In a case where Company A, holding a board of directors, extended the advance polling time for the resolution to appoint executives at a regular general meeting of shareholders than the date stipulated in the articles of incorporation, passed a resolution to provide the shareholders who participate in advance polling or directly exercise voting rights at a general meeting of shareholders, and the former representative director Eul, etc. was appointed as executive officers, the case holding that the court below erred in the misapprehension of legal principles in dismissing the application for provisional disposition on the ground that the right to be preserved was not clearly explained, in case where Company C, etc. sought a disposition to suspend the performance of duties against

In a case where Gap corporation extended the time of advance voting regarding the resolution of appointment of executive officers to be held at a regular general meeting of shareholders than the date stipulated in the articles of incorporation, decided to provide the shareholders who participate in advance voting or who directly exercise voting rights at a general meeting of shareholders with the right of reservation and right of exchange for goods of the golf course, and provided that the previous representative director was appointed at the general meeting of shareholders by providing them to shareholders who participated in advance voting, etc., the case holding that the court below dismissed the application for provisional disposition on the grounds that the above resolution of the general meeting of shareholders was erroneous in the misapprehension of legal principles as to the grounds for revocation of the resolution of the general meeting of shareholders, since it extended the advance voting period in violation of the articles of incorporation and provided illegal benefits beyond the limit permitted by social norms in relation to the exercise of voting rights by shareholders who were about 67% of the total number of voting rights during the advance voting period.

Article 300 of the Civil Execution Act, Articles 376, 433(1), 434, and 467-2(1) and (2) of the Commercial Act

Creditor 1 and one other (Attorney Park Jae-soo, Counsel for the plaintiff-appellant)

Debtor 1 and 3 others (Attorneys Kang Jae-sik et al., Counsel for the defendant-appellant)

Busan High Court Order 2013Ra70 dated November 13, 2013

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. On November 13, 2012, a golf club operated as a shareholder system (hereinafter “instant company”) held a board of directors (hereinafter “board of directors”) and appointed the following executives at a regular general meeting of shareholders (hereinafter “instant general meeting of shareholders”) on March 25, 2013, and (2) the time of advance polling on the resolution to appoint executives (hereinafter “instant advance polling”) was extended from “two weeks prior to the date of the general meeting of shareholders”) to “ twenty-four days prior to the date of the instant advance polling” from “two-four days prior to the date of the general meeting of shareholders,” and passed a resolution to implement advance polling for twenty-four days from March 1, 2013 to March 24, 2013.

B. On February 5, 2013, the instant company again held a board of directors to grant the shareholders participating in the advance polling of this case the right of reservation of a golf course (hereinafter “instant right”) that can be transferred only once to the shareholders per shareholder, and ② a resolution was made to pay the shareholders who participate in the advance polling or exercise voting rights at a general meeting of shareholders with the right of exchange of goods equivalent to KRW 200,000 (hereinafter “instant merchandise coupon”). Thereafter, the shareholders who actually exercised voting rights at a general meeting of advance polling or general meeting of shareholders were provided with the instant right of reservation and merchandise coupons, as stated in the resolution of the board of directors.

C. At the time of creditor 1 and 1, the debtor 1, the representative director of the instant company, and the debtor 2, 3, and 4, who were creditors 1 and directors of the instant company, registered as a candidate for the registration of the candidate. As a result of the voting for the appointment of the representative director, creditors 1 and the debtor 1 acquired 676 votes, and the debtor 1 acquired 711 votes. In particular, creditors 1 and the debtor 1 received 26 votes and 711 votes in advance polling, respectively. The number of advance polling periods extended from March 1, 2013 to March 10, 2013 (from March 10, 2013 to March 10, 2013 to March 24, 2013) are 610 votes, and the remaining advance polling periods (from March 11, 2013 to March 24, 2013) are 32 votes.

D. As a result, on March 25, 2013, the resolution of the general meeting of shareholders of the instant case was passed by which 10 persons, including 10 persons, including 2, 3, and 4, as representative directors of the instant company, were appointed as directors of the said company.

E. Meanwhile, the latter part of Article 28(4) of the company’s articles of incorporation (hereinafter “instant articles of incorporation”) provides that “The election commission shall keep advance polling boxes from two weeks prior to the date of the general meeting of shareholders until 17 days prior to the date of the general meeting of shareholders.”

F. The obligees set the time of advance polling for the resolution of appointment of officers in the articles of incorporation of this case from two weeks prior to the date of the general meeting of shareholders, but the company of this case conducted advance polling only by the board of directors resolution 24 days prior to the date of the general meeting of shareholders. ② The offering of the instant advance polling right and gift certificates to shareholders was prohibited by the Commercial Act in relation to the exercise of shareholders’ rights. As such, the resolution of the general meeting of shareholders of this case claimed that the method of resolution exists in violation of the articles of incorporation and statutes, and filed an application for provisional disposition of this case seeking suspension of the performance of duties

2. The court below dismissed the obligees' application for provisional disposition in this case on the following grounds: (a) the articles of incorporation provision in this case only provides for the creditors' completion date of advance polling, and cannot be deemed to have provided for the time, and thus extension of advance polling period by the resolution of the board of directors cannot be deemed to violate the articles of incorporation; (b) the intention of shareholders related to the appointment of executives cannot be deemed to have been distorted due to the grant of the right of reservation in this case and gift certificates; and (c) even if the company provided financial benefits in relation to the exercise of shareholders' rights, the granting of financial benefits is merely merely the motive for exercising shareholders' rights; and (d) even if the company exercised voting rights in return for the benefit acquired, the resolution of the general meeting of shareholders is valid because the exercise of shareholders' rights itself does not affect the effectiveness of exercising

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. The articles of incorporation of the instant case expressly stipulate the period for keeping advance polling boxes as “from two weeks before the date of the general meeting of shareholders to 17 days before the date of the general meeting of shareholders.” That is, the said articles of incorporation expressly stipulate that the period for keeping advance polling boxes is “from two weeks before the date of the general meeting of shareholders to 17 days before the date of the general meeting of shareholders.” That is, the said articles of incorporation is clear that the said period is “from 17 days before the date of the general meeting of shareholders,” and the completion period is “from 24 days before the date of the general meeting of shareholders.” It does not appear that the board of directors of the instant case resolved to extend the period for advance polling to “from 24 days before the date of the general meeting of shareholders” to “from the date of the general meeting of shareholders to 24 days before the date of the advance polling.”

In addition, Article 433(1) of the Commercial Act provides that “an amendment of the articles of incorporation shall be made by a resolution of the general meeting of shareholders,” and Article 434 of the Commercial Act provides that “a resolution under Article 433(1) shall be made in the number of at least 2/3 of the voting rights of shareholders present at the meeting and at least 1/3 of the total number of issued and outstanding shares,” the amendment of the articles of incorporation is subject to a special resolution of the general meeting of shareholders. As long as the Commercial Act explicitly states that an amendment of the articles of incorporation is the authority of the general meeting of shareholders, even if the board of directors of the instant case

Therefore, the instant company’s conducting advance polling from March 1, 2013, which was prior to the time of advance polling stipulated in the articles of incorporation (from March 25, 2014, the date of the general meeting of shareholders, until March 11, 2013), should be deemed to have violated the articles of incorporation.

B. Article 467(1) of the Commercial Act provides that “the company shall not grant any property interest in connection with the exercise of the shareholder’s rights.” In addition, the first sentence of Article 467(2) provides that “Where the company has granted any property interest to any specific shareholder without compensation, it shall be presumed that the company has granted such interest in connection with the exercise of the shareholder’s rights.” In light of such provision, it is presumed that the instant company participated in the advance polling or offered any reserved right and gift certificates to the shareholders who have exercised the right to vote at a general meeting of shareholders in relation to the exercise of the shareholder’s rights. In addition, the following circumstances are as follows: ① under the circumstance where the dispute over the management rights between the existing and the opposing shareholders through the resolution of the general meeting of shareholders is being raised, the advance polling period has been extended at the initiative of the debtor, the representative director, and ② The preemptive right and gift certificates of this case appears to have been provided to the shareholders for the purpose of exercising the shareholder’s right to vote at least 17% of the total voting period and within 986% of the voting period.

Therefore, the right of reservation and gift certificates of this case are not only issued in relation to the exercise of shareholders' rights, but also their amount goes beyond the scope permitted by social norms. It constitutes a benefit grant in relation to the exercise of shareholders' rights prohibited under the Commercial Act. It is reasonable to view that the resolution method of this case based on the exercise of voting rights pursuant to such right

C. Thus, the resolution of the general meeting of shareholders of this case extends the advance polling period in violation of the articles of incorporation, and the existence of the preserved right to seek a disposition suspending the performance of duties against the debtor is recognized, since it provides illegal benefits beyond the limit permitted by social norms in relation to the exercise of shareholders' voting rights, which constitutes grounds for revoking the resolution of the general meeting of shareholders. Thus, the application of provisional disposition of this case is recognized as having the right to seek a disposition suspending performance of duties against the debtor.

D. Nevertheless, the court below dismissed the obligees' application for provisional disposition of this case on the ground that the preserved right to seek the suspension of the execution of duties of the debtors was not clearly explained, just on the grounds as stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on the grounds for cancellation of

4. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)