A. In a case where the plaintiff, who is a director of the company, filed a lawsuit against the defendant company, as a representative director who is not an auditor, in violation of Article 394 of the Commercial Act, whether the representative director and the plaintiff's procedural acts are effective

B. In the case of the preceding paragraph, whether the representative of the defendant company may correct the deficiency by correcting it as an auditor (affirmative) and the measures to be taken by the court after the correction

C. Whether the correction of the defect in the representative’s representative authority, such as the preceding paragraph, is possible in the appellate court (affirmative)

A. In filing a lawsuit against the defendant company, the plaintiff, who is a director of the defendant company, did not indicate as the representative auditor who has the authority to represent the company in connection with such lawsuit pursuant to Article 394 of the Commercial Act, submitted a complaint representing the representative director of the defendant company as the representative director of the defendant company, and the court also served the representative director of the defendant company as the duplicate of the complaint. If the lawsuit was conducted by the attorney-at-law delegated by the representative director of the defendant company with the authority to represent the defendant company, the complaint cannot be deemed to have been duly and effectively served on the defendant because the representative director of the defendant company did not have the authority to represent the defendant company. In addition, all the litigation conducted by the plaintiff against

B. In the case as referred to in the preceding paragraph, a correction of defects may be made by indicating the representative of the defendant company, who is indicated in the complaint, as an auditor who has the authority to represent the defendant company with respect to the lawsuit of this case, upon the correction of the complaint. In this case, the court shall serve the auditor of the defendant company with a copy of the complaint upon the correction of the plaintiff and shall serve the auditor of the defendant company with a copy of the complaint again upon the correction of the complaint, and the continuation of the lawsuit becomes effective upon the delivery of the complaint. As such, regardless of whether the auditor of the defendant company ratified the previous litigation, the legal relationship

C. In light of the structure of the Civil Procedure Act, the ideology of civil procedure and Article 388 of the Civil Procedure Act, etc., the correction of defects in the representative’s representative authority, such as the preceding paragraph, can also be made in the appellate court in light of the structure of the

(a) Article 394 of the Commercial Act; (b) Articles 60 and 231(c) of the Civil Procedure Act;

C. Supreme Court Decision 71Da1805 delivered on October 11, 1971

The Republic of Gangwon Sea (Attorney Kang-sik, Counsel for the defendant-appellant)

Enzy Industrial Company

Attorney Hong-young et al., Counsel for the defendant-appellant

Seoul High Court Decision 87Na5032 delivered on May 17, 1989

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

We examine the grounds of appeal by the Plaintiff’s attorney.

1. The court below rejected the plaintiff's claim on November 5, 1987 because the plaintiff, who is a shareholder of the defendant company concurrently, filed a lawsuit for invalidation of the incorporation of the defendant company under Article 328 of the Commercial Act against the defendant company. The court below rejected the plaintiff's claim on the ground that the plaintiff's copy of the complaint was served to the authorized representative director who is not an auditor, and the plaintiff's right of representation was lawful upon the expiration of the litigation procedure by the authorized attorney. The court below also rejected the plaintiff's claim on the ground that the plaintiff did not have the right of representation of the defendant company under Article 328 of the Commercial Act. The court below's dismissal of the plaintiff's claim on the ground that the plaintiff did not have the right of representation of the defendant company under Article 111 of the Commercial Act because the plaintiff did not have the right of representation of the representative director under Article 328 of the Act. The court below's dismissal of the plaintiff's right of representation of the defendant company under Article 14 of the Commercial Act without the right of pleading as the plaintiff's title of this case.

2. As in this case, if the plaintiff, who is a director of the defendant company, filed a lawsuit against the defendant company, failed to know that the person who is entitled to represent the company is not the representative director but the representative director of the defendant company, and the court submitted a complaint representing the representative director of the defendant company as the representative director of the defendant company, and the court delivered the copy of the complaint to the representative director of the defendant company, and when the lawsuit was conducted by the attorney-at-law delegated the representative director of the defendant company with the authority to represent the defendant company, the complaint cannot be deemed to have been duly served on the defendant because the representative director of the defendant company did not have the authority to represent the defendant company and all the litigation conducted by the plaintiff against the representative director of the defendant company shall be null and void.

However, even in such a case, according to the order of correction of the court that found such defects, it shall be deemed that the representative of the defendant company as indicated in the complaint of this case can be corrected by correcting the complaint as an auditor who has the authority to represent the defendant company. As recognized by the plaintiff, the court below should serve the auditor of the defendant company again upon the plaintiff's correction, and as the plaintiff's delivery of complaint leads to the continuous effect of litigation, the legal relationship between the court and the third party of the plaintiff and the defendant shall be deemed effective, regardless of whether the auditor of the defendant company ratified the previous procedural acts, as seen above.

Of course, in order to ensure our court's interest, the court of appeals shall thoroughly maintain the court's system in order to ensure our court's interest, and in the litigation procedure, it may be deemed that there is no way to correct the defect unless it returns the case to the court of first instance, in case where the above defect is discovered as a result of the appellate court's failure to return it to the court of first instance. However, as our Civil Procedure Act adopts the immediate and economic system of the appellate court's structure, it cannot be deemed that the ideology of maintaining the court's system or ensuring the legality in the litigation procedure takes precedence over the other ideology of the civil procedure system of rapid and economic aspects of the trial, and the current Civil Procedure Act, unlike the former Civil Procedure Act, only provides that the case may be remanded to the court of first instance if it revokes the first instance court's judgment dismissing the lawsuit as unlawful (see Article 388), and in case other than the appellate court's judgment, it cannot be deemed that the court of first instance can be seen that the court of first instance without the consent of the party's representative's right to represent the litigation procedure at its own discretion, 190.

3. If so, as recognized by the court below, the plaintiff corrected the representative of the defendant company to the auditor who has the authority to represent the defendant company as to the lawsuit of this case, and the defect in the representative authority of the defendant company as above was legally corrected. Thus, the court below should have tried and judged the propriety of the claim after serving a copy of the complaint again to the auditor who is the representative of the defendant company as the correction of the plaintiff, and let the auditor participate in the lawsuit of this case as the representative of the defendant company. However, if the auditor who is the representative of the defendant company does not confirm the previous procedural acts and clearly contests the facts alleged by the plaintiff at the date for pleading, he is only deemed to have led to the confession of the facts, and it is not unlawful because the auditor of the defendant company did not confirm the previous procedural acts. The court below did not dismiss the judgment of this case since the plaintiff did not serve a summons on the date for pleading without delivering a copy of the complaint to the auditor of the defendant company, and it did not constitute an unlawful error in the misapprehension of legal principles as to the defendant company's right of representation as well as the date for pleading of this case.

4. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)