[1] In a case where a lawsuit seeking confirmation of absence of a resolution of a general meeting of shareholders was filed within the period of revocation lawsuit, but the lawsuit was modified or added for the same defect after the period of revocation lawsuit expired, whether the period of filing a lawsuit for revocation is complied with (affirmative)

[2] In a case where the opening time or place of call is changed due to unavoidable circumstances on the day of the general meeting of shareholders, the standard for determining legality of the

[3] Whether a shareholder may file a lawsuit seeking revocation of the resolution of the general meeting of shareholders on the ground of a defect in the convocation procedure for another shareholder (affirmative)

[4] The purport of Article 379 of the Commercial Act, which provides for the court's discretion at a lawsuit seeking revocation of the resolution of the general meeting of shareholders

[1] A lawsuit for cancellation of a resolution of a general meeting of shareholders shall be brought within two months from the date of resolution pursuant to Article 376 of the Commercial Act. However, if a lawsuit for confirmation of non-existence of the same resolution is brought within the period of filing a lawsuit under Article 376 of the Commercial Act, it shall be deemed that the same kind of lawsuit shall be treated as brought at the time of filing a lawsuit for confirmation of non-existence, even if the lawsuit is modified or added after two months from the date of resolution due to

[2] In cases where the opening time of the general meeting of shareholders is delayed more than the initial convening time due to unavoidable circumstances, in light of social norms, if it is difficult for shareholders present at the meeting of the general meeting to participate in the changed opening time from the standpoint of shareholders present at the meeting of the general meeting of shareholders, it does not constitute a procedural defect. However, if the attendance right of shareholders present at the meeting of the general meeting of shareholders is infringed because it is difficult to expect shareholders present at the meeting of the general meeting of shareholders in fact or in an inaccurate manner beyond that of the opening time beyond that of the general meeting of shareholders, the convocation procedure of the general meeting of shareholders is not considerably unfair. In addition, in cases where there are unavoidable circumstances where the resolution to change the convening place by holding the meeting at the initial convening place after the lawful issuance of the notice of the notice of convening the general meeting of shareholders was made and the shareholders present at the initial convening place notify shareholders present at the meeting of considerable means so that they can

[3] A shareholder may file a lawsuit for the cancellation of a resolution of the general meeting of shareholders on the ground of a defect in the convocation procedure for other shareholders.

[4] Article 379 of the Commercial Act, stating that a claim may be dismissed at the court’s discretion in a lawsuit for revocation of a resolution of the general meeting of shareholders, stating that the procedure for resolution was defective, is to prevent damage to the company or damage to the safety of general transactions by cancelling a resolution when the resolution is revoked if the resolution had already been executed regardless of whether it would be a benefit to the company or its shareholders even if the resolution was revoked, and to prevent the abuse of the lawsuit for revocation. In addition, in cases where the above circumstances are acknowledged, the court may dismiss the claim for revocation at its own discretion, even if there is no assertion by the parties.

[1] Articles 376 and 380 of the Commercial Act / [2] Articles 363 and 376 of the Commercial Act / [3] Article 376 of the Commercial Act / [4] Articles 376 and 379 of the Commercial Act

[4] Supreme Court Decision 86Meu2971 delivered on September 8, 1987 (Gong1987, 1557)

Plaintiff

National Bank (Law Firm Ha & Yang, Attorneys Yoon Ho-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na11484 delivered on June 19, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. A lawsuit for cancellation of the resolution of the general meeting of shareholders shall be brought within two months from the date of resolution pursuant to Article 376 of the Commercial Act. However, if a lawsuit for confirmation of non-existence relating to the same resolution is brought within the period of filing a lawsuit under Article 376 of the Commercial Act, it shall be reasonable to view that the period of filing a lawsuit has been complied with by treating the same case as brought at the time of filing a lawsuit for confirmation of non-existence, even if the lawsuit is changed or added after

In the same purport, the court below is just to determine that the preliminary claim seeking the revocation of the resolution was filed at the time of filing the lawsuit for confirmation of absence of the primary claimant, and there is no error of law by misapprehending the legal principles on the period of filing the lawsuit for revocation of the resolution at the general meeting of shareholders.

In addition, even if a lawsuit for the revocation of a resolution can be added after two months from the date of resolution, the defendant's argument that the lawsuit must be brought within two months from the time when the non-existence of the lawsuit was asserted for the first reason during the continuation of the lawsuit for the confirmation of absence.

2. 원심판결 이유에 의하면, 원심은 그 채용 증거에 의하여, 피고 은행의 발행주식 총수는 3억 39,613,413주이고, 그 중 우선주 및 자사주펀드를 제외한 의결권 있는 주식의 수는 2억 98,758,712주이며, 원고는 피고 은행의 보통주 7주를 소유하고 있는 주주인 사실, 피고 은행은 2000. 2. 25. 이사회를 개최하여 ① 제37기(1999. 1. 1.부터 1999. 12. 31.까지) 재무제표 승인, ② 정관 변경, ③ 이사 선임, ④ 이사 보수한도 승인, ⑤ 주식매수선택권 부여를 의안으로 하여 2000. 3. 18. 10:00 피고 은행 본점 14층 회의실에서 제37회 정기주주총회를 개최하기로 의결하고, 같은 해 3. 3.자로 그 소집통지 및 공고를 한 사실, 위 이사 선임 안건에는 금융감독원 부원장 출신인 소외 1을 상임이사 및 피고 은행의 은행장으로 선임한다는 내용이 포함되어 있었는데, 소외 1의 상임이사 및 은행장 선임을 관치금융에 의한 낙하산 인사라는 이유로 반대하던 피고 은행의 노동조합원 및 전국금융산업노동조합의 조합원들 약 300여 명은 주주총회의 개최를 저지하기로 하고, 주주총회 일시로 소집통지된 2000. 3. 18. 10:00 이전부터 회의실 출입구, 복도, 계단 및 승강기 등을 점거한 채 주주들의 입장만을 허용하고, 주주총회의 의장인 피고 은행 은행장직무대행 소외 2 상무를 포함한 등기된 상무이사들의 입장을 저지한 사실, 한편 ① 2000. 3. 18. 이전에 피고 은행에 의결권의 대리행사를 위임한 주식 수의 합계는 32,036,224주(의결권 있는 주식 수 2억 98,758,712주의 10.72%. 이하 백분율은 모두 '의결권 있는 주식 수'에 대한 것임)이고, ② 피고 은행의 총무부장 소외 3에게 의결권의 대리행사를 위임한 주식 수의 합계는 1억 53,810,788주(51.49%)이며, ③ 2000. 3. 18. 이전에 주주총회 참석장을 제출한 주주는 25명으로 그 소유 주식 합계는 7,846,784주(0.026%)이고 2000. 3. 18. 당일 주주총회 참석장을 제출한 주주는 85명으로 그 소유 주식 합계는 4,509,505주(0.015%)이며, ④ 직원 주주의 소유 주식 합계는 151,681주(0.0005%)이었던 사실, 피고 은행 노동조합원 등의 입장 저지로 인하여 주주총회 일시로 소집통지된 2000. 3. 18. 10:00를 넘겨서도 주주총회는 개회조차 되지 못하였고, 그 후에도 소외 1의 상임이사 및 은행장 선임 안건을 상정하지 말 것을 요구하는 피고 은행의 노동조합원 등과 피고 은행 사이의 주주총회 개회에 관한 수 차례의 협의나 소외 2 등의 진입시도는 모두 실패로 돌아갔으며, 그 과정에서 14층 회의실에 입장하여 주주총회의 개회를 기다리던 일부 주주들은 귀가하기도 한 사실, 위와 같은 대치가 계속되던 같은 날 22:00경, 소외 2는 피고 은행의 임원들과의 협의를 거쳐 주주총회의 소집장소를 14층 회의실에서 6층 은행장직무대행실로 변경하고, 그 때까지 14층 회의실에서 주주총회의 개회를 기다리고 있던 일부 주주들에게는 그러한 사실을 통지하지 아니한 채, 같은 날 22:15경 주식 수 합계 1억 53,810,788주(51.49%)의 의결권 대리행사를 위임받은 소외 3이 참석한 가운데 은행장직무대행실에서 제37회 정기주주총회를 개최하였고, 결국 이 사건 주주총회에 참석한 주식 수는 피고 은행이 의결권 대리행사를 위임받아 의장인 소외 2가 의결권을 대리행사한 32,036,224주(10.72%)와 소외 3이 의결권 대리행사를 위임받은 1억 53,810,788주(51.49%)의 합계 1억 85,847,012주(62.21%)이었으며, 이들의 찬성으로 위 각 안건이 모두 원안대로 통과된 후 22:20경 이 사건 주주총회가 폐회된 사실을 인정하였다.

Examining the relevant evidence in light of the records, the fact-finding by the court below is just, and there is no error of law by misconception of facts against the rules of evidence.

3. In cases where the opening time of the general meeting of shareholders is delayed more than the initially convened time due to unavoidable circumstances, in light of social norms, if it is difficult for shareholders present at the meeting of the general meeting to participate in the changed opening time from the standpoint of shareholders present at the meeting of the general meeting of shareholders, it does not constitute a procedural defect. However, if the attendance right of shareholders present at the meeting of the general meeting of shareholders is infringed because it is difficult to expect shareholders present at the meeting of the general meeting of shareholders in fact or in an incorrect manner beyond that degree, beyond that limit, the convocation procedure of the general meeting of shareholders is not considerably unfair. In addition, in cases where there are unavoidable circumstances where the resolution to change the convocation place by holding the meeting at the initial convocation place after the lawful issuance of the notice of the notice of convening the general meeting of shareholders was made, the convening authority may regard that the lawfully convened place was changed only when the shareholders present at the initial convocation place by notifying shareholders present at the meeting of considerable

According to the above facts, if, at the time of the convocation notice due to the obstruction of the defendant Bank Union members, it is recognized that the situation was unable to hold the general meeting at the convocation place due to the obstruction of the defendant Bank Union members, but the situation with uncertain time after the convocation notice remains, and if the general meeting of shareholders is held at the 22:15 on the same day after 12 hours elapsed, the shareholders who had been present at the opening time at the beginning of the general meeting cannot expect the attendance, thereby infringing their right to attend. In addition, the convocation procedure of the general meeting of shareholders of this case was remarkably unfair by depriving some shareholders of their opportunity to attend the general meeting.

The court below is just in holding that the convocation procedure of the general meeting of shareholders of this case is unlawful because it is considerably unfair, and there is no error of law by misunderstanding the legal principles on changes such as the convocation place of the general meeting of shareholders or by misunderstanding the reasoning

In addition, since shareholders may file a lawsuit to revoke the resolution of the general meeting of shareholders on the ground of the defect in the convening procedure for other shareholders, the plaintiff's ground of appeal disputing the plaintiff's eligibility to file a lawsuit to revoke the resolution on the ground that the shareholder who had been or had been regularly present at the 14th meeting room, which is the initial convening place, can only file a lawsuit to revoke the resolution on the ground that the shareholder whose right to attend was infringed,

4. Article 379 of the Commercial Act, stating that a claim may be dismissed at the court’s discretion in a lawsuit seeking revocation of a resolution of the general meeting of shareholders, provides that if a resolution is defective in the procedure of resolution, the resolution was already executed regardless of whether it would be a benefit to the company or its shareholders or not even if the resolution was revoked, thereby preventing loss to the company or damage the security of general transactions, and preventing abuse of the lawsuit seeking revocation (see Supreme Court Decision 86Meu2971, Sept. 8, 1987). In addition, in cases where the above circumstances are acknowledged, the court may dismiss the claim for revocation at its discretion, even if there is no party’s assertion.

However, the subject of the Plaintiff’s claim for cancellation is limited to the part of granting stock options to an officer among the resolution of the general shareholders’ meeting of this case. The contents of the resolution are not only difficult to think that it is a loss to the company, but also irrelevant to the safety of general transactions, the Plaintiff’s abuse of the right to file a lawsuit recognized as a shareholder’s public interest, and the defect in the convocation procedure cannot be seen as a minor level, and other circumstances indicated in the record, it is reasonable to accept the Plaintiff’s claim for cancellation and cannot be dismissed at discretion. As the Defendant’s assertion, even if it is acknowledged that appraisal rights granted by the resolution of the general shareholders’ meeting of this case can be granted to an officer or employee only without the resolution of the general shareholders’ meeting of this case where the amount of capital is the same as the Defendant bank, the number of appraisal rights granted by the resolution of the general shareholders’ meeting of this case cannot be concluded otherwise in this case.

Therefore, we cannot accept the Plaintiff’s argument in the grounds of appeal that the revocation of the instant resolution ought to be dismissed at discretion.

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

Justices Yoon Jae-chul (Presiding Justice)