Open Decision Ledger · Corporate law & governance
Article 388 as a mandatory rule and consent in place of a shareholder resolution
Supreme Court, July 14, 2022, 2022Da217513 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 부당이득금
Official text on the National Law Information Center
Question
What is the scope of 'directors' remuneration' under Article 388 of the Commercial Act, is that provision mandatory, and in a company with more than one shareholder may the content of a resolution be treated as passed merely because shareholders holding the shares needed for the quorum consented or approved it?
Holding
The scope of 'directors' remuneration' covers every consideration paid as compensation for a director's performance of duty, whatever its name, including annual salary, allowances and bonuses, and Article 388 of the Commercial Act is a mandatory provision protecting the company, its shareholders and corporate creditors. Where one person holds all the shares, a defect in the convening procedure or the absence of minutes does not prevent the content from being found, on evidence, to have been resolved, provided the sole shareholder's intention matches it. In a company with more than one shareholder, that is not so: absent special circumstances, the consent or approval of shareholders holding enough shares to meet the quorum does not make a resolution obvious or equivalent to one.
Points at issue, verbatim
이른바 1인회사인 주식회사의 경우, 주주총회 소집절차에 하자가 있거나 주주총회의사록이 작성되지 않았더라도 1인주주의 의사가 주주총회의 결의내용과 일치한다면 증거에 의하여 그러한 내용의 결의가 있었던 것으로 볼 수 있는지 여부(적극) 및 1인회사가 아닌 주식회사의 경우, 주주총회의 의결정족수를 충족하는 주식을 가진 주주들이 동의하거나 승인하였다는 사정만으로 주주총회에서 그러한 내용의 결의가 이루어질 것이 명백하다거나 그러한 내용의 결의가 있었던 것과 마찬가지라고 볼 수 있는지 여부(원칙적 소극)
Unofficial English translation
In the case of a so-called one-person stock company, whether, even if there is a defect in the procedures for convoking the shareholders' meeting or no minutes of the shareholders' meeting have been prepared, it may be regarded, on the evidence, that a resolution of such content was adopted if the intention of the sole shareholder accords with the content of the resolution of the shareholders' meeting (affirmative), and, in the case of a stock company that is not a one-person company, whether, merely on the ground that shareholders holding shares sufficient to satisfy the quorum for a resolution of the shareholders' meeting consented or approved, it can be regarded as clear that a resolution of such content would be adopted at the shareholders' meeting, or can be regarded as being the same as if a resolution of such content had been adopted (negative in principle)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
특별한 사정이 없는 한, 주주총회의 의결정족수를 충족하는 주식을 가진 주주들이 동의하거나 승인하였다는 사정만으로 주주총회에서 그러한 내용의 결의가 이루어질 것이 명백하다거나 또는 그러한 내용의 주주총회 결의가 있었던 것과 마찬가지라고 볼 수는 없다
Unofficial English translation
Unless there are special circumstances, the mere fact that shareholders holding shares sufficient to satisfy the quorum for a resolution of the shareholders' meeting consented or approved cannot be regarded as making it clear that a resolution of such content would be adopted at the shareholders' meeting, nor can it be regarded as being the same as if a shareholders' meeting resolution of such content had been made
Factors
- 상법 제388조에서 정한 ‘이사의 보수’의 범위 및 위 조항이 강행규정인지 여부
- 주주총회 소집절차에 하자가 있거나 주주총회의사록이 작성되지 않았더라도
- 1인주주의 의사가 주주총회의 결의내용과 일치한다면
- 1인회사가 아닌 주식회사의 경우
- 주주총회의 의결정족수를 충족하는 주식을 가진 주주들이 동의하거나 승인하였다는 사정만으로
Unofficial English translation
• The scope of 'remuneration of directors' as provided in Article 388 of the Commercial Act, and whether the said provision is a mandatory provision
• Even if there is a defect in the procedures for convoking the shareholders' meeting or no minutes of the shareholders' meeting have been prepared
• If the intention of the sole shareholder accords with the content of the resolution of the shareholders' meeting
• In the case of a stock company that is not a one-person company
• Merely on the ground that shareholders holding shares sufficient to satisfy the quorum for a resolution of the shareholders' meeting consented or approved
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2020. 4. 9. 선고 2018다290436 판결(공2020상, 906)
Unofficial English translation
Supreme Court Decision 2018Da290436 decided April 9, 2020 (Gong 2020 Sang, 906)
Decisions referred to
[1][2] 대법원 2020. 6. 4. 선고 2016다241515, 241522 판결(공2020하, 1313) / [1] 대법원 2020. 4. 9. 선고 2018다290436 판결(공2020상, 906)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
In a company with more than one shareholder, what special circumstances would make the consent of shareholders holding the quorum equivalent to a resolution under Article 388 of the Commercial Act?
The remand judgment of the Seoul High Court, once it decides whether special circumstances existed and rules on the remaining grounds of appeal left undecided, will show how this test is applied. Any amendment to Article 388 of the Commercial Act, or a later decision changing the standing of that provision as mandatory, would call for this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 21 January 2022 (2021Na2027773), reasoned that an exception could be found where remuneration was paid in line with the controlling shareholder's intention and a resolution could therefore be treated as having been made. It found that the other two shareholders, Outsider 1 and Outsider 2, had expressly or impliedly consented to paying the defendant remuneration, so that all shareholders holding shares with voting rights had consented and the case was one in which the absence of a resolution was equivalent to one having been passed. It rejected the plaintiff company's claim that the remuneration paid to the defendant was unjust enrichment without legal ground.
Supreme Court standard: The Supreme Court held that Article 388 of the Commercial Act is a mandatory provision, and that the court below had misread it and the law on directors' claims to remuneration, with an error affecting the judgment. A company with more than one shareholder is not the one-person company for which the sole shareholder's matching intention suffices, and the consent of shareholders holding the quorum alone does not show that a resolution would certainly have been passed or stand in for one, absent special circumstances. The Justices unanimously reversed the judgment below and remanded the case to the Seoul High Court, leaving the remaining grounds of appeal undecided.
Distinguishing conditions
- A one-person company, where the sole shareholder's intention matching the content of the resolution is enough on evidence, whatever defects in the convening procedure or the minutes.
- A company with more than one shareholder where special circumstances beyond the consent or approval of quorum-holding shareholders are shown, since the rule applies only where there are no such circumstances.
- Remuneration whose amount the articles of association themselves fix, so that Article 388's requirement of a resolution is not engaged.
Record verification notes
Read the articles of association first: whether they fix the amount of directors' remuneration, and how they require a resolution. Then establish whether the company is a one-person company on the register, and who held shares with voting rights and when, since the Court weighed the consent of shareholders against the quorum requirement. Finally, look for special circumstances beyond mere consent, and check that each payment, whatever its name, was compensation for the performance of duty.
From the official text
Points at issue
[1] 상법 제388조에서 정한 ‘이사의 보수’의 범위 및 위 조항이 강행규정인지 여부(적극) [2] 이른바 1인회사인 주식회사의 경우, 주주총회 소집절차에 하자가 있거나 주주총회의사록이 작성되지 않았더라도 1인주주의 의사가 주주총회의 결의내용과 일치한다면 증거에 의하여 그러한 내용의 결의가 있었던 것으로 볼 수 있는지 여부(적극) 및 1인회사가 아닌 주식회사의 경우, 주주총회의 의결정족수를 충족하는 주식을 가진 주주들이 동의하거나 승인하였다는 사정만으로 주주총회에서 그러한 내용의 결의가 이루어질 것이 명백하다거나 그러한 내용의 결의가 있었던 것과 마찬가지라고 볼 수 있는지 여부(원칙적 소극)
Unofficial English translation
[1] The scope of 'remuneration of directors' as provided in Article 388 of the Commercial Act, and whether the said provision is a mandatory provision (affirmative) [2] In the case of a so-called one-person stock company, whether, even if there is a defect in the procedures for convoking the shareholders' meeting or no minutes of the shareholders' meeting have been prepared, it may be regarded, on the evidence, that a resolution of such content was adopted if the intention of the sole shareholder accords with the content of the resolution of the shareholders' meeting (affirmative), and, in the case of a stock company that is not a one-person company, whether, merely on the ground that shareholders holding shares sufficient to satisfy the quorum for a resolution of the shareholders' meeting consented or approved, it can be regarded as clear that a resolution of such content would be adopted at the shareholders' meeting, or can be regarded as being the same as if a resolution of such content had been adopted (negative in principle)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 상법 제388조, 민법 제105조 [2] 상법 제363조, 제368조, 제373조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger