2016Do15089 A. Preparation of qualification-use private documents

(b) Exercising qualification certificates or private documents;

Defendant

Defendant

Attorney Kim J-jin

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 had a representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), was the Defendant.

8.9. The resolution of the general meeting of shareholders held on September was dismissed, Nonindicted 2, etc. 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, insofar as the judgment revoking the resolution of the general meeting of shareholders held on August 9, 2012 becomes final and conclusive, the Defendant, who was dismissed at the resolution of the said general meeting of shareholders, reinstates his/her qualification as representative director of Nonindicted Company 1 retroactively. As such, the Defendant’s act of preparing an application for registration of change of the stock company with which he/she was indicated as the representative director of Nonindicted Company 1 and submitting it to the Daejeon District Court on December 4, 2012, should not be deemed to constitute the crime of preparing qualification documents and exercising the same.

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 further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court 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