2017Da262267 Chairperson's Resolution, Invalidity of Resolution of the General Meeting, etc.

1. A;

2. B

3. C

E Organizations

person

F

Law Firm Tae-il, Counsel for defendant-appellant

Attorney Park Ho-ho

Seoul High Court Decision 2016Na2081919 Decided August 25, 2017

July 24, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In a case where a corporation is a party, whether there exists a legitimate representative authority to the representative of the corporation is related to the requirements of lawsuit and thus, it is subject to ex officio investigation by the court. Thus, even if the court does not have the duty to detect the facts and evidence which are the basic data of the judgment ex officio, if the other party does not specifically dispute the legality of the representative authority by the documents already submitted, the court is obligated to examine and investigate such facts even if the other party does not specifically point out such facts. The same applies to a case where the party is a non-corporate company (see, e.g., Supreme Court Decisions 2004Da62887, May 27, 2005; 2009Da22846, Dec. 10, 2009). 2. The reasoning of the judgment below and records reveal the following facts.

A. The Defendant is an organization consisting of H upper family owners on the ground of Jung-gu Seoul, Seoul and 16 lots of land.

B. The Defendant’s assistant intervenor was appointed as the Defendant’s president from August 8, 2008 to perform his duties, and the Defendant’s assistant intervenor was appointed as the president whenever there is a cause for disqualification as the president.

C. At the special meeting held on April 24, 2015, the amendment of the Defendant’s articles of incorporation was passed, and according to the amended articles of incorporation, the Intervenor was elected as the Defendant’s president at the special meeting held on May 7, 2015. The Defendant Intervenor appointed eight of the Defendant’s directors, including I and I, at the above special meeting.

D. The Defendant’s members, including the Plaintiffs, filed an application for provisional disposition suspending the performance of duties against the Defendant’s Intervenor as Seoul Central District Court Decision 2015Kahap81285, and the court rendered a provisional disposition order to the effect that all of the resolutions of the general assembly for the amendment of the articles of incorporation as of April 24, 2015, and the resolution for the election of the Defendant’s Intervenor as the president on May 7, 2015, etc., may not be recognized as having significant defects in the convocation procedure and the contents of the resolution. For this reason, the court rendered a provisional disposition to the effect that the Defendant’s Intervenor shall not perform his duties as the Defendant’s president.

E. The members of the Defendant, including the Plaintiffs, filed an application to convene an extraordinary general meeting with the Seoul Central District Court 2016 Gohap30014 on February 12, 2016, and the court accepted it on June 17, 2016, and accordingly, K was elected as the Defendant’s representative acting representative at the extraordinary general meeting held. Accordingly, K, who served as the Defendant’s acting representative, resigned from the board of directors on January 18, 2017, and the board of directors comprised of the directors appointed by the Defendant’s assistant intervenors at the extraordinary general meeting on May 7, 2015, “the senior to act on behalf of the president” was appointed as the Defendant’s acting representative on the same day as the Defendant’s acting representative upon some extension of the board of directors.

G. The plaintiffs filed the instant lawsuit by indicating the representative representative of the defendant as "I", and the defendant's assistant intervenor applied for correction of the party's indication to change the representative representative of the defendant from "O" to "O" at the court below.

H. In the instant case where the Defendant’s members, including the Plaintiffs, filed an application for provisional disposition of suspending the performance of duties against 0 et al., Seoul Central District Court Decision 2017Kahap80259 on May 7, 2015, the court rendered a provisional disposition order to the effect that the Defendant’s members, including the instant Plaintiffs, shall not perform his duties as the Defendant’s director, on the ground that there is a serious defect in the procedure and content, and thus, there is a serious defect in the contents of the resolution to leave the president on May 7, 2015.

I. The lower court accepted the instant claim by the Plaintiffs on the ground that: (a) the general assembly resolution to amend the Articles of Incorporation as of April 24, 2015, and the resolution to elect the Defendant’s Intervenor as the president on May 7, 2015, under the premise that 0 is a lawful representative of the Defendant; and (b) the adoption of the Defendant’s Intervenor as of May 7, 2015, as of the provisional disposition order issued by the Seoul Central District Court Decision 2015Kahap81285,

3. Examining the foregoing factual relations in light of the legal principles as seen earlier, as long as an objection was made by the Defendant’s assistant intervenor selected by the Defendant’s president through a resolution of the general assembly from May 7, 2015, which was defective in the convocation procedure and the contents of the resolution, it cannot be deemed that the Defendant’s legitimate director is not a director. Moreover, the resolution of the board of directors from January 18, 2017, which appointed the Defendant’s representative on the premise that 0 was a lawful director, is difficult to recognize its validity, and there is a lot of room for deeming 0 as being a lawful representative of the Defendant. Therefore, the lower court should have determined the merits after examining who is the Defendant’s lawful representative by

Nevertheless, without examining the above, the court below accepted the claim of this case by the plaintiffs on the premise that the defendant's legitimate representative is zero. In so doing, the court below erred by failing to exhaust all necessary deliberations as to the defendant's legitimate representative, which affected the conclusion of the judgment. The ground of appeal

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young