회사의 조직에 관한 소송과 주주총회결의 취소소송의 관계

Abstract

After an act related to the organization of a company, such as a merger, issuance of new shares, reduction of capital. etc, takes effect, its effect can be contested only through a lawsuit stipulated in the Commercial Act. On the other hand, for relatively minor defects among the defects in the resolution of the general shareholders' meeting, the resolution’s validity can be challenged by filing a lawsuit for revocation of resolutions. There is no disagreement that lawsuits regarding the effectiveness of actions related to the organization of a company and lawsuits for revocation of resolutions are lawsuits of formation(Gestaltungsklage). However, the defects in the resolution of general shareholders’ meeting are a factor for cancellation of lawsuits for revocation of resolutions and a nullified factor of lawsuits regarding the effectiveness of actions related to the organization of a company at the same time. Because a general shareholders’ meeting is one of the procedures of actions related to the organization of a company. The resolutions of general shareholders' meetings can be invalidated only by lawsuits. Additionally, the effect of actions related to the organization of a company can be invalidated only through a lawsuit. If so, shouldn't the plaintiff file a lawsuit to invalidate the effect of actions related to the organization of a company after the lawsuit to cancel the general shareholders' meeting resolution is confirmed as cancellation? The majority opinion and the Supreme Court take the position that a lawsuit for cancellation of general shareholders' meeting resolutions are absorbed into a lawsuit to invalidate the effect of actions related to the organization, and that only a latter lawsuit should be filed without filing a former lawsuit. However, the above the majority opinion and the Supreme Court's position are legally problematic because they ignore the characteristics of formative litigation. Through this study, we critically examine the majority opinion and the Supreme Court's opinion. And this study will prove that the minority opinion that the former lawsuit and the latter lawsuit should be merged is correct.