Applicant (LLC, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the plaintiff-appellant)

○○ ○ foreigners’ school

Interested Parties 1 and 2 others (Law Firm LLC, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Suwon District Court Order 2015 Gohap10028 dated February 3, 2016

The appeal of this case is dismissed.

The decision of the first instance court shall be revoked. The decision of the principal of the case shall be revoked. The decision of the first instance court shall be revoked. On behalf of the directors appointed by the International Issuance of the International Convention of the Interlateral Assembly of the United States, the non-applicant 2, the non-applicant 3, the non-applicant 4, the non-applicant 4 shall be appointed on behalf of the directors appointed by the order of the International Order of the Republic of Korea. The scope of the authority of the provisional directors of the case shall be limited to the exercise of the authority of the provisional directors of the case in respect of the removal and appointment of directors of the case. The scope of authority of the provisional directors of the case shall be limited to the exercise of the authority of the provisional directors of the case.

1. Basic facts

A. Status of parties and articles of incorporation of the principal of the case

1) On September 2005, the principal of the case was established as a foreigner under Article 12 of the former Regulations on Various Schools (amended by Ordinance of the Ministry of Education No. 57 of March 5, 2015) pursuant to the Convention on the Establishment and Operation of ○○ Foreigners' Schools (hereinafter "the Convention") between Gyeonggi-do and Suwon-si on January 27, 2005, the principal of the case was established as a foreigner under Article 12 of the former Rules on Various Schools (amended by Ordinance of the Ministry of Education No. 57 of March 5, 2015). At that time, the principal of the case was authorized by the Superintendent of the Office of Education of Gyeonggi-do and opened the case around September 2006, the applicant was the director of the principal of the case.

2) The articles of incorporation of the principal of the instant case and the board of directors policy manuals are as follows.

1. The Board of Governors shall have the authority to carry out its functions on behalf of the 3rd Executive Directors of the instant case. The Board of Governors shall have the authority to carry out its functions on behalf of the 3rd Executive Directors of the instant case. The Board of Governors shall be composed of the following methods: 1. The Board of Governors may appoint three directors on behalf of the 3rd Executive Directors of the instant case; 2. The Board of Governors shall have the authority to carry out its functions on behalf of the 3rd Executive Directors of the instant case; 3. The Board of Governors shall have the authority to carry out its functions on behalf of the 3rd Executive Directors of the instant case; 3. The Board of Governors shall have the authority to recommend by the 1st Executive Directors of the 3rd Executive Board of Governors of the instant case; 3. The Board of Governors shall have the authority to carry out its functions on behalf of the 5th Executive Directors of the 3rd Executive Board of Governors of the 3rd Executive Board of Governors of the instant case; 3. The Executive Directors of the 3rd Executive Board of the instant case shall be appointed.

B. Progress of dispute between the principal of the case

1) Resolution of the board of directors and provisional disposition on July 11, 2012

The non-applicant 1, while holding the general meeting of the principal of this case, operated the school and resigned on August 31, 201. The principal of this case, which was held on July 11, 2012, filed a resolution to select non-applicant 5 as a general reduction agent, non-applicant 6 as a director and a standing director, and non-applicant 7 (English name 4 omitted) as a director and a chief director (hereinafter “resolution of July 11, 2012”). Accordingly, the applicant, etc., who is a director of the principal of this case, filed an application for provisional disposition seeking suspension of the execution of his duties against the non-applicant 5, non-applicant 6, and non-applicant 7, and the non-applicant 2010 on July 11, 2012, 2012, 2010. The above court declared that the provisional disposition was invalid on July 11, 2012, 2013).

(ii) the appointment of a new director of a missionary mission division and six missionary organizations;

Meanwhile, around December 2, 2011, Nonparty 8 (Korean name 5 omitted) and Nonparty 9 (Korean name 6 omitted) indicated the intention of resignation to the interested party 1 (hereinafter “interested party 1”) who is the chief executive officer by e-mail. Around November 2012, the issuance of e-mail was made to appoint Nonparty 10 and Nonparty 11 as directors on behalf of the chief executive officer. Of six missionary organizations, the missionary work of e-mail Modernism Association (Korean name 7 omitted) was appointed as directors around November 2012, 2012. A combined supervision order was appointed as directors on the premise that the interested party is no director of the instant school, and the International E-Korean Association applied for appointment as director on September 14, 2012.

3) Resolution of the board of directors dated November 27, 2012 and November 28, 2012

The Claimant issued a notice of convening the board of directors on November 12, 2012 to the directors, and held the board of directors on November 27, 2012. On November 27, 2012, the board of directors held the meeting: (a) the Claimant approved the appointment of directors for the above missionary meeting: (b) non-applicant 10, non-applicant 11, non-applicant 12, non-applicant 12, non-applicant 12, non-applicant 13, and non-applicant 14; and (c) the appointment of directors for the non-applicant 15, non-applicant 17, and non-applicant 18 as directors for the reasons that the term of office of 16 has expired; (d) the resolution appointing the non-applicant 17, non-applicant 17, and non-applicant 18 as directors for each of the above 20-month meetings; and (e) the non-applicant 19, non-applicant 18, 2012, respectively.

4) Changes in the composition of the board of directors under each of the above resolutions are as follows.

Before the resolution of July 11, 2012, which was included in the main text, the name of the appointed person on July 27, 2012, the name of the resolution of July 201, 2012, and the name of the appointed person on November 27, 2012, and the name of the non-applicant 8, non-applicant 9, one of non-applicant 9, changed to non-applicant 6, and the non-applicant 10, non-applicant 11, non-applicant 12, non-applicant 93, applicant 4 applicant No. 24, non-applicant 7, non-applicant 12 (name in English 7 omitted) and non-applicant 13, non-party 1, non-applicant 13, non-applicant 13, non-party 13, non-applicant 13, non-party 13, non-party 15, non-applicant 17, non-party 16 non-party 19, non-party 19.

5) Provisional disposition on the resolution of November 27, 2012 and action on the merits

The interested parties 1, 19, 15, and 16 filed an application for provisional disposition (No. 20, 10, 11, 13, 17, 18, and 21) claiming that the resolution of November 27, 2012 is null and void, and that the application was filed against the interested parties 20, 10, 11, 13, 17, 18, and 21. The above court dismissed the application on June 26, 2013 on the ground that the term of office of the applicant was expired, and the non-applicant 15 and 16 did not have any interest in the application of the principal of the case, and on the ground that the resolution of November 27, 2012 became null and void, the second decision of 10, 2017, 201, 201, 15, 2017, 201, 15, 2017, 201, 2, 16.

(c) Progress of decision to appoint temporary directors;

The Claimant maintained the status of the principal of the case, and only 190, the Claimant and 190 won filed an application with the Suwon District Court 2014 non-conforming 3, and filed an application with the Suwon District Court 2014 non-conforming 3 to appoint 7 temporary directors. On February 18, 2014, the above court recognized the applicant and the interested parties as legitimate directors of the principal of the case, and as a result, on the ground that the number of six and two are less than two, the Claimant and the parties concerned as a quorum of the board of directors stipulated in the articles of incorporation, appointed 22 and 23 on behalf of the directors representing the parents of the principal of the case, respectively. The scope of provisional directors’ powers are limited to the exercise of authority to approve the dismissal of directors and to approve the appointment of directors (hereinafter “prior appointment decision”). The appeal with respect to the dismissed portion was dismissed by the Seoul High Court (Seoul High Court 2014Ra293) and re-appeal (Supreme Court 2014Ma124664, 196,20196).

2. Determination on the legitimacy of the petition

A. The assertion by interested parties

Since elementary, middle and high schools can be established only by their original school juristic persons, the provisions of the Private School Act concerning school juristic persons under the Private School Act apply mutatis mutandis to all private elementary, middle and high schools and schools, and schools do not apply to foreigners' schools, and therefore, the relevant provisions of the board of directors under the Private School Act shall also apply to foreigners' schools. The Convention provides that the principal of this case shall have a board of directors in the principal of this case, the principal of this case is a school, and the principal of this case itself has the nature of a non-corporate foundation that is operated by the principal of this case, and it is difficult to regard a foreign individual as the principal of the operation, and the relevant provisions of the board of directors under the Private School Act shall be applied in preference to the provisions of the Civil Act in light of the unique characteristics of a private school, and the principal of this case is separated from the founder of the principal of this case. Thus, the application of this case shall be dismissed.

(b) the relevant regulations;

It is as shown in the attached Form.

C. Determination

The principal of this case is a foreigner's school established pursuant to Article 60-2 of the Elementary and Secondary Education Act and Article 12 of the former Regulations on Various Schools, which constitutes various kinds of schools, and is established pursuant to Article 2 (3) of the Private School Act which is not an educational foundation. The Private School Act clearly distinguishs elementary, middle, and high schools from other various kinds of schools corresponding thereto (Article 4 (1) 1 of the Private School Act). Furthermore, in light of the fact that Article 25 of the Private School Act on the appointment of temporary directors of a school foundation cannot be applied mutatis mutandis to the principal of this case, which is a various kinds of cases established by a foreign person (Article 51 of the Private School Act). The principal of this case has a board of directors pursuant to the articles of incorporation, and there is room to regard the principal of this case as a non-corporate entity, such as becoming a party to a lawsuit, or that the Convention has been terminated by the interested parties.

3. Judgment on the merits

A. Applicant's assertion

Among nine members of the board of directors of the case principal, only six directors including four regular directors and two temporary directors are appointed, and three directors are vacant.

Since the board of directors of the principal of this case does not normally hold a general meeting for a long time, it causes difficulties in managing the principal of this case, and the board of directors may have six qualified directors who are the quorum of the board of directors in order to resolve matters concerning the principal of this case, such as the withdrawal of the general meeting, etc., and to this end, it shall undergo a procedure to approve the directors appointed by each missionary organization by a resolution of the board of directors.

However, it is difficult for interested parties 1, who are entitled to convene a board of directors, to give notice of convening a board of directors on behalf of interested parties, and it is difficult for interested parties 1, who are entitled to convene a board of directors on behalf of interested parties, to call a board of directors by a majority of the directors who are supplementary means of convening a board of directors in light of the attitude of interested parties, etc., so there is a delay in the resolution on the approval of the directors appointed by the missionary activity organization, and even if the board of directors is held, it is likely to cause damage to the principal of the case.

B. Legal principles

Article 63 of the Civil Act provides that a temporary director may be appointed at the request of an interested person when there is no director or there is a danger that such a vacancy may result in damage to an organization or an organization which is not a juristic person, as well as an organization or an organization which is not a juristic person, with respect to the organization and activities of a juristic person, not under the premise of a juristic person. There may be no director or a vacancy even in the case of an organization which is not a juristic person, and where it is extremely difficult to appoint a new director in accordance with ordinary procedures and it is not recognized that there is an emergency disposition right of the previous director, so Article 63 of the Civil Act may apply mutatis mutandis to an organization or an organization which is not a juristic person. Meanwhile, Article 63 of the Civil Act provides that "where there is no director or a vacancy" as the requirement for the appointment of a temporary director, "where there is no director or there is a shortage in the number of persons prescribed by the articles of association" means that the appointment of a director is likely to cause damage to a juristic person or a third person (see Supreme Court en banc Decision 2008Ma99, Nov

C. Determination

1) First, we examine whether there is a vacancy of director in the case principal.

A) The articles of incorporation of the principal of this case provides that the board of directors of the principal of this case shall be composed of nine directors. According to the records, the principal of this case shall have six directors, including four applicants, interested parties, etc., and four directors including the applicant and the provisional directors appointed by the prior appointment decision, and the non-applicant 22 and non-applicant 23, respectively. Thus, there are three vacancies in the number of directors

B) The interested parties asserted that they still maintain a position as a director since the resignation is not approved at the board of directors in the case of outside 8 and outside 9. However, since the act of withdrawing a director is a sole act to which the other party exists, the expression of intention is effective at the same time when the other party reaches the other party. Thus, the fact that the outside 8 and outside 9 submitted a resignation document to the interested party 1 who is the chief director is identical to the above, and there is no provision that the resignation of the director requires the approval of the board of directors in the articles of incorporation of the case principal

C) In addition, the interested parties have delegated the authority to appoint directors to the △△△△△△△△△△ representative to the interested parties 1, and the 24 non-party 1 was recommended to be a director and approved by the board of directors. However, it is insufficient to prove that the data submitted by the interested parties alone were entrusted with the authority to appoint directors as alleged by the interested parties. Rather, according to the records, the above missionary mission did not appoint non-party 24 as a director (Evidence A No. 11), it is proved that the above missionary mission did not recognize the status of director as to non-party 24. Thus, the above assertion is without merit.

2) Next, we examine whether there is a concern about damage to the principal of the case or a third party when a director is to be appointed in accordance with the ordinary procedure for appointing directors.

A) The regular board of directors of the principal of the case shall be held at least four times a year, and the special meeting shall be held at any time (Articles IV.E.), the chief director or a majority of directors may convene a special meeting (the board of directors policy manuals 1210.3). According to records, the non-satisfy shall not be opened by the board of directors of the principal of the case after 2012, and the interested party 1 convened the board of directors on July 26, 2015, after the final and conclusive judgment of 2014Gahap6825, which became final and conclusive. However, the notice of convening the board of directors shall include non-satisfys and 15, non-satisfys and 24, and non-satisfys and 22, non-satisfys and satisfys and satisfys and satisfys of the board of directors.

B) However, in full view of the following circumstances revealed by the record, it is difficult to see that the data submitted by the applicant alone is sufficient to sufficiently explain that the current board of directors of the principal of the case, which consists of the current board of directors, may cause damage to the principal of the case or a third party when he/she is selected and appointed through the board of directors, and that there is no other evidence to vindicate that

(1) It is difficult to readily conclude that an interested party 1 intentionally avoided the convening of the board of directors solely on the records, as seen earlier, a long-term legal dispute had been continued between interested parties and the applicant surrounding who is a legitimate director of the instant principal, and the records alone are insufficient to readily conclude that interested parties 1 intentionally avoided the convening of the board of directors (such as in the foregoing, Nonparty 19 and Nonparty 15, and Nonparty 16, as in the first instance, knew of the lapse of one year and six months after the decision of prior appointment was rendered and immediately thereafter filed an appeal on September 11, 2015, and the decision of dismissal thereof was rendered on January 18, 2016. In light of these circumstances, interested parties 1 could not clearly understand who is the legitimate director subject to convening of the board of directors until the said time).

(2) Although the number of the members of the board of directors required to hold the prior appointment decision has been satisfied (the applicant changed the position that he/she does not dispute the qualifications of the director of the interested party 1 and interested party 3 in the appellate trial of the prior appointment decision), the applicant does not request the holding of the board of directors for about one year and six months from the date of the prior appointment decision, about ten months from the time when the appeal by the applicant and re-appeal against the prior appointment decision became final and conclusive, even though about ten months from the time when the appeal by the applicant was filed and the re-appeal was dismissed, after being notified by the interested party 1 to August 9, 2015, he/she received the notice of the convening of the board of directors as of August 11, 2015, and requested the interested party 1 to convene a legitimate board of directors to exclude the applicant from the scope of the prior appointment decision. In addition, even if the applicant submitted a prior appointment decision, he/she did not take any particular measure to hold the board of directors for a long time after the applicant’s request to suspend his/her operation.

(3) On August 3, 2016, interested parties 1 notified that the board of directors of the principal of the case was held on August 18, 2016 and included matters concerning the appointment of a representative director of parents as an agenda item. Here, if a representative director of parents is appointed, the duties of a representative director appointed on behalf of the representative director is terminated and the board of directors is composed of regular directors, and it is deemed that the appointment was possible by a resolution of the board of directors. However, the applicant notified the applicant for the above notice to attend the board of directors on the ground that he was not entitled to the above notice and was already dismissed and was not included in an agenda for dismissal against interested parties 1 and the interested parties 3, and the board of directors did not appear to be responsible for the above resolution of the board of directors. However, if the board of directors did not participate in the above resolution of the board of directors, the board of directors did not appear to be responsible for the above resolution of the board of directors. However, it is difficult for other interested parties to participate in the resolution of the board of directors.

(4) The applicant asserts to the effect that it is necessary for interested parties to oppose a resolution passed by the board of directors appointed by the missionary organization. However, whether the directors appointed by the missionary organization specifically meet the requirements for approval is determined through the deliberation and resolution process of the board of directors based on the articles of association, etc., first of all, it cannot be determined that the directors of the principal of the case are determined by the board of directors based on the articles of association, etc., and it cannot be said that a specific resolution is expected before the board of directors holds a resolution of the board of directors. Moreover, there is no need to appoint an ad hoc director on the ground that there is a circumstance that the board of directors should obtain a specific resolution of the board of directors.

(5) On August 12, 2016, the applicant presented an opinion that, while consenting to the convocation of the board of directors itself to interested parties 1 on August 12, 2016, the date is too imminent in the case of revising the agenda by asserting that it shall not be deemed as an agenda item for the board of directors other than the dismissal and appointment of directors. In this regard, interested parties expressed their intention to convene a board of directors again with only the early dismissal and appointment of the board of directors as an agenda item. Therefore, it is difficult to readily conclude that

(6) There is no evidence proving that the present director's vacancy is likely to cause an imminent loss to the principal of the case.

3) Therefore, the claimant’s assertion is without merit.

4. Conclusion

Therefore, the appeal of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Sung Sung-song(Presiding Judge)