(영문) 광주지방법원 2013.12.26.선고 2010구합4605 판결

The Defendant’s decision to revoke the location permit on August 2, 2010 with respect to B corporation on August 2, 2010 regarding the location permit 66,116 meters for the leased site in the 1-level area behind the Gwangjuyang Port Complex (Free Trade Zones).

Reasons

1. Details of the disposition;

A. The Plaintiff is a shareholder of B Co., Ltd. (hereinafter “B”).

B. On September 11, 2007, B filed an application for occupancy permit with the Defendant (hereinafter referred to as the “Defendant”) for a free trade zone location permit with respect to the rear ocean ocean ocean logistics complex designated as an area subject to free trade. On September 11, 2007, B applied for a free trade zone occupancy permit with the project name stone processing and distribution, investment size (capital) KRW 100,000,000. The Defendant permitted the occupancy of a free trade zone pursuant to Article 11 of the former Act on Designation and Management of Free Trade Zones.

C. On July 28, 2010, B filed an application with the Defendant for the revocation of the approval of the occupancy in a free trade zone (hereinafter “instant application”) while the Defendant could no longer carry out the work under the project plan, which B had already submitted due to the reasons such as auction, etc.

D. Accordingly, on August 2, 2010, the Defendant revoked occupancy permit upon the instant application (hereinafter “instant disposition”).

E. Relevant circumstances

1) On July 28, 2008, the Plaintiff filed a lawsuit against B seeking confirmation of invalidity of the resolution (hereinafter referred to as the “resolution of the board of directors”) that dismissed the Plaintiff from the representative director and elected D as the representative director on July 23, 2008 at the meeting of the Gwangju District Court 2008Gahap2280, the Plaintiff dismissed the Plaintiff’s claim on October 9, 2008.

2) Accordingly, on October 27, 2008, the Plaintiff appealed from the Gwangju High Court Decision 200847108 on October 27, 2008, and on September 30, 2009, the Court of Gwangju High Court rendered a judgment that "the resolution of the board of directors of the case is invalid."

3) Accordingly, on October 23, 2009, B filed an appeal by Supreme Court Decision 2009Da86918 Decided 23, 2009, and the Supreme Court reversed the judgment and remanded the case to the Gwangju High Court on the ground that the Plaintiff, a director of B, filed a lawsuit against B on July 28, 201, did not indicate as the representative auditor who has the authority to represent B in connection with the lawsuit pursuant to Article 394 of the Commercial Act, and if the lawsuit was in progress without indicating as the representative of the company, the court below stated as the representative auditor that the complaint was corrected and ordered the auditor of B to deliver the corrected copy of the complaint to B.

4) On May 4, 2012, the Gwangju High Court rendered a judgment that confirmed the invalidity of the resolution of the board of directors of this case by the Gwangju High Court 201144000, after taking measures pointed out in the above Supreme Court decision.

5) Accordingly, B filed an appeal with Supreme Court Decision 2012Da48565 Decided May 22, 2012, which is currently pending in the final appeal.

[Reasons for Recognition] Gap evidence Nos. 11, 12, 20, 21 (including paper numbers), Eul evidence Nos. 1 and 4, the purport of the whole pleadings

2. The plaintiff's assertion

A. D had his Dong E hold a meeting of the board of directors in violation of the convocation procedure, even though he did not have the authority to convene the board of directors, and the resolution of the board of directors was made. F, the representative director of B, was a joint tort, such as making the instant application against B’s interest in order to deduct B’s management right with D, which became the representative director of B due to the above unlawful procedure.

B. F is the representative director of B and must do only the act falling under B’s regular business, and if the act falls under B’s regular business activity, it must obtain permission from the court. The instant application constitutes an act other than the act falling under B’s regular business activity, and thus, it must obtain permission from the court. However, F did not obtain permission from the court.

3. Judgment on the Defendant’s main defense

A. The defendant's main defense

1) The Plaintiff is merely a shareholder of B and thus is not eligible to seek the revocation of the instant disposition.

2) The instant disposition is merely an administrative act that accepts B’s application for the revocation of occupancy permit (the instant application), and it does not constitute an administrative act that the Defendant orders B to create new rights or bear obligations. Thus, the instant disposition does not constitute an object of revocation lawsuit.

B. Determination

1) Generally, a shareholder of a corporation has a de facto or indirect interest in an administrative disposition against the corporation, and thus, he/she has no standing to sue for revocation of the disposition. However, even if the disposition causes a serious impact on the shareholder’s status, such as ultimately retirement of shares or extinction of shareholder’s rights to the corporation, given the nature of the disposition, it cannot be expected that the corporation concerned does not dispute any other disposition, and where there is no other method to remedy the shareholder’s status, or where the corporation is dissolved and liquidated through the revocation of authorization and permission for its business, the procedure is already planned at the time of the disposition, and even if the subsequent procedure is revoked, in exceptional cases where the corporation cannot resume its business conducted before, as long as the validity of the disposition is maintained, the shareholder has a direct and specific legal interest in the disposition (see, e.g., Supreme Court Decisions 96Nu4602, Dec. 12, 1997; 200Du36275, Dec. 23, 2004).

2) In light of the foregoing, the instant disposition is merely a revocation of the occupancy permit for the hinterland logistics complex of the Gwangju-do Do Do Do Do Do Do Do Do Do dong-dong, and thus, it is difficult to deem that the instant disposition has ultimately caused an impact on the Plaintiff’s status as a shareholder, such as the retirement of shares or extinction of shareholder’s rights to a corporation, and it is difficult to view that B was already scheduled at the time of the instant disposition by revocation, etc. of authorization and permission on business due to the instant disposition, and there is no other evidence to acknowledge otherwise.

Therefore, the plaintiff is not eligible for the plaintiff to file the lawsuit of this case, and the defendant's above main defense is justified.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.