(영문) 서울고등법원 2015.4.10.선고 2014나2028587 판결

The decision made by the defendant on November 14, 2013 as to whether to appoint an additional auditor at a special general meeting of shareholders held on November 14, 2013 is revoked.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. The defendant is an unlisted company for the purpose of providing computer system services, and the total amount of capital is 300 million won.

B. The Plaintiff is the Defendant’s shareholder, and as of October 2, 2013, the Defendant’s shares held 31,000 shares (the shares ratio: 51.67%) (the shares ratio): 25,390 shares (the shares ratio: 42.32%) of the Plaintiff, D’s 1,810 shares (the shares ratio: 3.01%) and E 1,800 shares (the shares ratio: 3.00 shares ratio).

C. According to the Defendant’s articles of incorporation, the Defendant shall have one or more auditors (Article 29); the auditor’s term of office is until the closing of the ordinary shareholders’ meeting on the final settlement of accounts within three years after his/her inauguration (Article 31(2)); and the ordinary shareholders’ meeting is convened within three months after the end of each business year (Article 17(2));

D. The Defendant’s auditor has one G, and G was appointed as the Defendant’s auditor on March 28, 2013, and has been performing his duties until now.

E. On January 10, 2013, the Plaintiff, as a minority shareholder holding more than 3/100 of the total number of outstanding shares issued by the Defendant, pursuant to Article 366(1) of the Commercial Act, made a request for a temporary general meeting of shareholders (hereinafter referred to as “request for the convocation of this case”) by inserting the purpose of the meeting to C as “the case of an amendment of the articles of incorporation (a change from 1 to 2 of the Defendant’s number of directors under Article 29 of the Articles of incorporation): the case of an additional director: (b) the case of an additional director appointment; (c) the case of an additional director appointment; and (d) the case of an additional director appointment; and (d) the reason for a request for a convocation of the meeting was as follows: “The number of directors shall be changed to two persons through an amendment of the articles of incorporation for the objective management and accounting of the Defendant; (d) the appointment of an additional auditor; and (e) the appointment of an additional auditor is

F. On October 24, 2013, C sent a notice of convening a temporary general meeting of shareholders (hereinafter referred to as “instant notice of convening a meeting”) to the Plaintiff, D, and E, the Defendant’s shareholder, stating the purpose of the meeting as “(1) agenda: (2) the modification of the articles of incorporation (the number of the Defendant’s directors under Article 29 of the Articles of Incorporation is changed to two): (3) the case of additional appointment of directors; (4) the case of additional appointment of auditors: (3) the case of additional appointment of auditors (hereinafter referred to as “instant agenda(3)”).

G. On October 29, 2013, the Plaintiff sent to C an e-mail (hereinafter “the electronic document of this case”) stating that “I would like to recommend F as a candidate for the audit and inspection in connection with the instant subject matter No. 3,” under the title “Personal Information on the Candidates for Directors and Auditors.”

H. At around 14:30 on November 14, 2013, C presented the agenda (hereinafter referred to as "the agenda of this case") that "whether to appoint the Defendant's further auditors in relation to the agenda of subparagraph 3 at a temporary general meeting of shareholders held by all shareholders of the Defendant (hereinafter referred to as "temporary general meeting of shareholders of this case"). The provisional general meeting of shareholders of this case was adopted a resolution to reject the agenda of this case (hereinafter referred to as "the resolution of this case") against the majority of the voting rights of the shareholders present (the plaintiff, C, and D, who holds the number of shares exceeding 3/10 of the total number of shares issued by the defendant).

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2, Gap evidence 3-1, 2, Eul evidence 1, 2, and 8, the purport of the whole pleadings

2. The plaintiff's assertion

The resolution of this case shall be revoked on the following grounds that the convocation procedure or resolution method of the general meeting of shareholders is in violation of the statutes.

(a) Resolution on matters other than the purpose of the meeting;

According to the plaintiff's request for convocation of this case, the agenda item No. 3 of this case stated in the notice of convocation of this case is "cases of additional appointment of auditors", and since the plaintiff saw F as an auditor through the electronic document of this case pursuant to Article 363-2 (2) of the Commercial Code, the provisional shareholders' meeting of this case should make a resolution as to "the appointment of F as an auditor" in the provisional shareholders' meeting of this case, however, whether to additionally appoint an auditor who is not included in the agenda item No. 3 of this case."

B. Violation of Article 409(2) of the Commercial Act

The shareholders holding more than 3/100 of the total number of issued and outstanding shares, excluding nonvoting shares, pursuant to Article 409(2) of the Commercial Act, cannot exercise voting rights in the appointment of auditors with respect to the shares in excess, but the resolution of this case was made with respect to the issues in this case, so the limitation of voting rights under Article 409(2) of the Commercial Act was not applied.

3. Determination

A. Whether the resolution of this case constitutes a resolution on matters other than the purpose of the meeting

The "case of additional appointment of an auditor" is not limited to the agenda of the "case of additional appointment of an auditor". (The plaintiff's assertion on this part is that since the plaintiff exercised the shareholder's right to make proposal as to the "case of additional appointment of an auditor" through the electronic document of this case, it seems that the contents of the agenda of this case were specified by the electronic document of this case. However, the shareholder's right to make proposal as prescribed in Article 363-2 (2) of the Commercial Act should be included six weeks prior to the date of general meeting of shareholders. When the plaintiff sent the electronic document of this case to C, it is difficult to view that six weeks prior to the date of the temporary general meeting of shareholders of this case, which was the date of the temporary general meeting of shareholders of this case, had already been limited to October 29, 2013. Thus, the plaintiff's assertion that the plaintiff already exercised the right to make proposal for appointment of an auditor of this case is not acceptable.

Therefore, in interpreting the language and text, the agenda item No. 3 of this case can be deemed to be included in the agenda item, and in the case of the defendant, one auditor, who is the necessary number of auditors as prescribed by the articles of incorporation, is already in office, there is also a practical need to first make a resolution as to whether to appoint additional auditors. Thus, the resolution of this case, which was made at the provisional shareholders' meeting of this case with respect to the agenda item, cannot be deemed to constitute a resolution on matters other than the agenda item of the meeting.

Therefore, we cannot accept this part of the plaintiff's argument.

B. Whether Article 409(2) of the Commercial Act is violated

Article 409(2) of the Commercial Act provides that "no shareholder who holds more than 3/100 of the total number of issued and outstanding shares other than nonvoting shares shall exercise his/her voting right in the appointment of an auditor with respect to the shares in excess of 3/100." For the following reasons, the restriction on voting right under Article 409(2) of the Commercial Act does not apply to the agenda of this case, and therefore, the plaintiff's assertion on this part cannot be accepted.

1) Basically, Article 409(2) of the Commercial Act only appears to have the legislative intent to enhance fairness and transparency in the management of the company by appointing an independent person from the influence of the major shareholder as an auditor, and it does not seem that the legislative intent is to limit the influence of the major shareholder to the issue of whether to appoint a few auditors in the company.

2) Unlike the absence of the necessary minimum number of audits as stipulated in the articles of incorporation, the issue of further appointing auditors under the circumstances where there are already a statutory minimum number of audits as stipulated in the articles of incorporation is a matter of simply appointing a specific person as an auditor. However, it is difficult to view that there is a reasonable need to limit the major shareholder’s voting right so far as there is a need to determine the company’s shareholders’ policy based on changes in the corporate structure and increase the company’s expenses, and accordingly, the company’s management situation, etc.

3) A separate case where there is a vacancy in the necessary minimum number of auditors as stipulated in the articles of incorporation, and there is a high probability that additional auditors are appointed under the circumstances where there is a minimum number of auditors required under the articles of incorporation may substantially reduce the scope of duties or authority of the existing auditors. In this regard, Article 409(2) of the Commercial Act limits only voting rights in relation to the appointment of auditors, but does not limit voting rights in relation to the dismissal.

4) Article 409(4) of the Commercial Act provides that a small-scale company, the total amount of capital of which is less than one billion won, may choose not to appoint auditors (the defendant shall be limited to a company, the total amount of capital of which is 300 million won and which is 300 million won). The restriction on major shareholders’ voting rights with respect to the issue of additionally appointing auditors exceeding the necessary minimum number of auditors in the above small-scale company is not substantially inconsistent with the purport of Article 409(4) of the Commercial Act.

5) In light of the above, it is reasonable to view that the temporary shareholders’ meeting of this case did not limit voting rights pursuant to Article 409(2) of the Commercial Act, under the circumstances where there was an auditor corresponding to the minimum number of necessary auditors (one person) as stipulated by the Defendant’s articles of incorporation.

4. Conclusion

If so, the plaintiff's claim shall be dismissed due to the lack of reason. Since the judgment of the first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the first instance is revoked, and the plaintiff's claim is dismissed.