주주총회 결의취소와 부존재확인 사유 간 구분 기준의 정립 방안

Most lawsuits contesting defects in shareholder meeting resolutions under the Korean Commercial Act concern flaws in convocation procedures and resolution methods. The Commercial Act classifies procedural defects as grounds for an action for confirmation of non-existence if they are substantial. Otherwise, they are treated as grounds for an action for rescission. In cases of rescission, the Act restricts the ability to challenge the resolution’s validity through a two-month statute of limitations, limitations on standing, and the possibility of discretionary dismissal. While the distinction between these two actions significantly impacts the legal rights of the parties involved, the statutory language remains ambiguous, and judicial precedents have yet to establish a definitive legal doctrine for their classification. The purposes of the lawsuit system regarding resolution defects are to: ① ensure resolutions reflect shareholder intent according to shareholding ratios; ② consolidate legal relations through the recognition of erga omnes effects; and ③ protect counterparties and promptly stabilize legal relations through procedural constraints in rescission actions. Among these, erga omnes effects apply to both actions, and counterparty protection is addressed through legal doctrines of appearance, such as apparent representative directors or untrue entries in the commercial register. Therefore, the criterion for distinction must be whether the collective will of the shareholders in general shareholders meeting was distorted by the procedural or methodological defects. Defects in convocation notices or voting rights with regards to individual shareholder should not hastily be deemed grounds for non-existence; rather, the judgment should hinge on whether the distortion affected the collective decision-making process. Based on this analysis, this paper proposes a framework for distinguishing between the grounds for the two types of actions according to the following criteria. ① First, even when defects exist in the convocation procedure or resolution method, cases where the outcome of the resolution would not have changed compared to a hypothetical scenario without such defects should be classified as grounds for rescission, with active consideration given to discretionary dismissal; this is justified by the fact that the collective will of the shareholders was not distorted and a ratification resolution remains possible at any time. ② Second, if there is even a slight possibility that the resolution outcome could have changed in the absence of the defect, the matter should be treated as grounds for rescission, yet discretionary dismissal should be reviewed only in a limited manner because the potential distortion of the collective shareholder will cannot be ruled out. ③ Finally, it is appropriate to regard a defect as grounds for non-existence when the procedural or methodological flaws are so severe that it is difficult to acknowledge the very formation of an approval resolution, or when it is relatively clear that the outcome of the resolution was altered due to the defect. Furthermore, in cases of so-called “non-resolution” (Nichtbeschluß) such as when minutes are prepared without any actual meeting or when minutes are forged by an individual unaffiliated with the company it is desirable to bring such cases under the action for confirmation of non-existence under the Commercial Act, rather than treating them as subjects of a general action for confirmation under the Civil Procedure Act.