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In practice, a trustee was used to be appointed in order to call for a
general meeting and conduct the general meeting if the board of directors
or the auditors could not call for a general meeting because their terms had
expired. However, the Court of Cassation later on decided that although the
term of a body has expired, the call for a general meeting due to election of
a new body and the general meeting held for adoption of a decision with
regard to election are deemed to be legal. Therefore, pursuant to Article
403 of the CC, appointment of a trustee for conducting certain transactions
is not required unless there are conditions other than the expiration of the
term of a body. In principle, the duty of the body will continue on a limited
basis for the purpose of the election of new members and for conducting
the current business.
Default of the Legal Representative
The legal bodies of a joint stock company are the general assembly,
the board of directors, and the auditors. The bodies of a legal entity are the
components of the legal entity, just as the organs of a real person are the
components of that person. As is known, joint stock companies can use
their rights and incur debts by its bodies. Thereby, the acts and transactions
of the bodies are deemed as the legal entity’s acts and transactions.
Therefore, the bodies of the joint stock company are not the representatives
of the company. The body does not declare the intent of a third person as
representatives do; on the other hand, the body, as a component of the joint
stock company, declares the intent of the company.
Within the framework of the explanation above, the bodies cannot be
assessed in the scope of Article 426/3 of the CC, and this Article does
not cover the bodies of a joint stock company. The bodies of a joint stock
company are not the legal representatives.
Lacking Bodies
Lacking bodies, which is stipulated in Article 427/4 of the CC
emphasizes the joint stock company being lack of its mandatory bodies.
Pursuant to Article 435, lacking bodies is also a reason for termination. A
variety of possibilities may be taken into account with regard to this matter.
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If a general meeting cannot be called;