(영문) 대구지방법원 2014.8.19.선고 2014가합3249 판결

1. On March 29, 2014, the resolution that the Defendant appointed ○○ and △△△ as the Defendant’s auditor at the general meeting of shareholders is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Basic facts

A. The Defendant is a stock company established for the purpose of establishing and operating sports facilities, and operates an OOO golf club. The Defendant set the golf club from January 1 to December 31 each year as its business year, and convened a regular general meeting of shareholders within three months after the end of each period for the settlement of accounts.

3. On 14th regular general meeting of shareholders (hereinafter referred to as “instant general meeting of shareholders”) tried to select and appoint a fifth regular auditor at the 5th regular meeting of shareholders, and the Plaintiff, ○○, △△△△△, and ○○○○○ as a candidate for the audit.

B. On March 14, 2014, in order to hold the instant general meeting of shareholders, the Defendant sent to each shareholder a muster notice stating "(to 3 p.m. on March 29, 2014)," "TXCO 211(to eXCO)", "Matters to be resolved": the case of approval of the 13th financial statements, the case of appointment of the 7th director, and the case of appointment of the 5th auditor: the case of appointment of the 5th auditor."

C. The number of voting shares present at the general meeting of shareholders of the instant case was 69 shares of the shareholders who directly attended, and 2,587 shares with voting rights delegated to the said shareholders, as 2,518 shares.

D. On the date of the general meeting of shareholders of this case, ○○ announced that an election for the appointment of an auditor, who is an agenda of No. 3 (hereinafter referred to as the “election of this case”), was held. ○○, the chairman of the election management committee, announced that a person who has one share in relation to the method, can cast a distributed vote to three candidates for the appointment of an auditor, or exercise three tickets concentrated on one person, and that a person who has obtained more than a majority in the voting should be elected as an auditor. The election of this case was held.

E. As a result of the instant election implemented by the method described in the above Paragraph (d), the head of ○○○, 2,19 marks 2,19 marks, the Plaintiff 1,204 marks, and 54 marks, respectively. The instant general meeting of shareholders was selected and appointed by the head of ○○ and △△△△△△, on the ground that the head of the instant general meeting of shareholders obtained a majority of the shareholders present at the above general meeting of shareholders, and decided not to appoint the Plaintiff and ○○ as an auditor on the ground that the Plaintiff did not reach the above majority of the shareholders (hereinafter referred to as the “resolution”).

(6) Of the Defendant’s articles of incorporation and the regulations of the Election Commission, the matters pertaining to the appointment of auditors are as follows: (1) A resolution of the general meeting of shareholders shall be adopted at the general meeting of shareholders by a majority of the voting rights of shareholders present at the meeting and by not less than 1/10 of the total number of issued and outstanding shares, except as otherwise provided for in the articles of incorporation. (2) A shareholder may exercise voting rights of shareholders per one share. (3) In this case, the company shall submit a document attesting his intention to the election before the general meeting. (1) The company shall have an election commission in order to take charge of the candidate and election of the representative member, and of the affairs related thereto. (3) Other matters necessary for the election of the representative member and the election management. (2) The company may appoint not less than 6 but not more than 12 directors and not more than 3 (1) of the total number of issued and outstanding shares, and the term of office of directors and auditors shall be 1 to 30 (3) of the general meeting of shareholders.

2. The parties' assertion and judgment

A. The Plaintiff asserted that the instant resolution was adopted in a manner similar to the de facto concentrated voting system, and the Defendant’s articles of incorporation do not provide a concentrated voting system with respect to the auditor’s election. Therefore, the instant resolution is a resolution that violates the principle of 1 share voting, which is a mandatory provision, and thus ought to be revoked.

2) On this ground, the Defendant asserts that the instant resolution does not violate the voting principle per share on the grounds that ① there is no provision excluding the concentrated voting system with respect to the appointment of auditors in the Defendant’s articles of incorporation, ② the Defendant’s articles of incorporation adopt the concentrated voting system with respect to the appointment of auditors, ② the appointment of auditors is in fact the same manner as that of the appointment of directors, ③ the general meeting of shareholders has appointed auditors in the same manner as the instant resolution, ③ the instant general meeting of shareholders also the candidates, including the Plaintiff, received the instant election method without objection. ④ Even if the Plaintiff’s assertion is acknowledged, the defect of the instant resolution is not significant, and even if the Plaintiff’s assertion is revoked, so the Plaintiff’s claim should be dismissed at discretion pursuant to Article 379 of the Commercial Act.

B. Article 369(1) of the Commercial Act provides that a shareholder of a stock company shall have one voting right per share pursuant to Article 369(1) of the Commercial Act (whether the resolution in this case is against the principle of one voting right per share). Since the above provision is a mandatory provision, the above provision is a mandatory provision, and it is not effective even if the provisions of the articles of incorporation or the resolution by the general meeting of shareholders, etc. of the general meeting of shareholders restrict voting rights in violation of the above principle, except where the law recognizes exceptions to the above principle

11. 26. See Supreme Court Decision 2009Da51820 Decided 26.

However, Article 382-2 of the Commercial Act provides that a shareholder who holds no less than 3/100 of the total number of issued and outstanding shares, excluding nonvoting shares, may request the company to appoint directors by means of a concentrated vote, except as otherwise provided in the articles of incorporation (paragraph (1)). In this case, each shareholder shall have the same number of voting rights per share as the number of directors to be elected, and the voting rights can be exercised by means of a concentrated vote on one or several candidates, and (3) the appointment of directors shall be made in order from the person who has obtained the largest number of voting rights to be elected (Paragraph (4).

On the other hand, in the appointment of directors, shareholders in a stock company who did not exclude the cumulative voting in the articles of incorporation may decide whether to demand the cumulative voting against the company by examining whether they may have an influence on the appointment of directors by their own shares, depending on the number of members of the directors to be appointed. In such a case, the company must record the number of members of the directors to be appointed in the notice

B) We examine the following facts. The following facts do not conflict between the parties, or may be acknowledged by comprehensively considering Gap evidence Nos. 2 through 7, Eul evidence Nos. 4 through 6 and the purport of the whole arguments:

① Of the convocation notice sent by the Defendant to each shareholder on March 14, 2014 in order to hold the instant general meeting of shareholders, only stated “(3) agenda relating to the appointment of auditors: the fifth auditor’s appointment; and there was no particular statement as to the number of the auditors appointed. However, the document stating “the guidance for the election of auditors” by the election commission on February 19, 2014 was written as “1 to 3 persons.”

② The Defendant’s articles of incorporation or the Election Commission’s regulations stipulate that “where the number of candidates for directors recommended exceeds the maximum number of the board members, the number of persons who obtained the recommendation shall be elected in the order of multiple votes by secret voting, but each representative member shall exercise his/her name in one paper for three votes. However, there is no provision on cumulative voting as above regarding the appointment of auditors, and there was no shareholder requesting in advance the adoption of the cumulative voting system by means of the instant election method.

③ The chairman of the Defendant’s election management commission presented the 5th general meeting of shareholders, and the 5th general meeting of shareholders, and explained to the shareholders attending the meeting about the method of voting and auditing as follows.

The method of voting is that the auditor can be extracted from 1 to 3 in our articles of incorporation. It can be drawn up by 1 to 3, and 1/4, and 1/4 can be drawn, and 2/4 can be stamped. However, if 4 persons are stamped, 1/3 or less is elected, 3 or less, 1/3 of the audit will be elected as a candidate in the name of the defendant's general meeting of shareholders, and 1/3 of the two votes will be elected as a candidate, and 1/3 of the two votes will be elected as a candidate, and 1/3 of the two votes will be elected as a candidate.

C) Comprehensively taking into account the following circumstances acknowledged as above: ① (i) the general meeting of shareholders of this case set unilaterally the voting method by the chairman of the election management committee without discussing whether to appoint several auditors as shown in the 8th general meeting of shareholders; (ii) whether the number of candidates recommended exceeds the maximum number of the number of directors, or the voting method; (iii) the method of voting is the same as the number of directors to be appointed each share of the 2nd general meeting of shareholders as indicated in the Commercial Act; and (iv) the voting method does not necessarily go against the principle of equal voting; and (v) the resolution of this case can be acknowledged as unlawful among the shareholders, regardless of whether the number of candidates recommended exceeds the maximum number of the number of directors; and (v) the method of voting in this case is equal to the number of directors to be elected each share of the 1st general meeting of shareholders; and (v) the resolution of this case does not violate the principle of equal voting methods.

Article 379 of the Commercial Act stating that a claim may be dismissed at the discretion of the court in a lawsuit seeking the revocation of a resolution of a general meeting of shareholders. Article 379 of the Commercial Act, which states that if a resolution is defective in the procedure of resolution, the resolution was already executed even if the resolution was revoked, so that it would prevent the company from causing damage to the company or from undermining the safety of general transactions, and would prevent the abuse of the lawsuit seeking the revocation. In addition, in cases where the above circumstances are acknowledged, the court may ex officio dismiss the claim for revocation by its own discretion, even if there is no argument by the parties (see, e.g., Supreme Court Decisions 2001Da45584, Jul. 11, 2003; 86Meu2971, Sept. 8, 1987).

However, since the audit system has been developed in order to overcome this problem because general shareholders, who are investors, are in space separated from managers and are unable to properly supervise managers due to the absence or experience in corporate management, etc., it is necessary to establish an organization to supervise managers on behalf of shareholders in order to overcome this problem. Thus, without any explicit restriction such as restriction on voting rights as provided by Article 409(2) of the Commercial Act, it is not possible to appoint auditors by a resolution that may lead to distortion of voting rights against the principle of one voting right. Even if a company which is less than one billion won with the capital as provided by Article 409(4) of the Commercial Act does not appoint auditors, it is necessary to determine the legality of the resolution if it is decided to appoint auditors, and since the resolution of this case is revoked, it is not beneficial to the company or shareholders, or it is already executed, it is not reasonable to dismiss the plaintiff's claim by the defendant pursuant to Article 379 of the Commercial Act.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.