부실등기의 성립요건 -이사를 선임한 주주총회결의의 하자를 중심으로 -

Abstract

The purport of the Korean Commercial Code article 39 is to protect a third person who believe the registration in good faith which is different from the truth. There are some problems on making an application of Korean Commercial Code article 39 when the resolution of the shareholder's meeting is rescinded by judgment or declared non-existence by a court. When a court decides to rescind the resolution of the shareholder's meeting on election of directors, the directors loose their status retroactively and the registration on the election of chief executive officer based on the rescinded resolution also becomes different from the truth. But a third person who believes the registration in good faith could be protected by Korean Commercial Code article 39 and the corporation could not assert that the registration on the election of the chief executive officer is invalid. In this case there is a expressed intention of corporation to elect directors although the resolution becomes invalid retroactively by judgment and the corporations itself is responsible for the registration which is base on the rescinded resolution On the contrary when there is a declaratory judgment on non-existence of the resolution of the shareholder’s meeting on election of directors based on the fake minutes, there is no expressed intention of corporation to elect directors even though the resolution is forged by a controling shareholder who has 50% of shares. Thereafter the corporations could insist that the registration on the election of the chief executive officer base on the non-existed resolution is invalid. The Supreme Court has the same opinion on this matter. But the Supreme Court did not explain why the corporation was responsible for the registration which was different from the truth when the resolution of the shareholder’s meeting on election of directors was rescinded by the court. The more concrete explanation by the Supreme Court would be expected on this case.