[1] Whether a shareholder may directly intervene in a transaction with a company and a third party and assert the invalidity of the contract that the company entered into (negative)

[2] Whether a shareholder may seek the prohibition of exercising his/her right by directly intervening in the transaction with the company and a third party with the right to be preserved when filing a lawsuit seeking confirmation of non-existence of the resolution of the general meeting of shareholders (negative)

[1] The shareholder of a stock company shall be deemed to have an interest in the management of the company as the owner of the company. However, the company's property relation shall not be deemed to have a substantial, economic, general or abstract interest, and shall not be deemed to have a specific or legal interest. Since the company's business can only affect the company's business through a resolution of the general meeting of shareholders or through the shareholder's right of supervision without directly participating in the company's management, the shareholder can only exercise the right to maintain the director's act against the company or bring a lawsuit to enforce the company's liability through a representative lawsuit, but may not assert the invalidity of the contract that the company entered into by participating in the transaction with the third party.

[2] Even in cases where a shareholder of a stock company is allowed to file a lawsuit for confirmation of non-existence of a resolution of the general meeting of shareholders and make a provisional disposition as a preserved right, it is only possible to seek the execution or suspension of the resolution itself, which was made at the general meeting of shareholders, and it shall not be deemed that there is a right to directly intervene in a separate

[1] Article 361 of the Commercial Act / [2] Article 380 of the Commercial Act, Article 714 (2) of the Civil Procedure Act

[1] [2] Supreme Court Decision 78Da90 delivered on April 25, 1978 (Gong1978, 10824), Supreme Court Decision 78Da1117 delivered on February 13, 1979 (Gong1979, 11798), Supreme Court Decision 95Da6885 delivered on March 24, 1998 (Gong198Sang, 1127)

Hansung Development Co., Ltd. (Attorney Choi Young-soo, Counsel for defendant-appellant)

Boxa department Co., Ltd.

Doz Co., Ltd.

Gwangju High Court Order 2000Ra3 dated January 17, 2000

The reappeal is dismissed.

1. Summary of the Re-Appellant's assertion

The summary of the application of this case asserted by the re-appellant is that the respondent, the other party to the application of this case, transferred to the third party debtor the rights and obligations of the department store, the Respondent, the Doz (hereinafter referred to as the "third party debtor on June 4, 1999) and the third party debtor the rights and obligations of the main office of the department store newly constructed by the Respondent between the Respondent and the Doz. (hereinafter referred to as the "third party debtor on June 4, 199, and signed a contract with the third party debtor to delegate the sale of the main office of the department store and all acts related thereto to the third party debtor. The above contract constitutes the "transfer of all or important parts of the business" under Article 374 (1) of the Commercial Act and thus requires a special resolution of the general meeting of shareholders under Article 434 of the Commercial Act. Thus, the above contract is null and void since the provisional general meeting of shareholders of the Respondent company, the shareholder of the Respondent, is subject to the right to claim confirmation of the above general meeting of shareholders, and is prohibited from all the third party debtor.

2. Judgment of the Supreme Court

A shareholder of a stock company has an interest in the management of the company as the owner of the company. However, the company's property relation is not merely with an economic or general and abstract interest, and a specific or legal interest cannot be deemed to exist (see Supreme Court Decision 78Da1117, Feb. 13, 1979). The shareholder may not directly participate in the company's management and may affect the company's business through a resolution of the general meeting of shareholders or through the shareholder's supervisory authority. Therefore, the shareholder can only file a lawsuit against the director by exercising the right to maintain the director's act against him/her (see Article 402 of the Commercial Act), or by exercising the right to maintain the director's act (see Article 403 of the Commercial Act), or by acting in a transaction with a third party (see Article 403 of the Commercial Act). Even if a shareholder of a stock company has filed a lawsuit to confirm the absence of the resolution of the general meeting of shareholders and the provisional disposition is permitted, the shareholder's right to directly intervene in the company's execution or its effect.

Upon examining the record on the premise of the above legal principles, it is clear that the re-appellant, as a shareholder status, filed a claim for invalidity of the above contract against the respondent company and the third party obligor who entered into a contract with the company and the third party obligor, and the right to seek a prohibition of exercising the right of the respondent and the third party obligor pursuant to the contract cannot be acknowledged as the purport of the application of this case, and there is no vindication as to the preserved right that can support the application of this case. Therefore, the judgment of the court below dismissing the application of this case in the same purport is just, and there is no error in the misapprehension of legal principles

In addition, among the grounds for re-appeal, the part that asserts that the right to preserve the application of this case is the right to claim for a director's illegal act under Article 402 of the Commercial Act is a new argument that has been raised at the time of the trial, and the above claim against the director cannot be a preserved right in the application of this case against the company. In addition, even though there is a misapprehension of the legal principles as to the retroactive effect of the judgment on confirmation of non-existence of the resolution of the general meeting of shareholders in the first instance court, as otherwise alleged in the grounds for re-appeal, the court below dismissed the application of this case for reasons different from

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)