Whether a person who actively participates in a resolution at the board of directors asserts the invalidity of the resolution by the board of directors violates the principle of trust and good faith.

If the board of directors of a school juristic person is not called by a person entitled to convene a meeting, but is not by the consent of all the directors including the person entitled to convene a meeting, it cannot be deemed legitimate even if the resolution of the board of directors is in fact consistent with the intention of all the directors, and even if a person who actively attends the meeting and operates the school juristic person with the approval of the literacy authority, it is not necessarily contrary to the principle of trust and good faith or the principle of no-competence.

Article 2(1) of the Civil Act

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Attorney Han-soo et al., Counsel for the defendant-appellant

Seoul High Court Decision 75Na1446 delivered on June 10, 1976

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

The court below held that the directors newly appointed by the temporary board of directors of the defendant school foundation held on October 26, 1970 who are open to the board of directors shall frequently gather the plaintiff and appoint Nonparty 1 as the president of the defendant school foundation (1) via telephone liaison, etc. (2). Nonparty 2 shall be appointed as directors of the defendant school foundation. (3) The number of directors under Article 12 of the articles of incorporation of the defendant school foundation shall be changed to nine. (4) The plaintiff shall be appointed as the principal of the literature middle school operated by the defendant school foundation. (4) The plaintiff shall attend an open board of directors on December 4, 1970 and make a resolution in accordance with the above opinion (three of the directors shall be present and decided by their representative). The remaining directors (excluding Nonparty 3) who presented the plaintiff to Nonparty 4, who is the general manager of the defendant school foundation, and shall be entrusted with the preparation of documents related to the defendant school foundation's meeting minutes, etc., and the plaintiff shall be deemed to be in violation of the principle of invalidation and the above resolution of the defendant school foundation's appointment.

However, the board of directors of the school juristic person is not called by the person holding the authority to convene, and it is not by the consent of all the directors including the person holding the authority to convene, or all the members attend the board of directors, and even if the resolution of the board of directors is in fact consistent with the intention of all the directors, it cannot be deemed lawful, and it cannot be said that the above defective board of directors and actively participate in the resolution and operated the school juristic person with the approval of the school juristic person concerned under the premise that the resolution is valid, and that the absence or invalidity of the resolution is against the principle of trust and good faith, and it cannot be argued that there is no sufficient reason to conclude that the resolution of the board of directors of January 5, 1971 is against the principle of trust and good faith, and that the resolution of the board of directors of the school juristic person is a resolution of the board of directors of the school juristic person with sufficient mind and mind, and that the resolution of the board of directors of the school juristic person is not a resolution of the board of directors' total number of directors under Article 12 of directors (No No. 14 of the board of directors).

Therefore, it cannot be said that there is sufficient reason to determine the remaining resolution on the premise that the absence of such a resolution or the claim for nullification is groundless.

However, in this case, it is unclear whether there is a real interest or necessity to seek confirmation of the absence or invalidity of the whole of the above resolution, and further, according to the evidence No. 1 (the articles of incorporation of the defendant corporation), employed by the court below, the term of office of the director of the defendant school foundation shall be four years. According to the plaintiff's letter, since the plaintiff was appointed as the director of the defendant school foundation by a resolution of the temporary board of directors on Oct. 26, 1970 and completed its registration on Dec. 12 of the same year, even if the resolution of Feb. 12, 1972, which dismissed the plaintiff as the director, is null and void as asserted by the plaintiff, the term of office of the plaintiff as the director of the defendant school foundation shall not be expired at least until December 1, 1974, and there is no reason that the plaintiff was appointed again as the officer of the defendant school foundation, or that the plaintiff had an interest with the defendant school foundation.

The court below, on April 12, 1972, held that only each resolution of the board of directors dated October 29, 1974, 10.20, 1974, which the plaintiff asserted the invalidation, had no interest in seeking confirmation of invalidity, and it is not clear in the records as to whether the plaintiff's specific interest in seeking confirmation of non-existence or invalidation should exist on the plaintiff as to the resolution of the board of directors seeking non-existence or invalidation in this case (in addition, it is unclear that the defendant has any substantial reason to seek non-existence or invalidation of the resolution of the board of directors in this case, and it is not clear that there is any substantial reason for the defendant to seek confirmation of invalidity).

Therefore, the appeal of this case is with merit, and therefore, in accordance with Articles 400 and 406(1) of the Civil Procedure Act, the original judgment is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Min Jae-chul (Presiding Justice)