 and the non-party 2 and the Dong 3 respectively.

(b) Remuneration of directors;

After the establishment of the Defendant Company, Nonparty 1 was the representative director, Plaintiff 1, and Plaintiff 2 had been in office as the managing director and had been in office as the managing director to work as a full-time director. Meanwhile, Nonparty 3 is in office as the managing director, and Nonparty 2 works as the full-time director in charge of accounting accounting affairs, and all of the employees of the Defendant Company work as the managing director.

The Plaintiffs’ remuneration as directors was KRW 500,000 per month after around 2005. However, on September 5, 2012, when all the members of the Plaintiffs were present, a resolution was made to reduce the Plaintiffs’ salary by 50% with the consent of all the members at a meeting (No. 13, the representative director was paid KRW 600,000 per month in the case of Nonparty 1, and the amount was increased by KRW 8.5 million per month on March 12, 2009 (Evidence No. 19) and reduced by KRW 19,50,000 per month on September 4, 2012).

C. Resolution of this case

On December 30, 2014, the Defendant Company held a temporary general meeting of partners and decided to reduce the Plaintiff’s remuneration to KRW 1,200,000 per month from January 1, 2015 to KRW 1,200 per month from the managing director, and to change the Plaintiff’s title to the director from the managing director’s position (Article 5 of the instant resolution; hereinafter “instant resolution”). Of these, the Defendant Company decided to reduce the remuneration to KRW 1,200 per month from January 1, 2015, with the consent of three other members (excluding Nonparty 1, Nonparty 2, Nonparty 3, and 54 per share) except for the Plaintiffs among the five members (Article 30,200 out of KRW 30 per share of investment).

D. Legal disputes between the plaintiffs and the non-party 1

On October 15, 2009, the plaintiffs filed a lawsuit with Nonparty 1 and his wife Nonparty 2 seeking the return of money obtained by deducting the money they have to bear for the purchase of real estate from the unpaid payment, refund for year-end settlement, lease deposit, rent, and proceeds from sale of shares ( Busan District Court Branch Branch 2009Gahap4960, Busan District Court Branch 2009). The above lawsuit was merged with the counterclaim that Nonparty 1 and Nonparty 2 sought consolation money due to unjust enrichment and coercion against the plaintiffs (the same court 2010Gahap57611).

On September 28, 2011, the plaintiffs, non-party 1, and non-party 2 agreed to the mediation plan with the main contents that "as of September 30, 201, the plaintiffs and non-party 1 and non-party 2 sold shares of the plaintiff and non-party 2 and the defendant company's liquor sales business license to the purchaser who presented the highest price on or before September 30, 2012, the sales price shall be distributed according to their respective shares as of September 28, 201, the plaintiffs and non-party 2 used as the defendant company's office's house shall not raise any objection, and they shall not file any civil or criminal lawsuit in connection with the operation of the defendant company." The lawsuit was concluded upon the voluntary mediation (hereinafter referred to as "the mediation of this case").

However, until September 30, 2012, which was prescribed in the conciliation of the instant case, the sales of the Defendant Company had not been made until now. On July 16, 2013, the Plaintiffs filed a lawsuit against the Defendant Company seeking “the name of the Defendant Company’s real estate (defluence of address) and the payment of unpaid rent for the Plaintiff’s real estate (defluence of warehouse site and ground building) located in the name of the Plaintiffs (defluence of the address omitted)” ( Busan District Court Branch Branch 2013Da13902). On November 6, 2013, the said court dismissed the Plaintiffs’ claim against the Defendant Company on the ground of the instant conciliation provision that “no civil lawsuit is instituted in connection with the operation of the Defendant Company,” and the said judgment was finalized on December 2, 2014 through the appellate court.

E. Main contents of the articles of incorporation of the defendant company

A resolution of a general meeting of members shall be adopted by the attendance of the members having the vote of the total members and the majority of the voting rights of the members present at the meeting. Each member shall have one vote for each unit of investment (Article 10). Two or more directors shall be appointed by the general meeting of members, and may be removed by a resolution of the general meeting of members at any time (Articles 13, 14, and 16). Remuneration to be received by officers shall be determined by the resolution of the general

[Reasons for Recognition] A without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 5, Eul evidence Nos. 1, Eul evidence Nos. 3 through 7, Eul evidence Nos. 13, 14 and 19, and the purport of the whole pleadings in this court

2. The parties' assertion

A. The plaintiffs

The resolution of this case is invalid because the non-party 1 unilaterally reduced the remuneration of directors only for the plaintiffs and deprived of his position with the intent to exclude them from the work of the defendant company, and it is remarkably unfair and abused the principle of majority.

B. Defendant

The remuneration of directors is to be determined by a resolution of the general meeting of members. The plaintiffs have a legal dispute against the defendant company or the representative director while neglecting the basic service as a director, and there is a very low performance in doing so, thereby reducing the amount of appropriate remuneration corresponding thereto. Therefore, it is not an abuse of the principle of majority.

In addition, in the articles of incorporation, there is no separate position of the managing director and the managing director, and in spite of the name of the position, the plaintiffs still hold the right to perform duties as an executive member while holding the shares as an executive member. Therefore, it cannot be

3. Determination

A. Relevant regulations and legal principles

(1) Relevant provisions

Article 567 of the Commercial Act, which is a provision concerning a limited liability company, applies mutatis mutandis to Articles 385 and 388 of the Commercial Act, which are provisions concerning a limited liability company. Article 385(1) of the Commercial Act provides, “At any time, a director may be removed from office by a special resolution of the general meeting of shareholders pursuant to Article 434 of the Commercial Act, namely, a resolution of the general meeting of shareholders pursuant to Article 434 of the Commercial Act, at least two-thirds of the voting rights of the shareholders present at any time, but if a director has been removed before the expiration of his term without justifiable cause, he may claim damages from the company.” Article 388 of the Commercial Act provides, “The remuneration of a director shall be determined by a resolution of the general meeting of shareholders if the articles of incorporation does not determine the amount.” Article 383(2) of the Commercial Act provides, “

The fact that the articles of incorporation of the defendant company stipulate that directors shall be appointed at the general meeting of members, and their remuneration shall be determined by a resolution of the general meeting of members, and that the term of office of directors is not

(2) Relevant legal principles

In general, a director’s remuneration provision shall be prescribed by the articles of incorporation, or by a resolution of the general meeting of shareholders or the general meeting of employees; however, a director who was dismissed before his term of office can be dismissed at any time by a special resolution of the general meeting of shareholders or the general meeting of employees is interpreted as a provision to harmonize the interests of shareholders or employees, such as securing control over the company and stabilizing management status, with those of managers (see Supreme Court Decision 2004Da25123, Dec. 10, 2004).

Meanwhile, if the amount of remuneration for a specific director is determined by a resolution of the articles of incorporation or a general meeting of shareholders or a general meeting, it shall be deemed that the amount of remuneration for the director is incorporated into the contents of an appointment contract between the company and the pertinent director. Thus, in principle, in order to reduce it according to the general principles of contract law, the consent of the pertinent director is required, and if there is no consent of the pertinent director, there is a justifiable reason to reduce the remuneration for the director at least, such as a conspicuous negligence of the director, a change in the contents of duties, and a substantial managerial necessity. If not so, a resolution of the shareholders or general meeting of members with the purport of unilaterally reducing the remuneration for the director already decided through a resolution of the shareholders or general meeting of members, it shall be deemed that it is null and void as it unilaterally infringes the right to claim remuneration for the company

In particular, in the case of a full-time director holding a position as an employee, the amount of remuneration includes the amount of remuneration as an employee. Therefore, even if a resolution of the shareholders or general members' meeting is made, the above requirements should be observed in making a decision on the reduction of remuneration.

B. Specific determination

(1) As to the instant decision to reduce remuneration

The defendant company unilaterally reduced the plaintiffs' remuneration from KRW 2.5 million per month to KRW 1.2 million per month without the plaintiffs' consent through the resolution to reduce the remuneration of directors through the resolution of this case. Thus, in light of the above legal principles, we examine whether there exists "justifiable cause" in such a resolution to reduce remuneration in light of the above legal principles.

Although the defendant asserts that there is a justifiable reason for the reduction of remuneration because the plaintiffs only file a lawsuit against the interests of the company, but did not have any actual achievements as directors, and neglected to perform the basic duties, the defendant's assertion that there is a justifiable reason for the reduction of remuneration. However, in light of the following circumstances, it is insufficient to acknowledge that there is a justifiable reason as alleged in the above, and there is no other evidence to acknowledge that there is a justifiable reason in light of the above evidence and the overall purport of pleading, which can be known in full view of the above evidence and the whole purport of pleading, the decision on the reduction of remuneration in this case was unilaterally reduced the amount of remuneration of the plaintiffs as directors incorporated into the terms of the contract and the modified resolution without the consent or justifiable reason of the plaintiffs.

(1) Conditions constituting the premise

While the plaintiffs and non-party 1 possessed their shares and operated the company with the time of the incorporation of the defendant company, there was a serious dispute as to the distribution of the profits, etc., and the plaintiffs filed a civil lawsuit against the non-party 1 and his wife and the non-party 2, and in the lawsuit, the mediation of this case was established under the premise that "the plaintiffs, the non-party 1 and the non-party 2 sold their shares and the liquor sales business license to the purchaser who presented the highest price by September 30, 2012 and allocated the price in proportion to their shares."

Nevertheless, without the sale of the shares, etc. so far, Nonparty 1, who forms a majority of the shares, operates the Defendant Company without excluding the Plaintiffs in conflict with them as much as possible from their businesses.

In addition, with respect to the plaintiffs' proposals that set specific periods and amounts for the implementation of the conciliation of this case, the non-party 1 rejected the plaintiff's assertion that the real estate in the name of the plaintiffs that the non-party 1 did not raise any objection to the conciliation of this case should be restored to its original state to the defendant company (the defendant's preparatory document dated February 24, 2016).

(2) Circumstances relating to the reduction of remuneration.

The plaintiffs' remuneration was determined by a resolution of the general members' meeting, and the amount of 5 million won per month was already reduced to 2.5 million won on September 5, 2012.

Nevertheless, the Defendant Company passed a resolution to reduce the remuneration of 1.2 million won by again reducing the remuneration of 1.2 million won. Nonparty 1 consented only to the share of Nonparty 1, and Nonparty 1 did not record the reasons for the reduction of remuneration by specifying only the remuneration of 1.2 million won in the minutes of the temporary general meeting of employees.

Although Defendant Company asserts that it was due to the Plaintiffs’ negligence and poor performance through the instant lawsuit, in full view of the above circumstances, Nonparty 1 could eliminate the Plaintiffs as much as possible despite the instant conciliation, and in the process of managing the company, it is difficult to see that the Plaintiffs intentionally neglected to perform their duties.

In addition, since the establishment of the defendant company, the plaintiffs have worked as full-time directors and worked as full-time directors. Since the remuneration includes the remuneration for such work, more strict requirements are required in order to reduce it, there is no reason to justify the reduction of the remuneration of the re-director in the amount below the minimum wage compared to the average working hours at all times because the remuneration has not been reduced by half, and rather, the non-party 1 made a resolution to reduce the remuneration of the re-director in this case by means of lacking the plaintiffs in conflict with them.

(3) Other circumstances.

Of course, in order to control the company of majority members and to secure the management right of the representative director, there may be a counterargument that the majority members' right to decide on the status of the directors who are in conflict with the representative director and the majority members should be protected. However, this is related to general cases. However, it is reasonable to view that the amount of remuneration for a specific director is determined by a resolution of a general meeting of members, and it is subject to certain restrictions according to the general principles, etc. of contract law if the amount of remuneration for

In the case of a director of a limited liability company whose term of office has not been fixed, there is no room for more flexible grounds for reduction of remuneration in terms of that it can be recognized in advance as possible to change future remuneration compared to the director of the limited company. However, if the general meeting of members can unilaterally reduce the remuneration of a director without any restriction through such resolution, it is likely to escape the legislative intent of Article 567 and Article 385(1) of the Commercial Act, which is a provision to harmonize the interests of the member and the director, which is a provision to harmonize the interests of the member and the director, so it cannot be interpreted that there is no such restriction reason.

In particular, in the case of this case, the non-party 1 decided to reduce remuneration to the plaintiffs unilaterally while managing the defendant company that continuously controls the management right despite the mediation of this case, and operated the defendant company with the fact that the non-party 1's friendship is a majority and the compulsory execution of the mediation clause of this case is not easy. It cannot be evaluated as legitimate. Rather, it can be evaluated as being remarkably unfair by abusing the principle of majority decision in light of its circumstances, method of resolution and contents.

(2) As to the decision to change the class name of this case

Although the plaintiffs asserted that this part of the resolution was null and void in the intent to exclude them from the company's business affairs, the name of the position of the managing director and the managing director is merely an internal name that does not exist in the articles of incorporation of the defendant company, regardless of the change of the name, the plaintiffs do not change in exercising their legal status and authority as directors (it is true that the defendant is also recognized, and the defendant's preparatory document as of May 13, 2015, and the record of trial No. 358). The plaintiffs' claims for this part

4. Conclusion

Of the plaintiffs' claims, the part seeking confirmation of invalidity of the resolution to reduce the remuneration of this case is accepted as well as the remaining claims, namely, the part seeking confirmation of invalidity of the resolution to change the name of the position of this case is dismissed as it is without merit. Since the part against the plaintiffs regarding the claim to nullify invalidity of the resolution to reduce the remuneration of this case which is different from the judgment of the court of first instance is unfair, it is revoked and the plaintiffs' claims corresponding to the revoked part are accepted

Judges Gunam-su (Presiding Judge)