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(영문) 서울고등법원 2018.11.07 2018누58808

사장임명처분 취소 청구의 소

Text

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

purport.

Reasons

1. Whether the lawsuit of this case is legitimate

A. As to the instant lawsuit seeking revocation of the instant disposition on the ground that the composition of the executive recommendation committee, which forms the basis of the Defendant’s disposition that the Plaintiff appointed C as the president of the Corporation (hereinafter “instant disposition”), was unlawful and that C is not entitled to be appointed as the president, the Defendant asserted that C had resigned from the office of the president of the Corporation, and thus, there was no benefit of lawsuit. Therefore, it is unlawful.

B. 1) A lawsuit seeking revocation of the relevant legal doctrine is a lawsuit seeking to recover the rights and interests infringed or interfered with the disposition by removing the illegal state arising from an unlawful disposition from the restoration to the original state. Thus, in order to affirm the benefit of a lawsuit, the validity of the disposition should exist as at the time of closing of argument, and thus, restitution should be possible through the continuation or revocation of the infringement. Therefore, in principle, there is no benefit in the lawsuit seeking revocation. However, in a case where the effect of the disposition is extinguished, the benefit in the lawsuit is exceptionally acknowledged (the latter part of Article 12 of the Administrative Litigation Act). According to the purport of the statement and the whole pleadings as stated in the evidence No. 16, 17 of this case, C appointed to the president of the Corporation as the instant disposition was submitted to the Defendant on August 13, 2018, that “B is dismissed from the president of the Corporation,” and the Defendant accepted C’s resignation on the same day, and the Plaintiff appointed the Plaintiff to seek revocation of the disposition as C’s resignation.