주주총회결의취소의 소와 법원의 재량기각 - 재량기각요건에 관한 우리와 일본판례의 비교를 중심으로 -

Abstract

This article examined the litigation for withdrawal of resolutions of the shareholders' meeting and the discretionary rejection by the court. The Korean Supreme Court has allowed the discretionary rejection in the litigation too broadly. This is due to the sec. 379 of the Korean Commercial Law, which gave the court broad discretion in rejecting the plaintiff's claim. The Korean court is allowed to consider contents of resolutions, situation of company, and everything in rejecting the plaintiff's claim. However this has a risk to sacrifice the ideology of the Commercial Law which aims to protect the shareholders' interests by securing the fairness and the legitimacy of the shareholders' meeting. This article suggested to strengthen the necessary condition for the discretionary rejection in the litigation for withdrawal of resolutions of the shareholders' meeting as a means of advancement of the shareholders' meeting. In this regard, this article compared the rulings of the Korean Supreme Court's with that of the Japanese Supreme Court's, and examined the differences between two courts' rulings. In Japan, 1981 Amendment of the Commercial Law strengthened the necessary condition for the discretionary rejection by the court. As a result of this amendment, the Japanese Supreme Court did not allow the discretionary rejection in recent two cases. Finally, this article suggested that discretionary rejection be allowed by the court, only when (1) the defect of the resolutions are not material, and (2) the defect of the resolutions does not affect the result of the resolution.