[1] Whether an application for suspending the performance of duties by a director as a right to preserve a minority shareholder under Article 385(2) of the Commercial Act is necessarily premised on the filing of a lawsuit on the merits (negative)

[2] The procedure for filing a lawsuit to dismiss a director by a minority shareholder under Article 385 (2) of the Commercial Code, and the requirements for filing an application to suspend the performance of duties under paragraph (1) of the same Article

[1] According to Article 385 (2) of the Commercial Code, when a director refuses to dismiss him/her at a general meeting of shareholders despite his/her misconduct in connection with his/her duties, or a serious violation of the statutes or the articles of incorporation, a shareholder who holds no less than 5/100 of the total issued and outstanding shares may request the court to dismiss the director within one month from the date when the general meeting passes a resolution to dismiss him/her. In such a lawsuit for dismissal, a director who holds no less than 5/10 of the total issued and outstanding shares may demand the court to dismiss the director within one month from the date when the resolution of the general meeting is made. In addition, Article 407 of the Commercial Code explicitly recognizes that the application for the suspension of performance of duties by the director as the preserved right can be filed not only in the case where the principal lawsuit is

[2] Provisional disposition that temporarily deprives directors of their authority shall be careful to recognize the need for preservation. The procedure for minority shareholders to file a lawsuit for dismissal, which is the preserved right, requires the convocation of a general meeting by submitting to the board of directors a document stating the purpose of and reasons for convening the meeting, and if a minority shareholder who holds no less than 5/10 of the total issued and outstanding shares requests the convocation of a general meeting, and even if he/she did so, he/she may convene a general meeting with the permission of the court, and if he/she refuses to convene the meeting, he/she may request the court to dismiss the director within one month from the time he/she refuses the dismissal. In light of the procedure for filing such a lawsuit for dismissal, the existence of the preserved right shall be proved by the procedural requirements to the extent that he/she can bring a lawsuit for dismissal, and the necessity for preserving such provisional disposition may also be recognized.

[1] Articles 385(2) and 407 of the Commercial Act, Article 714(2) of the Civil Procedure Act / [2] Article 385(2) of the Commercial Act

Park Jong-won (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Daegu High Court Order 95Ra14 dated June 26, 1995

The reappeal is dismissed.

The grounds of reappeal are examined.

According to Article 385 (2) of the Commercial Act, in a case where the dismissal of a director is rejected at a general meeting of shareholders despite a fraudulent act in connection with his/her duties or a serious violation of the statutes or the articles of incorporation, a shareholder who holds no less than 5/100 of the total issued and outstanding shares may request the court to dismiss the director within one month from the date when the general meeting passes a resolution to dismiss the director. In such a case, Article 407 of the Commercial Act explicitly recognizes that the application for the suspension of the performance of duties by the director who has the right to preserve the lawsuit against him/her may be filed in an imminent case as well as in the case of the principal lawsuit, even before the principal lawsuit is filed, and it does not necessarily mean that the application for the suspension of performance of duties is different from the provisional disposition that determines

Therefore, the judgment of the court below, which judged that there is no prima facie evidence that the dismissal lawsuit was filed, and therefore, the requirement for the application is unreasonable, is wrong.

However, as in this case, the provisional disposition that deprives a director of the authority of the provisional disposition should be careful to recognize the need for its preservation, and as a result, a minority shareholder who holds no less than 5/100 of the total issued and outstanding shares must submit to the board of directors a document stating the purpose of the meeting and the reason for its convocation, and if the minority shareholder refuses to convene a general meeting, he/she may convene a general meeting with the permission of the court, and if he/she refuses to do so, he/she may request the court to dismiss the director within one month from the time he/she refuses to do so. In light of the procedure for filing a lawsuit to dismiss the above dismissal, the existence of the preserved right should be substantiated to the extent that he/she can bring a lawsuit to dismiss the director, barring special circumstances, and the need for the preservation of such provisional disposition can be recognized.

However, the court below's dismissal of the motion of this case is just and just, and there is no clear explanation that the applicant has embezzled the duplicative light, which is classified as the subject of dismissal, and there is no violation of the Constitution, laws, orders, or rules. The arguments are without merit.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)