[1] The legal nature of the act of withdrawing a director of a corporation and the case where his intention to resign may be withdrawn

[2] Whether the ground for exclusion applies to the case of "election of the chief director" as stipulated in the articles of incorporation of the school juristic person, where the appointment or dismissal of an officer is about himself/herself, the chief director or the director concerned shall not participate in the resolution (negative)

[1] The act of resignation of a director of a corporation is a sole act with the other party, so the expression of intention becomes effective at the same time when the other party reaches the other party, and the declaration of intention becomes effective after the declaration of intention becomes effective. However, in special circumstances where the intention of resignation cannot be deemed immediate, such as where the submission of a letter of resignation is omitted, the submission of a letter of resignation is made by immediate withdrawal recommendation, the appointment of the representative is made, or the date of preparation of a letter of resignation is made after the date of submission, etc., a separate letter of resignation or the acceptance of the representative may be withdrawn prior to the withdrawal.

[2] The election refers to a "election by which a specific person is elected from among his/her own figures." Since the nature of the election gives all candidates an opportunity to participate in the resolution by giving them an opportunity to participate in the resolution, it does not go against the essence of the election, even though the school juristic person's articles of incorporation provide that "if an appointment or dismissal of an officer is about his/her own matters, the relevant chief director or director shall not participate in the resolution," such exclusion grounds shall not apply to "election by the chief director" in the above method.

[1] Articles 57 and 111 of the Civil Act / [2] Articles 10 (1) 6 and 14 (2) of the Private School Act

[1] Supreme Court Decision 91Da43138 delivered on April 10, 1992 (Gong1992, 1539) Supreme Court Decision 93Da28799 delivered on September 14, 1993 (Gong1993Ha, 2779) Supreme Court Decision 98Da8615 delivered on April 28, 1998 (Gong1998Sang, 1498)

Applicant (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Respondent (Law Firm Dongun, Attorneys Park Jong-ju et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na45467 delivered on January 16, 2004

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

The grounds of appeal are examined.

1. As to the designation of the chief director and acting director

According to the records, the articles of incorporation of a school juristic person (hereinafter referred to as "school juristic person") provides that "if the office of director is vacant, the director appointed by the board of directors shall act for the chief director," and the 465th board of directors of the school juristic person shall resign from the office of chief director, and the board of directors ends, but all the chief director and seven directors present at the board of directors at the time of the application, including non-applicant 2, appointed non-applicant 3 as the representative of the board of directors as the representative of the board of directors by a written resolution after the resignation. Thus, in addition to such factual relations, in addition to the circumstances that the resignation of non-applicant 2 is not immediate, and the resignation is withdrawn after the resignation is maintained, the non-applicant 4, 3,2 and the applicant and respondent, etc. who agreed to the written resolution at the time of the above written resolution meet the quorum and the quorum. Thus, the procedure designated non-applicant 3 as the representative of the board of directors does not violate the articles of incorporation of the school juristic person.

2. As to the quorum of the board of directors at the 466th meeting

Since a resignation of a director of a corporation is a sole act with the other party, the expression of intention becomes effective at the same time as the other party reaches the other party and can not be withdrawn in mind after the expression of intention becomes effective. However, in special circumstances where the resignation intention cannot be seen as immediate, such as where the resignation is not submitted as an immediate withdrawal recommendation, the submission of a letter of resignation is made to the representative, or the date on which the letter of resignation is prepared is entered after the date on which the letter of resignation is submitted, etc., the resignation becomes effective and there is a separate submission of a letter of resignation or the acceptance of the representative. (See Supreme Court Decisions 91Da43138, Apr. 10, 1992; 93Da287999, Sept. 14, 1993; 98Da8615, Apr. 28, 1998, etc.).

According to the records, the articles of incorporation provides for a quorum of the board of directors as a majority of the total number of the nine directors, and the non-applicant 5 was submitted to the school juristic person on December 26, 200 as stated on the 31st of the same month by the date when the non-applicant 5 was made, but the resignation was returned on December 29, 200 after the withdrawal of the resignation, and the non-applicant 2 submitted a resignation request for acceptance of the resignation on December 465, 200, but immediately withdrawn the resignation and immediately withdrawn the resignation and returned the resignation on December 30, 200. The 46th board of directors satisfied the fact that the non-applicant 5, including the respondent 5 and 2, the non-applicant 3, 4, and the non-applicant 6 directors present on December 30, 200. In light of these facts and legal principles, the non-applicant 5 did not withdraw the resignation and the non-applicant 2, the non-applicant 6, as the non-applicant 4, respectively, as the 9.

3. As to the resolution of appointment of chief director of the board of directors 466

According to the records, the articles of incorporation of the school juristic person provides that "the chief director shall be elected by and from the board of directors," and the 466th meeting of the board of directors may recognize the fact that the respondent is appointed as the chief director by means of a unanimous order with the recommendation of the remaining directors and the statement of intent without stating the respondent. The election refers to a "election by which a specific person is elected by and with his own opinion," and due to the characteristics of the election, it does not go against the essence of the election even if all candidates are given an opportunity to participate in the resolution. Therefore, if the appointment and dismissal of the chief director of the school juristic person are matters concerning him/her, it shall be interpreted that such exclusion grounds are not applicable to the election of the chief director or the board of directors in question, even if the articles of incorporation provides that the chief director or the board of directors shall not participate in

4. As to the propriety of the judgment of the court below

As seen earlier, the 466th resolution of the board of directors that appointed the respondent as the chief director is legitimate unless there is any defect that can be deemed null and void or nonexistent. According to the records, the Respondent’s appointment of directors who convened and presided over the Respondent in order after the Respondent is also lawful. Thus, the 478 resolution of the board of directors at the 468 meeting of the board of directors is merely seeking confirmation of legal relations in the past and thus, it lacks the requirements for protection of rights, and there is no reason to seek confirmation of invalidity and absence of such a resolution. Although the court below did not examine the defect of the 478 resolution of the board of directors at the 466th resolution, it did not affect the conclusion of the judgment, and it cannot be said that there is an error of law as a ground for reversal of the judgment, and therefore, the judgment of the court of first instance that dismissed only the applicant’s appeal in this case, as alleged in the ground for appeal, is just and acceptable. The court below did not err by misapprehending legal principles as to the resolution

5. 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 on the bench.

Justices Shin Hyun-chul (Presiding Justice)