(a) Appropriateness of a claim for nullification of a resolution adopted at an unexistent general meeting;

(b) Whether the representative director appointed by a resolution subject to the claim for nullity or non-existence of the resolution is qualified to represent the company in the confirmation lawsuit such as invalidation;

C. Validity of litigation by a representative director appointed by a resolution of invalidation or non-existence (=effective)

A. The claim for confirmation of non-existence of the resolution of the general meeting of the company or the claim for confirmation of invalidity is identical in that it is to obtain confirmation that all of the legal effective resolutions do not exist at present. For example, since the general meeting of members was not convened by legitimate convening authority, and it is merely an assembly held by a person who is not a legitimate member and is merely an assembly held by a legitimate convening authority, and thus, a claim for confirmation of invalidity of the resolution is filed with respect to the resolution of the general meeting that cannot be seen as non-existence of the law, it is reasonable to interpret

B. In a lawsuit seeking confirmation of invalidity or non-existence of the resolution on the appointment of a director of the company by asserting that the resolution is invalid or non-existence, the representative of the company is currently registered as the representative director and performs his duties. Even if the representative director is appointed by the resolution which became the object of confirmation of nullity or non-existence, it does not change as a person who can represent the company in the lawsuit.

C. According to Articles 380 and 190 of the Commercial Act, even if a judgment to nullify the appointment of a director becomes final and conclusive, it is obvious that a director appointed by such resolution will not have any influence on the litigation conducted as a representative of the company before such judgment becomes final and conclusive, and Article 380 of the Commercial Act shall also apply mutatis mutandis to the litigation for confirming the existence of a resolution. Thus, even in a litigation for confirming the absence of a resolution to appoint a director, the judgment of confirming the existence of a resolution does not affect any litigation conducted by a director appointed by such resolution for the transfer of the former. [Article 380 and 190 of the Commercial Act, the judgment of confirming the existence of a resolution shall not affect

(a) Article 380 of the Commercial Act; Articles 380, 389 of the Commercial Act; Articles 58 and 60 of the Civil Procedure Act; Articles 190 and 380 of the Commercial Act

Supreme Court Decision 80Da2425 Delivered on September 14, 1982

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Attorney Kim Jong-ho, Counsel for the defendant-appellant

Daegu High Court Decision 81Na1597 delivered on November 18, 1982

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. We examine the grounds of appeal (1) by the defendant's attorney.

The claim for confirmation of non-existence of the resolution at the general meeting of a company and the claim for confirmation of invalidity are identical in that it is confirmed that all the legally effective resolution does not exist at present. Therefore, even if the plaintiffs claim the confirmation of invalidity of the resolution at the general meeting which cannot be viewed as a legally non-existence, it is reasonable to state that the plaintiffs claim the confirmation of invalidity within the meaning of confirmation of

According to the reasoning of the judgment of the court below, the provisional general meeting of the defendant company on June 1, 1981 of this case was held by gathering the non-party 1, non-party 2, non-party 3, non-party 4, non-party 5, and non-party 6, etc. who are not legitimate members of the defendant limited liability company without legitimate convocation procedure. Here, the court below acknowledged the fact that the non-party 1 was decided to appoint the non-party 2, non-party 3, non-party 4 and non-party 5 as director and the non-party 6 as auditor, and received the plaintiff's objection

In light of the foregoing, the above general meeting of members is merely an assembly held by a legitimate convening authority as well as an assembly held by a person who is not a legitimate member, and therefore, it cannot be deemed that there is a legal general meeting of members or its resolution of the defendant company. However, since it is apparent that the court below accepted the claim to nullify the invalidity of this case by interpreting it to the meaning of the claim to confirm the non-existence of the non-existence of the non-existence of the claim, it is justifiable and it is not reasonable, and the

2. We examine the same ground of appeal (2).

In a lawsuit seeking confirmation of invalidity or non-existence of the resolution of the company's appointment of director by asserting that the resolution of the company is invalid or non-existence, the representative is currently registered as the representative director and performs his duties, and even if the representative is a director appointed by the resolution which became the object of confirmation of invalidity or non-existence, the representative can represent the company in the lawsuit.

In the above case, if a resolution becomes null and void or non-existence, it is doubtful that the lawsuit for invalidity or non-existence of the resolution conducted by a director appointed by the resolution as a representative of the company is not the result of the execution by a person who is not a representative. However, Article 380 of the Commercial Act (Article 578 of the Commercial Act shall apply mutatis mutandis to a limited liability company) provides that Article 190 of the same Act shall apply mutatis mutandis to the lawsuit for nullification of the resolution, and Article 190 of the same Act provides that the effect of the judgment for nullification of the company's incorporation does not affect the rights and obligations between the company and its members and the third party. Thus, even if the judgment for invalidity of the resolution becomes final and conclusive in the lawsuit for nullification of the resolution for appointment of director, it is obvious that it does not affect any litigation conducted by the director appointed by the resolution prior to the final and conclusive judgment. In addition, Article 380 of the Commercial Act shall apply mutatis mutandis to the lawsuit for confirmation of non-existence of the resolution (see Supreme Court Decision 80Da2425, Sept. 14, 1982).

Unlike the above opinion, in a lawsuit seeking confirmation of invalidity of a resolution of appointment of a director at a general meeting of shareholders, the opinion of 62Da836 delivered on April 25, 1963 that held that a director appointed by such resolution cannot represent the company is reversed.

Therefore, even if the representative director, who representing the defendant limited liability company, was appointed as a director by a resolution of a general meeting of partners subject to a claim for nullification confirmation, and completed the registration, he/she is entitled to conduct the lawsuit of this case on behalf of the defendant company as stated above. Therefore, this lawsuit is legitimate, and it is not reasonable that the lawsuit of this case represented by the representative director appointed by a resolution of nullification confirmation from the contrary point of view is unlawful.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young