[1] Whether a director or an auditor of a corporation under the Civil Act can continue to perform his/her previous duties until his/her former director or auditor is appointed (affirmative with qualification)

[2] In cases where the former director or auditor whose term of office expires can perform his/her previous duties until a new director or auditor is appointed, whether there is a legal interest in seeking nullification of the resolution by the board of directors appointed by the former director or auditor whose term of office expires (affirmative)

[3] In a case where the term of office of a director of a corporation under the Civil Act expired but it is possible to continue his/her previous duties because the former director is not appointed due to the expiration of the term of office, whether there is a legal interest in seeking confirmation of invalidity of the initial resolution

[1] Although the term of office of a director, all or some of the auditors of a corporation under the Civil Act has expired, there is no appointment of a successor director or auditor, or there is an appointment of a successor director or auditor thereof, the resolution of appointment becomes null and void, and the former director or auditor whose term of office has expired is not yet expired is not sufficient to conduct activities of a normal corporation, unless there are special circumstances to recognize that it is improper to allow the former director or auditor whose term of office has expired to conduct activities of the corporation, the former director or auditor may perform the previous duties until a successor director or auditor is appointed.

[2] Where the former director or auditor whose term of office expires is able to perform his/her previous duties until a new director or auditor is appointed, the former director or auditor shall have legal interest in claiming the defect in the resolution of the board of directors that the term of office expires as part of his/her duties, or the latter director or auditor appointed by the former director or the latter director,

[3] Where the former director is unable to continue to perform his/her former duties as a director for reasons such as the termination of the term of office of a director of a corporation under the Civil Act and the appointment of a legitimate director, barring any special circumstance, barring any special circumstance, seeking confirmation of invalidity of such resolution shall be deemed to have no benefit in litigation as seeking confirmation of legal relations or legal relationship in the past. However, if the former director whose term of office has expired due to his/her failure to be appointed as a legitimate person and is able to continue to perform his/her former duties as a director until he/she is appointed as a legitimate person, there is a legal interest in excluding his/her duties and seeking confirmation

[1] Articles 57, 58, and 691 of the Civil Act / [2] Article 691 of the Civil Act, Article 228 of the Civil Procedure Act / [3] Article 691 of the Civil Act, Article 228 of the Civil Procedure Act

[1] [2] [3] Supreme Court Decision 97Da26135 delivered on December 23, 1998 (1] Supreme Court Decision 95Da40915 delivered on January 26, 1996 (Gong1996Sang, 754) Supreme Court Decision 95Da5686 delivered on October 25, 1996 (Gong1996Ha, 3409), Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong1997Sang, 308Da40398 delivered on December 23, 1996) / [3] Supreme Court Decision 95Da40399 delivered on June 26, 1997 (Gong1997Sang, 197Da409899 delivered on June 26, 1995]

Plaintiff 1 and four others (Attorneys Ansan-man et al., Counsel for the plaintiff-appellant)

Osan Institute of Education (Attorney Kim Jong-soo, Counsel for defendant-appellee)

Seoul High Court Decision 96Na3434 delivered on May 7, 1997

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

We examine the grounds of appeal.

1. As to this defense

A. Although the term of office of all or some of the directors or auditors of a corporation under the Civil Act has expired, the appointment of the successor directors or auditors is null and void even if there is no appointment or appointment of the successor directors or auditors, and the appointment of other directors or auditors or auditors is not yet completed, unless there are special circumstances to deem it inappropriate to require the former directors or auditors whose term of office has expired to perform their business as a normal corporation, the former directors or auditors may perform their previous duties until they are appointed (see, e.g., Supreme Court Decision 95Da40915, Jan. 26, 1996). In such a case, the former directors or auditors shall be deemed to have legal interest in seeking nullification by asserting the defects of the chairman or directors whose term of office has expired as part of their duties or the board of directors or the board of directors appointed by them (see, e.g., Supreme Court Decision 84Meu319, Dec. 10, 1985).

According to the reasoning of the judgment below, the officers of the defendant corporation are composed of nine directors including the chief director and two auditors. The term of office of the auditor is four years, the officers are two years, and the directors are appointed or dismissed by the board of directors composed of directors including the chief director (Articles 22, 23, and 24 of the articles of incorporation). The directors of the defendant corporation as of June 11, 1993 held by the board of directors are non-party 1, 2, 3, and 9 who were reappointed on August 8, 1989; the directors of the defendant corporation were appointed by the chief director as of December 23, 1989; the plaintiffs 2, 3, 1, and 9 who were appointed by the chief director as of December 22, 199; the directors of the plaintiff corporation were not appointed by the chief director; the directors of the plaintiff 1 and the auditors who were appointed by the chief of the board of directors; the directors of the plaintiff 1 and the auditors who were appointed by the above chief of the plaintiff 57.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the interest in a lawsuit as otherwise alleged in the ground of appeal. The ground of appeal is without merit

The Supreme Court's decision cited in the ground of appeal is not appropriate to invoke this case as it differs from this case.

B. Where the former director cannot continue to perform his/her former duties as a director for reasons such as the expiration of the term of office of a director of a corporation under the Civil Act and the appointment of a lawful director, barring any special circumstance, barring any special circumstance, seeking confirmation of such resolution shall be deemed to have no benefit in litigation as seeking confirmation of legal relations or legal relationship in the past. However, if the former director is able to continue to perform his/her duties as a director until his/her former director is appointed after the expiration of his/her term of office as seen earlier, it shall be deemed that there exists a legal interest in seeking confirmation of invalidity of the initial resolution of the board of directors in order to exclude his/her duties and to determine the current officer (see, e.g., Supreme Court Decisions 97Da4869, Oct. 24, 1997; 93Da61338, Jul. 28, 1995).

As seen earlier, the Defendant corporation held a board of directors and re-appointed Nonparty 1 and Nonparty 8, whose term of office expires on August 7, 1993, as director and president, and appointed Nonparty 8 as director. However, in this case, there is no evidence to prove that the above Nonparty 1 and Nonparty 8 had already expired on August 7, 1997, but no evidence exists to prove that the above Nonparty 1 and Nonparty 8 had been appointed as lawful after the expiration of their term of office, the mere fact that the above Nonparty 1 and Nonparty 8 have expired cannot be readily concluded that there is no legal interest in filing a lawsuit seeking confirmation of invalidity of the board of directors resolution of this case, by which the Plaintiffs appointed Nonparty 1 and Nonparty 8 as director and president of the Defendant corporation.

The grounds of appeal on this point are without merit.

C. The court below held that there is no evidence that the plaintiffs did not notify the above non-party 2 and the non-party 3, who is a director of the defendant corporation at the time of the resolution of this case or immediately after the resolution of this case, and that there is no evidence that the board of directors of this case was held. In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of facts against the rules of evidence as otherwise

The plaintiffs participated in the resolution as a director or auditor of the defendant corporation at the time of the board of directors of this case and did not raise any objection while consenting to or witnessing the resolution. The remaining plaintiffs except the plaintiff 5 are reappointed as a director by the board of directors of this case, and the plaintiff 5 is appointed as the auditor at the board of directors composed of the directors, etc. re-appointed by the board of directors of this case. Even if the lawsuit of this case was filed after about two years have passed since the board of directors of this case was held, it cannot be said that the plaintiffs' right to seek nullification of the board of directors of this case goes against the good faith principle or against the principle of non-

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to good faith.

The grounds of appeal are without merit.

The Supreme Court Decision cited in the ground of appeal is not appropriate to invoke this case as it differs from this case.

2. As to the merits

According to the reasoning of the judgment below, the court below rejected the defendant's defense that the defendant's letter of receipt of postage stamps submitted by the plaintiffs (Evidence No. 3-1, 2) and mail receipt (Evidence No. 4) were forged or altered on the grounds as stated in its reasoning. In full view of the evidence, the court below determined that, in holding the board of directors of this case on June 1, 1993, the non-party 1, who was the chief director of the defendant corporation, sent a muster notice to the directors other than the non-party No. 2 and the non-party No. 3 at the time, and omitted the notice to the above non-party No. 2 and the non-party No. 3; the non-party No. 2 and the non-party No. 3 at the time of the board of directors; the remaining directors other than the non-party No. 5 and the plaintiff No. 5, who did not attend the board of directors at the time of this case, resolved the appointment with the consent of the chief director and all the directors.

In light of the records, the fact-finding and decision of the court below are just, and there are no errors in the misapprehension of the legal principles as to the grounds for invalidation of the resolution by the board of directors or in the misapprehension of the legal principles as to the invalidation.

Even if Nonparty 2 and Nonparty 3 were given a notice of convening a board of directors, it is anticipated that they did not appear in the board of directors, or even if they were present and voted in opposition, it cannot be said that the above board of directors resolution was legitimate because it did not affect the establishment of the board of directors resolution.

The grounds of appeal 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.

Justices Song Jin-hun (Presiding Justice)