[1] Legal status and scope of authority of a person appointed as an acting director of an incorporated foundation by the court's decision of provisional disposition

[2] The validity of a resolution of the board of directors of an incorporated foundation convened by a person who is not a legitimate convening authority and only a part of the directors is present (negative)

[1] Provisional disposition, which determines a temporary position under Article 714(2) of the Civil Procedure Act, is a provisional and provisional measure to remove or prevent risks the right holder may face in the event of a dispute in relation to the relationship of rights, and is merely an emergency measure to maintain the legal peace temporarily until a final judgment of the dispute is rendered. Thus, in a case where a director of the foundation is appointed by a provisional disposition judgment to act as an agent for the director of the foundation in accordance with the provisional disposition, the representative is in a temporary position to act as agent for the principal. Thus, it should be deemed that the foundation can perform only the business belonging to the ordinary business of the foundation within the scope of management while maintaining and managing the foundation as in the previous case. Except as otherwise provided in the provisional disposition judgment, it goes against the essence of such provisional disposition that does not belong to the ordinary business of the foundation.

[2] If the board of directors of an incorporated foundation is convened by a person who is not a legitimate convening authority pursuant to statutes or the articles of incorporation, and only a part of the directors attend a resolution, the resolution shall not be effective as an unlawful resolution.

[1] Article 714 (2) of the Civil Procedure Act / [2] Article 58 of the Civil Act

[1] Supreme Court Decision 81Meu1168 decided Dec. 28, 1982 (Gong1983, 274) (Gong1983, 351), Supreme Court Decision 94Da12371 decided Apr. 14, 1995 (Gong1995, 184), Supreme Court Decision 96Nu4657 decided Feb. 11, 1997 (Gong197, 7798), Supreme Court Decision 98Du1696 decided Jan. 28, 200 (Gong200, 601) / [2] Supreme Court Decision 98Nu298389 decided Apr. 28, 198 (Gong297, 197, 798, 1948, 297Da298497, Apr. 28, 197)

Plaintiff

The Chairperson of the National Labor Relations Commission

Intervenor joining the Defendant

Seoul High Court Decision 97Nu38901 delivered on January 21, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The court below held that the non-party 1 was dismissed from the hospital by the resolution of the board of directors of the Foundation for the Maintenance of the Yaman Hospital (hereinafter referred to as the "Foundation") and the position was restored by the court's provisional disposition. The court below acknowledged the facts as to the composition of the board of directors and resolution methods stipulated in the articles of incorporation of the Foundation and the personnel regulations of the Yaman Hospital, the reason for dismissal and disciplinary action, etc.

In other words, the directors, the non-party 2 and the non-party 3, who attended the resolution of each of the above board of directors, were appointed by the previous District Court 95Kahap1035 delivered on September 20, 1995 by the provisional disposition order of 95, and are entitled only to the ordinary affairs of the Foundation because they did not provide for the scope of their authority. However, the amendment of the articles of incorporation enforcement rules concerning ratification of appointment of the chief of the hospital and appointment and dismissal of the chief of the department belongs to the ordinary affairs of the Foundation. Meanwhile, according to Article 27 of the articles of incorporation of the Foundation, the board of directors shall open with attendance of a majority of the directors and make a resolution with the majority of the directors present. According to Article 20 of the detailed rules of the articles of incorporation enforcement, five of the board of directors present at the meeting of the board of directors on April 9, 1996, and all of the directors present at the meeting with the consent of the non-party 4 on June 8, 1996.

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 the relationship of rights, and is merely an emergency measure to maintain legal peace temporarily until a final judgment of the dispute is rendered. Thus, in a case where a director of the incorporated foundation is appointed by a provisional disposition judgment as an agent of the incorporated foundation, the agent is merely in a temporary position to act as agent for the incorporated foundation. Thus, the incorporated foundation must be able to perform only the business belonging to the incorporated foundation's ordinary business within the extent of maintaining and managing the incorporated foundation as before. Except as otherwise provided in the provisional disposition judgment, it goes against the essence of such provisional disposition that does not belong to the company's ordinary business (see, e.g., Supreme Court Decisions 94Da12371, Apr. 14, 195; 96Nu4657, Feb. 11, 1997).

However, according to the records, around February 196, the directors of the Foundation: Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, Nonparty 9, Nonparty 1, Nonparty 10, Nonparty 2, and Nonparty 3, who were acting for Nonparty 1, Nonparty 9, Nonparty 1, Nonparty 9, Nonparty 10, Nonparty 2, and Nonparty 3 were requested to convene a temporary board of directors at the time of Nonparty 5; however, Nonparty 5 did not convene a regular board of directors at the third week of November each year without complying with the request of Nonparty 5; Nonparty 9, Nonparty 1, Nonparty 6, at the time of the meeting of the 9th day of the 9th day of the 196th day of the 196th day of the 9th day of the 196th day of the 196th day of the 196th day of the 9th day of the 19th day of the 19th day of the 19th day of the 19th day of the 19th day of the 9th day of the 19th day.

In full view of these facts, since there is no other provision regarding the scope of authority in the provisional disposition order that was appointed by Nonparty 2 and Nonparty 3 as the acting director, to dismiss Nonparty 5 and to appoint Nonparty 9 as the succeeding president, and to change the composition itself of the board of directors by appointing a new director Nonparty 4, etc., it does not fall under the ordinary business of the foundation, and it does not fall under the scope of its authority. However, if the resolution of the board of directors dated February 6, 1996 and March 19, 196 excluded Nonparty 2 and Nonparty 3 as the acting director, the remaining members of the board of directors did not reach the quorum of the intention, and it is all null and void as the resolution of Nonparty 9 and Nonparty 4, etc. was not a legitimate chief director or director, and the board of directors convened by Nonparty 9 as the chief director and the non-party 9 was convened by the non-party 4 and the non-party 13, and the non-party 2 and the non-party 3 were not a quorum.

Therefore, since the amendment of the above articles of incorporation enforcement has no effect and the right of appointment and dismissal of the head of the division still exists in the Foundation's board of directors, the dismissal of the instant disciplinary action by the head of the hospital is made by a person who is not authorized to do so.

Nevertheless, the court below determined that the procedure for the dismissal of the instant disciplinary action is lawful on the grounds as stated in its reasoning is erroneous in the misapprehension of legal principles as to the authority of the director acting for the incorporated foundation appointed by the provisional disposition decision, which affected the conclusion

The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)