A. Whether approval of a corporation is required in addition to the expression of resignation when a director of an incorporated foundation resigns (negative)

B. The reason that a non-profit incorporated foundation has no effect on the establishment of the board of directors resolution by the board of directors, where only the minutes are prepared or only some directors are gathered without holding the board of directors' convocation notice, and that the voting of a director who did not receive a notice for convening a legitimate board of directors did not affect the establishment of the board of directors resolution by the non-profit incorporated foundation

A. The director of the Incorporated Foundation may terminate the legal relationship by unilateral declaration of resignation against the Incorporated Foundation, and it shall take effect upon the arrival of such declaration to the receiving authority, and shall not take effect only with the consent of the Incorporated.

B. Although the articles of incorporation of a nonprofit incorporated foundation under the Civil Act require a non-profit incorporated foundation to send a muster notice prior to the holding of the board of directors, a non-profit incorporated foundation did not attend a meeting meeting due to the relation which did not go through the procedure on the convocation notice. If some directors did not hold the board of directors, and only the minutes of the meeting held by some directors or only some directors gather and hold the board of directors, such a resolution of the board of directors shall not exist or shall be deemed null and void. In this case, even if a director who did not receive a legitimate convocation notice did not have any influence on the establishment of the board of directors' resolution, the resolution of the board of directors shall not interfere with the conclusion that the resolution of the board of directors

(b)Article 57, Article 111, Section 58 of the Civil Code;

B. Supreme Court Order 68Ma1083 decided Dec. 9, 1968 (Gong163No282) 85Nu973 decided Mar. 24, 1987 (Gong1987,741) 85Nu884 decided Mar. 22, 1988 (Gong1988,701)

[Judgment of the court below]

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

Seoul High Court Decision 91Na26609 delivered on November 22, 1991

The part of the lower judgment against the Plaintiff regarding the resolution of the Defendant’s board of directors on March 25, 1989 is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's appeal is dismissed.

The costs of appeal dismissed shall be assessed against the defendant.

1. As to the grounds of appeal by the Plaintiff’s legal representative, the court below held that, on March 25, 1989, the effect of the resolution of the board of directors made by the Defendant who appointed Nonparty 1 and Nonparty 2 as the director, the director who participated in the resolution of the board of directors made on March 25, 1989, and Nonparty 3 and Nonparty 4, who was appointed as the director, cannot exercise effective voting rights because they are not qualified as the director of the Defendant Foundation. However, even if they were excluded, they cannot exercise valid voting rights. However, as they were present at the time of the defendant Foundation’s legitimate director’s attendance at the board of directors and reached the resolution with the above Nonparty 5 and Nonparty 62 with the consent of the above Nonparty 62, the above resolution of the board of directors satisfied all the quorums and quorums set forth in the articles of incorporation, and according to the testimony by Nonparty 6 as the director’s director at the time of the above resolution of directors’ meeting, the above non-party 6 still held the above director’s office and held other directors’s office.

According to the evidence as adopted by the court below and other evidence Nos. 19, 20, and Eul No. 4-3, the above non-party 6 was in office as a full-time director of the defendant foundation and submitted a letter of resignation at the end of February 1989. The above non-party 6 expressed his intention of resignation at the time of holding the board of directors on March 25 of the same year, but was not accepted by non-party 5 of the board of directors. Thus, the above non-party 6 was present at the board of directors and participated in the resolution

The director of the incorporated foundation may terminate the legal relationship by unilateral declaration of resignation against the incorporated foundation, and it shall take effect by reaching the competent authority, and it shall not take effect only with the consent of the incorporated foundation. Therefore, as long as the above Nonparty 6 submitted the letter of resignation, it shall take effect upon arrival of the defendant incorporated foundation, and the acceptance of the defendant incorporated foundation shall not affect the validity of the resignation.

In addition, it is reasonable to interpret the purport that all of the above non-party 6 resigns from office unless there are special circumstances such as stating that he only withdraws from office in submitting a resignation letter, and it is erroneous to recognize that the court below divided the above non-party 6 into the part-time director and the non-standing director and did not resign from office in spite of the absence of evidence of other circumstances.

Furthermore, according to the statement No. 3-5 of evidence No. 3-5 and the testimony of Non-Party 6 of the court below, when the resolution to appoint Non-Party 1 and Non-Party 2 on March 25, 1989 was adopted, the consent of Non-Party 5, Non-Party 6, Non-Party 3, and Non-Party 4, the president of the board of directors, the non-party 6, Non-Party 3, and Non-Party 4, and the plaintiff knew the opposing facts. As recognized by the court below, the above non-party 3 and Non-Party 4 are not qualified as a director, and the above non-party 6 resigns from the above non-party 6, and the legitimate director of the defendant foundation remains the plaintiff and the above non-party 5. Meanwhile, according to the articles of incorporation (Evidence No. 2), the directors of the defendant foundation shall be elected by the board of directors with the approval of the Minister of Labor, and the resolution is made with the attendance of a majority of the members present.

Therefore, the judgment of the court below is erroneous in the misconception of facts against the rules of evidence, which affected the conclusion of the judgment.

2. As to the ground of appeal by the defendant's attorney

Despite the fact that the articles of incorporation of a nonprofit incorporated foundation require a non-profit incorporated foundation to send a muster notice stating the agenda items, etc. prior to the holding of the board of directors, the director did not attend the meeting due to the relation which did not go through the procedure on the convocation notice. If some directors did not hold the board of directors, and only the minutes of the meeting held by some directors or only some directors gather and hold the board of directors, the resolution of the board of directors shall not be adopted or shall be deemed null and void. In this case, even if a director who did not receive a legitimate convocation notice did not have any influence on the establishment of the board of directors' resolution, even if he did not attend the meeting and cast an opposing vote, it does not interfere with the conclusion that the board of directors' resolution is null and void (see Supreme Court Order 68Ma1283, Dec. 9, 1968; Supreme Court Decision 85Nu973, Mar. 24,

The court below held on June 17, 198 based on its adopted evidence that the non-party 6, who was the chief director of the defendant foundation, was responsible for the insolvency of management and resigned from office, was held on June 27, 198 and appointed non-party 3, non-party 4 as the chief director, and the non-party 5 as the chief director without the non-party 5's instruction or holding the board of directors' meeting without the non-party 5's instruction, and completed the registration procedure by preparing minutes of the board of directors' meeting and sealing the seal of the plaintiff being kept in custody, and then the above recognition was not made or it was invalid by the board of directors, and even if the plaintiff who was the non-party 7, who was the chief director of the defendant foundation at the time of the defendant foundation, did not have any influence on the establishment of the board of directors' meeting, or the contents of the resolution are consistent with the intention of the director who was actually unable to attend the board of directors, the resolution is still invalid and not legitimate.

The above judgment of the court below is just and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. We are without merit.

For the above reasons, the part of the judgment of the court below against the plaintiff regarding the resolution of the defendant's board of directors on March 25, 1989 is reversed, and that part of the case is remanded to the court below. The defendant's appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho