2015Da18473 Invalidity of the presidential election

A

B Round Round

Seoul High Court Decision 2014Na16953 Decided February 6, 2015

July 23, 2015

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

The grounds of appeal are examined.

1. In a case where a corporation is a party, whether the representative of the corporation has legitimate power of representation or not is a matter of ex officio investigation by the court. Thus, even if the court does not have the duty to detect ex officio the facts and evidence which are the basic data of the judgment, if already submitted materials reveal circumstances that doubt the legality of the power of representation by the other party, the other party shall be obligated to examine and investigate them even if it does not dispute the other party specifically, and the same applies to a case where the party is a non-corporate body (see Supreme Court Decision 2004Da62887, May 27, 2005). Meanwhile, in a lawsuit seeking confirmation of invalidity or non-existence of a resolution selected by a corporation under the Civil Act or an association or foundation that is not a corporation, a person who represents the relevant organization is elected by a resolution for confirmation of nullity or non-existence of the right of representation, or the representative is subject to a disposition of suspending the performance of his duties, unless otherwise stipulated in the provisional disposition.

by the Supreme Court (Supreme Court Decision 95Da31348 Decided December 12, 1995; Supreme Court Decision 2012Da41984 Decided September 13, 201).

2. The record reveals the following facts.

A. The Plaintiff submitted the instant complaint by indicating the Defendant’s representative as “C” and “C,” the place of service, as “402,” and as a result, the first instance court served a duplicate of the complaint to the above service place, received a duplicate of the complaint. Since C was present at the date of pleading in the first instance court, and made arguments, and prepared and submitted written answers and preparatory documents, etc., and conducted various procedural acts on behalf of the Defendant by appointing an attorney at the first instance court and the lower court.

B. However, the instant complaint states that the Plaintiff’s performance of duties as the representative of the Defendant C was suspended until the judgment on the instant case became final and conclusive upon the Plaintiff’s application for the provisional disposition as the head of Suwon District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch 201Kahap701 on February 24, 2012, upon which the Plaintiff filed for the provisional disposition order against C, and the application for the provisional disposition was accepted on February 24, 2012, and the said provisional disposition order is accompanied by the evidence No. 6. 3. Examining these factual relations in light of the legal principles as seen earlier, the Plaintiff filed the instant lawsuit against the Defendant, who

There are many concerns. In such cases, the court below should have ordered the Plaintiff to make correction of the representative of the defendant indicated in the written complaint to the person who has legitimate power of representation.

Nevertheless, the court below accepted the Defendant’s main safety defense based on the premise that C has the Defendant’s legitimate power of representation, and revoked the judgment of the court of first instance and dismissed the lawsuit of this case. In so doing, the court below erred by failing to exhaust all necessary deliberations against the Defendant’s legitimate power of representation, which affected the conclusion of the judgment. The ground of appeal

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Min Il-young

Chief Justice Park Jong-young

Justices Kim Jae-han