주주총회 결의취소의 소의 재량기각

This paper examines the nature and function of an action for the annulment of a shareholders’ resolution in Korean corporate law. This action constitutes a formative right(Gestaltungsklage) under substantive law, serving the dual function of protecting minority shareholders from the dominion of the majority and effectuating judicial control to ensure the legality of corporate resolutions. The legitimacy of the majority-rule principle in corporate decision-making is contingent upon the robust protection of minority shareholders’ rights to participate and vote, which are guaranteed through the action for annulment. It is argued herein that the court’s power of discretionary dismissal, as stipulated in Article 379 of the Korean Commercial Code, must be interpreted restrictively to prevent the erosion of this fundamental shareholder remedy. An overbroad application of discretionary dismissal risks reducing shareholders’ meetings to a mere formality for ratifying the will of the majority, thereby undermining the integrity of corporate governance and diminishing the international credibility of Korean corporations. Drawing on comparative insights from German and Japanese jurisprudence, this paper advocates for a narrower construction of the grounds for discretionary dismissal. Accordingly, discretionary dismissal should be permissible only when a procedural defect is not material and has no bearing on the outcome of the resolution. The materiality of a defect should be assessed by whether it constitutes a significant infringement upon the fundamental rights of shareholders, namely their right to participate in and influence the collective decision-making process. Consequently, discretionary dismissal is impermissible in cases involving grossly unfair procedures or resolutions that contravene the articles of incorporation. Furthermore, a clear distinction must be made for actions initiated in abuse of right - such as those for the ulterior purpose of extorting settlements or seizing management control - which should be dismissed on grounds of bad faith, irrespective of the existence or gravity of the alleged defect. Finally, this paper addresses the procedural effect of a subsequent ratifying resolution. It posits that a valid ratification does not lead to a dismissal on the merits, but rather renders the original action for annulment moot, warranting a dismissal on procedural grounds (Prozessurteil). If the ratifying resolution itself is procedurally flawed, it must be challenged in a separate action within the statutory period. Therefore, a lawsuit is rendered moot by ratification only when the ratifying resolution is legally sound or when the statute of limitations for challenging a defective ratification has expired.