[이사장및이사선임대의원총회결의부존재확인][공2003.7.1.(181),1421]
[1] Whether an acting director of an incorporated association's acting director's lawsuit against an incorporated association from the individual's standpoint constitutes a conflict of interest under Article 64 of the Civil Code (affirmative)
[2] The case holding that an appeal filed by the legal representative of the first instance court without a power to file an appeal without going through the taking-over procedure under the suspension of the litigation procedure is unlawful
[1] Since the representative director of an incorporated association appointed by the provisional disposition of the suspension of performance of duties such as the chief director bears similar rights and duties to the above corporation, Article 64 of the Civil Code applies mutatis mutandis to the matters that conflict with interest between the above corporation and the corporation, and where the representative director of the said corporation files a lawsuit against the corporation as the plaintiff from the individual's standpoint, it constitutes a conflict of interest under Article 64 of the Civil Code.
[2] The case holding that an appeal filed by the legal representative of the first instance court without a power to file an appeal without going through the taking-over procedure under the suspension of the litigation procedure is unlawful
[1] Article 64 of the Civil Code / [2] Articles 90(2), 235, and 238 of the Civil Procedure Act
Plaintiff 1 and 13 others (Law Firm Gazel, Attorneys Lee Jong-il et al., Counsel for the plaintiff-appellant)
Gyeonggi-do Individual Freight Trucking Association
Defendant joining the Defendant (Attorney Yoon-soo et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2001Na58773 delivered on November 7, 2002
The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.
1. According to the records, the defendant is a non-profit incorporated association composed of those who have acquired individual freight trucking services from each Si/Gun under the jurisdiction of Gyeonggi-do or those who intend to operate individual freight trucking services. The plaintiffs filed the lawsuit of this case with the Suwon District Court, which is the first instance court, on September 16, 200. The revised claims of this case are "36 persons, including the defendant's representative decision on December 20, 199 and the defendant's intervenor's representative decision on October 1, 200, who were elected by the second instance court, were not qualified as representatives, and the defendant's representative decision on October 8, 200 as well as the defendant's 1's representative's representative decision on October 20, 200 as the defendant's representative's second instance court's representative's 10th decision on the defendant's petition of appeal, and the defendant's representative decision on October 8, 2000 as the defendant's representative's 10th decision.
2. According to the reasoning of the judgment below, the court below dismissed the appeal of this case on the ground that the defendant's appeal is unlawful, since the defendant's appeal of this case was dismissed on the ground that the defendant's appeal of this case was unlawful, since the defendant's appeal of this case was dismissed on the ground that the defendant's appeal of this case was dismissed on the ground that the defendant's appeal of this case was unlawful.
3. In light of the above circumstances of the lawsuit in this case, the defendant joining the defendant (hereinafter referred to as "the defendant joining the defendant") who is the chief executive officer to represent the defendant in this case, lost his power of representation by suspending his duties under the above provisional disposition. This constitutes grounds for suspending litigation procedures provided in Articles 235 and 64 of the Civil Procedure Act, but at the time the defendant joining the defendant was legally appointed on behalf of the defendant, so the procedure in the court of first instance is not suspended pursuant to Article 238 of the Civil Procedure Act. However, since the defendant joining the defendant's representative representative appointed by the above provisional disposition has the status of plaintiff 1, and such representative bears the rights and duties similar to that of the defendant, Article 64 of the Civil Procedure Act applies mutatis mutandis to the matters that conflict with the interests of the defendant's chief executive officer, and since the defendant's representative's failure to represent the defendant's chief executive officer in this case does not lose his power of representation in the court of first instance as to the lawsuit in this case, the defendant joining the defendant's defendant's defendant's appeal cannot be justified.
The lower court’s decision that limited the suspension status of litigation procedures is inappropriate, but the appeal of this case was dismissed on account of its illegality is justifiable in its conclusion, and contrary to the allegations in the grounds of appeal, it cannot be said that there was an error of law that affected the conclusion of the judgment, such as: (a) the attorney’s right to appeal of the first instance court was corrected later; (b) the intervenor’s failure to make a judgment on the principal order of the court; or (c) the intervenor’s selection of Plaintiff 1 as the defendant’s chief director’s representative among the above provisional disposition
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing appellant. It is so decided as per Disposition by the Intervenor joining the defendant.
Justices Lee Yong-woo (Presiding Justice)