(영문) 서울고등법원 2016.1.8.선고 2015나2042528 판결

The defendant's resolution on the appointment of auditors at a general meeting of shareholders on March 27, 2015 (hereinafter referred to as the "resolution on the appointment of auditors"), the approval resolution on the limit on audit fees, and the approval resolution on the limit on directors' fees shall be revoked, respectively.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

Reasons

1. Scope of adjudication of this court;

The judgment of the court of first instance, among the plaintiff's lawsuits in this case, dismissed the defendant's claim for approval of the limit on audit fees and the revocation of the approval of the limit on director fees at the ordinary shareholders' meeting on March 27, 2015, and accepted bedclothess for revocation of the resolution on the appointment of the auditor in this case, and only the defendant presents it. Accordingly, the subject of the judgment of the court is limited to the claim for revocation of the resolution on the appointment of the auditor in this case.

2. Quotation of judgment of the first instance;

The reason why this Court is used in relation to this case is as stated in the reasoning of the judgment of the court of first instance, except for the dismissal, addition, or deletion of each of the following parts, and thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

In Part 2 of the judgment of the first instance court, "the case of appointment of auditor and approval of the limit of audit fees" is "the case of appointment of AI as auditor, the case of appointment of AI as auditor, and the case of appointment of AI as auditor at 36 million won per year."

○ The following shall be added between the third, third and eight of the judgment of the first instance.

F. At the time, the defendant's representative director calculated 16,032,270 shares of the total number of shares other than the defendant's non-voting shares with respect to the agenda item for the appointment of the auditor, and 8,284,428 shares of the shareholders present at the meeting, and 3,747,438 shares, opposing 4,536,90 shares with respect to the agenda item on which an auditor is appointed as the auditor, and 4,531,407 shares, opposing 3,753,021 shares with respect to the agenda item on which an auditor is appointed as the auditor.

○ From 3th to 6th 18th 10th 10th 10th 10th 2th 200.

2. Summary of the plaintiff's assertion

The resolution on the appointment of the auditor of this case must be revoked because the following defects exist in the method of resolution.

A. The Defendant did not follow the procedures such as issuing proxy form and reference documents in violation of Articles 152 and 154 of the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”). The Defendant solicited shareholders to exercise voting rights by proxy through E, F, and G when giving financial benefits in violation of Article 467-2(1) of the Commercial Act. The Defendant’s solicitation to exercise voting rights by proxy is invalid.

B. The delegation of each proxy to exercise voting rights against HF, I, J, K, and L as proxy, the delegation date for each proxy to exercise voting rights is not specified, and it is not known whether each of the delegation date was made prior to the shareholders' general meeting of this case, and thus, is null and void.

C. The Defendant rejected the Plaintiff’s exercise of voting rights by proxy solely on the ground that the portion was modified to the modified amount by proxy with respect to the Plaintiff, and solely on the ground that N’s proxy proxy letter was not accompanied by a copy of the identification card, the Defendant’s rejection of the Plaintiff’s exercise of voting rights by proxy.

D. The shareholders cannot exercise their voting rights in light of the nature of the shares, and 2,500,000 shares out of the shares held by them were also calculated by including them in the "total number of shares issued except for non-voting shares" as a certificate indicating preemptive rights.

E. P and Q were the specially related parties of the Defendant, the largest shareholder of the Defendant, and the Defendant had limited voting rights in the instant resolution for appointment of auditors in accordance with Article 542-12(3) of the Commercial Act, but had P and Q exercise voting rights in violation of the above provision.

F. The Defendant, at the instant general meeting of shareholders, declared that the candidate agenda proposed by the Plaintiff was rejected without any confirmation on the pros and cons, etc., and proceeded with the instant general meeting of shareholders.

Article 476-2 of the Commercial Act is applied to "Article 467-2 of the Commercial Act" in the 8th sentence of the first instance judgment.

○ From 11th to 11th to 12th, the first instance court's decision is as follows.

In full view of the purport of the arguments in the statements in Gap evidence No. 13 and Eul evidence No. 5-2, the plaintiff attended the general meeting of shareholders of this case, and submitted a letter of delegation in the name of N stating that the plaintiff consented to the appointment of AI as auditor and opposed to the appointment of AC as auditor, among the agenda for audit, and the above letter of delegation was not accompanied by N's certificate of personal seal impression or identification card, but the plaintiff presented it to the defendant after receiving a photograph marked with N's passport from AD stated as N's contact address. Nevertheless, the defendant did not allow the plaintiff to exercise his/her voting right by proxy after treating the above letter of delegation.

In light of the above facts in light of the legal principles as seen earlier, even though the Plaintiff proved the authenticity or delegation of the power of attorney prepared by N, it is reasonable to view that the Defendant was unreasonably prevented from exercising the Plaintiff’s voting right by proxy. Therefore, the instant resolution on appointment of auditor was defective unfairly restricting the Plaintiff’s exercise of voting right by proxy. The Plaintiff’s assertion on this part is with merit.

○ From 13th to 15th to 19th to 13th to 19th to 13th to 19th to 19th to 19th to 19th to 19th to 19th to 19th.

(d) Defect in which the voting rights of Q. Q. and P are not restricted.

1) The main sentence of Article 542-12 (3) of the Commercial Act provides that "where the total amount of voting stocks of listed companies held by the largest shareholder, persons in special relationship with the largest shareholder, and other persons prescribed by Presidential Decree exceeds 3/100 of the total number of issued and outstanding stocks excluding nonvoting stocks of the company, the shareholder shall not exercise voting rights at the time of appointment or dismissal of members of the audit committee who are neither auditors nor outside directors with respect to the stocks in excess," and "special persons" referred to in the above provision include not only spouse (Article 34 (4) 1 (a) of the Enforcement Decree of the Commercial Act), relatives within the sixth degree of relationship (Article 34 (b) of the same Act), and relatives within the fourth degree of relationship (Article 34 (c) of the Enforcement Decree of the Commercial Act), but also includes not only the spouse (Article 34 (4) 1 (a) of the same Act) but also the relevant corporation or organization having de facto influence over the major management affairs of the corporation or organization, such as appointment or dismissal of directors.

2) The total number of shares issued other than the Defendant’s nonvoting shares is 25,219,561 shares as seen earlier. Considering the overall purport of the pleadings in Gap evidence No. 1-1, Gap evidence No. 12, 18, Eul evidence No. 1, and Eul evidence No. 2, the Defendant’s largest shareholder who held 0,548,196 shares as of December 31, 2014. X as 0’s spouse, 918,321 shares, AE, and AF were 0 children, and 77,00 shares, AG, and H were 00 shares, and P were 8,00 shares as the Defendant’s auditor, 55,348 shares as the Defendant’s outside director, and Q were 70,960 shares as of December 31, 2014; Gap did not exercise voting rights at a general meeting of shareholders, 75,758,57,57, and Q were 75,58.

According to the above facts, X, AE, AF, AG, and AH constitute a specially related person under Article 34 (4) 1 (a) through (c) of the Enforcement Decree of the Commercial Act, and 00 shares more than 30/100 to the Defendant in combination with X, AE, AF, AF, AG, and H (if 0 shares exceed 30/10, the shares exceed 30/100). The Defendant’s auditor P also constitutes a specially related person under Article 34 (4) 1 (d) of the Enforcement Decree of the Commercial Act.

Thus, although 0, P and Q can only exercise 756,586 shares, which correspond to 3/100 of the total number of shares issued other than the defendant's non-voting shares with respect to the agenda to be appointed by audit, 1,382,895 shares (=756,587 shares + 55,348 shares + 70,960 shares). Thus, the resolution of appointment of audit of this case contains a defect in exercising voting rights by a person who is not entitled to exercise voting rights.

3) On this issue, the Defendant asserts that Article 542-12(3) of the Commercial Act applies only to appointment of audit committee members, and Article 409(2) of the Commercial Act applies not to appointment of audit committee members. ② Even if Article 542-12(3) of the Commercial Act applies to a resolution of appointment of audit committee, restriction on voting rights is merely a shareholder exceeding 3% of the total number of issued and outstanding shares. Thus, in this case, the voting rights of P and Q should not be restricted.

First of all, Article 542-12 (3) of the Commercial Code explicitly includes the case of appointment or dismissal of the "auditor" in the case of appointment or dismissal of the "auditor," and (1) above, it cannot be accepted as it is against the text of the above provision.

① In addition, with respect to the restriction on voting rights in the appointment of auditors, the Commercial Act provides for the restriction on voting rights in cases where a shareholder owns more than 3% of the total number of issued and outstanding shares (Article 409(2)). In the case of listed companies, special provisions under Article 542-12(3) are provided for the restriction on voting rights in cases where a shareholder holds more than 3% of the total number of issued and outstanding shares, and where a shareholder holds more than 3% of the total number of shares held by the largest shareholder, a special provision under Article 542-12(3) is provided for the restriction on voting rights in cases where a listed company holds more than 3% of the total number of shares held by the largest shareholder, a special provision under Article 409(2) of the Commercial Act is provided for the restriction on voting rights in cases where a shareholder owns more than 3% of the total number of shares held by the largest shareholder, and there is no special provision under Article 409(2) of the Commercial Act.

4) Ultimately, the Plaintiff’s assertion of defects is with merit.

(e) whether there is any defect significantly unfair proceedings;

○ From 16th to 22th of the judgment of the first instance court is as follows. Whether the judgment of the first instance is dismissed or not.

1) The Defendant asserts that the Plaintiff’s claim should be dismissed at discretion in accordance with Article 379 of the Commercial Act, even if there is a defect in the grounds for revocation in the instant resolution of appointment of auditor, since such defect was insignificant, did not affect the outcome of the resolution, and even if the resolution was revoked, it did not benefit the company and shareholder’s interest.

2) Article 379 of the Commercial Act provides that "a court may dismiss an action for revocation of a resolution if it deems it improper to revoke the resolution, taking into account the contents of the resolution, the current status of the company, and all other circumstances." The above provision aims at preventing damage to the company by revocation of the resolution, or damage to the security of general transactions, and preventing abuse of the lawsuit for revocation of the resolution (see, e.g., Supreme Court Decision 2001Da45584, Jul. 11, 200). In addition, Article 376 of the Commercial Act, which provides the reason for revocation of the resolution, provides that where there is a defect in the procedures for convening a meeting or the method of resolution, a violation of the laws and regulations or the articles of incorporation in the method of resolution, which affected the outcome of the resolution, shall not be deemed to have any exceptional effect on the company's revocation of the resolution, even if there is any defect in the procedures for convening a meeting or the method of resolution, and it shall not be deemed to have any effect on the company's revocation of the resolution.

① As seen earlier, the instant resolution on the appointment of auditors contains a defect that restricts the Plaintiff’s legitimate exercise of voting rights by proxy, a defect that caused the relevant person of the largest shareholder subject to the restriction on voting rights with respect to the appointment of auditors to exercise voting rights, and the degree of such defect is extremely small; ② the number of voting rights in each item on the appointment of auditors is extremely small; ② the number of voting rights that the Plaintiff could not exercise voting rights by proxy is 1,024,433 shares (each of the evidence No. 19,20,21), considering the fact that the number of voting rights by proxy is 1,024,43 shares (each of the above evidence No. 19,20,21), it is difficult to conclude that the same resolution will not be followed even in cases where the instant resolution on the appointment of auditors is revoked, and ③ the revocation of the resolution on the appointment of auditors is a resolution on the appointment of the Defendant’s internal organ, and thus it is difficult to recognize that the above resolution would undermine the safety of transactions.

3) Therefore, the Defendant’s assertion on this part cannot be accepted, and the Defendant’s resolution on the appointment of an auditor at the general meeting of shareholders of this case should be revoked since the method of resolution at the general meeting of shareholders violates the law and regulations.

3. Conclusion

Therefore, the plaintiff's claim for cancellation of the resolution of appointment of the auditor of this case should be accepted as it is reasonable. The judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.