[1] Legal status and scope of authority of an acting director of school juristic person appointed by a provisional disposition order

[2] Whether the act of an acting director of a school juristic person appointed by the decision of provisional disposition waives his right to appeal against the judgment of the first instance court in the lawsuit on the merits of the provisional disposition constitutes an act of trade of the said juristic person

[1] Provisional disposition, which determines a temporary position under Article 300(2) of the Civil Execution Act, is a provisional and temporary measure to eliminate or prevent risks that the right holder may face in the event of dispute in relation of legal relations. It is merely an emergency measure to maintain a provisional legal peace until a final judgment of the dispute is rendered. In a case where a person who acts as a director of a school foundation in accordance with a decision of provisional disposition is appointed as an agent of a person who acts as a representative of a director of the school foundation in accordance with the decision of provisional disposition, the agent is merely in a temporary position that can act as an agent of the agent. Thus, except as otherwise provided in the decision of provisional disposition, the school juristic person

[2] The act of an acting director of a school juristic person appointed by the decision of provisional disposition to waive the right to appeal against the judgment of the court of first instance, which is the lawsuit seeking confirmation of invalidity of the resolution of the board of directors, which is the principal lawsuit of provisional disposition, shall not be deemed as an ordinary business of the school juristic person. Thus, it shall not

[1] Article 60-2 (1) of the Civil Act, Article 300 (2) of the Civil Execution Act / [2] Article 60-2 (1) of the Civil Act, Article 300 (2) of the Civil Execution Act

[1] Supreme Court Decision 94Da12371 delivered on Apr. 14, 1995 (Gong1995Sang, 1844), Supreme Court Decision 96Nu4657 delivered on Feb. 11, 1997 (Gong1997Sang, 778), Supreme Court Decision 98Du1696 delivered on Jan. 28, 200 (Gong2000Sang, 601), Supreme Court Decision 99Da30039 delivered on Feb. 11, 200 (Gong200Sang, 661), Supreme Court Decision 9Du2949 delivered on Feb. 11, 200 (Gong200Sang, 700Sang, 708) / [2] Supreme Court Decision 200Da813582 delivered on Apr. 27, 1982, 205

Plaintiff (Law Firm Gyeong & Yang, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant School Foundation

Defendant Intervenor 1 and four others (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na60438 delivered on June 13, 2003

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

The First Ground for Appeal

A provisional disposition that determines a temporary position under Article 300(2) of the Civil Execution Act is a provisional and temporary measure to eliminate or prevent the risk that the right holder may face in a case where a dispute arises in relation to the relationship of rights, and is merely an emergency means to maintain legal peace temporarily until a final judgment of the dispute is obtained. Thus, in a case where a person who acts as an agent of a director of a school foundation by a decision of provisional disposition is appointed as an agent of a person who acts as an agent of a principal in accordance with the decision of provisional disposition, the agent is merely in a temporary position to act as an agent of the principal. Thus, except as otherwise provided in a provisional disposition order, it shall be deemed that only a school foundation may perform the affairs belonging to the ordinary affairs of the school foundation while maintaining and managing it as before (see, e.g., Supreme Court Decisions 94Da12371, Apr. 14

However, since an acting director appointed by the decision of provisional disposition waives his right to appeal against the judgment of the first instance court on confirmation of invalidity of the resolution of the board of directors, which is the principal lawsuit of the provisional disposition, does not belong to the trade of the school juristic person (see Supreme Court Decision 81Da358, Apr. 27, 1982), it shall be deemed that the decision of provisional disposition is otherwise determined or that it shall not be done without obtaining the permission of the competent court (see the proviso of Article 60-2 (1)

According to the records, after receiving the judgment of the first instance court on September 27, 2002, the chief director of the defendant's acting director is recognized to have submitted the written waiver of the right to appeal to the first instance court on October 1, 2002. Thus, the court below should have deliberated whether the court's permission on the waiver of the right to appeal was granted and judged its validity.

Nevertheless, on the premise that the waiver of the above appeal is valid without examining it, the court below judged that the lawsuit in this case became final and conclusive simultaneously with the waiver of the above appeal by the defendant. In so doing, it is erroneous in the misapprehension of legal principles as to the authority of the acting director or failing to exhaust all deliberations, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

Therefore, without examining the remaining grounds of appeal by the defendant, the judgment of the court below 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 Lee Kang-tae (Presiding Justice)