(영문) 서울고등법원 2016.4.29.선고 2015나2061994 판결

1. The plaintiff's appeal and the conjunctive claim added at the trial are all dismissed. The costs of lawsuit after the appeal are assessed against the plaintiff.

Purport of claim and appeal

In the first instance judgment, the judgment is revoked. In the first instance judgment, the Defendant’s provisional shareholders’ meeting on May 12, 2015 confirms that the resolution to appoint C as an auditor is null and void. In addition, the Defendant’s resolution to appoint C from the provisional shareholders’ meeting on May 12, 2015 to the auditor is revoked (the Plaintiff was merely seeking confirmation of invalidity in the first instance judgment, and the Plaintiff’s claim seeking confirmation of invalidity was made as its primary claim, and added the said conjunctive claim).

Reasons

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1, 3, and 4:

A. The Defendant is a company established on September 17, 2012 for the purpose of housing rental business, etc., and the Plaintiff is the Defendant’s shareholder.

B. The total number of shares issued by the Defendant is 1,000 shares (ordinary shares) and among them, the Plaintiff holds 340 shares (34%), D 30 shares (33%) and E 330 shares (33%).

C. On May 12, 2015, the Defendant made a resolution to appoint C as an auditor with the consent of D and E at a temporary general meeting of shareholders held in the presence of the Plaintiff, D and E (hereinafter “instant resolution”).

2. Summary of the plaintiff's assertion

The appointment of auditors is required by a majority of shareholders present at the meeting and the affirmative votes of at least 1/4 of the total number of issued and outstanding shares, and shareholders who hold shares exceeding 3/100 of the total number of issued and outstanding shares may not exercise their voting rights on the shares in excess.

D and E may not exercise voting rights on shares exceeding 3% in the case of a resolution to appoint an auditor as a shareholder holding 33% of shares issued by the Defendant. The resolution of this case was conducted with an affirmative vote of 6% in total, and thus, the majority requirements of the shareholders present at the meeting (9%) were satisfied. However, the auditor’s resolution to appoint the auditor did not satisfy the requirements for the affirmative votes of 1/4 or more of the total number of shares issued, in addition to the above requirements. Accordingly, the resolution of this case is defective in violation of Article 368(1) of the Commercial Act and Articles 26 and 25 of the Defendant’s Articles of incorporation. Thus, the Plaintiff primarily sought confirmation of the invalidity of the resolution of

3. Determination

A. Relevant provisions

1) Provisions of the Commercial Act

Article 368 (Method of Resolution of General Meeting and Exercise of Voting Rights) (1) Except as otherwise provided in this Act or the articles of incorporation, a majority of the voting rights of shareholders present at the meeting and the number of not less than 1/4 of the total number of issued and outstanding shares shall not be included in the total number of issued and outstanding shares. (1) With respect to a resolution of the General Meeting of Shareholders, the number of non-voting shares under Articles 344-3 (1) and 369 (2) and (3) shall not be included in the total number of issued and outstanding shares. With respect to a resolution of the General Meeting of Shareholders, the number of voting shares which cannot be exercised in accordance with Article 368 (3) and those which cannot be exercised as shares exceeding the said ratio shall not be included in the number of voting rights of shareholders present at the general meeting. Article 376 (Lawsuit of Revocation)

2) The defendant's articles of incorporation

According to Gap evidence No. 2, the contents of the defendant's articles of incorporation relating to the appointment of auditors are as follows.

Article 25 (Appointment of Directors) The directors of this company shall be determined by a majority of the voting rights of shareholders present at the meeting and by not less than one quarter of the total number of issued and outstanding shares. The auditors of this company under Article 26 (Appointment of Auditors) shall be appointed pursuant to Article 25: Provided, That in such cases, any shareholder who holds more than three percent of the total number of issued and outstanding shares other than nonvoting shares shall not exercise his voting rights

B. Judgment on the main claim (the claim to nullify the invalidity of the resolution of this case)

1) As long as a general meeting of shareholders is duly convened and held, the assertion that there is a defect in the resolution of the general meeting because it falls short of the quorum if a non-voting person exercised his/her voting right, and he/she excludes the number of voting rights, constitutes a ground for revocation of the resolution because the method of resolution of the general meeting of shareholders violates the statutes or the articles of incorporation (see Supreme Court Decision 83Do748, Aug. 2

2) According to the Plaintiff’s assertion, the instant resolution constitutes a case where the method of a general meeting of shareholders is in violation of the statutes or the articles of incorporation due to the failure to meet the quorum, and thus, separate from the grounds for revocation of the resolution, it does not constitute a lawsuit for invalidity of the resolution premised on the fact that the contents of the resolution violate the statutes. Therefore, the Plaintiff’s primary claim is without merit without further examining the remainder

C. Determination on the conjunctive claim (the instant claim for revocation of the instant resolution)

1) Interpretation of relevant provisions on the quorum for appointing auditors

Article 409(2) of the Commercial Act provides that shareholders holding more than 3/100 of the total number of issued and outstanding shares other than nonvoting shares shall not exercise voting rights in the appointment of auditors under paragraph (1). Article 368(1) of the Commercial Act provides that the resolution of a general meeting shall be at least 1/4 of the total number of issued and outstanding shares of shareholders present at the meeting, except as otherwise provided in this Act or in the articles of incorporation. On the other hand, Article 371(1) of the Commercial Act provides that shares not included in the total number of issued and outstanding shares and does not include non-voting shares under Article 409(2) of the Commercial Act.

If the above provision of the Commercial Act is strictly interpreted, even in cases where voting rights are restricted because shares exceed 3/100 of the total number of issued and outstanding shares of a company for resolution on appointment of auditors, such excess shares do not constitute the total number of issued and outstanding shares. However, in light of the following circumstances, it is reasonable to interpret that a resolution on appointment of auditors exceeds 3/100 of the total number of issued and outstanding shares should be excluded from the total number of issued and outstanding shares.

A) Unless the total number of shares issued in excess of 3/100 of the total number of shares issued in the resolution for the appointment of auditors is excluded from the total number of shares issued, there are cases where the total number of shares with voting rights in the resolution for the appointment of auditors does not exceed 1/4 of the total number of shares issued. In such a case, the appointment of auditors is impossible at the source.

B) This is rather than intended by legislators, but rather, it is the lack of legislation or gap. The fundamental method to resolve the deficiencies or gap of such legislation would be through the amendment of relevant regulations. However, until it is resolved through legislation, it is inevitable to resolve it through the reasonable interpretation of the current law.

C) The purport of restricting voting rights to shares exceeding 3/100 of the total number of shares issued at the time of a resolution for appointment of an auditor is to prevent the re-election of a major shareholder in the appointment of an auditor to check shareholders and directors of a stock company. Even if the appointment of auditor exceeds 3/100 of the total number of shares issued and outstanding, the purpose of restricting voting rights is not to prevent the re-election of a major shareholder, even if the appointment of auditor is not to

D) The Plaintiff asserts that the Defendant’s total amount of capital does not need to be appointed as a company with less than one billion won, and that the shareholders’ general meeting may act on behalf of auditors. As such, the Plaintiff’s resolution to appoint auditors should not be excluded from the total number of issued and outstanding shares with limited voting rights. According to the evidence No. 1, the Defendant’s capital is not an institution which is essential for auditors as KRW 100 million. However, as long as the Defendant’s total amount of capital does not necessarily have to be audited less than one billion, a resolution to appoint auditors at a general meeting of shareholders is necessary, and if so, the above resolution to appoint auditors remains if so, the above resolution to appoint auditors remains. It cannot be interpreted differently depending on whether the provisions of the Commercial Act related to the appointment of auditors

2) Determination of the instant case

As seen earlier, 1,00 shares, which are the total number of shares issued by the defendant, are held by the plaintiff 340 shares (34%), D 30 shares (33%) and E 30 shares (33%). As such, the plaintiff, D, and E have no voting rights on shares exceeding 3% (30 shares) of the total number of shares issued in the appointment of auditors. Ultimately, the total number of shares with voting rights is 90 shares issued in the appointment of auditors. The total number of shares with voting rights is 90 shares issued in the appointment of auditors. Of the above 90 shares, the number of shares that attended the resolution of this case among the above 90 shares and agreed to the appointment of auditors by D and E is 60 shares in total.

Therefore, the resolution of this case is legitimate because the majority of the shareholders present at the meeting and 60% or more of the total number of issued and outstanding voting shares were approved, and thus, the plaintiff's aforementioned conjunctive claim is without merit.

4. Conclusion

Therefore, each of the plaintiff's main and ancillary claims of this case, including the conjunctive claims added at the trial, shall be dismissed, without merit. The judgment of the court of first instance is just and reasonable, and the plaintiff's appeal shall be dismissed, and the conjunctive claims added at the trial of the court of first instance shall be dismissed for lack of good cause.