(영문) 제주지방법원 2021.3.26. 선고 2019가합12066 판결

1. Each resolution on the defendant's "case of change of purpose", "case of change of head of director and auditor", and "case of payment of retirement allowances" shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

Each resolution concerning the appointment of directors who are appointed as an in-house director shall be revoked at a general meeting of shareholders of March 31, 2019 by the Defendant as of the addition of business items, payment provisions of retirement allowances, appointment of directors and auditors, and deletion of unnecessary provisions) and the appointment of directors who are appointed as an in-house director. The Defendant’s general meeting of shareholders of March 31, 2019 confirmed that there was no resolution regarding the dismissal of A’s auditor at a general meeting of shareholders.

Reasons

1. Basic facts

A. The Plaintiff is a shareholder of the Defendant and a person whose term of office expired on March 31, 201, since he/she assumed office as the Defendant’s auditor on March 19, 2001.

B. On March 15, 2019, in order to convene a general meeting of shareholders, the Defendant sent a notice of convening a general meeting of shareholders, stating the case of reporting the settlement of accounts, the case of appointing directors, and the case of amending the articles of incorporation, to shareholders. On March 31, 2019, the Defendant held the general meeting of shareholders (hereinafter referred to as “instant general meeting of shareholders”).

C. At the time of the general meeting of shareholders of this case, the shareholders of the defendant were C(48.5%), the plaintiffs (12.5%) (12.5%) and D, F, G, H, I (7.8%) and the remaining shareholders, other than the plaintiff, are both children and the shares of C. The shareholders of the above shareholders were both children and the shares of C. The remaining shareholders, other than G and F, were present at the general meeting of shareholders of this case. G and F did not delegate the exercise of voting rights to D and H, respectively.

D. The total number of the Defendant’s shares is 40,000 shares, and the total number of the shares per se inherent in the shareholders present and the number of shares per se delegated by the shareholders present at the meeting was 40,000 shares.

E. The general meeting of shareholders of this case adopted each resolution as shown in the attached list as to the case of approval of the statement of accounts, the case of change of purpose, the case of change of the number of directors and auditors, the case of change of officers, and the case of the payment of retirement allowances.

F. On October 20, 2020, C and D, a representative director who was the Defendant’s inside director, retired from office directors on October 20, 2020.

G. The provisions of the defendant's articles of incorporation relating to each resolution made at a general meeting of shareholders of this case are as follows.

Article 17 (Convocation) The regular general meeting of shareholders of a company shall be convened within three months from the day following the end of the business year, and the extraordinary general meeting shall be convened as necessary.The representative director shall be the chairman of the general meeting.However, the other director appointed by the board of directors shall be the chairman of the general meeting. The resolution of the general meeting (the quorum of the general meeting) of Article 19 shall be the majority of the voting rights of the shareholders present at the meeting and the number of not less than 1/4 of the total number of issued and outstanding shares, except as otherwise provided in the Acts and subordinate statutes and the articles of incorporation.The shareholders of Article 20 (Exercise of Voting Rights) may exercise their voting rights by proxy. The number of directors of the company (the number of directors and auditors) of Article 22 (Appointment of Directors) of Article 25 shall be two or more, and the number of auditors shall be three years after their inauguration.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, 6, Eul evidence Nos. 2, 3, 4 (including each number), 8, 9, 11 (including additional number), 12-1, 13, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

Each resolution of the shareholders' general meeting of this case has the same defects as either the convocation procedure or the resolution method, and the resolution on the "case of the amendment of the articles of incorporation, and the case of the appointment of directors" of each resolution must be revoked. In addition, the resolution on the "case of dismissal of auditors" has the following defects in addition to the above defects. Thus, the resolution on the "case of dismissal of auditors" has the same defects, so it is so serious that the resolution could not be deemed to exist. Therefore, there has been no such defects.

(a) Illegal proceedings by a general meeting of shareholders;

C, the representative director of the Defendant’s articles of incorporation, shall be the president of the general meeting of shareholders, and the president of the general meeting of shareholders shall directly proceed, and the general meeting of shareholders of this case was conducted by D, not C.

B. A defective intra-company director D passed an agenda item without properly verifying the consent of the participants in the general meeting of shareholders in this case, which is deemed as consent and infringed upon the voting rights of the plaintiffs and participants.

Article 433(2) of the Commercial Act provides that the resolution of the general meeting of shareholders shall be entered together with the summary of the agenda at the time of the amendment of the articles of incorporation (Article 433(2) of the Commercial Act), and the notice of convening the general meeting of shareholders of this case does not state all the specific contents of the amendment.

D. Removal of shareholders from office without resolution

The defendant formally decided to retire the plaintiff at the expiration of the term of office. However, even if a retired auditor is appointed pursuant to the provisions of the Commercial Act, in spite of the rights and obligations of the auditor until the new auditor is appointed, inside directors D does not appoint a new auditor, and unilaterally decided to retire the plaintiff without going through the proper resolution procedure. Thus, this is a substantial dismissal of the plaintiff in violation of Articles 415 and 386 of the Commercial Act and the articles of incorporation.

3. Determination

(a) Illegal proceedings by a general meeting of shareholders;

According to the statement in Gap evidence 6, the representative director Eul, who is the chairperson of the general meeting of shareholders under the defendant's articles of incorporation, made the intention of opening the meeting and delegated the proceedings to Eul for the deliberation of the case, etc. However, in full view of the statement in Gap evidence 6, Eul evidence 11-1, Eul was old as 1940s, Eul continued to participate in the meeting, not in the place of convening the general meeting of shareholders during the resolution of this case, and it was recognized that Eul continued to participate in the meeting, and there is no clear ground that the chairperson of the defendant's articles of incorporation should directly proceed with the whole process of the general meeting of shareholders, and the director D without permission contrary to the direction of Eul, the chairperson of the general meeting of shareholders.

In addition to the fact that there are no other data to see that it is unlawful to delegate the progress of the general meeting of shareholders of this case to D. This part of the Plaintiff’s assertion is without merit.

B. Defects in the consent procedure

According to the above evidence No. 6 of this case, since D, who had been in progress at the time of the general meeting of shareholders of this case, her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her's her her her her her her her her' her her her her her her her her her her's her her her her her her her' her her her her her her her her her her her her her her her her her she's her her her her her she's her her her her her her her her' her her her' her her her her her

According to the above facts of recognition, it is difficult to view that D, which has proceeded with the intention of the general meeting of shareholders of this case, violated the voting rights of the plaintiff and other participants (in the case of a partial agenda, only I expressed his/her consent, but there is no other evidence to recognize it differently. Therefore, the plaintiff's allegation in this part is without merit.

C. Defect in convening a general meeting of shareholders

1) The summary of the agenda concerning the amendment of the articles of incorporation shall be stated in the notice for convening a general meeting of shareholders pursuant to Article 363 of the Commercial Act (Article 433(2) of the Commercial Act). If the amendment of the articles of incorporation is the subject matter of the meeting, the notice for convening a general meeting of shareholders shall not be sufficient to stipulate the subject matter of the meeting, i.e., “the case of amending the articles of incorporation.” In addition, the notice for convening a general meeting of shareholders shall be stated in the deleted or added type of business, the amount and standard thereof, if the amendment of the purpose is changed,

According to Gap evidence No. 5, the notice of convening a general meeting of shareholders of this case sent by the defendant is merely the case of "the modification of the articles of incorporation," but does not contain the specific contents of the articles of incorporation to be amended. Accordingly, there is a defect that does not state the summary of the bill on the amendment of the articles of incorporation, the case of the change of the purpose of the general meeting of this case including the amendment of the articles of incorporation, the case of the change of the number of the directors and auditors, and the case of the payment clause of retirement allowances, and such defect is in violation of the convocation procedure of the general meeting of shareholders, and therefore,

2) Pursuant to Article 382-2(1) of the Commercial Act, a minority shareholder may demand that a director be appointed by means of a concentrated vote when a general meeting is convened for the purpose of appointing two or more directors, in order to guarantee the right to demand a concentrated voting by such minority shareholder. In the event that a stock company that does not exclude a concentrated voting in the appointment of directors in the articles of incorporation does not necessarily state the number of directors to be appointed by the articles of incorporation. Accordingly, if a stock company that did not exclude a concentrated voting by the articles of incorporation states that "the case of appointing directors" as the subject matter of a general meeting of shareholders is stated in the notice of convening a general meeting of shareholders, it shall be deemed that the appointment

However, the defendant's articles of incorporation do not exclude the centralized voting system for the appointment of directors, and the defendant stated only on the notice of convening the general meeting of shareholders of this case as "cases of appointing directors" rather than "cases of appointing two directors". Accordingly, according to the above legal principles, there are defects in convening a notice of convening a general meeting of shareholders of this case as to the number of directors for concentrated voting, and also violated the convening procedure of the general meeting of shareholders, and therefore, it constitutes grounds for revocation of the resolution under Article 376 of the Commercial Act.

3) Determination as to the Defendant’s assertion of discretionary dismissal

A) Defendant’s assertion

In this regard, the defendant asserts that the cancellation of the above bill even if there is any defect that does not state the above bill's guidelines, is not beneficial to the defendant or shareholders, while it causes damage to the defendant or causes damage to the safety of transaction, so the discretion should be dismissed in accordance with Article 379 of the Commercial Act.

B) Relevant legal principles

Article 379 of the Commercial Act, stating that a claim may be dismissed at the discretion of the court in a lawsuit seeking the revocation of a resolution of a general meeting of shareholders, aims to prevent the abuse of a lawsuit seeking the revocation of a resolution by cancelling a resolution from causing damage to the company or undermining the safety of general transactions and preventing the abuse of a lawsuit seeking the revocation of the resolution, in cases where the resolution was already executed regardless of the defect in the procedure of resolution, since the resolution was not an interest to the company or shareholders even if the resolution

(See Supreme Court Decision 2001Da45584 delivered on July 11, 2003, etc.)

C) Determination on the amendment of articles of incorporation

Examining the following circumstances revealed in the facts acknowledged earlier in light of the aforementioned legal principles, the circumstances alleged by the Defendant alone cannot be deemed inappropriate to revoke each resolution containing the amendment of the above articles of incorporation. Therefore, the Defendant’s assertion is rejected.

① The contents of the agenda, including any changes in the articles of incorporation, in the resolution of the general meeting of shareholders of this case, are important matters related to the Defendant’s operation as follows: (a) addition to the Defendant’s intended business; (b) change the number of directors and auditors; and (c) change the amount of retirement allowances.

② Since the amendment of the articles of incorporation is to revise the fundamental rules on the organization and activities of the company, the shareholder should have an opportunity to review what provisions of the articles of incorporation are altered. However, as seen above, since the specific guidelines on the agenda including the amendment of the articles of incorporation were not specified in the notice on the convocation of the general meeting of shareholders, the data on the agenda was not sufficiently provided by the defendant. This is a minor defect because the procedure for convening the general meeting of shareholders or the method of resolution under Article 376 of the Commercial Act is contrary to the Acts and subordinate statutes.

③ It is difficult to view that the cancellation of the above resolution would impair the safety of general trade because it regulates internal legal relations for the operation of the Defendant’s business, changing the number of directors and auditors, and changing the amount of retirement allowances. There is no other evidence to deem that there would be irreparable damage to the Defendant or the Defendant’s shareholders by revoking the above resolution.

D) Determination on the appointment of director

According to the evidence No. 12-2 of the defendant's general meeting of shareholders as of March 31, 2016, C and D are acknowledged to have been reappointed as directors, and the plaintiff was reappointed as auditors. The term of office of directors and auditors under the defendant's articles of incorporation is three years, and the fixed number of directors is at least two. Thus, the plaintiff could have sufficiently anticipated that two or more directors should be appointed at the general meeting of shareholders of this case. Thus, even if the defendant did not state the number of directors in the notice of convening the general meeting of shareholders, it cannot be said that there was an obstacle to exercising the right to demand intensive voting.

Ultimately, the defect in this part of the convening procedure cannot be deemed to be significant, and in light of the relationship and equity ratio between the plaintiff and the remaining shareholders, even if there was no such defect, it seems that there was no particular influence on the result of the resolution, while the cancellation of the resolution for the appointment of directors would undermine the safety of general transactions and cause damage to the company. Therefore, it is inappropriate to cancel the resolution for the appointment of directors from among the shareholders' general meeting

Therefore, this part of the plaintiff's claim is reasonable to be dismissed at discretion under Article 379 of the Commercial Act. Therefore, the defendant's argument to the same purport is reasonable, and this part of the plaintiff's claim is therefore without

D. The Plaintiff’s assertion of dismissal without the resolution of the shareholders was based on the premise that the resolution of dismissal was made against the Plaintiff who was an auditor, and that there was a serious defect to the extent that this resolution could not be deemed to exist.

The fact that the plaintiff, who was an auditor, among the cases where the general meeting of shareholders of this case was adopted, was included in the fact that the term of office expires and that the plaintiff would retire from office. However, unless the duty to act is acknowledged to act for the plaintiff to serve as an auditor, it is only meaningful to confirm the expiration of the term of office of the plaintiff, and it does not fall under the "resolution with the legal effect of dismissal of the plaintiff." Furthermore, even if the plaintiff has been in office for several years or the term of office of the plaintiff has not expired, it does not require that the plaintiff be reappointed as an auditor.

Therefore, unless there is no evidence to prove that the resolution of retirement against the plaintiff does not actually constitute a resolution of dismissal, and otherwise there is a resolution of dismissal against the plaintiff, this part of the plaintiff's assertion on this premise is without merit without further review (Provided, That as long as the defendant amends the articles of incorporation to allow not to have an auditor as seen earlier and revokes the resolution of the general meeting of shareholders of this case, the plaintiff still has the rights and duties as auditor even though the term of office expires until the defendant's auditor is newly appointed and appointed).

(e) Cases of removal of unnecessary provisions;

After considering the premise that the resolution of the general meeting of shareholders of this case includes the unnecessary clause deletion, the Plaintiff asserts to the effect that the unnecessary clause deletion should also be cancelled due to the defect in the convocation procedure or resolution method.

However, according to the above evidence, it is recognized that: (a) D does not refer only to the case of deletion of an unnecessary provision while proceeding with the intention of the general meeting of shareholders of this case, and did not refer it to voting; and (b) the minutes of the general meeting of this case contain no indication that the case of deletion of an unnecessary provision was resolved.

If so, there was a resolution on the removal of the unnecessary provisions at the general meeting of shareholders of this case. It cannot be said that there was no other evidence to prove that the above resolution had been made. Therefore, this part of the plaintiff's assertion is without merit.

4. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant judge;

Judges Park Jong-ro

Judges Yellow Mamomo

Note tin

1) The minutes of the Defendant’s shareholders’ meeting indicate “cases of change of purpose,” “cases of change of number of members of directors and auditors,” and “cases of payment of retirement allowances” as recorded in the minutes.