주식회사의 임원선임에 있어서 임용계약의 요부 - 대법원 2017. 3. 23. 선고 2016다251215 전원합의체 판결 -

Abstract

This paper is based on the Supreme Court en banc Decision 2016Da251215 related to whether the appointment contracts are required in the appointment of directors and auditors under the Commercial Act. In this case, the plaintiffs sent a written request to the defendant company to conclude the appointment contracts after the directors and auditors were each appointed by resolution of the general meeting of shareholders, and refused to sign the appointment contracts with the plaintiffs. The plaintiffs, thus, filed a complaint with the Suwon District court on the matter of confirming the status of directors and auditors. In this case, the Suwon District Court concluded that even if the resolutions of the general meeting of shareholders on appointment of directors and auditors, the representative director of the company shall conclude the appointment contracts with the persons to be appointed by the general meeting of shareholders. Nevertheless, the Seoul High Court ruled that the plaintiffs failed to acquire the status of the directors and auditors of the defendant company because the appointment contracts have not been concluded between the plaintiff and the representative director of the defendant company. However, The Supreme Court ruled that if directors and auditors are elected at a general meeting of shareholders, the executive decision on the matter and the acceptance of the persons to be elected shall be regarded as acquiring the status of directors and auditors, regardless of whether the appointment contracts are concluded, and The Supreme Court reversed the decision of the Seoul High Court. In this case, the Supreme Court concluded that, in addition to the election of a general meeting of shareholders in the appointment of directors and auditors, the appointment of directors and auditors shall be permitted only after the appointment contracts between the elected persons and the representative director are concluded. In other words, the Supreme Court has more clearly and effectively guaranteed the right of shareholders to participate in management and oversee the management through the general meeting of shareholders. However, considering that the directors and auditors are registered matters, if the representative director does not conclude the appointment contracts with the elected persons, there are problems such as the problems of registering directors or auditors being elected. In this paper, the validity of the Supreme Court's judgments is examined and suggestions for complementing the deficiencies are suggested.