[1] Where the term of office of a director or an auditor of a corporation under the Civil Act expires, whether the former director or auditor can continue to perform his/her previous duties until the successor director or auditor is appointed (affirmative with qualification)

[2] Whether only the former director whose term of office expires has the authority to perform his/her duties in a case where a dispute over the validity of appointment is disputed even though the latter director was appointed in an effective manner (negative)

[3] In a case where the defendant, who was elected as the chief director upon the expiration of the term of the former chief director after being elected in the election of the chief director of an incorporated association, was sentenced to the judgment that he is a legitimate chief director in a civil lawsuit surrounding the result of election, the case reversing the judgment of the court below that the former chief director has the authority to perform his duties and the defendant has no such authority until the judgment becomes final and conclusive,

[1] Even though the term of office of a director, all or some of the auditors of a corporation under the Civil Act has expired, if there is no successor director or auditor, or there is no successor director or auditor, the resolution of appointment becomes null and void, and if another director or auditor whose term of office has not expired is not sufficient to carry out activities of a normal corporation, the former director or auditor whose term of office has expired may carry out the previous duties until the successor director or auditor is appointed, unless there is a special reason to believe that it is improper to allow the former director or auditor to carry out the activities of the corporation.

[2] Even though a successor director was appointed in an effective manner, there is a dispute over the validity of such appointment, and until such dispute is settled, only the former director shall not be deemed to have the authority to perform his/her duties, and only the former director whose term of office has expired shall not be deemed to

[3] In a case where the defendant, who was appointed as the chief director upon the expiration of the term of the former chief director after being elected in the election of the chief director of an incorporated association, was sentenced to a judgment that he is a lawful elected person in a civil lawsuit surrounding the result of the election, the case reversing the judgment of the court below that the former chief director has the authority to perform his duties and the defendant has no such authority until the judgment becomes final and conclusive,

[1] Articles 57, 58, and 691 of the Civil Act / [2] Articles 57, 58, and 691 of the Civil Act / [3] Articles 57, 58, and 691 of the Civil Act

[1] Supreme Court Decision 97Da26142 delivered on December 23, 1998 (Gong1999Sang, 216) Supreme Court Decision 2004Da65336 delivered on March 25, 2005 (Gong2005Sang, 670)

Defendant

Defendant

Attorney Lee Jae-ho

Busan District Court Decision 2004No4553 delivered on November 3, 2005

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

1. The summary of the facts charged is as follows: (a) the defendant put the largest number of votes at the 11st election of the (name omitted) president of the association; (b) the above election commission already cancelled the registration of the candidate on the ground of illegal election campaign by the defendant, and (c) the non-indicted who is the next highest shareholder was notified of the cancellation of the registration, and (d) applied to Busan District Court for the suspension of validity of notification of the decision of the winning candidate to the above association, and again filed a lawsuit to confirm the status of winning the above court against the non-indicted. In such a case, the former non-indicted is entitled to continue the duties of the president until the decision of the above lawsuit becomes final and conclusive, and the defendant has no authority to do so; (c) the former president is entitled to gather the qualification of the president of the above association and prepare a lease contract of private documents, designated uniform contract, and each contract was exercised; and (d) the registration of the Busan District Court and the defendant newly retired from office with the president and the director, etc.; and (d) the original and (e) the above application is not known.

In light of the adopted evidence, the court below dismissed the defendant's right to request the confirmation of the status of the non-indicted 1's main office and the non-indicted 1's counter-party 1's representative director and the non-indicted 1's representative director's performance of duties until the decision on provisional disposition to the effect that "the effect of notification of the election of the non-indicted 1's representative director is suspended until the final decision on the merits has become final," and that the defendant took office after obtaining a provisional disposition from the Busan District Court to the effect that the above election commission decided that the non-indicted 1's principal office and the non-indicted 1's non-indicted 1's representative director's representative director's representative director's representative director's representative director's representative director's right to request the confirmation of the status of the non-indicted 1's elected representative director's representative director's representative director's representative director's representative director's representative director's representative director's representative director's representative director's representative director's representative director's representative and non-party 1's representative's representative.

2. However, we cannot agree with the judgment of the court below that the defendant acquired a legitimate position of the chief executive officer only when the judgment of the lawsuit demanding confirmation of the above election status became final and conclusive, and until that time, the former chief executive officer was authorized to perform his duties.

In the event that there is no subsequent appointment of directors or auditors, or there is no subsequent appointment of directors or auditors despite the expiration of their term of office, or there is no subsequent appointment of directors or auditors thereof, the resolution of appointment becomes null and void, and in the event that other directors or auditors whose term of office has not expired are not sufficient to enable the former directors or auditors to perform their duties, unless there are special circumstances to deem it inappropriate to allow them to perform their duties, the former directors or auditors whose term of office has expired may perform their duties until they are appointed (Supreme Court Decisions 97Da26142 delivered on December 23, 1998; 2004Da65336 delivered on March 25, 2005), and even after the appointment of the former directors was effective, they cannot be deemed to have the authority to perform their duties, and only the former directors whose term of office has expired, until a dispute over the validity of the appointment is resolved, and thus they cannot be deemed to have been authorized to perform their duties.

According to the facts duly established by the court below, the defendant was elected at the 11th election of the chairman of the above union, and was appointed as the president at the expiration of the term of the former president after winning the highest vote. However, due to the dispute surrounding the result of the above election, there was a civil lawsuit between the defendant and the non-indicted, but the above dispute was resolved by the court that the defendant was a lawful winner, and the judgment was sentenced and confirmed by the court that the defendant was a lawful winner. Thus, the defendant had already been authorized as the president of the above union at the time

Nevertheless, the court below found all of the charges guilty on the grounds as stated in its reasoning. The court below erred by misapprehending the legal principles on the former director's right to continue performance of duties, the term of office of which expires, and it is clear that such illegality has influenced the judgment.

3. 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 Kim Ji-hyung (Presiding Justice)