[1] The validity of a resolution of the board of directors held without a notice on the expiration of the term of office of a director of an educational foundation whose retirement registration has been made before his/her term of office expires and the term of office expires

[2] Whether the qualification as a director is lost due to a provisional disposition suspending the exercise of duties by the chief director (negative), and if a person who is not a director is appointed by the court as an acting chief director, whether the quorum of the board of directors is changed (affirmative)

[1] Where the articles of incorporation of a school foundation appoints a director at the board of directors and takes office with the approval of the competent government office, and the term of office is four years, even if a registration of retirement is made before four years elapse from the registration date of the appointment due to injury, the term of office of the director is four years from the registration date of his/her appointment regardless of the date of his/her retirement, and therefore the resolution of

[2] Where a person who is not a director is appointed by the court as a chief director, the chief director is on the premise that he is a director, and therefore the acting chief director may act on behalf of the chief director with the authority as a director. In the case of the former chief director, the decision of provisional disposition suspending the exercise of the chief director's duties does not lose the qualification as a director. Therefore, the number

[1] Articles 17(3), 20, and / [2] Article 714 of the Civil Procedure Act; Articles 15 and 20 of the Private School Act

Plaintiff 1 and one other (Seoul Dong General Law Office, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Park Tae-hoon, Counsel for the defendant-appellant)

Each resolution of the board of directors listed in the separate sheet of the defendant corporation shall be confirmed to be null and void.

Litigation costs shall be borne by the defendant.

As set forth in the text.

1. Basic facts

The following facts do not conflict between the parties, or are recognized by Gap evidence 1-1, 3, 4, 2-1, 3-2, 3-1, 5, 5-1, 8-2, and 1-3, 4-1, 5-5, and 8-2, and there is no counter-proof.

A. Defendant school juristic person (hereinafter referred to as Defendant juristic person) is a school juristic person that establishes and operates (name omitted), middle schools (name omitted), high schools, (name omitted), junior colleges, and (name omitted) junior colleges with the establishment permission of the competent administrative agency on January 24, 1964 for the purpose of elementary schools, secondary schools, higher education, and training of middle and professional persons.

B. Part III of the articles of incorporation of the defendant corporation provides for the following matters with respect to the agencies of the defendant corporation:

(1) The defendant corporation shall have nine directors, including a chief director, and two auditors as its officers.

(2) The term of office of the director shall be four years, and that of the auditor, two years, and each board of directors is appointed and appointed with the approval of the competent agency.

(3) The chief director shall represent the corporation, administer the affairs of the corporation, be elected by and with the approval of the competent authorities, and the term of office shall be the period during which the director holds office. The directors shall attend the board of directors to deliberate and decide on the matters concerning the corporation’s affairs,

(4) The board of directors shall deliberate and decide on the budget, settlement of accounts, loans and property acquisition, disposal, etc. of school juristic persons, the establishment and modification of articles of incorporation, school regulations, school regulations, and other regulations, matters concerning merger or dissolution of school juristic persons, matters concerning appointment and dismissal of officers, matters concerning appointment and dismissal of the heads of schools established by juristic persons and teachers, matters concerning the management of schools established by juristic persons, matters concerning profit-making businesses, etc., and shall be decided with the consent of a majority of the registered directors, except as otherwise expressly provided, and in

(5) The board of directors shall be convened by the chief director or acting directors of the board of directors, and shall notify each director, specifying the purpose of the meeting at least seven days before the meeting, except when all the directors are gathered and all the directors require the meeting of the board of directors.

C. The board of directors opened on June 11, 1993 held on the part of the defendant corporation was appointed as the president of the defendant corporation. However, the non-party 1, etc., who is the director of the defendant corporation, filed a lawsuit seeking confirmation of invalidity of the resolution of the board of directors on the grounds of the defect in the convocation procedure of the resolution of the board of directors on June 11, 1993, and filed an application for provisional disposition to suspend the execution of plaintiff 1's president's duties. The court decided provisional disposition to suspend the execution of the president's duties on December 8, 1995

D. In holding a board of directors on January 11, 1996, the defendant corporation did not attend the meeting, and made a resolution as stated in paragraph (1) of the attached Table while five directors, including the non-party 2, who is the chief director, and the non-party 1, 7, 8, and 9, were present. On March 21 of the same year, when holding a board of directors on February 16, 1996, the non-party 5 did not give a notice of convening a board of directors to the non-party 1, 2, 7, 8, and 9, and the same resolution as stated in paragraph (2) of the same Table, while five directors were present at the board of directors. On April 25 of the same year, the non-party 1, 2, 7, 8, and 9 were present at the board of directors meeting, and the non-party 5 did not call a notice of convening the board of directors, but did not notify the non-party 5 directors, and entered the same list in paragraph (3) of the same list.

2. Judgment on the parties' arguments

A. The plaintiffs asserted that the director who constitutes the board of directors at the time of the resolution of each board of directors as of January 11, 1996, March 21, and April 25, 199, including the chief director acting for the director, and that the term of office of the non-party 5 director has expired as of May 7, 1996, the non-party 5 director should also have issued a notice of convening the board of directors. Accordingly, since the plaintiff 1 lost the status of the director by the provisional disposition suspending the exercise of the chief director's duties, the defendant did not change the number of directors as of February 16, 1996, and since the non-party 5 director was dismissed as the expiration of the term of office as of February 16, 1996, the above resolution of directors by the non-party 5

B. Therefore, we first examine the term of Nonparty 5’s director.

(1) The following facts can be acknowledged in light of Gap evidence 1-3, Gap evidence 3, Eul evidence 4-1 through 5, Gap evidence 5, Eul evidence 7-1, 3, Eul evidence 1, Eul evidence 2, non-party 10's testimony, and the whole purport of the pleadings, and there is no counter-proof.

(A) On January 25, 192, the 45th meeting of the 45th meeting of January 25, 1992, which was appointed as the president and applied for approval of appointment to the Ministry of Education, but it was rejected as a defect in the quorum of the resolution. In fact, even though there was no fact of resolution by convening the board of directors, Nonparty 10, who is the secretary general, prepared the minutes of the 46th meeting as of February 14, 1992, as the 17th meeting of the 1992, who was appointed as the director, as the 11th meeting of the 11st meeting and was appointed as the 47th meeting minutes of the 47th meeting, and obtained approval of appointment of the chairman from the Ministry of Education as the 19th meeting minutes of the 19th meeting.

(B) However, the 46th board of directors of Defendant Corporation was held on March 9 of the same year, and the 47th board of directors held on April 9 of the same year appointed Nonparty 5 as a director after the former president of Nonparty 11. Nonparty 12 directors were dismissed as of May 15 of the same year, and Nonparty 5 was appointed as of February 16, 1996 as of February 16, 1996, the remaining term of office of Nonparty 12 was later dismissed and Nonparty 5 applied for approval to the Ministry of Education and obtained approval, and registered the appointment of Nonparty 5 as of May 8, 1992.

(C) Meanwhile, the board of directors held on March 21, 1996 held on the part of the Defendant corporation resolved to dismiss the non-party 5 director as of February 16, 1996 and registered his retirement as of February 16 of the same year on April 3 of the same year.

(2) According to the above facts, although the appointment of Nonparty 12 was approved by the Ministry of Education and registered as a director on the corporate registry, it was not true that Nonparty 12 was actually convened a board of directors and appointed as a director. Thus, Nonparty 12 did not become a director on April 9, 1992, and Nonparty 5’s director was appointed as a director on May 8, 1992, and the term of office was four years upon approval from the Ministry of Education. Thus, even if Nonparty 12’s remaining term of office was approved by the Ministry of Education until February 16, 1996, and was registered as a retirement on the corporate registry as of February 16, 1996, the term of office of Nonparty 5’s director until May 7, 1996.

Therefore, when the resolution of the board of directors was made on March 21, 1996 and April 25, 1996, the non-party 5 was in the position of director, and the above resolution of each board of directors held without the notice of convening the board of directors is null and void.

C. Also, this paper examines the number of directors due to the provisional disposition suspending the exercise of duties of the chief director and the appointment of the chief director.

If a person who is not a director is appointed as a chief director by the court, the chief director is on the premise that he is a director. Thus, the chief director's acting director can act on behalf of the chief director with the authority of the director and the decision of provisional disposition to suspend the performance of the duties of the chief director does not lose the qualification of the director. Therefore, notwithstanding the provisions of the articles of incorporation, the number of the directors shall increase from 9 to 10. Therefore, in order for the board of directors to be lawfully held, the number of the directors shall be increased by 6 or more directors, who are a majority of the total number of the directors. However, each resolution of the board of directors made on January 11, 1996, 3.21, and 4.

3. Conclusion

Thus, each resolution of the board of directors is null and void in violation of the opening requirements or convening procedures, and as long as the defendant asserts that it is lawful, the plaintiffs who are directors shall have the interest to seek confirmation. Thus, all of the plaintiffs' claims of this case shall be accepted in its reasoning, and it is so decided as per Disposition by applying Article 89 of the Civil Procedure Act to the bearing of litigation costs

Judges Kang Yong-sung (Presiding Judge)