[2] Whether a judgment seeking nullification of the resolution by the board of directors has a detailed validity (negative)

[2] Where there is any defect in the resolution of the board of directors of a corporation under the Civil Act, and there is no separate provision in the law as to the cases where the resolution is invalid, the interested party may at any time and by whatever means, assert the invalidity. However, where a lawsuit seeking nullification of the resolution of the board of directors has been filed by the method of the nullity claim and a judgment in favor of the winning party has been rendered, the effect of the judgment shall not be deemed as effective only between the parties

According to the reasoning of the judgment below, the court below rejected the judgment of the court below that the plaintiff foundation elected the non-party 2, who is the director appointed by the board of directors on May 29, 1993, as the president of the board of directors on January 24, 1995 with respect to the defendant's principal defense that the lawsuit of this case should be dismissed as being brought by non-party 1, who is not a legitimate representative of the plaintiff foundation. However, the board of directors on February 6, 1996 elected the non-party 2 as the president and appointed the non-party 3 as the acting president. The board of directors on March 19 of the same year elected the above non-party 3 as the president, and completed the registration of dismissal of the president of the above non-party 2 and the registration of appointment of the president of the above non-party 3 as the director on May 21, 196, which decided that the non-party 1 was the above non-party 1 to the above non-party 197.

However, in light of the records, except as otherwise provided in the articles of incorporation of the Plaintiff Foundation, the board of directors shall be convened with the attendance of a majority of the directors, and the president shall pass a resolution with the consent of the majority of the directors present, and the above non-party 2 shall be dismissed from the chairman, and the above non-party 3 shall be elected from the chairman as the acting director, and the temporary board of directors on February 6, 1996 appointed the above non-party 1 among the nine registered directors of the Plaintiff Foundation at the time of appointment of the director, the non-party 5, non-party 3, non-party 6, and the above non-party 5 among the nine registered directors of the Plaintiff Foundation at the time of appointment of the Plaintiff Foundation at the time of the above non-party 1, the former District Court 95Kahap1035 applied for provisional disposition for the suspension of the director's duties on September 20, 195

However, a provisional disposition, which determines a temporary position under Article 714(2) of the Civil Procedure Act, is a temporary and temporary measure to remove or prevent the risk that the right holder may face in a case where there is a dispute in relation to the legal relationship, and is merely an emergency measure to maintain the legal peace temporarily until a final judgment of the dispute is obtained. Thus, if a director of the incorporated foundation is appointed by the provisional disposition decision, the representative is merely in a temporary position to act as an agent of the incorporated foundation. Thus, it should be deemed that a corporation can perform only the affairs belonging to the ordinary business within the extent of maintaining and managing the corporation as it is, and it goes against the essence of such provisional disposition unless otherwise stipulated in the provisional disposition decision (see, e.g., Supreme Court Decisions 94Da12371, Apr. 14, 1995; 96Nu4657, Feb. 11, 1997).

If the facts were as seen earlier, the above non-party 8 and non-party 9 were appointed as a director acting for the director, barring any other provision regarding the scope of authority of the director acting for the decision on the above provisional disposition, the dismissal of non-party 2 by the president of the Plaintiff Foundation and the election of non-party 3 as the president acting for the president. The change of the composition of the board of directors itself in the manner of appointing non-party 1 as the director is not included in the ordinary affairs of the Plaintiff Foundation, and it does not fall under the scope of authority of the above non-party 8 and non-party 9. If the above non-party 1 was appointed as the director, the resolution of the temporary board of directors on February 6, 1996, who was not the above non-party 8 and the non-party 92, is null and void as the non-party 1's non-party 1 cannot be deemed the legitimate president of the Plaintiff Foundation even if it was elected as the president in the temporary meeting held on July 1 of the same year.

On the other hand, if there is any defect in the resolution of the board of directors of a corporation under the Civil Act and there is no separate provision in the law as to the case where the resolution becomes invalid, an interested party may at any time and at any time assert the invalidity. However, in the case where a lawsuit seeking nullification of the resolution of the board of directors was filed by the method of the nullity claim and a judgment in favor of the winning party was rendered, the effect of the judgment shall not be deemed to take effect only between the parties to the lawsuit (see Supreme Court Decision 87Nu399, Apr. 25, 198), and as recognized by the court below, it shall not be deemed that the above judgment becomes effective against the above non-party 2, who is not a party to the lawsuit, unless there are any special circumstances even if the judgment became final and conclusive, and therefore, the status of the defendant corporation of the above non-party 2 or the chief director shall not be immediately denied.

Therefore, the court below erred by failing to exhaust all necessary deliberations as to whether there are such facts or not, and thereby affecting the conclusion of the judgment, even though it should have deliberated on the process of the resolution by the provisional board of directors on February 6, 1996 and examined the above circumstances. Thus, the defendant's ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remainder, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)