Whether the representative's failure to pay for the reason that the representative is in a position contrary to an organization (negative in principle)

Article 52 of the Civil Procedure Act

Supreme Court Decision 2006Da57131 Decided December 11, 2008 (Gong2009Sang, 11)

Plaintiff (Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Anafinz., Anafinz., Inc., Counsel for the defendant-appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-

Seoul Eastern District Court Decision 2009Na4062 Decided December 4, 2009

The appeal is dismissed. The costs of appeal are assessed against Nonparty 1.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below held that the plaintiff purchased the real estate owned by the non-party 2 who is the chairperson of the defendant clan, but brought an appeal against the non-party 1 for the return of down payment and compensation for expenses paid to the non-party 1 for the work of the defendant clan which failed to obtain the resolution of the non-party 1, and that the non-party 2 was the representative of the defendant clan, based on adopted evidence, who held a general meeting on December 27, 199 and appointed non-party 2 as the chairperson of the non-party 2 as the representative of the defendant clan, but did not have the resolution of the general meeting of the non-party 2 regarding the reappointment of the defendant clan, but the non-party 2 did not have the status of the non-party 1 as the chairperson of the non-party 1's clan, who was not the chairperson of the non-party 2's articles of association (Article 12), the appointment of officers such as the chairperson and the chairperson of the non-party 2 shall still have the status of the non-party 1, who was elected for the chairperson (the non-party 2).

Generally, the representative's failure to perform his/her duties is a case where the representative is unable to perform his/her duties due to death, disease, or other unavoidable circumstances. Thus, even if the representative is in a position conflict with an organization, unless there are circumstances such as the court's confirmation of a provisional disposition suspending the performance of duties, it cannot be deemed that such reasons alone constitute a failure announcement of the above articles of association (see Supreme Court Decision 2006Da57131, Dec. 11, 2008, etc.).

In light of the above legal principles, it is just to determine that the court below's appeal of this case filed by Nonparty 1 as the representative of the defendant clan was unlawful, and there is no error in the misapprehension of legal principles as to the appointment of a special representative or the interpretation and application of the provisions of the articles of association of the defendant clan, as otherwise alleged in the ground of appeal. The ground of appeal on this part is not acceptable.

2. Regarding ground of appeal No. 2

According to the records, in the statement of grounds of appeal submitted by the non-party 1 as the legitimate representative of the defendant clan, one of the legitimate grounds for the defendant clan, where the non-party 2 was in a position contrary to the interests of the defendant clan and requested several times to convene a general meeting, or where the non-party 1 did not call a general meeting, it shall be deemed that the chairperson constitutes a "rest" which is unable to perform his/her duties, and the honorary chairperson becomes the representative on behalf of the chairperson. One of the circumstances supporting the above argument that "the non-party 1, the non-party 2, who was present at the general meeting held on September 2, 2007 (the date stated in the statement of grounds of appeal, 9. 20. 24 of the number of the members present at the general meeting (including the supporting resolution) and the non-party 1, who was actually elected the non-party 2 as the chairperson and the non-party 2's physical interference with the non-party 1's non-party 2's chairperson.

Therefore, in the grounds of appeal, it cannot be deemed that Nonparty 1 asserted that he had the power of representation by being elected as the chairperson of the defendant clan from the extraordinary general meeting on September 2, 2007, and therefore, even if the court below did not explicitly determine as to the assertion or did not exercise the right of explanation, it shall not be deemed that there was an omission of judgment that affected the conclusion of the judgment, the non-exercise of the right of explanation, or the non-exercise of the right of explanation or an incomplete hearing. The argument in the grounds

3. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against Nonparty 1. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)