[1] Requirements for recognizing a benefit to confirm the invalidity of a corporate foundation’s resolution by the board of directors to the previous directors or other third parties who are no longer unable to perform or are not recognized as a director’s right to perform duties

[2] The case holding that in case where the directors appointed by the prior resolution of the board of directors dismiss the previous directors at the subsequent resolution of the board of directors, it is unlawful that the previous directors seeking confirmation of invalidation of the prior resolution of the board of directors does not automatically recover their status and authority due to a favorable judgment of the lawsuit in the confirmation, since they do not restore their status and authority as the directors

[1] There is no special provision in the Private School Act or the Civil Act as to who can file a lawsuit for confirmation of nullity against the board of directors of an incorporated foundation, which is understood as a type of a incorporated foundation under the Civil Act. As such, any person who has an interest in confirmation or legal interest, such as ordinary cases, shall be deemed to have standing to sue. On the other hand, in the case of a corporation, any director may have an interest in confirmation based on his/her occupational authority and duty, i.e., the right to perform his/her duties, and even in the case of retirement or resignation of a director at the expiration of the term of office, if the former director is deemed to have the right to continue to perform his/her duties until the appointment of the former director after analogy of Article 691 of the Civil Act, legal interest to seek confirmation of invalidity of the resolution of the board of directors may be recognized pursuant to his/her occupational authority and duty, but in order to recognize the benefit of a lawsuit to the former director or any other third party,

[2] The case holding that in case where the directors appointed by the prior resolution of the board of directors dismiss the previous directors at the subsequent resolution of the board of directors, it is unlawful that the previous directors seeking confirmation of invalidation of the prior resolution of the board of directors does not naturally restore their status and authority as directors due to a favorable judgment in the lawsuit in confirmation, since they do not restore their status and authority, and therefore

[1] Article 250 of the Civil Procedure Act, Article 691 of the Civil Act / [2] Article 250 of the Civil Procedure Act

Plaintiff (Law Firm Future, Attorneys Lee Jae-chul et al., Counsel for plaintiff-appellant)

School Foundation Dental Institute (Law Firm Kimhae & World et al., Counsel for the defendant-appellant)

Changwon District Court Decision 2006Gahap3998 Decided January 25, 2007

July 26, 2007

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The resolution of the board of directors on December 21, 2004 by the defendant who appointed the non-party 1, 2, and 3 as each director is invalid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts may be acknowledged as either in dispute between the parties or in combination with the whole purport of the pleadings in the evidence A1 and 3.

A. The defendant corporation is a school foundation established on June 16, 1978 with the aim of providing higher education, secondary education, and early childhood education based on the educational ideology of the Republic of Korea, and establishes and operates literature high schools and Changwon junior colleges. The plaintiff is a former president and former director of the defendant corporation who established the defendant corporation with the non-party 4 who is the husband.

B. On December 21, 2004, the non-party 1, 2, and 3 was appointed as a director of the defendant corporation with the consent of all the directors present at the board of directors present at the meeting of the 235th board of directors, such as the statement in the purport of the claim of the defendant corporation held at the meeting of the plaintiff who is the chief director and the non-party 5, 6, 7, and 8, who is the director of the defendant corporation (hereinafter “the board of directors of this case”).

2. The plaintiff's assertion

The Plaintiff, at the time of the instant resolution by the board of directors, appointed Nonparty 1, 2, and 3 as a new director, was made in the absence of a notice for convening Nonparty 9, 10 among the directors of the Defendant corporation. While the place on which the board of directors was held was changed at the place originally notified, there was no legitimate prior notification procedure. The Plaintiff, as the chief director, sought confirmation on the invalidity of the instant resolution by the board of directors, alleging that the Plaintiff, who was the person with the authority

3. Determination on this safety defense

A. The defendant's main defense

As to the plaintiff's above assertion, the defendant asserts that the lawsuit of this case is unlawful due to the following reasons, and thus dismissed.

(1) On November 12, 2005, the Plaintiff was dismissed from office as the president of the Defendant corporation by a resolution of the board of directors at the 241st board of directors. On May 16, 2006, the Plaintiff was dismissed from office as a director by a resolution of the board of directors at the 249th board of directors. Thus, it is possible for the Plaintiff to dispute the validity of the resolution of the board of directors at issue, and there is no interest in standing or lawsuit to dispute the validity of the resolution of the

(2) If the resolution of the board of directors of this case becomes null and void on the ground of the defect in the convocation procedure with respect to Nonparty 10, who was a director of the defendant corporation at the time of the resolution of the board of directors of this case, the resolution of the 230th board of directors of the defendant corporation, which was held before the board of directors of this case, including Nonparty 10, is also null and void due to the defect in the notice of convening the board of directors against Nonparty 10. Since the 233th board of directors, which is the subsequent resolution of the 233th board of directors, were present at the above 4th board of directors and were reappointed of three directors whose term expires including the plaintiff, the resolution of the 233th board of directors shall also be null and void. Ultimately,

(b) Markets:

(1) There is no special provision in the Private School Act or the Civil Act as to who can file a lawsuit for confirmation of nullity against the resolution by the board of directors of the same school foundation as the defendant corporation, which is understood as a kind of incorporated foundation under the Civil Act. Therefore, a person who has a legal interest in confirmation or legal interest, such as in ordinary cases, shall be deemed to have standing to sue.

On the other hand, in the case of a corporation, a director shall have the right and duty assigned to him, i.e., the benefit of confirmation based on the right to perform his duties, and even if a director retires or resigns at the expiration of his term, if the former director is recognized to have the right to continue to perform the former duties until the former director is appointed after analogy of Article 691 of the Civil Act, the former director shall be entitled to obtain confirmation of nullity of the resolution of the board of directors in accordance with his official authority and duty. However, in order to recognize the benefit of a lawsuit against the former director and other third parties who are no longer able to perform or are not recognized as a director, the former director and other third parties shall have the benefit of confirmation as a requirement for protection of rights, as in the case of a usual confirmation, as in the case of a lawsuit for protection of rights. This is recognized only as the most appropriate means to seek invalidation of the resolution of the board of directors of the incorporated foundation of this case. Thus, in order to seek invalidation of the resolution of the board of directors of this case, the legal relationship formed

(2) As seen earlier, the Plaintiff was present at the instant board of directors as a director of the Defendant Corporation, and the Plaintiff was present at the instant board of directors. However, on November 12, 2005, the Plaintiff was present at the meeting of five ( Nonparty 7, 3, 11, 8, and 2 from among the directors at the time of Nonparty 7, 11, 8, 12, 138, 12, 11, and 10 from among the directors of the Defendant Corporation) from among nine (the Plaintiff, Nonparty 6, 1, and 10 from among the directors at the time of the attendance at the meeting of the board of directors at the 241 board of directors of the Defendant Corporation, and was dismissed from office as the chief director of the Defendant Corporation on January 2, 2006. The Plaintiff again did not appear at the meeting of the board of directors on May 16, 2006, and the Plaintiff did not appear at the meeting of the 24th board of directors from office and dismissed evidence No. 1414 from office.

However, as seen earlier, inasmuch as the Plaintiff lost the status of the president and director of the Defendant corporation by the resolution of the board of directors after the resolution of the board of directors of this case, it is difficult to find out that the Plaintiff still could perform its duties as director despite the removal. In this case where the Plaintiff did not have any subsequent appointment of the executives of the Defendant corporation or any interest relationship with the Defendant corporation, it cannot be deemed that the Plaintiff is qualified to seek confirmation of invalidity merely because the Plaintiff participated in the resolution of the board of directors of this case as a director of the Defendant corporation or had an interest in the establishment of the educational foundation. Furthermore, the Plaintiff’s dismissal of the Plaintiff from the board of directors and the board of directors from the position of the board of directors of this case to seek confirmation of invalidity of the resolution of the board of directors of this case 241 and 249, which excluded the operation of the Defendant corporation, cannot be seen as seeking confirmation of the legal relationship of this case, even if there is no legal interest in seeking confirmation of invalidity of the resolution of this case 41 and 249, as it is merely an action seeking confirmation of invalidity or invalidity.

Therefore, the plaintiff's attempt to seek confirmation of invalidity of the resolution of the board of directors of this case does not have any legal interest in the confirmation immediately, and it does not change because the directors appointed by the resolution of the board of directors of this case that the plaintiff is null and void were present at the 241st and 249th board of directors to dismiss the plaintiff.

(3) Therefore, the instant lawsuit is unlawful as there is no benefit of confirmation.

4. Additional Determination - Whether the resolution of the board of directors of this case is null and void

A. As long as the initial appointment of directors through the resolution of the board of directors of this case is null and void on the ground as alleged by the plaintiff, it is assumed that the directors appointed by the resolution of this case participate in the resolution of the board of directors of this case and dismissed the plaintiff, and that the subsequent resolution of the board of directors of this case also asserted invalidation of the resolution of the board of directors of this case would result in the subsequent assertion of invalidity of the resolution of the board of directors of this case, which is the subsequent board of directors. Thus, in this case, it can be viewed that there is a benefit of confirmation as seeking confirmation of current legal relations or legal relationship, and on such premise, even if examining whether there is any defect such as convening procedures to the extent that it can be deemed null and void, as alleged by the plaintiff, as long as the resolution of the board of directors of this case cannot be deemed null and void on the following grounds, the plaintiff's assertion cannot be accepted.

B. Facts premised on the determination

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings on the statements in Gap 2, 3, 6, 7, and Eul 37 and some testimony of non-party 10 of the witness of the first instance trial.

(1) The articles of incorporation of a defendant corporation provides for the matters concerning the appointment and dismissal of officers as one of the matters to be resolved by the board of directors (Article 30(2)4), and the board of directors convened by the chief director or his acting director to be the chairman, and at least seven days before the meeting to convene the board of directors, the board of directors shall notify each director of the purpose of the meeting, stating the purpose of the meeting at least seven days before the meeting: Provided, That the foregoing shall not apply where all the directors are gathered and all the directors request the meeting to be held by the board of directors (Article 30), and the board of directors

(2) On December 11, 2004, when the board of directors of the defendant corporation was held, the plaintiff, who was the chief director of the defendant corporation and the director of the defendant corporation, issued a notice of convening the board of directors by telephone and facsimile on December 20, 2004, which was about 10 days before the date on which the board of directors of the defendant corporation was held, to the directors other than the plaintiff, the non-party 5, the non-party 6, 7, 8, 9, and 10, who were the registered directors of the defendant corporation, and the non-party 9 and the non-party 10, notified the non-party 10 to hold the board of directors of this case on December 21, 2004, stating in advance the appointment of the non-party 9 and the appointment of the non-party 2 new directors. However, the non-party 10 did not give a notice of convening the board of directors on December 20, 2004

(3) However, on December 21, 2004, on the day of the instant board of directors, the place of the meeting was changed without prior written notice, and the meeting was held in the Ulsan Metropolitan City located in Busan Metropolitan City Maritime Affairs and Fisheries, and as seen earlier, Nonparty 3, 1, and 2 were appointed as a director of the Defendant corporation with the consent of all five members, including the Plaintiff, Nonparty 5, 6, 7, and 8, who were present directors.

C. Judgment on the Plaintiff’s assertion

(1) The assertion that the notice of convening Nonparty 9 and 10 was defective

(A) First, we examine whether the non-party 9's failure to notify the non-party 9 constitutes a defect in the convocation procedure of the board of directors of this case.

The director of a school juristic person may terminate the legal relationship by unilateral declaration of intention to resign from a juristic person, and such declaration of intention will immediately take effect upon arrival of the agency with the authority to receive it, and it does not require a resolution of the board of directors or approval of the competent authority to take effect (see Supreme Court Decision 2001Da1171, Jan. 10, 2003).

In this case, according to the health class, evidence Nos. 1, 3, and 30, the non-party 9 was held on November 29, 2004 when the board of directors of the defendant corporation held the office as a principal acting as the principal of the Changwon, the junior college, and the school principal of the non-party 4 on November 29, 2004 in order to prevent the business confession due to the temporary retirement disposition by the non-party 4, and the plaintiff accepted it by expressing his intention to resign the director of the defendant corporation in accordance with the provisions of Article 26 (Prohibition of Concurrent Office of Officers) of the articles of incorporation of the defendant corporation. In this case, the board of directors of this case is recognized to have been held as one of the agenda items for the election of new directors to recruit the vacant director due to the non-party 9. Thus, the non-party 9's resignation at the meeting of the board of directors of the non-party 9 reached the plaintiff as the president on November 234, 2004, thereby the non-party 9 was deemed to be dismissed.

(B) Next, we examine whether the notice of convening a meeting with no necessary period against Nonparty 10 constitutes a defect affecting the validity of the resolution of the board of directors of this case.

In light of the above facts, the Ministry of Education and Human Resources Development No. 10, 10 decided to dispatch the non-party 1 to Japan as the chief education officer of the Embassy No. 202, and the 21st meeting of the defendant corporation No. 202, which was held on June 8, 2002, submitted to the plaintiff the power of attorney to make decisions as the director of the defendant corporation and the 20th meeting. The non-party 10 did not appear in the board of directors' meeting for the first time until November 25, 2005. The non-party 2 did not appear in the board of directors' meeting for the first time until the resignation of the director of the defendant corporation. The non-party 3 witness No. 5, the non-party 1 and the non-party 2's non-party 4 were the non-party 2's non-party 2's non-party 1 and the non-party 3's non-party 2's non-party 1 and the non-party 2's non-party 3's meeting.

According to the above facts, it is reasonable to view that Nonparty 10 comprehensively delegated the authority as a director to the president according to dispatch abroad to the board of directors of the 221st meeting of the 21st meeting of the 201st meeting of the 201st meeting of the 201st meeting of the 201st meeting of the 201st meeting of the 201st meeting of the 30th meeting of the 30th meeting of the 30th meeting of the 196th meeting of the 196th meeting of the 196th meeting of the 196th meeting of the 206th meeting of the 196th meeting of the 196th meeting of the 196th meeting of the 196th meeting of the 206th meeting of the

In this case, the notice of convening the board of directors of this case against the non-party 10 residing in a foreign country at the time of the meeting of the board of directors of this case did not have the necessary period stipulated in the articles of association, and thus cannot be deemed as a defect in the convocation procedure

(2) The assertion that there is a defect in the place of call.

On December 21, 2004, the plaintiff and the non-party 8 held the board of directors of this case at the Ulsan Elsan Elsan Elsan Elsan Elsan Elsan Elsan El. The plaintiff and the non-party 8 held the board of directors of this case on December 21, 2004 after the notice of the board of directors of this case was duly issued to the non-party 5, 6, and 7, notified that the non-party 4, who was subject to the temporary retirement disposition at the 234 board of directors of this case, did not change the place of the board of directors to the "Masan Elsan Elsan Elsan Elsan Enb." with the consent of all the directors of the non-party 10 and the non-party 2, 3, and 37 had no dispute between the parties, or did not notify the non-party 10, the non-party 6, and the non-party 7, and the non-party 8 were present at the meeting of this case.

(3) The assertion that the convening authority was convened against the will of the convening authority.

Only the descriptions of the evidence Nos. 4, 5-1 through 24 are insufficient to deem that the Plaintiff, who was the president at the time of holding the board of directors of this case, had no normal judgment ability or had been convened against his will, and there is no other evidence to prove otherwise.

D. Sub-committee

Therefore, the Plaintiff’s assertion that the resolution of the board of directors of this case is null and void is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

Judges Park Jong-nam (Presiding Judge)