2019 Gohap208797 Invalidity, etc. of resolution by the board of directors

50

Daegu

Attorney Hwang Young-young, Counsel for the plaintiff-appellant

A Association

Daegu

Representative Director and Acting Attorney Jeon Soo-soo

Law Firm Jung-won, Counsel for defendant-appellant

[Defendant-Appellant]

d.6.4

June 25, 2020

1. The board of directors held on February 8, 2019, held by the Defendant on February 8, 2019, confirms that the resolution to postpone the election of the 10th tenant tenant who is scheduled to start the term of office on April 1, 2019 is invalid.

2. The ○○○ shall confirm the absence of the status as the chief director and the director of the Defendant.

3. The costs of the lawsuit shall be borne by the defendant.

It is as set forth in the text.

1. Basic facts

A. The defendant is a juristic person established with Daegu Metropolitan City as its principal office among the businessmen permitted to use one truck for the transportation of cargo pursuant to the Trucking Transport Business Act and with its principal office as the hearing member, and the plaintiff is the defendant's member.

B. On February 8, 2019, Defendant held a board of directors, and the contents of the resolution (hereinafter referred to as “the resolution of the board of directors of this case”) include the following contents:

1. Revised Cargo Transport Business Act (Law No. 15602, Jul. 1, 2019) provides that the transport business type of the cargo shall be changed from the individual cargo to the ordinary private cargo, according to the amendment of subparagraph 2 (No. 1) to the personal cargo association following the change of the type of business, one large transport business operator, who is one of the private cargo and individual cargo, shall not be recognized as the private cargo association from July 1, 2019, and shall register the establishment of the private cargo association within two years from the date of enforcement of the Act. 2. Article 6 of the Addenda of the amended Cargo Act provides that the private cargo transport business operator and the private cargo transport business operator shall be dissolved as the private cargo association without the authorization of the Association, and it shall be deemed that the private cargo should be changed to the private cargo association without the authorization of the Association.

C. Article 8 (Rights of Members) 1. The articles of incorporation, the articles of incorporation, the non-permanent directors and the delegates of the defendant involved; Article 11 (Members of the General Meeting) shall be composed of officers and the delegates. Article 13 (Types and Convocation of General Meeting) The regular general meeting shall be convened in February of each year, and the temporary general meeting shall be convened when it is deemed necessary. The general meeting may be convened in three months for the year in which an election is held upon the expiration of the term of office of the officers; Article 14 (Establishment and Resolution of Meetings); Article 14 (2) The meeting shall be established as the attendance of the majority of the members of the General Meeting; Article 15 (2) the resolution of the General Meeting shall be made in writing with the consent of the majority of the members; Article 14 (3) the term of office of the Executive Officers; Article 14 (4) the resolution of the General Meeting shall be made in writing;

D. The term of office of the Defendant’s president at the time of the resolution by the board of directors in this case is three years from April 1, 2016 to March 31, 2019. However, after the election was postponed by the resolution by the board of directors in this case, the Defendant members demanded that the Defendant’s members proceed with the election procedure for officers several times, when Ma○○ performs the duties of the president pursuant to Article 23 subparag. 5 of the Defendant’s Articles of incorporation, but Ma○ did not comply with it.

E. On April 16, 2019, Plaintiff filed an application against ○○ for a provisional disposition suspending the performance of duties, and on July 19, 2019, a provisional disposition order was issued to suspend the performance of duties until the judgment on the merits of this case became final and conclusive ( Daegu District Court 2019Kahap 10162).

[Ground for recognition] Unsatisfy, Gap evidence 1 through 6 (including satisfy number), Eul evidence 1 to 3, and the purport of the whole pleadings

2. The parties' arguments

A. The plaintiff's assertion

In light of the fact that the postponement of the election through the resolution of the board of directors of this case is in fact an extension of the term of office of the executive officers and is in violation of the articles of association that stipulate the term of office, and there is no ground to deem that it is possible to postpone the above election with the resolution of the general meeting or the consent of the majority of all the members, the resolution of the board of directors of this case is null and void, and the party ○○ does not belong

B. Defendant’s assertion

The resolution of the board of directors in this case, which postponed the election of officers, was an inevitable decision to establish a personal cargo association, and it also conforms to the purpose of the defendant's articles of association. In addition, the above agenda was presented to the general meeting to obtain a resolution, and the opinion was presented to all members of the association in the form of vote for and against the mobile system, and it is justifiable with the consent of 789, which is 71.53% of the voting participants in all 3,495. Accordingly, the resolution of the board of directors in this case is not null and void.

3. Determination as to the claim for nullification of the resolution of the board of directors

In full view of the following circumstances revealed in light of the purport of the entire pleadings, the resolution of the board of directors of this case, which postpones the election of officers or representatives, is null and void due to significant and apparent defects in the contents of the resolution, and there is a benefit to seek confirmation as long as the Defendant is disputing the validity of the current election postponement resolution.

① Defendant is an organization established pursuant to Article 48(2) of the Trucking Transport Business Act. Article 48 of the same Act provides that qualification of members, the number and method of election of executives, and other matters necessary for the operation of an association shall be determined by the articles of association. To amend the articles of association, the Association shall obtain authorization from the Minister of Land, Infrastructure and Transport, and the matters necessary for the entries and supervision of the articles of association shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. In light of this, not only the establishment of Defendant but also the articles of association seems to have a binding force equivalent to the relevant statutes.

In accordance with Articles 22 and 23 of the Articles of Incorporation of the Defendant, and Articles 6 through 9 of the Regulations on the Election of Officers and Representatives, the board of directors of the Defendant shall take procedures necessary for the election, such as the appointment of 10 large-scale executives and members of the election commission for the election of representatives, prior to March 31, 2019, when the term of office of the former executives and representatives expires.

③ Article 23 of the Defendant’s Articles of incorporation provides that the term of office for executives and delegates shall be three years. The postponement of intended elections to be held in accordance with the articles of incorporation and the continued performance of the Association’s work inside and outside of the country, such as the former executives, results in the extension of the term of office for the former executives, etc. Therefore, the above provisions of the Articles of incorporation that stipulate the term of office for executives, etc. are violated.

④ The Defendant’s articles of incorporation made with authorization from the Minister of Land, Infrastructure and Transport under the Trucking Transport Business Act only provides for the procedures for the election of executives at the expiration of the term of office and the expiration of the term of office of executives, and there are no other parts to deem that the aforementioned election may be postponed by the resolution of executives and representatives who are members of the general meeting or by the consent of the majority of the total members through mobile voting. Although the provisions regarding the election of executives, etc. under the Trucking Transport Business Act stipulate in the articles of incorporation

No. 1) The defendant asserts to the effect that, upon the amendment of the Trucking Transport Business Act, the election was postponed in order to establish the Personal Trucking Transport Business Association in a timely fashion. However, Article 9 of the Addenda of the amended Trucking Transport Business Act provides the grace period that the above revised trucking Transport Business Act obtains authorization from the Minister for Transport and Transportation by June 30, 2021, which is within two years from the enforcement date of this Act, and the registration of incorporation is made by the Minister for Land, Transport and Maritime Affairs by June 30, 2021.

It is also difficult to view that it constitutes a natural disaster or other unavoidable reason to postpone an election in violation of the provisions of the articles of incorporation authorized.

3. Judgment on the claim for confirmation of non-existence of standing as chief director

A. Determination on this safety defense

In seeking confirmation of the absence of the standing of president of the ○○○○○, the Defendant asserted the conflicting interests, not ○○ but ○○. Thus, the Defendant asserts that this part of the claim is unlawful on the ground that it is not the Defendant’s standing.

In a lawsuit seeking confirmation of non-existence of a resolution of appointment of the president of a limited partnership, it is sufficient to seek confirmation of a dispute that occurred surrounding the defects in the resolution of appointment of the president within the partnership as the party to the lawsuit, and it is not necessary to seek confirmation of an appointed president as the party to the lawsuit (see, e.g., Supreme Court Decision 96Da6295, Apr. 12, 196).

In light of the above precedents, in order to finally settle the dispute surrounding the position of the 00 president, the defendant shall be the party and the confirmation shall be sought. Therefore, the above defense of the defendant is without merit.

B. Determination on the merits

As seen earlier, as long as the resolution of the board of directors of this case is null and void, the term of office of the president of 00 has expired on March 31, 2019, and an officer of the defendant's articles of incorporation provides that he shall perform his duties until his successor is appointed even after the expiration of his term of office as seen earlier, in principle, the delegation relationship should be terminated once the term of office expires, but if there is no director until the appointment of the succeeding director, a juristic person, which is bound to perform an act by an agency, shall be placed in a situation where it is impossible to discontinue the abnormal activity unless there is any director by the time of the appointment of the succeeding director. This can be seen as being when there is an urgent circumstance under Article 691 of the Civil Act. Thus, even if the term of office expires or the resignation is deemed as a director, the officer may continue to perform his duties until he is appointed (see Supreme Court Decision 9Da4505, Dec. 15, 196).

However, according to the above facts, ○○○ is responsible for the resolution of the board of directors of this case, which postpones the election of the chairman and the chairman of the board of directors of this case, as the defendant’s president and the director at the time. Since the above resolution is null and void, the term of office of the chairman and the director of the board of directors of this case is already expired. In addition, since the defendant’s acting director was appointed and act as the representative body of the defendant as the representative body of the defendant, it is not only an urgent situation to require ○○ to perform his duties as the chief director, but also it seems inappropriate to perform his duties. Thus, it is reasonable to consider that ○○○ is not in the status of the defendant’s director and the chief director, and as long as the defendant is dissatisfied with this, it is a benefit to seek confirmation.

4. Conclusion

The plaintiff's claim is reasonable, and all of them are accepted, and it is so decided as per Disposition.

Judges of the presiding judge;

Judges Lee Ho-soo

Judges Kim Jong-sub

1) A person who intends to operate freight trucking business (amended by Act No. 15743, Aug. 14, 2018) and Article 3(1) of the Trucking Transport Business Act

The Minister of Land, Infrastructure and Transport shall obtain permission according to the classification in each of the following subparagraphs:

1. Ordinary cargo transport business: Transport of cargo by using more than the number of trucks prescribed by Presidential Decree within the scope of not less than 20 units;

Projects

2. Personal cargo transport business: a business transporting cargo by using one truck, which is prescribed by the Presidential Decree.

Addenda (Law No. 15602, 17 January 2018)

Article 1 (Effective Date) This Act shall enter into force on July 1, 2019.

Article 9 (Transitional Measures against Association, etc.) Trucking transport business for which authorization for establishment has been obtained for each type of business under the previous regulations at the time this Act enters into force.

Notwithstanding the provisions of Article 3 (1), the previous provisions shall apply to the Association and federation: Provided, That within two years from the enforcement date of this Act;

The registration of incorporation shall be filed at the seat of the main office with authorization from the Minister of Land, Infrastructure and Transport for each type of business modified pursuant to the amended provisions of Article 1 (1) 2.

section 23.

2) Article 48 (Establishment of Association) of the Cargo Transport Business Act

(1) A transportation business entity shall obtain authorization from the Minister of Land, Infrastructure and Transport to promote the sound development of cargo transport business and the common interests of transport service providers.

(h) An association may be established by sector or sector of freight transport business, or by Special Metropolitan City, Metropolitan City, Special Self-Governing City, Do, or Special Self-Governing Province

(6) Qualifications for membership, the fixed number and method of election of officers, and other matters necessary for the operation of the Association shall be stipulated by the articles of association.

(7) Any modification of the articles of incorporation shall be subject to authorization of the Minister of Construction and Transportation.

(3) Matters necessary for supervising the matters to be entered in the articles of association of the Association shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.