In a case where the chief director of a foundation corporation becomes unable to continue to perform his duties due to a final decision of provisional disposition suspending the performance of duties of the court before the expiration of the term of office of the foundation corporation, whether such act constitutes “the failure of the chief director” under the articles of incorporation

In the event that the articles of incorporation of a foundation provides that "the chief director's remaining public notice shall act on behalf of the chief director", it refers to a case where the chief director cannot perform his duties due to death, illness, or other unavoidable circumstances before his term of office expires. However, even in a case where the chief director's remaining term of office becomes final and conclusive with respect to the chief director who has expired before the expiration of his term of office, and a case where the chief director cannot continue to perform his duties due to a provisional disposition for suspending the performance of duties of the court, it shall be deemed that

Articles 43 and 105 of the Civil Act

Plaintiff Incorporated Foundation (Law Firm Lee & Lee, et al., Counsel for the plaintiff-appellant)

Defendant 1 and 13 others (Law Firm Lee & Lee, Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na55673 decided August 8, 2006

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the interpretation of the chief director's dismissal

In the event that the articles of incorporation of a foundation provides that the highest director among the directors shall act on behalf of the chief director, it refers to a case where the chief director is unable to perform his duties due to death, illness, or other unavoidable circumstances prior to the expiration of the term of office of the chief director. However, in a case where, after the expiration of the term of office of the chief director, the term of office of the chief director cannot perform his duties on behalf of the chief director after the expiration of the term of office of the chief director, the expiration of the term of office of the chief director cannot perform his duties on his behalf

According to the reasoning of the judgment below and the records, the Plaintiff Incorporated Foundation is an incorporated foundation whose business is to maintain and manage the ○○○○○○○○○○○○ Association’s morals, edification, waterworks business, and the Central Headquarters ancillary thereto, and each local community center’s maintenance and management. Article 8 of the articles of incorporation provides that “the chief director shall represent a corporation, exercise overall duties, and preside over the affairs of the board of directors,” and Article 9 provides that “the chief director’s flexible public notice shall act for the chief director with the approval of the Minister of Culture and Tourism,” but Article 6 provides that “the chief director elected in this society shall take office with the approval of the Minister of Culture and Tourism.” In addition, the corporate register of the Plaintiff Incorporated Foundation also provides that “the chief director shall have no power of representation other than the chief director.” Thus, the judgment of the court below that the chief director’s representative of the corporation and the director without the power of representation shall be exclusively assigned to the Defendant 4, the chief director of which is the chief director, shall not be accepted, and thus, it cannot be accepted.

2. As to the performance of duties by directors whose term expires

In principle, since the relationship between a corporation and a director, who is an institution, is in the relation of a delegating person and the delegated person, the delegation relationship should be terminated once the term of office expires: Provided, That if there is no director until the appointment of a succeeding director, a corporation, which is bound to perform an act by an institution, is placed in a situation where it is impossible for the former director to discontinue the normal activities of the corporation, and therefore, it is inappropriate to allow the former director to perform the duties of the corporation, by analogying the provision of Article 691 of the Civil Act, and where it is necessary to allow the former director to perform the duties of the former director, it shall be deemed that the former director whose term has expired until the appointment of the former director is completed. However, even if the former director whose term of office has expired, falls under a case where it is necessary to recognize the authority to perform the duties of the former director until the appointment of the director after the expiration of the term of office, the authority of the expired director may be acknowledged individually and specifically to solve the urgent situation (refer to Supreme Court Decision 96Da37206, Dec.

According to the reasoning of the judgment below, each of the real estate in this case is registered in the name of the foundation of the plaintiff. On July 16, 1999, the term of office of the non-party 4 was expired on April 28, 2001, and the term of office of the non-party 5, non-party 6, and non-party 1, who was the largest of the directors of the foundation of the plaintiff foundation, was terminated on behalf of the president, and the term of office of the non-party 4 was expired on April 28, 2001, and the term of office of the non-party 5, non-party 6, and the non-party 1's term of office was expired on behalf of the director of the foundation of the plaintiff foundation, and the term of office of the non-party 1 can be comprehensively terminated on December 28, 201, and the term of office expires on behalf of the director of the foundation of non-party 1.

On the other hand, Article 14 of the articles of incorporation of the Plaintiff Incorporated Foundation provides for “matters concerning the management, acquisition, disposal, and collection of property” and “other important matters of this corporation” as the agenda of the board of directors. However, since the death of Nonparty 7, who was the creative initiative of the ○○○○○○ Association (hereinafter “the clan”), Nonparty 2 and Nonparty 8, as well as Defendant 1, 2, 3, 4, 5, and 6, cannot be regarded as the representative of the religious group, the judgment became final and conclusive that the name of the religious group cannot be seen as legitimate and consistent. In addition, Nonparty 2’s executives and believers occupied the head of the religious group. Nonparty 1 and the Defendants asserted that they followed the unity of the religious group, followed the establishment and organization of the religious group, and received support from the believers who supported them, they are divided into two parts of the Plaintiff Incorporated Foundation’s new assets and sought for the management of the real estate by the resolution of the board of directors of this case, and thus, there are no other important conflicts between the Defendants and the Defendants.

Nevertheless, the lower court determined that the instant lawsuit was merely a lawsuit seeking delivery of property owned by illegal occupants, and determined that Nonparty 1 was entitled to file a lawsuit claiming for the name of the instant building against the expired director, even without a resolution by the board of directors. In so doing, the lower court erred by misapprehending the legal principles on the interpretation of the resolution by the board of directors under the articles of incorporation of the Plaintiff Incorporated Foundation and the performance of the duties of the expired director, thereby affecting the conclusion of the judgment. The Defendants

3. Conclusion

Therefore, the judgment of the court below cannot be maintained without examining the remaining grounds of appeal, and it is reversed, and the case is remanded 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 Kim Young-ran (Presiding Justice)