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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion is as indicated in the grounds for the claim. The purport of the Plaintiff’s assertion is that “the Plaintiff is a shareholder holding 40% of the shares of the non-party C Co., Ltd. (hereinafter “non-party C”). The Defendant, a joint representative director of the non-party company, was unlawfully paid KRW 50,00,000 of the public funds of the non-party company by taking advantage of the status of the joint representative director, and accordingly, the non-party company suffered damages equivalent to the above amount. Accordingly, the Plaintiff filed a representative lawsuit on behalf of the non-party company pursuant to Article 403 of the Commercial Act to recover the part that the Defendant inflicted on the non-party company. The Defendant must pay the amount
2. We examine ex officio the lawfulness of the instant lawsuit ex officio.
A. According to Article 403(1), (3), and (4) of the Commercial Act, a shareholder who holds no less than 1/100 of the total issued and outstanding shares may demand that the company file a lawsuit against directors to enforce their liability. In a case where the company does not file a lawsuit within 30 days from the date of receipt of the said request or where the company is likely to cause irreparable damage to the company due to the lapse of the said period, a shareholder who holds no less than 1/100 of the total issued and outstanding shares may immediately file a lawsuit on behalf of the company.
This is a provision on the requirements for filing a suit in order to prevent a suit by shareholders in consideration of the fact that a representative suit by shareholders is based on the rights of the company.
Therefore, if a shareholder who holds no less than 1/100 of the total issued and outstanding shares immediately files a lawsuit on behalf of the company without demanding the company to file a lawsuit against the company, even though there is no risk of irreparable damage, such lawsuit is unlawful.