2016Do15089 A. Preparation of qualification-use private documents

(b) Exercising private documents prepared for qualification recognition;

A person shall be appointed.

Defendant

Attorney X

Seoul Central District Court Decision 2015No1001 Decided September 2, 2016

November 29, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. If a judgment revoking the resolution of the general meeting of shareholders on the appointment of directors becomes final and conclusive, the representative director selected by the board of directors composed of the directors appointed by the resolution shall retroactively lose his qualification (see Supreme Court Decision 2002Da19797, Feb. 27, 2004, etc.). In the same case, if a judgment revoking the resolution of the general meeting of shareholders on the dismissal of directors becomes final and conclusive, the director dismissed by such resolution shall retroactively

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Defendant, who was the representative director of C Co., Ltd. (hereinafter “C”), was dismissed by a resolution of the general meeting of shareholders held on August 9, 2012. D et al. was appointed as a new director at the same general meeting of shareholders, and the newly appointed directors appointed as the representative director at the board of directors on the same day.

B. On April 4, 2016, the Daejeon High Court sentenced the revocation of the resolution of the general meeting of shareholders to dismiss the above director and to appoint the director, which became final and conclusive around July 14, 2016.

3. Examining the foregoing facts in light of the legal principles as seen earlier, inasmuch as a judgment revoking the resolution of the general meeting of shareholders held on August 9, 2012 becomes final and conclusive, the Defendant, who was dismissed in the resolution of the said general meeting of shareholders, retroactively recovered the qualification as C’s representative director. As such, the Defendant’s act of preparing an application for registration of change of a stock company indicating himself/herself as C’s representative director on November 201, and submitting it to the Daejeon District Court and the public official around December 4, 2012 should be deemed not to constitute the crime of preparing qualification documents and the

4. Nevertheless, the lower court found all of the facts charged in this case guilty on the grounds stated in its holding that the revocation judgment becomes final and conclusive even in cases where the revocation judgment becomes final and conclusive. In so doing, it erred by misapprehending the legal doctrine on the validity of the revocation judgment of the resolution of the general meeting of shareholders and the preparation of qualification-based private documents, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee B-soo.

Justices Park Jung-hwa-hwa

Justices Kim Gin-soo