이사선임결의 취소판결과 부실등기의 성립 － 대상판결 : 대법원 2004.2.27. 선고 2002 다19797 판결 －

Abstract

【Abstract】 The Supreme Court Judgment to Void the Election Resolution in Shareholders' Meeting and the Effect of Registration by the Application of False Facts Jae-Bum Kim In recent case the Supreme Court held that 1. when a court decided to void the election resolution of shareholders' meeting, then the chief director who had been elected by the directors composed on that resolution would loose his or her status retroactively to the resolution time and the acts of chief director which were done before that decision become void, 2. even the resolution would become void retroactively from the time of resolution, the third party who made a contract with the chief director can be protected by the application of Commercial Law § 39. In that case a chief director was elected through the insufficient quorum of resolution and he had a contract with some one. Through the contract corporate real estate was finally transferred to defendant. After the deal the legal director sued to void the resolution and to recover the corporate real estate. The Supreme Court decision has some irrational points, but rational in the sense that the innocent third party was protected. The decision is made first since the article of Commercial Law(§376) was amended in 1995. The article has been amended to permit a court to construe the article to the effect that the decision of voiding resolution has retroactivity. The lower court stated that the court decision on defectively formed resolution has no retroactivity, but the Supreme Court definitively stressed that the decision has retroactivity. The Court stated when a court decide to void the resolution, the section 39 can apply to the third party. According to this section, registration applicant who applied for registration by a false fact should be responsible for the third party who believe the content of registration to be correspond to the fact. I think that the Supreme Court didn't reason fully in that one requirement of the section 39 was not mentioned. That is the requirement of registration applicant's responsibilities. This case is not typical one to which the section 39 applies, however the section can be applied in the point that the legal chief director had knowledge of falsely registering through defectively formed resolution or of the existence of such registration. He was responsible for that registration and the registration became the base of the belief of third party when he made a contract with the illegally elected chief director whose name and office had been formally registered.