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(영문) 대구고법 1974. 12. 18. 선고 74나352 제1민사부판결 : 상고
[점유권확인등청구사건][고집1974민(2),382]
Main Issues

(a) Scope of authority of the representative director and the deputy agent;

(b) Acts other than the authority of an acting director and the period of filing for retrial; and

Summary of Judgment

A. Unless otherwise stipulated in the provisional disposition by the court, the representative director based on the court's decision of provisional disposition is prohibited from an act that does not belong to the regular director without permission. Thus, the acceptance by the above representative without permission of the court does not obtain the special authorization necessary for the act, and constitutes grounds for retrial under Article 422 (1) 3 of the Civil Procedure Act.

B. Even in the above cases, since only that person acting as an agent has the authority to represent the defendant company, a person who has not had the power of representation shall file a lawsuit for retrial within 30 days from the time when the defendant became aware of the reason under Article 426 of the same Act, different from the time when the person conducts litigation.

[Reference Provisions]

Articles 426, 427, and 422 of the Civil Procedure Act; Article 408 of the Commercial Act; Article 149 of the Non-Contentious Case Litigation Procedure Act

Reference Cases

Supreme Court Decision 75Da120 delivered on May 27, 1975 (Kakadd 10971; Supreme Court Decision 23 ②B citizen 102; Decision 408(3)746 of the Commercial Act; Decision 517No8514 delivered on May 27, 197)

Plaintiff, Quasi-Review Defendant, Appellant

5,6 Section merchants' associations

Defendant, Associate Review Plaintiff, Appellant

Long-Term Industry Corporation

Judgment of the lower court

Busan District Court (73Hung7) of the first instance court

Text

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Appeal and purport of appeal

The original judgment shall be revoked. On December 10, 1969, the acceptance made by the defendant company at the hearing date of Busan District Court 69No4265 case such as the confirmation of possessory right between the plaintiff and the defendant shall be revoked.

The plaintiff's claim in the above case is dismissed.

All the costs of lawsuit shall be borne by the plaintiff through the first and second trials.

Reasons

The plaintiff's association acquired the right against the defendant company and confirmed that the right to use the rooftop as of 5,65 square meters in Busan-dong, Busan-dong, Busan-dong, Busan-dong, 575, and 105 square meters in 2,000 and 105 square meters in 2,000 dong-dong, Busan-dong, Busan-dong, and the right to use the site was the plaintiff, and the defendant does not interfere with the use thereof, and the defendant claims that the right to use the land should be changed to the plaintiff's name, and at the same date of pleading, the above court did not dispute between the parties that the attorney, who was the representative director of the defendant company, who was the representative director of the defendant company, was present at the time of the above date of pleading's application and the decision

The defendant asserts that the above right to use the rooftop and each right to establish a new establishment for the purpose of market management is not obtained by the above representative director, who is the result of disposal of it, without permission from the court. Thus, the above right to use the rooftop and each right to establish a new establishment for the purpose of management of the defendant company, and that the above revocation should be revoked immediately when an agent under Article 422 (1) 3 of the Civil Procedure Act conducts procedural acts, which is the defect of the right to representation or lack of the right to authorization necessary to conduct procedural acts. Thus, the above revocation should be revoked ex officio. Thus, it is impossible for the representative director under the court's provisional disposition order to do not belong to the ordinary business of the court without permission unless otherwise stipulated in the provisional disposition, and it is clear that the above representative director and the above representative director under the court's provisional disposition order who appointed the non-party 2 were not authorized to institute a new suit on behalf of the defendant company without permission of the court, and the above representative director should not obtain the above special right to do so within 60 days before the above ground for retrial.

Therefore, the defendant company's action for quasi-deliberation of this case is unlawful, and therefore it is not necessary to review the remaining facts. Thus, the original judgment with the same conclusion is just, and therefore the defendant's appeal is without merit, and it is dismissed in accordance with Article 384 of the Civil Procedure Act, and it is so decided as per Disposition by applying Article 95 and Article 89 of the same Act with respect to the burden of litigation costs.

Judges Seole Hong (Presiding Judge) Lee (Presiding Judge)

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