2010Du2169. Invalidity, etc. of resolution of the general meeting of shareholders

MaximumO

Kim Jong-si

Attorney Kim Jong-young, Counsel for the defendant-appellant

1, 3 MDM Co., Ltd.

Kim Jong-si

Maximum 00

2, 100 (hereinafter referred to as “1”)

Busan East-gu

Seoul High Court Decision 200Na1480

September 22, 2011

2011, 11, 10

1. All of the plaintiff's main lawsuit and the claim for confirmation of non-existence of the conjunctive lawsuit shall be dismissed.

2. The plaintiff's remaining main claims and the remaining conjunctive claims are all dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

청 구취 지주위적 청구취지 : 피고 ㎜㎜mmm㎜ 주식회사의 2009. 9. 1.자 임시주주총회에서 한 피고 한CC에 대한 이사선임 결의와 2009. 9. 1.자 이사회에서 한 피고 한○○에 대한 대표이사 겸 사장선임 결의 및 여○○에 대한 대표이사 겸 회장선임 결의는 각 무효임을 확인한다. 피고 한○○은 원고에게 100,000,000원 및 이에 대하여 이 사건 소장부본 송달 다음날부터 이 사건 판결선고일까지는 연 5%의, 그 다음날부터 다 갚는 날까지는 연 20%의 각 비율로 계산한 돈을 지급하라.

Preliminary purport of claim: Defendant III Co., Ltd.’s resolution on the appointment of director to Defendant Han○○○, which was made at the temporary general meeting of shareholders on September 1, 2009, and on September 1, 2009 at the board of directors’ meeting on September 1, 2009, and on the appointment of representative director and representative director as to Defendant Han○○○, which was made at the board of directors’ meeting on September 1, 2009, did not exist, respectively. Defendant Han○○ shall pay to the Plaintiff 1,00,000 won with the money calculated by each of 20% per annum from the day following the delivery of a copy of the complaint to the day of the rendering of the judgment of this case, and from

1. Basic facts

A. Status of the Parties

피고 ㅌㅌㅌㅌㅌㅌ 주식회사(이하, '피고 회사'라고 한다)는 ○○신문 등의 발행업을 영위할 목적으로 1998. 7. 27. 설립된 회사이고, 피고 한○○은 피고 회사의 2009. 9. 1.자 임시주주총회에서 이사로 선임된 후, 같은 날 개최된 이사회에서 대표이사 겸 사장으로 선임된 사람이며, 원고는 2009. 12. 24.자로 피고 회사의 대표이사로 취임등기를 마쳤다가 2011. 5. 16. 대표이사에서 사임한 사람이다.

B. As of September 1, 2009, the shareholders and directors of the defendant company held 20,00 shares issued by the defendant company; 3,50 shares issued by the defendant company; 2,00 shares issued by the defendant company; 3,50 shares by the defendant company; 3,00 shares by the plaintiff; 4,00 shares by the Kim○; 4,00 shares by the defendant Kim○; 2,00 shares by the Gangwon○, Lee○, Lee○, Park○, and Kim○; 500 shares by the defendant company; and 4 shares by the defendant company at the time of the defendant company, including the plaintiff, 1,00, 200 shares by the resolution of a temporary general meeting of shareholders and the resolution of the board of directors on September 1, 2009; and 3,000 shares by the defendant company at the time of the defendant company's directors at the time of being appointed as directors of the defendant company on November 7, 2005 and the term of office expires on November 11).

(1) Five persons, who are the shareholders of the Defendant Company, including the Defendant Han-○○, Park○, Kim○, Kim○1), and Kim○, were to hold a temporary shareholders’ meeting on September 1, 2009 and passed a resolution to appoint the Defendant 100 as a director of the Defendant Company.

(2) In addition, four directors of the defendant company including the defendant Han-○ and the defendant company, including the defendant Han-○, held a board of directors on the same day, and passed a resolution stating that Park Jong-○, a representative director and the president of the defendant company, should resign, and that Park Jong-○, a representative director and the president shall be appointed concurrently as the representative director, the defendant Han-○ as the president and the president shall be appointed as the representative director, and Park Jong-○ as the adviser of the defendant company.

(3) 피고 한○○은 2009. 9. 1. 당일 취임사를 발표하고, 그 다음날인 2009. 9. 2.자 ㅌㅌㅌㅌㅌㅌ 1면을 통하여 그 대표이사 겸 사장으로 취임된 사실을 대외적으로 알렸으며, 한편, 2009. 9. 11. 김해시에 있는 ○○ 예식장에서 지역 국회의원 및 행정기관의장 등 300여명이 모인 자리에서 그 취임식을 거행하고, 그 이후 MDM 발행, 직원 인사발령, 대외행사 참석 등 피고 회사의 대표이사로서 업무를 수행하였다.

(d) Resolution of the board of directors on November 25, 2009;

(1) Around November 1, 2009, the defendant Han-○ issued a notice of convening a board of directors on November 25, 2009 to the directors of the defendant company.2)

(2) On November 25, 2009, 2009, the Plaintiff, Park○○, Kim○○, Kim○○○, and Kim○○○ made a resolution with the effect that four of the five seat directors held a board of directors on the condition that the Defendant held the board of directors on November 25, 2009, and that the four of the five seat directors (Gla○○ is a person whose term of office has already expired, and in fact three of the four seat directors have been approved by three of the four participating directors) are invalid, and the qualification for the president of C’s representative director and the two are still 00 representative directors, and it is not recognized inside and outside of the Republic of Korea, and it is declared that it should be published inside and outside

E. On December 14, 2009, the resolution of the board of directors convened a board of directors on December 14, 2009, and expressed his/her intention to resign at the representative director of the defendant company (the de facto director is four persons except Kim○), and on the other hand, the resolution was passed to appoint the plaintiff as the representative director of the defendant company, with the consent of a majority of the members present at the board of directors (excluding the directors present at the meeting), and the resolution was passed on December 24, 2009 to hold a temporary general meeting of shareholders on December 24, 2009 with the consent of all members present at the board of directors.

F. A resolution of an extraordinary general meeting of shareholders and a resolution of a board of directors on December 24, 2009

(1) A notice for convening an extraordinary general meeting of shareholders was issued in accordance with the resolution of the board of directors on December 14, 2009, and a provisional general meeting of shareholders was held in the meeting room of the defendant company on December 24, 2009. The general meeting of shareholders was Park○, Kim○, respectively, retired from directors, and the auditor was appointed by Kim○ and Kim○, and the auditor was appointed by Kim○ and Kim○, respectively. Meanwhile, each resolution of the board of directors was ratified on December 14, 2009 and on December 14, 2009.

(2) On the other hand, the board of directors was held at the meeting room of the defendant company after the day on which the above general meeting of shareholders was held, while the plaintiff, Kim○, Ko○, Kim○, Kim○, and Kim○○, who is a director at the meeting room of the defendant company, and the plaintiff was appointed again as the representative director of the defendant company with the consent of four remaining

(3) According to the above provisional shareholders' meeting and each resolution of the board of directors, Kim ○ and Kim ○ on the same day were completed registration as a director of the defendant company, and the plaintiff as a representative director.

G. A resolution of a special shareholders’ meeting on May 24, 2010

On May 7, 2010, the Plaintiff issued a temporary general meeting of shareholders to shareholders of the Defendant Company with the contents of "Revision's Amendment of the Articles of Incorporation, Appointment of Directors, Change of Audit, and Business Normalization." On December 14, 2009, a temporary general meeting of shareholders was held at the meeting room of the Defendant Company's head office. At that time, the Plaintiff confirmed the temporary general meeting of shareholders at the meeting room of the Defendant Company's head office of the Defendant Company. The temporary general meeting of shareholders was held at the meeting room of the Defendant Company's head office of the Plaintiff. At that time, eight persons, including the Plaintiff's representative Kim○, the representative Kim○, the representative Kim○, the representative Kim○, and Kim○, the representative Kim○○, the Plaintiff's Han-○, and Seo-○'s representative, and the Plaintiff's representative, who had been appointed at the meeting of the board of directors, with the consent of six other persons (14,000 out of 18,400 shareholders, 3) 2000.

H. The Plaintiff’s resignation of representative director, resignation of Kim 00, and resignation of Kim ○○

(1) On May 16, 2011, the Plaintiff resigned from the representative director, and the ○○○ was the representative director on the same day. Accordingly, on June 1, 2011, the Plaintiff completed the registration of resignation and the ○○○○ completed the registration of his appointment, respectively.

(2) On May 16, 2011, Kim○-○, an outside director, and Kim○-○, respectively, resigned from an inside director, and accordingly completed the registration of resignation on June 1, 201. Meanwhile, on May 16, 2011, the appointment of the inside director of the Defendant company was completed on June 1, 201, and the appointment of the inside director of the Defendant company was completed on June 1, 201.

The main contents of the articles of incorporation (Evidence A 2) of the defendant company are as follows:

(1) The ordinary shareholders’ meeting shall be convened within three months from the day following the end of the business year, and the extraordinary shareholders’ meeting shall be convened whenever necessary, and the convocation of the meeting shall be convened by the representative director by a resolution of the board of directors (Article 18), except as otherwise provided

(2) A resolution of the general meeting of shareholders shall be adopted by a majority of the voting rights of the shareholders present and by not less than 1/4 of the issued and outstanding shares, except as otherwise provided in Acts and subordinate statutes or the articles of incorporation

(3) The shareholder may have a proxy exercise the voting right. When the proxy exercises the voting right, he shall submit to the Speaker a document proving his authority before voting (Article 21).

(4) The minutes of the general meeting of shareholders shall contain the summary and the route of the proceedings, and shall include the name and seal or signature of the chairman and the director present at the meeting (Article 22).

(5) The new appointment of directors of a company shall be governed by the resolution under Article 20 above (Article 24).

(6) The board of directors shall, if there is a representative director or a director separately determined by the board of directors, notify each director and the auditor and shall be convened not later than one week prior to the date set for the meeting. However, the convocation procedure may be omitted if all the directors and auditors agree (Article 28).

(7) Directors shall organize the board of directors, and shall resolve on important matters concerning the appointment of the representative director and the conduct of the business of the company. The method of resolution of the board of directors shall be limited to the attendance of a majority of the directors and the attendance of the

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 39, Eul evidence 1 to 14 (including each number), the purport of the whole pleadings

2. As to the claim for confirmation of invalidity and the claim for confirmation of non-existence among the main claim

A. The parties' assertion

(1) The plaintiff's assertion

A temporary general meeting of shareholders on September 1, 2009 did not have a legitimate convening notice, and there is no evidence to prove that ○○○○ was delegated with the power of representation from Gangwon-do and Kim○○○ at the time, and the shareholders who actually attended the meeting are only the Plaintiff (3,500 shares) and Defendant GabO (2,00 shares) and the directors’ signatures and seals on the minutes. In addition, the board of directors on the same day did not have a convening notice, and only three directors (3 directors and one auditor were not present) were present (3 directors and one auditor were not present) and did not meet the quorum of the opening. Furthermore, the above temporary general meeting of shareholders and the board of directors attended the board of directors and exercised their voting rights. Accordingly, each resolution of the above temporary general meeting of shareholders and the board of directors did not have any preparatory or preparatoryly invalid.

(2) Defendant 1’s assertion

(A) At the time of the above provisional shareholders’ meeting, women’s ○○’s agent, Kim○-○’s agent, Kim○-O, etc. attended and exercised voting rights (such as Gangwon-do, KimCO, GaO, GaO, Lee○○○○○, etc.). Even if the power of attorney was not submitted, the intent of delegation is clear and there is no objection up to now, in light of the fact that the intent of delegation is not clear and the minutes of the shareholders’ meeting and the minutes of the board of directors’ meeting were jointly signed and sealed when necessary for registration, etc.

(B) The above board of directors, even if there were procedural defects, such as failure to give a notice of convening the board of directors, shall be deemed valid unless at least four persons who are the majority of the total directors attend the meeting and agree with the resolution.

B. Determination

(1) The validity of the resolution of the special shareholders' meeting on September 1, 2009

On the other hand, the following circumstances, i.e., ① there was no resolution of the board of directors for convening an extraordinary general meeting of shareholders as of September 1, 2009; ② Park○, a person holding the authority to convene the above extraordinary general meeting of shareholders, failed to observe the convocation procedure stipulated in the articles of incorporation, such as not giving legitimate notice for convening an extraordinary general meeting of shareholders to the shareholders of the defendant company; ② the above extraordinary general meeting of shareholders, including Plaintiff 3,500 out of the total issued shares, 20,000 shares, 2,00 shares, 4,00 shares, and 9,50 shares. ③ The defendant ○○○ was present only on behalf of the defendant ○○○○, ○○○, ○○○, ○○, ○○○, ○○○, and ○○○○ (2,000 shares, respectively). However, according to the articles of incorporation’s assertion that the proxy’s right to vote was not available prior to the exercise of the voting right by the defendant company’s representative.

The summary and result thereof shall be stated, and the chairperson and the director present at the meeting shall sign and affix their seals or signatures. The minutes of the temporary general meeting of shareholders (No. 3) on September 1, 2009 contain no signatures and seals of the directors present at the meeting (this does not include any evidence to acknowledge the above, although Defendant Han-gu, in practice, has received signatures and seals en bloc at the time necessary for registration, etc.). ⑤ Meanwhile, the articles of themmmm (No. 5) of September 1, 2009 include the contents that this ○○ as vice president and the last director were appointed respectively at the temporary general meeting of shareholders on September 1, 2009. In light of the fact that the above provisional general meeting of shareholders did not contain any such contents, it is reasonable to deem that the resolution of the temporary general meeting of shareholders of the Defendant company on September 1, 2009 is a serious defect in the process of its establishment.

(2) The validity of the resolution of the board of directors on September 1, 2009

In light of the following circumstances, i.e., (i) according to the articles of incorporation of the defendant company, the board of directors shall notify each director and auditor before the date set for the meeting, and (ii) the plaintiff and the auditor who are the director of the defendant company at the time of the board of directors at the time of September 1, 2009 failed to observe the convocation procedure prescribed in the articles of incorporation, such as failing to give the director a legitimate notice for the convocation of the meeting, (iii) the resolution of the temporary general meeting of shareholders on September 1, 2009 that appointed the defendant 1 as the director was invalid, and thus, the defendant ○○○ was not entitled to exercise his voting right, and (iv) the defendant ○○○○○ was not entitled to attend the board of directors at the time of the meeting for a certain period of time after the date set for the above time, and (v) the resolution that held the meeting of the defendant 1 as the representative director at the time of the meeting was held by the defendant 2, 2009.

(3) Whether the lawsuit has interests

However, seeking confirmation of invalidity of a resolution of the appointment of director against a director who had been appointed by a resolution of the board of directors but has already been dismissed or resigned after his dismissal or resignation is deemed to have no interest in the lawsuit (see Supreme Court Decision 96Da37206, Dec. 10, 1996). Defendant Han-○ issued a notice of convening a board of directors on Nov. 25, 2009 to the director of the defendant company on Nov. 25, 2009; accordingly, the plaintiff, Park Jong-C), and credit are deemed to have been qualified as the president and the representative director of the defendant, and it is still invalid after this time, and it is not deemed to have been inside and outside of the scope of the representative director, and there is no interest in the lawsuit seeking confirmation of the appointment of the director at the board of directors at the board of directors at the same time as that of the plaintiff's temporary president at the same time as that of the 200-party representative director at each of the 200-party resolutions.

3. As to the claim of consolation money against Defendant Han-CC

A. The plaintiff's assertion

When Defendant OO was appointed as the president and the president by a special general meeting of shareholders and a resolution of the board of directors on September 1, 2009, which was null and void, Defendant O did not properly operate the Defendant Company, such as taking personnel measures as well as not paying wages to its employees. Furthermore, even though the Plaintiff was newly appointed as the representative director for the normalization of the management of the Defendant Company, the Plaintiff still asserted as the representative director and exercised personnel rights without disregarding them, and thereby interfered with the normal business affairs of the Defendant Company, such as exercising personnel rights and filing a complaint against and filing a complaint against its employees. Accordingly, even though the Plaintiff was appointed as the representative director, the Plaintiff did not properly exercise his authority, and was subject to damage to honor such as receiving a quality from its neighboring personnel. Accordingly, Defendant OOO was liable for compensation for the Plaintiff’s emotional distress as part of its damage.

B. Determination

On the other hand, the evidence presented by the plaintiff alone is insufficient to recognize that the defendant Han-○ has damaged the plaintiff's reputation by impeding the normal work of the defendant company, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit without examining it further.

4. Conclusion

Therefore, the plaintiff's main lawsuit and the non-existence of the conjunctive lawsuit are all legitimate. Thus, the remaining main claims and the remaining conjunctive claims are all dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges of the presiding judge;

Judges Kim Gung-sung

Judges Kim Young-ju

1) In full view of the purport of the entire arguments in the statements No. 14-1 and No. 14-2 of the evidence No. 14, recognition of the fact that Kim○-○ attended the temporary general meeting of shareholders on September 1, 2009

may be filed.

2) Although the defendant Han-gu did not call a notice of convening a board of directors, the defendant Han-gu et al. asserted that there was no notice of convening a board of directors' meeting, the defendant Han-gu et al., as a whole in the statements in Gap evidence

In full view of the facts, it can be recognized.

3) Of the total issued shares of Defendant Company 20,000 shares, Note ○, Park ○, the Plaintiff respectively 2,000 shares, 3,000 shares for Western ○, 200 shares for Kim ○, 200 shares for Kim ○, 200 shares for the largest.

OO shall hold 4,00 shares, 600 shares, 4,200 shares, 4,200 shares, 50 shares, 500 shares, 1,00 shares, 1,00 shares, respectively.

had been doing so.