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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion is a shareholder holding 25.24% of the total number of outstanding shares of the non-party company, who was the representative director of the non-party company D (hereinafter “non-party company”). Defendant B is the representative director of the non-party company, and Defendant C was the representative director of the non-party company, and Defendant B was appointed as the administrator on September 27, 2017 as Seoul Rehabilitation Court 2017 Ma100147.
(hereinafter “Defendant Company” and the non-party company and the Plaintiff entered into a joint investment agreement. Defendant B, without a resolution of the board of directors, withdrawn KRW 185 million out of the subscription money for new shares based on a joint investment agreement without permission, and deposited it into the Defendant Company, thereby causing damage to the non-party company. The Defendant Company unjust enrichment. The auditor E of the non-party company did not file a suit against the Defendants pursuant to Article 403 of the Commercial Act because the Plaintiff, a shareholder of the non-party company, did not file a suit against the Defendants.
2. We examine the legitimacy of the instant lawsuit ex officio.
According to Article 403(1), (3), and (4) of the Commercial Act, shareholders who hold shares representing no less than 1/100 of the total issued and outstanding shares may file a lawsuit against the company to enforce directors' liability, and if the company fails to file a lawsuit within 30 days from the date it receives such a claim or if the company is likely to cause irreparable damage to the company due to the lapse of the above period, shareholders who hold shares representing no less than 1/100 of the total issued and outstanding shares may immediately file a lawsuit on behalf of the company.
This is a provision on the requirements for filing a suit in order to prevent a suit by shareholders in consideration of the fact that a representative suit by shareholders is based on the rights of the company.
However, even if the lawsuit of this case is based on the plaintiff's assertion, the director or auditor of the non-party company.