2020Na 10433 Confirmation, etc. of Non-existence of Resolution of the General Meeting of Shareholders

1. A;

2. B

[Defendant-Appellant] Defendant 1 et al.

[Defendant-Appellee]

C. Stock Company

Shina Law LLC, Attorneys Lee Han-ro, Counsel for the defendant-appellant

Attorney Park J-jin, Counsel for the plaintiff-appellant-appellant

Daejeon District Court Decision 2019Gahap196 Decided January 9, 2020

June 4, 2020

2020,7.9

1. Of the judgment of the court of first instance, the part of the plaintiffs' preliminary claim seeking revocation of D among the items listed in the [Attachment 1, 2] and 5 set forth in the [Attachment 5] set forth in the regular shareholders' meeting held on March 28, 2019 and the items indicated in the [Attachment 1, 2019, shall be revoked, and the plaintiffs

2. The defendant's remaining appeal is dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiffs, and the remainder by the Defendant.

1. Purport of claim

In the first place, it is confirmed that each resolution listed in the separate sheet does not exist in the defendant's ordinary shareholders' meeting on March 28, 2019 (hereinafter "the general shareholders' meeting of this case"). Preliminaryly, each resolution listed in the separate sheet as stated in the defendant's general shareholders' meeting of this case shall be revoked.

2. Purport of appeal

Of the judgment of the first instance, the part concerning the conjunctive claim is revoked. The judgment of the first instance dismissed the Plaintiffs’ conjunctive claim (the judgment of the first instance dismissed the Plaintiffs’ primary claim, and accepted the conjunctive claim, and only the Defendant appealed. Therefore, the scope of this court’s trial is limited to the Defendant’s conjunctive claim.)

1. Basic facts and the gist of the plaintiffs' assertion

The court's explanation on this part is the same as the statement of the corresponding part of the judgment of the court of first instance (section 15 below, No. 2, No. 10 and No. 6 of the judgment of the court of first instance). Thus, we accept it pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the main defense of this case

A. The reasons why the court should explain this part of the claim, the specific period of filing a lawsuit (two months) and the claim are as stated in the corresponding part of the judgment of the court of first instance (as stated in the 6th judgment of the court of first instance, the part from No. 17 to No. 89). Thus, this part is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act. However, the plaintiff'

1) Summary of the defendant's assertion

The right to file a lawsuit for the cancellation of the resolution of the general meeting of shareholders is limited to shareholders, directors, and auditors, and there is only appearance that the defendant paid 18,000 shares issued on August 10, 2012 with the defendant's funds, and there is no acquisition and payment of new shares. Accordingly, the plaintiffs who acquired the above new shares and claimed as the defendant's shareholders do not constitute shareholders entitled to file a lawsuit for the cancellation of the resolution of the general meeting of shareholders, and therefore are not qualified for the plaintiff.

2) Relevant legal principles

This is presumed to be a shareholder of the company and has the burden of proof on the part of denying the shareholder's rights in order to reverse this presumption. In order to recognize that the shareholder's rights can not be exercised lawfully in relation to the company even though it is a shareholder listed on the shareholder's list, it is insufficient to find that a third party, not a shareholder listed on the shareholder's list, has paid the subscription price for shares. In light of the internal relationship between the third party and the shareholder listed on the third party's list, the circumstances and purpose of the acquisition of shares and the registration on the shareholder's list, and the contents of exercise of rights as a shareholder after the registration on the shareholder's list, the shareholder listed on the shareholder's list is merely lent only the name in the process of acquiring the shares, and it is merely a type of shareholder whose rights as a shareholder is not granted to the company such as voting rights (see, e.g., Supreme Court Decision 2007Da51505, Mar. 11

The reason for the establishment of the shareholder registry system under the Commercial Act is that, due to the nature of collective legal relations in which the composition of a shareholder changes continuously following issuance and transfer of stocks, the company can process the legal relations related to a large number of shareholders in accordance with the form and uniform standard, thereby promoting the efficiency and legal stability of administrative affairs related thereto. This is to uniformly determine the company’s persons entitled to exercise shareholders’ rights according to the entry in the shareholder registry without conducting a separate investigation of the substantive legal relations with the shareholders. It is not for the company to take into account that the exercise of shareholders’ rights may have a significant impact on the legal relations between the company and the large number of interested parties surrounding the company, and it is not for the company’s convenience in performing the exercise of shareholders’ rights with respect to the company in question. Therefore, barring any special circumstance, a person legally entered in the shareholder registry can exercise shareholders’ rights, such as voting rights, in relation to the company, and the company cannot deny the exercise of shareholders’ rights among those who have actually acquired or intended to acquire shares other than the shareholders on the shareholder registry (see, e.g., Supreme Court en banc Decision 201342.

3) Determination

Based on the above legal principles, the register of shareholders of 2,00 shares equivalent to 10% of the Defendant’s total outstanding shares, and the fact that Plaintiff B owned 1,00 shares equivalent to 5% of the Defendant’s total outstanding shares is as stated in the facts stated in paragraph (1) above. Thus, the Plaintiffs may exercise their shareholder rights as the Defendant’s shareholder.

Furthermore, if the aforementioned evidence exceeds the purport of the entire statements and arguments set forth in Gap evidence Nos. 11 and 12, the defendant passed a resolution of the general meeting of shareholders on September 27, 2010 with the purport that the defendant transfers 25 shares of the defendant's shares (1.25%) to the plaintiffs, and the plaintiffs paid the above shares payment to the defendant on March 15, 201, and the defendant issued a notice of convening the general meeting of shareholders of this case to the plaintiffs, and the plaintiffs are recognized as having attended the general meeting of shareholders of this case. Therefore, even if only the written evidence Nos. 11 and 12 are written in the list of shareholders of this case, the defendant cannot deny the exercise of the plaintiffs' rights to the shareholders of this case on the list of shareholders of this case, notwithstanding the fact that the plaintiffs are written in the list

C. Ratification of a resolution to appoint D as an intra-company director among the items mentioned in [Attachment Nos. 1 and 2] and items listed in [Attachment No. 5]

1) Summary of the defendant's assertion

The defendant held a general meeting of shareholders on March 31, 2020 and ratified the resolution on the agenda of appointment of internal directors of D among the agenda items Nos. 1, 2 and 5 of the attached Table 5 among the agenda items of the general meeting of shareholders of this case. Thus, the defendant asserts that the lawsuit on the agenda items of the above agenda items among the lawsuit of this case is unlawful.

2) Relevant legal principles

If a corporation has ratified the previous resolution or passed a resolution on the same agenda again at a meeting of the temporary general meeting of shareholders, which is defective in a legitimate procedure, even if there were any defects in the previous resolution, there is no benefit of lawsuit to seek confirmation or revocation of the absence or invalidity of the previous resolution (see, e.g., Supreme Court Decision 2008Da33221, Aug. 11, 201).

3) Determination

The fact that the defendant, on March 31, 2020, held a regular general meeting of shareholders of this case and passed a resolution of ratification on the part of appointing D as an in-house director among the items listed in subparagraphs 1 and 2 and 5 of the attached Table Nos. 1 and 5 to the general meeting of shareholders of this case is no dispute between the parties. Thus, even if there is any defect in the resolution of the general meeting of shareholders of this case, there is no benefit of lawsuit seeking the absence or revocation of the resolution regarding the above items at the general meeting of shareholders of this case.

D. Sub-committee

Thus, among the lawsuits in this case, the lawsuits regarding the part that appointed D as an internal director among the items in subparagraphs 1 and 2 and 5 of the attached Table Nos. 1 and 5 to the general meeting of shareholders of this case are unlawful as there is no benefit of lawsuit

3. The reasoning for the court to explain this part is that the judgment on the merits (excluding the part on which D is appointed as an internal director among the items Nos. 3, 4 and 5 of the attached list) is the same as that on the corresponding part of the judgment of the court of first instance (Articles 8, 11 through 14, 4 of the judgment of the court of first instance). Thus, it is accepted pursuant to the main sentence of Article 420 of the Civil Procedure Act (the argument on the discretionary dismissal under Article 379 of the Commercial Act, which the court appeals from the appeal by the defendant, does not differ from the contents that the defendant has already asserted in the court of first instance, and even if all the evidence submitted to the court of first instance and this court are examined, the judgment of the court of first instance rejecting

4. Conclusion

Therefore, among the lawsuits in this case, the part of the plaintiffs' preliminary claim seeking revocation of the resolution to appoint D as director among the items listed in the list Nos. 1, (2) and (5) of the attached list Nos. 1, (5) of this case's general meeting of shareholders shall be dismissed, and the plaintiffs' preliminary claim except the above dismissal part shall be accepted for the reasons for the plaintiff's preliminary claim excluding the above dismissal part. However, since the judgment of the court of first instance is partially unfair, the part of the judgment of the court of first instance seeking revocation of the resolution to appoint D as director among the items listed in the list Nos. 1, 2 and 5 of the attached list Nos. 5 of this case's general meeting of shareholders of this case's lawsuit in this case's lawsuit in this case's

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik