주주총회의 이사·감사 선임결의의 성질과 효력 - 대법원 2017. 3. 23. 선고 2016다251215 판결을 중심으로 -

Abstract

The recent Supreme Court sentenced on March 23, 2017(Supreme Court 2016 Da 251215 ruling) judged that the acquisition of the status of directors and auditors was recognized only by a resolution at the general shareholders' meeting, so it was not necessary to sign a separate appointment contract with the CEO. The conclusion that directors and auditors are acquired by the resolution of the appointment of the general shareholders' meeting is valid in that it guarantees the appointment of directors at the general shareholders' meeting by excluding the involvement of the representative director in the appointment of directors. In addition, the fact that the authority to appoint directors belongs to the unique authority of the general shareholders' meeting and does not fall within the scope of the representative authority is meaningful in that it clarifies the scope of authority between agencies. However, the necessity of guaranteeing the authority of the general shareholders' meeting presented as the basis for this judgment cannot be a sufficient explanation for the fact that the conclusion of a commissioned contract is not necessary in obtaining the position of a director in that the relationship between the director and the company is a commissioned relationship. Whether it is necessary to conclude a delegation contract in acquiring the position of a director, it is necessary to draw a conclusion by examining the nature and effect of the appointment act under the law and examining the meaning of appointment and delegation. Since the law separates appointment and delegation, they must be viewed differently. In the case of obtaining a certain position by appointment, it can be seen that the fact that the provisions on delegation are applied mutatis mutandis does not premise that a delegation contract is concluded. This is because, when a delegation contract is concluded, the provisions on the delegation contract naturally apply. In the case of civil law regulations, if a person wants to unilaterally grant a certain status as prescribed by the law, there are regulations on appointment. According to this, the act of appointment can be regarded as a single legal act that grants the unilateral status determined by the law on the premise of the consent of the appointed person. The Commercial Law stipulates that directors are elected by a resolution of the general shareholders' meeting, and the regulations on delegation are applied mutatis mutandis to directors. Therefore, the resolution of appointment at the general shareholders' meeting should be viewed as a one-sided act of granting the status of directors and auditors on condition of consent. Therefore, if there is a resolution for appointment at the general shareholders' meeting and the prior or post consent of the appointed person, it is reasonable to assume that the status of directors is acquired even without the conclusion of a delegation contract.