[1] The case holding that the first instance court's assertion on the premise that the convocation procedure of the board of directors was lawful, but it cannot be deemed that the allegation of the defect in the convocation procedure cannot be deemed as contrary to the nomenclature or the principle of good faith

[2] Whether a director of a corporation whose term of office expires is entitled to the right to conduct business until a director is appointed (affirmative with qualification)

[1] Article 1 (2) of the Civil Procedure Act / [2] Articles 57, 58, and 691 of the Civil Act

[2] Supreme Court Decision 95Da40915 delivered on January 26, 1996 (Gong1996Sang, 754) Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong197Sang, 323)

Plaintiff (Law Firm LLC, Attorneys Jeong Jae-sik et al., Counsel for the plaintiff-appellant)

Defendant medical corporation (Attorney Kim Young-young, Counsel for defendant-appellee)

Seoul High Court Decision 2009Na30283 decided December 4, 2009

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

We examine the grounds of appeal.

1. As to the second ground for appeal

The ground of appeal in this part is without any evidence that Nonparty 1 had already resigned from office of the Defendant Foundation in 2006, and thus, Nonparty 1 was a director of the Defendant Foundation at the time of the first resolution of the board of directors of August 29, 2007 of this case. However, the lower court’s measure that deemed Nonparty 1 was unlawful. However, this is nothing more than a dispute over the selection of evidence and fact-finding which belong to the lower court’s exclusive jurisdiction, and it cannot be a legitimate ground of appeal.

2. Regarding ground of appeal No. 1

The parties have to carry out a lawsuit in good faith (Article 1(2) of the Civil Procedure Act), but the assertion of a different legal evaluation of any fact does not violate the principle of speech or the principle of good faith. Therefore, even if the Plaintiff asserted in the first instance court that the convocation procedure of the first instance board of directors of this case was lawful, but the Plaintiff asserted that there was a defect in the convocation procedure before the lower court, it cannot be said that such assertion contravenes the principle of good faith or the principle of good faith.

The judgment of the court below to the same purport is just, and there is no violation of law as alleged in the grounds of appeal.

3. As to the third ground for appeal

The relationship between a juristic person and a director who is an institution under the Civil Act is the same as the legal relationship between the delegating and the delegated person, and thus, once the term of office of the director expires, the delegation relationship is terminated in principle. However, since there is no director until the appointment and appointment of the succeeding director, it is a juristic person in a situation where it is inevitable to perform the normal activity of the current director cannot be discontinued, it is in accordance with the provisions of the articles of incorporation or the provisions of Article 691 of the Civil Act, and there is no special reason to deem it inappropriate to allow the former director to perform the duties of the former director in accordance with the provisions of Article 691 of the Civil Act, and where it is necessary to allow the former director to perform the duties of the former director, the right to perform the duties of the former director at the expiration of the term until the new director is appointed (see Supreme Court Decisions 95Da40915, Jan. 26, 196; 96Da37

According to the facts admitted by the court below and records, the articles of incorporation of the defendant foundation shall have one chairperson and two or less standing directors (including the chief director and two or less standing directors), and five or more directors (including the chief director and the standing directors) shall be appointed (Article 11); the former chief director and the directors shall take charge of the affairs of the defendant foundation until the next chief director is elected (Article 12(2)); the term of office of the directors shall be three years (Article 14(1)); the chief director shall be elected from among the directors with the consent of at least 2/3 of the registered directors; the term of office of the directors shall be the term of office of the chief director with the consent of the majority of the registered directors (Article 15(1) and (2)); the chief director shall represent the affairs of the defendant foundation and preside over the board of directors (Article 16); the board of directors shall, with the consent of the majority of the registered directors other than the expiration of the term prescribed separately in the articles of incorporation; the term of office of the defendant foundation shall be 230.

Examining these factual relations in light of the legal principles as seen earlier, although the term of office of the above non-party 2 expired and was not elected by the successor president, the convening and resolution of the board of directors to fill the vacancy caused by the expiration of the term, etc. shall be deemed to be a work that requires the former president to process urgently. Thus, the above non-party 2 is still able to perform its duties.

In the same purport, the court below is just in taking measures to include the above non-party 2 in calculating the quorum and the quorum for the second resolution of the board of directors of this case, and there is no error of law such as misunderstanding of legal principles as claimed in

4. Conclusion

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

Justices Kim Young-ran (Presiding Justice)