[1] Whether an unlawful act of a non-corporate director's election process can be cured by a practice or approval of a supervisory agency (negative)

[2] Where the term of office of all directors and auditors has expired and the directors and auditors have not been appointed, whether there is a benefit in a lawsuit seeking nullification of an election against the directors and auditors whose term of office has expired (affirmative)

[1] The illegality of the election process cannot be viewed as legitimate by past practices or approval by supervisory agencies.

[2] When the term of office of directors and auditors appointed in the election of non-corporate directors and auditors expires, they may continue to perform their previous duties as directors and auditors until the successor directors and auditors are appointed. Thus, even if they fail to perform their duties, if the term of office of all directors and auditors of non-corporate directors and auditors of the non-corporate group expired, and if directors and auditors are not appointed yet, the directors and auditors elected in the election of non-corporate directors and auditors shall still have the rights and duties as directors and auditors until the successor directors and auditors are elected. Thus, there is a benefit in filing a lawsuit to seek confirmation of invalidity of the election of directors and auditors appointed after the term of office expires.

[1] Article 57 of the Civil Code / [2] Article 226 of the Civil Procedure Act

[1] Supreme Court Decision 87Da2407 delivered on May 9, 1989 (Gong1989, 881) / [2] Supreme Court Decision 81Da358 delivered on April 27, 1982 (Gong1982, 525) Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong197Sang, 323), Supreme Court Decision 96Da45122 delivered on June 24, 197 (Gong197Ha, 2266)

Plaintiff

The Hansung Association of Korea

Seoul High Court Decision 95Na43299 delivered on December 26, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the qualification of candidate and the regulations of the Korean Commercial Association

According to the reasoning of the judgment below, the court below, based on the evidence adopted in its judgment, is an unincorporated association whose members are residents of Seoul and Do government regions among the Korean residents residing in Korea, and the 13th director and auditor of the defendant association, which is a foreign organization registered in the Ministry of Justice pursuant to the Immigration Control Act, who is non-party 1, non-party 2, non-party 3, and non-party 4 were not eligible for election of directors or auditors because they were not at least one middle school from among the qualifications for candidates for directors or auditors under the provisions of election of the defendant association, or because they did not have any equivalent academic background; the directors, non-party 5, non-party 6, non-party 7, non-party 8, non-party 9, and non-party 10 recommended that the defendant's election commission was not a resident belonging to the religious order and school within the jurisdiction of the defendant association and decided that the defendant's election commission did not have legitimate authority to recommend other candidates to attend the election at the bar and to execute the election affairs in this case.

In light of the records, the above fact-finding and decision of the court below are justified, and there is no error of misconception of facts in violation of the rules of evidence, nor of misunderstanding of the legal principles as to the regulation of the Gyeongsung Association and the approval of supervisory agencies and the recovery of defects, as otherwise alleged in the grounds of appeal. The grounds of appeal pointing this out are not acceptable.

2. As to the benefit of the lawsuit

According to the records, the directors and auditors appointed in the 13th director and auditor election of the defendant Association shall be deemed to have expired on July 20, 1996. However, they may continue to perform their previous duties as directors and auditors until the appointment of the 13th director and auditor of the defendant Association. However, in this case where there is no assertion or proof as to the expiration of the term of office of all the directors and auditors of the defendant Association even if they did not perform their duties, and the appointment of the 13th director and auditor of the defendant Association was made, the directors and auditors elected in the above election as directors and auditors still hold their rights and duties as directors and auditors until the appointment of the 13th director and auditor. Therefore, the court below's decision that the plaintiff has a interest in the lawsuit seeking confirmation of invalidity of the above election is justified, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit as otherwise alleged in the grounds for appeal. The grounds for appeal pointing this out cannot be accepted.

3. The remaining co-defendants of the court below, except the defendant Association, are erroneous in the misapprehension of the grounds of appeal as otherwise alleged in the ground of appeal by the court of final appeal, and they cannot be a legitimate ground of appeal.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)