To the extent that there is a legal interest in seeking nullification of the decision to appoint directors and auditors at the expiration of the term

In the event that all or part of the directors or auditors are at the expiration of their term of office but no successor directors or auditors have been appointed, the former directors or auditors whose term of office expires may continue to perform the corporate affairs until the appointment of successor directors or auditors is completed, except in special cases where it is deemed inappropriate to have them perform the corporate affairs or other directors or auditors whose term of office has not expired are not yet expired, and in such a case, there is a benefit to seek confirmation of invalidity of the resolution of appointment of the above directors or auditors whose term of office has expired.

Article 63 of the Civil Act, Article 228 of the Civil Procedure Act, Article 386 of the Commercial Act

Plaintiff

Defendant Corporation

Busan District Court (84 Gohap3235)

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

On May 7, 1983, the defendant corporation appointed Nonparty 1 as the representative director, Nonparty 2, 3, 4, and the plaintiff as the chief director, Nonparty 5, and 6 as the auditor respectively in the temporary transfer society of May 7, 1983.

Litigation costs shall be borne by the defendant.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. Judgment on the main defense of this case

원고가 피고 법인의 1983.5.7.자 임시이사회에서 소외 1을 대표이사로, 소외 2, 3, 7, 4와 원고를 각 이사로, 소외 5, 6을 각 감사로 선임한 결의의 무효확인을 구함에 대하여 피고는 피고 법인의 정관에 의하면 이사의 임기가 3년, 감사의 임기가 2년으로 위와 같이 이사 및 감사로 선임된 자들은 모두 그 임기가 종료되어 이 사건 소송의 목적이 소멸되었으므로 결국 이 사건 소는 소의 이익이 없는 부적법한 소라고 주장하므로 살피건대, 법인에 있어서 이사나 감사의 전원 또는 일부가 그 임기가 만료되었음에도 그 후임이사나 감사가 선임되지 않은 경우에는 임기만료된 종전의 이사나 감사로 하여금 법인의 업무를 수행케 함이 부적당하다고 인겅되거나 임기가 만료되지 않은 다른 이사나 감사들로서도 정상적인 법인의 업무를 수행할 수 있는 특별한 경우를 제외하고는 임기만료된 종전 이사나 감사는 후임이사나 감사가 선임될 때까지 계속하여 법인의 업무를 수행할 수 있다 할 것인 바 후임이사나 감사가 선임되지 아니하고 종전의 이사나 감사가 법인의 업무를 계속 수행할 수 없는 특별한 사정도 엿보이지 않는 이 사건에 있어서는 위 이사 및 감사의 임기가 만료되었다는 사정만으로 곧 이 사건 소송의 목적이 소멸되었다 할 수 없고, 종전의 법인업무를 계속 수행하는 임기만료된 위 이사나 감사의 선임결의의 무효확인을 구할 이익이 있다 할 것이므로 피고의 본안전항변은 이유없다.

2. Judgment on the merits

(5) According to the above 1, 2, 4-1, 5-2, 10, 10-1, 14-1, 15-2, and 14-1, and 15-2, each of the above 3-1 and 9-1 of the directors of the 19-2-2-2-2-2-2-2-2-2-2-2-3-2-4-2-2-2-3-2-2-4-2-7-2-7-2-7-2-7-2-7-2-2-3-2-4-2-3-2-2-3-2-3-2-4-2-4-2-3-2-3-2-4-2-3-2-3-2-3-2-4-2-3-2-3-2-3-2-4-2-3-2-3-3-3-4-2-3-3-3-3-3-3-3-19-2-3-3-7

Even if the decision of selection and appointment of a provisional director on December 23, 1982 by the court was invalid, the defendant argued that the head of Busan Special Metropolitan City and Seo-gu, who was delegated by the Minister of Health and Welfare, as the provisional director, approved the successor director and the representative director, which was the same effective as the appointment of a provisional director directly by the Minister of Health and Welfare in accordance with the procedure prescribed in Article 11 of the Social Welfare Services Act. However, there is no evidence to deem that the head of the above order was delegated with the authority of appointment of a provisional director by the Minister of Health and Welfare. In addition, if there is a vacancy in the office of supervision after the appointment of a director of a corporation, the effect of the actor who appointed a provisional director cannot be the same. Thus, the defendant'

In addition, since the defendant corporation, which was subject to the Social Welfare Services Act, deemed as an incorporated foundation established under the Civil Act from March 2, 1983 due to the implementation of the Early Childhood Education Promotion Act, the right to appoint a provisional director has been over the jurisdiction of the court. The above decision of the court was cancelled on December 23, 1982. Thus, the above decision of the provisional director was asserted that the procedure defects were cured and effective. Thus, at the time of the decision of the provisional director appointment of the above court on December 23, 1982, the defendant corporation was subject to the Social Welfare Services Act as a social welfare foundation, and the right to appoint a provisional director of the incorporated foundation under the Civil Act was considered as a incorporated foundation under Article 5 of the Addenda of the Early Childhood Education Promotion Act as of March 2, 1983, and the right to appoint a provisional director of the incorporated foundation under the Civil Act was now held under the jurisdiction of the court. However, as seen earlier, the above decision of the court did not have jurisdiction after the enactment of the above law.

Thus, in a provisional interest society dated May 7, 1983, the defendant corporation appointed the non-party 1 as directors and the non-party 2, 3, 7, 4 as directors and the non-party 2, 3, 7, and 6 as auditors respectively, and there are interests in confirmation. Thus, the plaintiff's claim in this case is reasonable, and therefore, the judgment below is just, and the defendant's appeal is without merit, and it is dismissed, and it is so decided as per Disposition by the application of Articles 95 and 89 of the Civil Procedure Act with respect to the burden of litigation costs.

Judges Ansan-sung (Presiding Judge)