[중앙종의회결의무효확인][미간행]
In a case where a member of the decision-making body under the articles of incorporation of the organization files a civil suit that contests the existence or validity of a resolution made by the decision-making body based on his/her status, but dies during the proceeding or after the closure of the arguments at fact-finding proceedings, whether
Article 233 of the Civil Procedure Act
Supreme Court Decision 2003Da64381 Decided April 27, 2004 (Gong2004Sang, 889) Supreme Court Decision 2015Da255258 Decided February 14, 2019 (Gong2019Sang, 731)
Plaintiff (Attorney Hong-soo et al., Counsel for the plaintiff-appellant)
Plaintiff Intervenor 1 and one other
Sejong High Court Decision 201Na1448 delivered on August 1, 201
An independent party intervenor (Law Firm Seog, Attorneys Kim Young-young et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2017Na201207 decided February 22, 2018
The instant lawsuit was terminated upon the Plaintiff’s death on April 22, 2019. The incidental dismissal is dismissed. Costs of the incidental dismissal are borne by an independent party intervenor.
1. If a member of a decision-making body under the articles of incorporation of the organization filed a civil suit claiming the existence or validity of a resolution made by the said decision-making body against the said organization based on his/her position, but died during the proceeding or dies after the closure of pleadings at the fact-finding court, the status as a member of the organization’s decision-making body cannot be deemed as subject to inheritance because the status as a member of the organization’s decision-making body cannot be deemed to be the subject of inheritance because it is in good faith. Thus, the said lawsuit is terminated without the suspension of the principal’s death without any room for taking over the lawsuit (see, e.g., Supreme Court Decisions 2003Da64381, Apr. 27, 2004; 2015
According to the records of the basic certificate bound in the records, the plaintiff can be found to have died on April 22, 2019, which was after the closing of argument in the court below. Thus, the lawsuit in this case was terminated without the suspension of the plaintiff's death.
2. According to the records, while an independent party intervenor (hereinafter referred to as "participating") filed an application for intervention against the plaintiff and the defendant, the first instance court of this case rejected the application for intervention of the intervenor on the ground that it was unlawful because the application for intervention of the intervenor failed to meet the requirements for intervention of the independent party. While the intervenor filed an appeal against it, the intervenor was sentenced to the dismissal of the appeal on February 22, 2018, and the time limit for appeal was limited, the intervenor filed an incidental appellate brief and the incidental appellate brief on August 9, 2019, which was subsequent to the expiration of the time limit for appeal.
Therefore, the part of the judgment of the court below regarding the motion for intervention is already finalized separately from the claim of the principal lawsuit because the intervenor did not file an appeal within the period of appeal (see Supreme Court Decision 91Da4669, 4676, May 26, 1992, etc.). Notwithstanding the defendant's appeal as to the claim of the principal lawsuit, the intervenor cannot file an appeal as to the above part of the motion for intervention. Thus, the supplementary appeal of the intervenor is unlawful.
3. Therefore, with the assent of all participating Justices, the termination of the lawsuit in this case is declared, the appeal against the intervenor is dismissed, and the incidental expenses are to be borne by the losing intervenor. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jae-hyung (Presiding Justice)