[이사회결의부존재확인][공1997.8.15.(40),2266]
[1] Whether a representative director of a social welfare foundation whose term of office has expired can perform his/her duties until the former representative director is appointed regularly (affirmative)
[2] Whether it constitutes the duty of the expired representative director to convene and propose a temporary directors' meeting to change the composition of the board of directors (negative)
[1] According to the provisions of Article 14 of the Social Welfare Services Act and the articles of incorporation of the corporation concerned, only the representative director has the authority to convene a board of directors, and where the representative director has an accident, a person designated by the representative director or the elected by the board of directors among the directors can act on behalf of the representative director, and even if the director elected by the board of directors, he cannot act on behalf of the representative director without approval of the supervisory authority, and this applies to the representative director. In this case, if the former representative director retires from the expiration of the term of office and the former representative director loses his authority only because he was appointed after the expiration of the term of office, it would result in the failure of the representative director to act on behalf of the representative director, and it would result in the failure of the former representative director to act on behalf of the representative director who was appointed by the board of directors. Thus, unless there are special circumstances that it is inappropriate for the former representative director to perform his duties at the expiration of the term of office, the representative director may continue to perform his duties until he takes office on his behalf of the board.
[2] In light of the fact that the director's right to work performance at the expiration of the term of office is recognized as complementary to avoid the situation where the corporation discontinues normal activities, it is inappropriate to convene a temporary directors' meeting to change the composition without any urgent circumstances even though a new director's exhaustion has already been formed by a resolution of the board of directors.
[1] Articles 57, 59, and 691 of the Civil Act; Article 14(1), (3), and (5) of the Social Welfare Services Act / [2] Articles 57, 59, and 691 of the Civil Act; Article 14(1), (3), and (5) of the Social Welfare Services Act
[1] Supreme Court Decision 95Da40915 delivered on January 26, 1996 (Gong1996Sang, 754), Supreme Court Decision 95Da5686 delivered on October 25, 1996 (Gong1996Ha, 3409), Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong1997Sang, 323), Supreme Court Decision 95Da40038 delivered on December 23, 1996 (Gong197Sang, 492) / [2] Supreme Court Decision 81Da614 delivered on March 9, 1982 (Gong1982, 428)
Plaintiff 1 and four others (Attorney Song-dae, Counsel for the plaintiff-appellant)
Medical Care Center for the Aged of Social Welfare Foundation (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)
Daejeon High Court Decision 95Na6401 delivered on September 5, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
On the first ground for appeal
According to the reasoning of the judgment below, the court below held that the above non-party 1 and the non-party 2, the non-party 2, the non-party 2, and the non-party 3's term expired on March 27, 1994. The above non-party 1 called the "non-party 1's term of office" and the non-party 2's non-party 3's non-party 1's non-party 1's non-party 3's non-party 9's non-party 1's non-party 9's non-party 1's non-party representative director's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 2's non-party 2's non-party 3's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's new resolution.
On the second ground for appeal
In the reasoning of the judgment below, the above non-party 1, the above non-party 1 was dissatisfied with the resolution of the board of directors on September 3, 1994 and convened a provisional board of directors twice. However, the non-party 1 was absent from office on September 3, 1994, and again notified the convocation of a temporary board of directors on December 12, 1994 that the non-party 1 did not have authority to convene the board of directors, and the non-party 1, non-party 2, and non-party 3 did not have authority to convene the board of directors on December 5, 1994, and the non-party 1, non-party 2, and the non-party 3 did not leave the board of directors while the above plaintiff 3 attended the board of directors. Since the non-party 1 was disqualified from office by the resolution of the board of directors on September 3, 1994, the court below held that the non-existence of the resolution of the board of directors in this case is invalid.
Therefore, Article 14(1) of the Social Welfare Services Act provides that five or more directors including the representative director and two or more auditors shall be appointed. Paragraph (3) of the same Article provides that the term of office of the directors shall be three years, and that the term of office of the auditors shall be two years, respectively. Paragraph (5) of the same Article provides that the directors appointed for filling vacancies shall be the remaining term of office of the directors. Paragraph (1) of the same Article provides that the appointed directors shall take office with the approval of the competent Mayor/Do Governor. Article 16 shall be elected by the board of directors. Paragraph (1) of the same Article provides that the appointed directors shall take office with the approval of the competent government agency. Paragraph (2) of the above Article 19 provides that the representative director shall represent the corporation and the directors shall be the chairperson of the board of directors if the representative director is absent, and that the former representative director or the board of directors shall act for the representative director, other than the representative director of the corporation, if so requested, and that the directors shall be held within 19th of the total directors or more of the directors.
However, in light of the fact that the right to perform the duties of a director at the expiration of the term of office is recognized as complementaryly to avoid the situation in which a corporation will suspend its normal activities, it is inappropriate to convene a temporary directors' meeting to change its composition without any particular circumstance even though a new director's truth has been formed by a resolution of the board of directors (see Supreme Court Decision 81Da614 delivered on March 9, 1982) and therefore, the same act as proposing it constitutes an inappropriate duty to have the representative director at the expiration of the term of office to perform the work (see Supreme Court Decision 81Da614 delivered on December 12, 1994). Thus, the above non-party 1 did not have the right to convene a temporary board of directors on December 12, 1994, since the above illegality of
Therefore, there is no reason to argue that the above non-party 1 has the right to call.
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Final Young-young (Presiding Justice)