[1] The legal nature of permission to amend the articles of incorporation of an incorporated foundation under Articles 45 and 46 of the Civil Code

[2] Whether the revocation or invalidity of an approval for an amendment of the articles of incorporation can be demanded on the grounds of defects in a resolution to amend the articles of incorporation (negative)

[1] The "permission to amend the articles of incorporation of an incorporated foundation" under Articles 45 and 46 of the Civil Code refers to permission to express legal expressions, but the general prohibition is not cancelled as to whether to supplement the validity of a juristic act in its nature. Thus, the legal nature should be deemed to be the authorization.

[2] The authorization is a supplementary act to complete the legal effect as to an amendment of the articles of incorporation of an incorporated foundation, which is a basic act. If there is a defect in the resolution to amend the articles of incorporation which is the basic act, the resolution to amend the articles of incorporation, which is the basic act, shall not be deemed valid even if there is a defect in the resolution to amend the articles of incorporation, which is the basic act. Thus, if the resolution to amend the articles of incorporation, which is the basic act, is valid and complementary act itself, there is a defect in the approval disposition which is the basic act, the invalidation or cancellation of the approval can be asserted. However, if there is no defect in the basic act, there is no defect in the basic act.

[1] Articles 45 and 46 of the Civil Act / [2] Article 12 of the Administrative Litigation Act, Articles 45 and 46 of the Civil Act

[1] Supreme Court Decision 79Nu248 delivered on December 26, 1979 (Gong1980, 12553), Supreme Court Decision 84Nu509 delivered on August 20, 198 (Gong1985, 1263) / [2] Supreme Court Decision 86Nu152 delivered on August 18, 1987 (Gong1987, 1472), Supreme Court Decision 90Nu157 delivered on June 14, 1991 (Gong191, 1939), Supreme Court Decision 92Nu15482 delivered on April 23, 1993 (Gong193Ha, 1576), Supreme Court Decision 203Nu29439 delivered on April 23, 1994 (Gong1993Ha, 1576).

The Korea Association of the Korea Association of the Korea Association of the Korea Association of the Arts and Arts.

Plaintiff Intervenor (Appointed Party)

The Minister of Culture and Sports

The Korea Foundation, the Korea Foundation, the Korea Foundation for the Maintenance of the Korea Foundation;

Seoul High Court Decision 94Gu10278 delivered on February 15, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the submission period) are examined.

1. On the first and third grounds for appeal

Article 45 (1) of the Civil Act provides that the articles of incorporation of an incorporated foundation may be amended only when the method of modification is stipulated in the articles of incorporation. Paragraph (2) of the same Article provides that the name or the location of office may be changed, notwithstanding the provisions of the preceding paragraph, if appropriate, to achieve the objectives of the incorporated foundation or to preserve its property. Paragraph (3) of the same Article provides that the provisions of Article 42 (2) (any amendment to the articles of incorporation shall not be effective without obtaining the permission of the competent administrative agency) shall apply mutatis mutandis to the case of the preceding two paragraphs. Article 46 of the same Act provides that the founder or the director may modify the articles of incorporation in consideration of the purpose of establishment after obtaining the permission of the competent administrative agency. The term "permission to amend the articles of incorporation" of the incorporated foundation provides that legal expressions are permitted. However, although the term "permission to amend the articles of incorporation of the incorporated foundation" in this context refers to legal expressions, it does not cancel

The previous Supreme Court Decision 79Nu248 delivered on December 26, 1979, and 84Nu509 delivered on August 20, 1985, which conflict with these opinions, are to be discarded.

Meanwhile, the approval is a supplementary act to complete the legal effect of an amendment of the articles of incorporation, which is a basic act, and if there is a defect in the resolution to amend the articles of incorporation, which is a basic act, even if there is a defect in the resolution to amend the articles of incorporation, the resolution to amend the articles of incorporation, which is a basic act, cannot be deemed valid, and if there is a defect in the approval disposition itself, which is a supplementary act, the approval can assert the invalidation or cancellation of the approval disposition. However, if there is no defect in the basic act, even though there is no defect in the basic act, there is no other dispute about the defect in the basic act, the administrative agency's cancellation or nullity of the approval disposition against it, on the ground that it is null and void (see Supreme Court Decisions 92Nu15482 delivered on April 23, 1993, 93Nu2753 delivered on October 14, 1994, the defendant's assertion that there is no error in the misapprehension of the legal principle of the amendment of the articles of incorporation as a basic act.

2. On the second and fourth grounds

The grounds for the argument of the text are all relevant to the merits, and the judgment of the court below which dismissed the lawsuit of this case cannot be a legitimate ground for appeal, unless it is justified. All the guidances are without merit.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Yoon-young (Presiding Justice)