(a) Whether the mortgagee of stocks is qualified as a shareholder against the company;

(b) Transfer of stocks before and after the issuance of share certificates;

C. Whether the absence of a resolution of a general meeting of shareholders becomes a ground for the failure to give a notice of convening a general meeting of shareholders

(d) Whether there is a benefit to seek confirmation of non-existence of the initial resolution for replacement of an executive officer if the new executive is appointed again through legitimate procedures after the resolution of the general meeting of shareholders for replacement of an executive officer

(a) Even if shares are transferred for the purpose of securing a claim and the transferee is merely a mortgagee, the mortgagee shall be entitled to be a shareholder in respect of the company;

B. The transfer of shares before the issuance of share certificates takes effect only with the agreement between the parties in accordance with the general principle of the transfer of designated shares, but only the transfer of shares after the issuance of share certificates takes effect.

C. The defect in the convocation procedure alone cannot be deemed as a serious defect to the extent that a resolution of the general meeting of shareholders is nonexistent on the sole ground that the shareholders who owned 6,300 shares of 200,000 shares issued by the company did not notify the general meeting of shareholders.

D. Even if an officer is dismissed from office as a director by a resolution of the general meeting of shareholders or a lawsuit for nullification of the absence of a resolution of the board of directors or a resolution of the board of directors, if the officer is appointed by a legitimate procedure thereafter, and if the officer appointed by the resolution resigns from his office and has completed the registration of resignation, barring any special circumstance, seeking confirmation on the absence of a resolution of replacement of an officer or appointment of an officer shall be seeking confirmation of legal relations or legal relationship in the past, and it lacks the requirements for protection of rights as a lawsuit for confirmation.

A. Article 372 of the Civil Act : (a) Article 335 of the Commercial Act ; (b) Article 335(2) of the Commercial Act ; Article 336(1)(d) of the Act ; Article 380 of the Civil Act ; Article 228 of the Civil Procedure Act

A. Supreme Court Decision 92Da84 delivered on May 26, 1992 (Gong1992,207). (B) 93Da8726 delivered on December 28, 1993 (Dong) 93Da35186 delivered on December 28, 1993 (Dong) 93Da3567 delivered on December 28, 1993 (Dong) 87Nu481 delivered on October 11, 198 (Gong198, 1414), 91Da14093 delivered on August 13, 1991 (Gong1991, 2349) (Gong199, 2349 delivered on September 29, 197) 197Da196389 delivered on September 13, 1995 (Gong199, No. 2349).

Plaintiff 1 and three others

Gyeongnam concrete Industry Ltd.

Busan High Court Decision 90Na5863 delivered on January 15, 1993

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal by the plaintiffs are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Summary of the facts established by the lower judgment

On September 13, 1988, the court below dismissed Plaintiff 1 and Plaintiff 3, who is the joint representative director and auditor at the special shareholders' meeting of the defendant company, respectively, and appointed Nonparty 1 as the auditor. On the same day, the board of directors abolished the joint representative system and appointed Nonparty 2 as the sole representative director (after this, this case's general shareholders' meeting and resolution by the board of directors). On May 8, 1990, the above non-party 2 and Non-party 1 resigned from their office and appointed the above non-party 2 to the director at the special shareholders' meeting on the same day, and again appointed the above non-party 3, non-party 4, non-party 5, non-party 6, and non-party 7 as the representative director on the same day, and acknowledged that the non-existence of the above resolution by the board of directors was not made by the plaintiffs' general shareholders' meeting without the plaintiff's resolution by the above 120,000 shares issued by the defendant company.

(1) On March 26, 1979, Defendant Company was established for cement processing manufacturing and sales business, and the total number of outstanding shares at the time of incorporation was 6,300 (10,000 won per share). The Plaintiff 3 acquired all of them on March 1, 1980, and operated Defendant Company as one shareholder. However, at the time, Defendant Company’s assets were 16,752 square meters per 16,752 square meters per Haan-gun (200 square meters), which is expected to be used as factory site, and did not carry out any business activities because it did not have factory facilities due to financial shortage.

(2) From that point of view, Plaintiff 2 was able to invest funds by financing from the bank, and the acquisition of Defendant Company was proposed. On May 10, 1986, Plaintiff 3 concluded a share transfer contract with Plaintiff 2 to transfer KRW 268,576,40 of the above shares to KRW 268,576,440 of the share price. The share price was paid KRW 5,00,000 as the first down payment, and the remainder was paid as the first down payment after the construction of the factory building. The remaining price was paid to Plaintiff 2 for the entire corporate management rights (which is the new construction of the factory building and the installation of facilities) and the shareholders required therefor, and Plaintiff 3 delegated Plaintiff 2 with the exercise of rights. Instead, Plaintiff 3 kept the above share certificates of KRW 6,300 and the seals of the representative director and directors until the payment of the share transfer price was made, and Plaintiff 2 affixed the above seal whenever Plaintiff 2 demanded.

(3) Accordingly, Plaintiff 2, as the representative director of the company or the Plaintiff 1 or Nonparty 8, actually controlled the Defendant Company on the ground of the Plaintiff 1 or Nonparty 8 as the representative director, issued 83,700 shares in total on two occasions on June 28, 1985 and March 4, 1986, and took over the shares by lending the name of Plaintiff 1, Plaintiff 4, Nonparty 9, and Nonparty 5, etc., and in reality, the Plaintiff 2 borrowed money from other parties in lump sum without paying the shares, and was issued a certificate of deposit of shares, and subsequently, the payment of shares was pretended by finding the above shares by returning the shares (the increase in the number of shares issued by a false capital increase seems to be a way to facilitate bank loans by pretending to the size of the company's capital).

(4) Afterward Defendant Company obtained approval for the loan of 1,70,000 won for industrial facilities from Korea Development Bank on June 10, 1986, 200, 7.28, 719,400,000 won for Defendant Company’s factory construction from 20, 200, 300,000 won for Defendant Company’s new construction at the same time with Nonparty 2’s effort, 30,000,000 shares for Defendant Company’s total amount of 5,00,000 shares for Defendant Company’s 20,000,000,000 won for Defendant Company’s total amount of 5,00,000,000 won for Defendant Company’s total amount of 10,000,000,000 won for Defendant Company’s total amount of 20,000,000 won for Defendant Company’s total amount of 20,000,000 won for Defendant Company’s.

(5) Thereafter, around January 27, 1987, Plaintiff 2 borrowed the names of Plaintiff 1 and Plaintiff 4, and issued 30,000 shares of the Defendant company using the method of payment of shares as seen earlier. Of the total number of shares issued 120,00 shares, Nonparty 10, Nonparty 11, Nonparty 12, and Nonparty 13, respectively, owned 250 shares, Nonparty 14, Nonparty 15, Nonparty 16, Nonparty 17, and Nonparty 18, respectively, 40 shares, Nonparty 19, Nonparty 20, Nonparty 9, Nonparty 5, and Nonparty 300 shares, 32,00 shares, 300 shares, 300 shares, 300 shares, 300 shares, 300 shares, 300 shares, 300 shares, 40, 181, 305 shares, and 408 shares, respectively.

(6) However, on August 4, 1986, the above non-party 2 concluded a new construction of a factory and completed almost the construction of the factory, but the contract was concluded on December 26, 1986 with the non-party 2, which was insufficient to guarantee rights, and the above contract was concluded on September 7, 1987 with the non-party 2 and the above plaintiff 2 (the above non-party 2 who actually controlled both companies and the above plaintiff 2, who was registered as joint representative director of the defendant company's company on the date of the above new construction of the factory and completed the construction of the factory, but the non-party 2 did not cancel the above contract without delay on August 24, 1987. The non-party 2 and the non-party 2, who was registered as joint representative director of the defendant company, ordered the non-party 2 to cancel the above agreement or to cancel the above agreement with the non-party 2's stock ownership at the same time as the above non-party 2's stock-party 2 and the above company's stock acquisition or sale of the defendant 2.

(7) Accordingly, the above non-party 2, who was appointed as the joint representative director of the defendant company on August 22, 1987 under the above agreement, requested the Korea Development Bank to appoint himself as a sole representative director in order to facilitate the management of the company due to the conflict of opinions between the plaintiffs while carrying out new construction of a factory and construction of facilities. The above non-party 2 was requested to appoint him as a sole representative director in order to facilitate the management of the company. On July 1, 1988, the above non-party 2, non-party 5, and non-party 3 et al. collected by the directors registered at the time of the above non-party 2, non-party 5, et al. to abolish the joint representative director system and to appoint the non-party 2 as a sole representative director, and kept them in the custody of the registration of the non-party 21 judicial office.

(8) On September 13, 1988, the above non-party 2 exercised shareholder rights based on each of the agreements dated December 26, 1986, September 7, 1987, and a certificate of stock transfer by the resolution of the general meeting of shareholders dated September 7, 1987 (which means one's own 90,000 shares and 12,50 shares owned by the non-party 5). The non-party 2 dismissed the plaintiff 1 and the auditor 3 respectively, and the non-party 1 appointed as the auditor. In addition, the resolution of the general meeting of shareholders of this case was passed to abolish the joint representative director system together with the above non-party 2 and the non-party 3 and the non-party 5 who were registered as the director at the time, and completed the registration thereof.

(9) Thereafter, on July 28, 1989 and January 23, 1990, the above non-party 2 issued 80,00 shares in total at the meeting of the board of directors present at the time, including himself and the non-party 5, the non-party 3, the non-party 4, the non-party 7, etc., each of which was 40,000 shares, but all of them were decided to accept the shares. Accordingly, the above non-party 2, along with himself, received all new shares by lending the name of the above non-party 7, non-party 1, the non-party 3, the non-party 5, the non-party 4, and the auditor, and paid the share

(10) Meanwhile, on November 12, 1988, the plaintiffs filed the lawsuit in this case seeking confirmation of the existence of the resolution of the general meeting of shareholders and the resolution of the board of directors on September 13, 1988, and filed the lawsuit in this case, and dispute as to whether the above non-party 2's exercise of shareholder's rights based on the stock security agreement as of September 7, 1987 at the time of the above general meeting of shareholders and the resolution of the board of directors met. Upon receipt of the application for the provisional disposition suspending the execution of duties against the non-party 2, the above non-party 5, non-party 3, non-party 7, non-party 4, non-party 6, and the auditor who had been appointed at the court of first instance as of May 8, 1990. On the same day, the above non-party 2 filed a resolution of the board of directors together with the above non-party 2's total shares 200,000 shares of the defendant company (the non-party 2).

2. Judgment on the plaintiffs' grounds of appeal Nos. 1-1-2 (2) and plaintiff Nos. 1 and 2-3

The judgment of the court below is justified in light of the evidence relation as stated in the judgment of the court below, and the judgment of the court below as to the facts that the contractor of the factory construction of the defendant company was the above non-party 2 who was the executive director of the new construction, but actually was the non-party 2 at the time of the agreement of September 7, 1987, and the agreement between the defendant and the above non-party 2 is the above non-party 2-1 of the above non-party 2, and the agreement between the defendant and the defendant is substantially a contract between the above non-party 2 and the above company. The judgment of the court below is just in light of the evidence relation as stated in the judgment of the court below, and it is not acceptable in the judgment of the court below that there is a misunderstanding of legal principles as to the judicial confession (the list of shareholders of the Gyeongsan or the examination protocol against the above non-party 2, as evidence, although the above non-party 2 stated as the non-party 2 was not the one shareholder of the Gyeong.

3. Determination on the latter part of Article 2-2 (2) of the plaintiffs' grounds of appeal and the ground of appeal No. 3 by plaintiffs 2-3

According to the reasoning of the judgment of the court below, it is clear that the resolution of the board of directors on July 1, 1988 by the defendant company on the same day that the general meeting of shareholders exists or the above non-party 2 was appointed as a sole representative director is not valid. Thus, it is not acceptable to deny the judgment of the court below or criticize the violation of the rules of evidence.

4. Judgment on Plaintiff 2’s ground of appeal No. 4

According to relevant evidence and records, the plaintiffs filed a lawsuit to confirm the absence or invalidity of the resolution of the general meeting of shareholders and the board of directors of the defendant company as of September 13, 198, and filed a lawsuit to confirm the non-party 2 as to the above non-party 2 (Masan District Court 88Ka5483) and filed an application for provisional disposition such as the suspension of the performance of duties by the representative director (Masan District Court 88Ka5483), and the judgment accepting the application for provisional disposition as of May 16, 1990 against the above non-party 2 is recognized. Thus, even if there was an error of law that found the facts as alleged in the theory of lawsuit by the court below that the general meeting of shareholders and the board of directors of the defendant company were held on May 8, 1990 after the acceptance of the application for provisional disposition for the suspension of duties by the representative director with respect to the above non-party 2, it shall not affect the judgment, and therefore, it shall not be accepted.

5. Determination on the plaintiffs' ground of appeal Nos. 1-4 and the ground of appeal No. 6 by plaintiffs 2-3

A. The lower court, based on the above facts stated in 1-6 (4) (6) above, found that the Korea Development Bank established the above 1-6-month loan agreement and the collateral agreement dated December 26, 1986 and the bonds transferred pursuant to the above 1-6-mentioned agreement were all of the shares of the defendant company owned by the plaintiff 2 and the plaintiff 3 at the time of 120,000 shares and issued 13,700 shares with the exception of 6,300 shares at the time of preparation of the above 1-60 shares, but there is no particular meaning as to the validity of the above bonds. The lower court determined that the defendant company did not fully pay the loan obligations for new construction, and that the new 0-month loan agreement and the new 2-month mortgage agreement were not concluded after the expiration of the above 9-month loan agreement, and that the new 0-month loan agreement were not concluded after the completion of the construction of the construction of the factory and the new 2-month mortgage agreement were not concluded.

B. According to the above judgment of the court below, the court below reasoned that the plaintiffs should pay all the construction cost obligations for the new construction of the defendant company in order to cancel the registration of creation of a mortgage on December 26, 1986 and September 7, 1987 pursuant to the agreement with the above non-party 2 on Sep. 7, 1987. However, according to related evidence and records (in particular, the evidence No. 14), whether the construction cost obligations for the new construction of the defendant company are repaid can be acknowledged as having no direct relation with the cancellation of the registration of creation of a new construction of the secured real estate of this case and the acquisition of the shares of the defendant company owned by the non-party 2, the above non-party 580,000,000 out of the construction cost obligations for the new construction of the defendant company's new construction of this case, even if there were errors in the misapprehension of facts against the rules of evidence as to the judgment of the court below, which affected the judgment, and therefore, it cannot be accepted.

C. Although the reasoning of the judgment below is somewhat insufficient, the judgment of the court below that held that the above non-party 2 acquired the shares of the defendant company, which are owned by the above plaintiffs under each of the above agreements between the above plaintiffs and the above non-party 2, on December 26, 1986 and September 7, 1987, if the facts were to be duly established by the court below, the plaintiff 2 and the non-party 3 did not fully repay the obligation for the construction cost to the new construction of the defendant company in accordance with the agreement with the above non-party 2, and it did not cancel the registration of the establishment of a mortgage on the secured real estate of this case, which is owned by the Gyeongsan, or pay a sum of KRW 740,00,00 to the above non-party 2 in cash. Thus, the judgment of the court below that the above non-party 2 acquired the shares of the defendant company, which are owned by the above plaintiffs under the above agreement with the above plaintiffs on April 19, 1989.

6. The plaintiffs' grounds of appeal No. 1-3 and plaintiff No. 2-3's grounds of appeal No. 5

According to related evidence (in particular, evidence Nos. 14 and 15) and records, even if the agreement with the above non-party 2 was concluded on Sep. 7, 1987 on Sep. 7, 1987 with the plaintiff 2, it is clear that the above non-party 2 did not intend to invalidate the agreement with the plaintiff 3 on Dec. 26, 1986, and even if the transferee is a mortgagee because shares were transferred for the purpose of collateral security, the relationship with the company is a mortgagee (see Supreme Court Decision 92Da84 delivered on May 26, 192). Thus, as in the theory of lawsuit, even if the above non-party 2 acquired the shares of the defendant company at the time of the above agreement with the plaintiff 2 on Sep. 7, 1987 and agreed to use it as collateral and return them immediately, it cannot be seen that the above non-party 2, a mortgagee, violated the above agreement and did not properly lose the shareholder's qualification in relation to the defendant company.

7. Determination as to the plaintiffs' grounds of appeal Nos. 2-1 and 2-2, and Nos. 4 and 2-3's grounds of appeal No. 7

A. The court below held that the above non-party 2 acquired shares issued by the defendant company in accordance with the above stock transfer contract after December 5, 198 and June 5, 198 after six months from the completion inspection and evaluation of factories by the Korea Development Bank, and held that the above non-party 2 was in the status of one shareholder by acquiring shares issued by the defendant company in accordance with the above stock transfer contract, and the court below held that the above non-party 2, who acquired the status to exercise the right as a single shareholder at the same time as the representative director of the defendant company, exercised his right to shareholders, and the resolution of the appointment of the representative director at the board of directors at the meeting of this case made by the non-party 2 on May 8, 199 and the shareholders appointed at the shareholders' meeting of this case by exercising his right to shareholders, and that the resolution of the appointment of the representative director at the board of directors at the above meeting of this case is legitimate. In addition, although the above non-party 2 did not follow the formal procedures under the Commercial Act regarding stock transfer or

B. Although the transfer of shares prior to the issuance of share certificates takes effect only with the agreement between the parties in accordance with the general principle of the transfer of designated shares (see, e.g., Supreme Court Decision 87Nu481, Oct. 11, 198; 91Da14093, Aug. 13, 1991); the transfer of shares after the issuance of share certificates takes effect only after the issuance of share certificates (Article 336(1) of the Commercial Act); the witness evidence No. 15, No. 26-1 through No. 6 of the court below adopted at the court below; the witness testimony No. 1, No. 44, No. 22-12 of the evidence, etc., which were not rejected by the court below; the defendant company's shares were issued in registered shares; the defendant company's shares were not issued in accordance with the above legal principles as to the transfer of shares issued by the defendant company to the above non-party No. 2; the defendant company's shares were not issued in accordance with the above 3000 share certificates.

C. However, if the facts are duly determined by the court below, it is evident that the defendant company's shares issued by the defendant company at the time of convening the general meeting of shareholders on May 8, 1990 were owned by the above non-party 2 as 200,000 shares and 193,70 shares (the total of 113,700 shares acquired from the plaintiff and 80,000 shares acquired by the capital increase thereafter). Thus, the court below's determination that the above non-party 2 did not issue a notice of convening the general meeting of shareholders on the 200,00 shares issued by the defendant company cannot be deemed as a serious defect to the extent that the resolution of the general meeting of shareholders is nonexistent (see Supreme Court Decision 92Da11008 delivered on Jan. 26, 1993), and the above resolution of the general meeting of shareholders composed of the above general meeting of shareholders on May 8, 190 and the above resolution of the general meeting of shareholders cannot be accepted, and therefore, it cannot be justified.

D. Even if the judgment of the court below that the plaintiffs cannot assert the absence of the resolution of the above general meeting of shareholders and the invalidity of the resolution of the board of directors under the good faith principle, it is erroneous in the judgment of the court below that the above unlawful acts committed by the court below cannot affect the judgment, and therefore, it cannot accept the issue of criticism.

8. Judgment on the third ground for appeal by the plaintiffs

The court below held that, even if a resolution of the general meeting of shareholders and the board of directors of this case was made on September 13, 198, the replacement of an officer was dismissed from office as a director by such resolution, and if an officer appointed by such resolution resigns from office and registration of resignation was made, barring any special circumstances, it would be the failure to meet the requirements for protection of rights as a lawsuit for confirmation even if the initial resolution of replacement of an officer was made without any legal relationship or legal relationship. Thus, the above resolution of the general meeting of shareholders and the board of directors of this case would result in the absence of legal interest in the lawsuit if the appointment of an officer is legitimate. Thus, even if there is no resolution of the general meeting of shareholders and the board of directors of this case as of September 13, 198 as of September 13, 198, or it is null and void, the above resolution of the general meeting of shareholders and the auditor of this case would not require the above 10th general meeting of shareholders to be held again and the above 2th general meeting of shareholders as of this case.

As seen above, even if the judgment of the court below that the above non-party 2 became a single shareholder by acquiring all the shares issued by the defendant company, so long as each resolution of the shareholders' general meeting and the board of directors on May 8, 1990 by the defendant company cannot be deemed null and void, the above judgment of the court below is just and acceptable (see, e.g., Supreme Court en banc Decision 80Da2425, Sept. 14, 1982; Supreme Court Decision 90Da1158, Dec. 13, 1991; Supreme Court Decision 91Da8715, Feb. 28, 1992; etc.). Thus, the judgment of the court below did not err by misapprehending the legal principles as to the interest in the lawsuit in the lawsuit for confirmation of non-existence of the resolution of the general meeting of shareholders or in the lawsuit for nullification of the resolution of nullification

9. Therefore, all appeals are 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 Ahn Yong-sik (Presiding Justice)