2017Guhap59482 Revocation of revocation of permission for incorporation

A Incorporated Foundation A

The Minister of Culture, Sports and Tourism

May 25, 2017

June 22, 2017

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 20, 2017, the Defendant’s revocation of the establishment permission against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff is an incorporated foundation established on January 13, 2016 for the purpose of enhancing national prestige through sports.

B. On March 20, 2017, the Defendant revoked the Plaintiff’s establishment permission on the following grounds (hereinafter “instant disposition”).

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 7 and 8 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

Even if the Plaintiff’s property was reduced by pursuing the external personnel’s private interest in carrying out the Plaintiff’s business, it is merely a loss to the Plaintiff itself, and it does not mean that the Plaintiff carried out a business other than the intended one or carried out an act detrimental to the public interest. In addition, if the Plaintiff was unfairly operated by a certain executive officer or outside personnel as a means of pursuing private interest, it is due to the Plaintiff’s unfair performance of business by the chief executive officer or director who operates the Plaintiff, and thus, the Defendant, who is the competent authority having jurisdiction over the Incorporated Foundation, should correct the unfair performance of business due to the appropriate exercise of supervision, etc., and it is not a problem to resolve

On the other hand, Article 38 of the Civil Code provides the requirements for cancellation of permission for establishment of a corporation, so the cancellation of permission for establishment after establishment of a non-profit corporation is only possible only if it falls under Article 38 of the Civil Code, and cannot be cancelled

3. Judgment on the main defense of this case

A. The defendant's assertion

1) On January 12, 2017, C, the term of office of the president of the Plaintiff, was expired. Meanwhile, the Plaintiff has provisions on the acting director of the notice of the president, and it is possible to perform the duties of a corporation or elect the president of the board. As such, it cannot be deemed that C, whose term of office expires, is in an imminent situation where C is not obliged to continue performing the duties of the president of the Plaintiff, and there are special circumstances where C is deemed inappropriate to allow C to perform the duties of the Plaintiff. Therefore, the instant lawsuit filed by C as the president of the Plaintiff is unlawful.

2) The Plaintiff’s Secretary D filed a lawsuit seeking the revocation of the instant disposition with the Seoul Administrative Court on March 31, 2017 as the president acting for the president, and the duplicate of the complaint reaches the Defendant on April 4, 2017, which was before April 13, 2017, the arrival date of the duplicate of the instant complaint, and thus, the instant lawsuit is unlawful as a duplicate lawsuit.

(b) Fact of recognition;

1) On February 26, 2016, E, the first president of the Plaintiff, resigned. C was elected as a new director at the board of directors on May 13, 2016 at the Plaintiff’s meeting, and thereafter was elected as the second president of E.

2) Of the Plaintiff’s articles of incorporation (Evidence A, Articles of incorporation amended on February 25, 2016), the parts relating to directors and chief directors are as follows:

Article 18 (Types and Fixed Number of Officers) (1) The kinds and fixed number of officers to be assigned to the Foundation shall be as follows: 5-2. 1. 1. 5-2. 1. 1. 2. 1. 1. 1. 1. 1. 2. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 2. 1. 1. 1. 1. 1. 1. 2. 2. 2. 2. 2. 2. 1. 2. 2. 1. 2. 2. 2. 1. 3 . 3. 1. 2. 2. 1. 2. 1. 2. 1. 1. 3 of the term of office of the Director(the method of appointment and the term of office of the Director . 1. 2. 1. 3 . 2. 2. 1. 3 2. 2. 2. 2.

3) The Plaintiff amended its articles of incorporation on February 25, 2016, and some of them are as follows.

A person shall be appointed.

A person shall be appointed.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 4, 8, Eul evidence No. 2, and the purport of the whole pleadings is the judgment.

1) Whether C has the power of representation or not

A) Whether C’s term of office expires

Article 20(2) of the Plaintiff’s Articles of Incorporation provides that the term of office of an officer appointed by a boat shall be the remainder of his predecessor’s term. Thus, the term of office of C who is appointed by a boat upon the resignation of a boat is up to the remainder of his predecessor’s term of office. However, the Plaintiff and the Defendant asserted that the term of office

The Plaintiff asserts that Article 23(2) of the Articles of Incorporation provides that the term of office of the chief director shall be the period during which he/she holds office as a director. Article 20(1) provides that the term of office of the chief director shall be two years, and that the term of office of the chief director shall be the same two years as that of the directors. The Plaintiff’s articles of incorporation stipulates only that the chief director and the chief director are elected directors and the Plaintiff’s articles of incorporation are scheduled. On the other hand, the Defendant asserts that Article 18(1) of the Articles of Incorporation provides that the chief director shall be ex officio director, and

As seen in the above facts, the articles of incorporation of the plaintiff has two separate provisions concerning the term of office of the chief director (proviso of Article 20(1) and Article 23(2)), and in general, the term "ex officio director" is used in the meaning of "director who is naturally subject to the position of another corporation or institution without any separate appointment procedure due to being employed in the specific position of the other corporation or institution" and it is distinguishable from the director elected according to the procedure prescribed inside the corporation. Therefore, it may be interpreted that the term of office of the plaintiff is scheduled to be a chief director with separate term of office under the articles of incorporation

However, in full view of the following circumstances revealed by the facts acknowledged earlier and the purport of the entire pleadings, it is reasonable to interpret the term of office of the president of the Plaintiff’s articles of incorporation as one year pursuant to the proviso of Article 20(1).

① The Plaintiff’s articles of incorporation, using the term “ex officio director”, plans the existence of a chief director who is not an ex officio director and an ex officio director, but an ex officio director (the internal election or appointment is to be made), and the two chief directors are not different from their terms of office. However, it is difficult to view that the term of office under the articles of incorporation is different from that of the board of directors, on the grounds that the board of directors only provides for the method of election of the chief director by election, and there is no provision that distinguishing the chief director

② Therefore, the term “ex officio director” under the articles of incorporation should be interpreted to a different meaning from that of the general tolerance (as alleged by the Plaintiff, this seems to be due to an error in the process of enacting the articles of incorporation only), and “the chief director shall be an ex officio director” under Article 18(1)1 of the articles of incorporation and the Plaintiff’s chief director is premised on the status of directors (Article 23(1) of the articles of incorporation). In addition, considering the language of Article 18(1)1 of the articles of incorporation, the purport of “ex officio director” under the articles of incorporation

③ On February 25, 2016, the Plaintiff amended the articles of incorporation on February 25, 2016, Article 17(2) of the previous articles of incorporation to clarify that “the chief director is an ex officio director and that his term of office is one year.”

④ Meanwhile, Article 23(2) of the Plaintiff’s Articles of incorporation provides that the term of office of the president shall be the period during which he/she is in office as a director. Considering the above circumstances, it is not meaningful to regard the term of office of the president as two years equal to that of the director’s term of office, but it is interpreted that

Thus, the term of office of E is up to January 12, 2017, one year from the time when he/she takes office as the president, and the term of office of C was terminated on January 12, 2017.

B) Whether representation or right to work is granted to C whose term expires

The relationship between a juristic person and a director, who is an institution, is the same as the legal relationship between the delegating and the delegated person, and when the term of office of the director expires, the delegation relationship should be terminated in principle: Provided, That if there is no director until the appointment and appointment of the succeeding director, it is a juristic person that has no choice but to act by the institution, and is placed in a situation where it is impossible to suspend the normal activities of the current director. Therefore, by analogy of the provisions of Article 691 of the Civil Act, in a case where there is no special circumstance to deem it inappropriate to allow the former director to perform the duties of the former director, 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 whose term of office expires until the appointment and appointment of the succeeding director is made (see

The articles of incorporation of the Plaintiff provides that the chief director shall represent the corporation and administer the affairs of the corporation (Article 24), and that two of the directors shall be appointed as standing directors to take charge of the target project (Article 19). The Plaintiff’s representative authority and the right to work are concentrated on one chief director (Article 19). Since the Plaintiff is bound to be dissolved due to the instant disposition, and the Plaintiff is under urgent circumstances to resolve the issue regarding the instant disposition, there is room to view that C (Article 20(1) of the Plaintiff’s articles of incorporation stipulates that the term of office of the director is two years, and Article 23(2) provides that the term of office of the director is two years, and Article 23(2) provides that the term of office of the director and the standing director shall not be deemed to have a representative authority to file the instant lawsuit.

However, in full view of the following circumstances revealed by the purport of the entire pleadings, C cannot be deemed to be in the position of exercising the Plaintiff’s power of representation, as there are special circumstances to deem it inappropriate to have C continue to perform the Plaintiff’s duties.

① As to the process of the Plaintiff’s establishment and operation, C was actually selected and appointed by various suspicion-centered B, and the Plaintiff raised suspicion that the purpose of the project was operated in accordance with B’s instruction, with B’s performance of the project, and C appears to have supported B as the president of the Plaintiff, and is closely related to the instant disposition grounds.

② After the expiration of the term of office of the president, C continues disputes over the powers of other executives and employees, the powers of representation, and the rights to operate the corporation. Although there is a dispute over the validity thereof, the board of directors passed a resolution to dismiss the corporation.

③ There is a circumstance to suspect that C had two or more employees receiving a higher annual salary per day prior to the expiration of the term of office of the president, and that the personal use of the Plaintiff’s funds is problematic for dispute over the right to operate the corporation, thereby undermining the Plaintiff’s interests, such as receiving an investigation due to the suspicion of embezzlement.

D) Sub-determination

Therefore, C is unlawful, since it is not in the position to file the instant lawsuit on behalf of the Plaintiff, the instant lawsuit filed by a non-authorized person.

2) Whether a double lawsuit is filed

The prohibition of double lawsuit is one of the requirements of lawsuit that naturally arise due to the continuation of lawsuit, and if the previous suit has already been filed with respect to the same case, even if the previous suit is unlawful due to the lack of the requirements of lawsuit, the subsequent suit may not be dismissed because it violates the prohibition of double lawsuit, unless the pending lawsuit has been extinguished by the withdrawal, dismissal, etc. until the closing of argument in the subsequent suit (Supreme Court Decision 97Da45532 Decided February 27, 1998).D of the standing director brought a lawsuit seeking the cancellation of the instant disposition under the name of the Plaintiff under this court 2017Guhap60291, the copy of the complaint was delivered to the Defendant on April 4, 2017, and the lawsuit in this case was delivered to the Defendant on April 13, 2017 and the subject matter of lawsuit in this court was identical to the Defendant on April 13, 2017.

3) Sub-determination

Therefore, the lawsuit of this case is unlawful.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

Chief Judge, Senior Judge and Circuit

The number of judges

Judges Kim Young-il