The case holding that the defect of the resolution of the general meeting of shareholders is not cured

Even if there was a new resolution based on the validity of the resolution, it cannot be said that the defect is cured after the invalid or non-existent resolution of the general meeting of shareholders.

Article 380 of the Commercial Act

Plaintiff 1 and one other

Defendant corporation

Busan District Court Msan Branch (81 Gohap55)

1. The appeal on the claim to nullify the issuance of new stocks is dismissed.

2. In accordance with an amendment of the purport of the claim in the trial:

(A) On January 20, 1981, the defendant confirmed that there is no resolution that "the total number of shares to be issued by the company shall be 4,000,000 shares" did not exist.

(B) On December 11, 1981, the defendant confirmed that "the total number of shares to be issued shall be from 4,000,000 shares to 7,00,000 shares" is null and void by a resolution to amend the articles of incorporation.

3. The costs of appeal are assessed against the defendant.

It is confirmed that each issuance of new stocks listed in the defendant's attached Table 2 is null and void.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. We examine the main defense of this case.

The defendant asserts that the part of the claim for confirmation of non-existence of the resolution of the general meeting of shareholders in the claim of this case is sufficient to seek confirmation of invalidity of the issuance of new shares according to the above resolution, and that it should be dismissed as it is unlawful because there is no benefit of confirmation

However, as seen later, in the name of a general meeting of shareholders, which is neither convened nor existed, there is a benefit to seek confirmation of the absence of a resolution as well as seeking confirmation of the non-existence of a resolution, in case where the provision on the total number of shares to be issued, absolute matters to be entered in the articles of incorporation, is modified unlawfully and the registration of modification is completed accordingly. Therefore, the defendant's defense is groundless

2. We examine the merits.

In light of the whole purport of pleadings as a result of the verification by the court below, Gap evidence Nos. 1 (Register of shareholders), Gap evidence Nos. 2 (Articles of Incorporation), Eul evidence Nos. 3 (Minutes of Board of Directors), Eul evidence Nos. 2, testimony by non-party Nos. 1 and non-party No. 2 of the court below, and the whole purport of pleadings, since the incorporation registration was completed on Jun. 27, 1968, as of November 26, 1980, the defendant did not adopt a separate resolution for modification of the articles of incorporation as to 1,40,000 shares issued by the company as of November 26, 1980, the total number of shares issued by 1,400 shares and 1,400 shares issued by the defendant's representative director, and 200,000 shares issued by the defendant's temporary shareholders' meeting as of November 26, 1980, and 2010 shares issued by the company without such resolution.

In issuing new shares on January 20, 1981, the defendant asserted that the plaintiffs, non-party 1, and non-party 2 among the shareholders give up their preemptive rights in advance, and they omitted the above highest procedure and only the other shareholders acquired new shares. However, the defendant's assertion is rejected as there is no evidence to support the non-party 4's testimony other than the non-party 4's testimony, which is not believed to be a party member.

Thus, (1) In the above provisional shareholders' meeting on January 20, 1981, "the total number of shares to be issued by the company shall be 4,00,000 shares" is only prepared by the minutes, and there is no call-up at the shareholders' meeting. Thus, there is no above resolution. (2) The issuance of 250,000 shares among the issuance of new shares listed in the attached Table shall be omitted in the highest procedure against the preemptive right holder, and the remaining issuance of new shares shall be null and void in accordance with the articles of incorporation or in violation of the provisions of the law and the articles of incorporation. (3) The provisional shareholders' meeting on December 11, 1981, "the total number of shares to be issued by the company shall be 7,00,000 shares" shall not exceed the above 4,000 shares and the total number of shares shall not be more than 100,000 shares issued at the time of the above amendment of the articles of incorporation.

The defendant asserts that the defect in the amendment of the articles of incorporation as of January 20, 1981 or the mistake in the issuance of new shares after the resolution was made on December 11, 1981 is all cured, although the above resolution did not exist or its contents were invalid by violating the articles of incorporation and statutes as seen earlier, since the total number of issued shares is 3,80,000 shares, and the new shares are effective only after the judgment became final and conclusive. Therefore, since the total number of shares to be issued at the time of the resolution does not exceed twice the total number of issued shares, it is effective at the time of the above resolution, it is also valid, and furthermore, the above defendant's assertion that the defect in the amendment of the articles of incorporation as of January 20, 1981 or the error in the issuance of new shares after the resolution was corrected after the non-existence or non-existence of the resolution of the general meeting of shareholders, it cannot be accepted.

3. Accordingly, the plaintiffs' claims in this case are justified and acceptable. Since the judgment of the court below is just in its conclusion as to the confirmation of invalidity of the issuance of the above new shares, the defendant's appeal is dismissed. The plaintiffs withdraw the request for confirmation of invalidity and the request for cancellation registration as to the request for confirmation of invalidity of the resolution of the board of directors and subsequently added the request for confirmation of non-existence of the above general meeting of shareholders and the confirmation of invalidity of the resolution, and the costs of appeal are assessed against the losing

Judges Lee Jong-sung (Presiding Judge)