[1] In a case where a corporation is a party, whether the court is obligated to examine and investigate the representative's legitimate representation in the case (affirmative)

[2] In a lawsuit filed by a director of a stock company against the company, the validity of litigation conducted on behalf of a representative director who is not an auditor (negative) and the validity of litigation conducted against a representative director who is not a director (negative)

[3] Whether measures to be taken by the court and amendments to the power of representation are possible in the appellate court where the representative of the party to the lawsuit is absent (affirmative)

[1] Articles 51, 58, 64, and 134 of the Civil Procedure Act / [2] Article 394 of the Commercial Act, Articles 51 and 64 of the Civil Procedure Act / [3] Articles 59, 60, and 64 of the Civil Procedure Act

[1] Supreme Court Decision 96Da40578 delivered on October 10, 1997 (Gong1997Ha, 3405) Supreme Court Decision 2004Da62887 delivered on May 27, 2005 / [2] Supreme Court Decision 89Meu15199 delivered on May 11, 1990 (Gong1990, 1253) / [3] Supreme Court Decision 2003Da2376 delivered on March 28, 2003 (Gong2003Sang, 1059)

Plaintiff (Attorney Kim Chang-jin, Counsel for the plaintiff-appellant)

International stone processing and logistics center Co., Ltd. (Law Firm Gyeongsung, Attorneys Lee Ho-won et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2008Na7108 Decided September 30, 2009

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

Judgment ex officio is made.

1. In a case involving which a corporation is a party, whether the representative of the corporation has legitimate power of representation or not is subject to ex officio investigation. Thus, even if a court does not have an obligation to detect the facts and evidence which are the basic data for its determination ex officio, if circumstances warrant doubt as to the legality of its power of representation by the materials already submitted exist, the other party is obligated to examine and investigate such facts (see, e.g., Supreme Court Decisions 96Da40578, Oct. 10, 1997; 2004Da6287, May 27, 2005). Meanwhile, if a director of a corporation submits a lawsuit against the company, he/she cannot issue an order for correction and ex officio to the court that stated that it has no right of representation or authority to represent the company under Article 394 of the Commercial Act, and if so, he/she cannot be deemed that the representative director or the representative director of the corporation has no right of representation or to represent the company, the court has no authority to do so ex officio or ex officio.

Examining the circumstances indicated in the record in light of the above legal principles, the court below should have taken measures to ensure that the plaintiff and the defendant have the effect of continuing litigation by issuing an order of correction to the plaintiff, by indicating the representative of the defendant indicated in the complaint, by indicating the defendant as a lawful auditor who has a legitimate authority to represent the defendant, and by delivering a corrected complaint to the auditor

Nevertheless, the court below erred by misapprehending the legal principles as to the representative of the company where a director files a lawsuit against the company, which affected the conclusion of the judgment, on the premise that a person who is authorized to represent the defendant in the lawsuit in this case without taking appropriate measures, is the representative director or representative director of the defendant.

2. Therefore, without examining the grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)