주주총회결의 취소와 부존재확인의 소에 관한 판례 법리

Abstract

There are four types of corporation actions for revocation or affirming nullity of a general meeting resolution in the Commercial Act. Among them, article 376 action and article 380 action are commonly used in regal practices. The Commercial Act Article 376 provides that if the procedures for the convocation of a resolution are in violation of the relevant acts, subordinate statutes or the articles of incorporation or are remarkably unfair or it the substantivity contents of a resolution are contrary to the articles of incorporation, the shareholders, directors or auditors may file an action or revocation of the resolution, within two months from the date of such resolution. The Commercial Act Article 380 provides that Articles 186 through 188, 190(the main sentence), 191, and 377 shall apply mutatis muntandis to an action for affirming the nullity of a resolution on the grounds that the contents of the resolution adopted at a general meeting are contrary to Acts and subordinate statutes and to an action for affirming the non-existence of a resolution on the grounds that such material defects exist in the procedures for the convocation of a general meeting or in the method of resolution that no resolution of the general meeting is deemed to have been existed. The Supreme Court decides that article 376 action is a kind of constitutive remedy, and article 380 action is a declaration judgement. In spite of this difference, Court decisions don't emphasize the material discrepancy between them, permitting shifting article 376 action to article 380 action, vice versa. This study shows the practical selection criteria between those two actions, analyzing the Court precedents.