[1] Whether rejection of an application for resumption of oral argument after the closing of oral argument constitutes an unlawful ground for incomplete hearing (negative)

[2] Whether approval of a corporation is required in addition to the expression of resignation when a director of an incorporated foundation resigns (negative)

[3] Where a lawsuit seeking confirmation of a previous legal relationship has a benefit of immediate confirmation, and where there exists benefit of confirmation as to the legal relationship between a party and a third party or the legal relationship between a third party in a lawsuit for confirmation

[4] Where the former director whose term of office expires or resigned is able to perform his/her former duties until the former director 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 the latter director (affirmative)

[5] Whether a resigned director's right to perform his/her duties is recognized (negative with qualification)

[6] The meaning of "public interest corporation" under Article 2 of the Act on the Establishment and Operation of Public Interest Corporations

[1] Article 142 of the Civil Procedure Act / [2] Articles 57 and 111 of the Civil Act / [3] Article 250 of the Civil Procedure Act / [4] Article 691 of the Civil Act, Article 250 of the Civil Procedure Act / [5] Articles 57, 58, and 691 of the Civil Act / [6] Article 2 of the Act on the Establishment and Operation of Public

[1] Supreme Court Decision 2006Hu572 Decided April 10, 2008 / [2] Supreme Court Decision 92Da749 Decided July 24, 1992 (Gong1992, 2529) / [3] Supreme Court Decision 92Da40587 Decided July 27, 1993 (Gong1993Ha, 2386), Supreme Court Decision 2006Da77272 Decided February 15, 2008, Supreme Court Decision 2009Da93299 Decided February 25, 2010 / [4] Supreme Court Decision 2004Da6536 decided March 25, 2005 (Gong2005, 670 decided March 16, 2017) / [3] Supreme Court Decision 2007Da178197 decided May 17, 2017

Plaintiff

Medical Corporations, the former Cancer and Medical Foundation (Attorney Noh Jeong-ok, Counsel for defendant-appellee)

Gwangju High Court Decision 2009Na3062 decided May 7, 2010

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In a case where a party has filed an application for resumption of oral argument for the purpose of defense and proof after the closing of oral argument, the issue of whether to accept the application for resumption of oral argument belongs to the court's discretion, and thus, the court did not accept the application for resumption of oral argument after the closing of oral argument, and it does not constitute an illegal cause for lack of oral deliberation (see Supreme Court Decision 2006Hu572, Apr. 10, 2008,

According to the records, the plaintiff was not present on the date of first pleading, which was served on April 9, 2010 on the date of pleading on which April 9, 2010 on which the date of pleading was as of April 9, 2010, and the court below designated the second date of pleading as of April 23, 2010 and served a notice of the date of pleading on April 14, 2010, which was served on the plaintiff on April 16, 2010, but filed an application for postponement of the date of pleading on April 16, 2010. However, the court below rejected the plaintiff's application for postponement of the date of pleading, but did not appear on the second date of pleading, and the court below concluded the plaintiff's appeal and the date of pleading on May 7, 2010, and notified the plaintiff by designating the date of pleading as of May 27, 2010. The court below rejected the application, but rejected the judgment below, and rejected it.

Therefore, in light of the above legal principles, the court below did not err in the misapprehension of legal principles as to the rejection of the plaintiff's application for postponement or resumption of argument.

2. Regarding ground of appeal No. 2

A. The director of the Incorporated Foundation may terminate the legal relationship by unilateral declaration of resignation against the Incorporated Foundation, and such declaration of intention will take effect upon the arrival of the Receiving Authority, and it does not take effect upon the consent of the Incorporated. (See Supreme Court Decision 92Da749 delivered on July 24, 1992, etc.)

In addition, the benefit of confirmation in a lawsuit for confirmation is recognized in cases where there is a dispute between the parties as to the legal relationship subject to confirmation, and thereby, it is recognized as the most effective and appropriate means to determine the legal status of the plaintiff as the judgment to eliminate such apprehension and danger (see, e.g., Supreme Court Decision 2009Da93299, Feb. 25, 2010). In addition, even in the past legal relationship, in cases where it is affecting the current rights or legal status, and where it is deemed as an effective and appropriate means to obtain a judgment to confirm the legal relationship in order to eliminate risks or apprehensions regarding the current rights or legal status, it shall be deemed that the benefit of immediate confirmation exists (see, e.g., Supreme Court Decision 92Da40587, Jul. 27, 1993).

In light of the above legal principles and records, the court below maintained the first instance court's decision that the plaintiff has no interest in confirmation of the claim of this case on the grounds as stated in its holding is just and there is no error of law such as misunderstanding of legal principles, incomplete hearing

B. Even if the term of office of all or a part of a director of a corporation under the Civil Act has expired or resigned, the appointment of a successor director is null and void, and if the remaining director alone is unable to perform the activities of a normal corporation, the former director may perform the previous duties until his/her former director is appointed, and if the former director can perform the previous duties until his/her former director is appointed, he/she has legal interest in seeking confirmation of invalidity by asserting the defect in the resolution of the board of directors that the former director dismissed or appointed a successor director as part of his/her duties (see, e.g., Supreme Court Decision 2004Da65336, Mar. 25, 2005).

In addition, recognition of the resignation director's right to perform duties is limited to cases where there is an urgent reason to suspend the normal activities of the corporation, and in cases where the term of office is not yet expired or it is possible to perform the activities of the normal corporation by other directors who do not resign, it is not necessary to have the resigned director continue to perform their duties (see Supreme Court Decision 2001Da1171 delivered on January 10, 2003, etc.).

After recognizing the facts as stated in its reasoning based on the adopted evidence, the court below maintained the first instance court that judged that the defendant is not in an imminent situation where the normal corporation is currently unable to perform its duties, and that there is no other evidence to acknowledge it. In light of the above legal principles and records, the judgment of the court below is just and there is no error of law such as misunderstanding of legal principles, incomplete deliberation, or misunderstanding of facts, as alleged in the grounds of appeal.

C. Article 32 of the Civil Act provides that "any association or foundation which aims at academic, religious, charity, art, social intercourse, or other non-profit business shall be a juristic person with the permission of the competent authority." Article 1 of the Act on the Establishment and Operation of Public Interest Corporations provides that "the purpose of this Act is to supplement the provisions of the Civil Act on the establishment, operation, etc. of a juristic person so that the juristic person may maintain its public interest and engage in sound activities." Article 2 of the above Act provides that "This Act shall apply to a juristic person which is a juristic person or an incorporated association with the purpose of supporting or paying school funds, scholarships, or research funds in order to contribute to the general interest of society (hereinafter referred to as "public interest juristic person") and Article 2 (1) and (2) of the Enforcement Decree of the above Act limits the scope of public interest corporations in detail with Article 2 (1) and (2) of the Act, and Article 2 (1) of the Act on the Establishment and Operation of Public Interest Corporations shall be limited to a juristic person or juristic person with the purpose of Article 27 (2) of the above Act.

However, according to the records, Article 2 of the articles of incorporation of the defendant, a medical foundation, provides that "The purpose of this corporation is to establish and operate a medical institution as a non-profit medical corporation, and contribute to the improvement of national health through research and development on health care, etc.," and according to this, the defendant is a non-profit corporation that conducts research and development on health care incidental to the purpose of establishing and operating a medical institution and does not constitute a public-service corporation under Article 2 of the Act on the Establishment and Operation of

Therefore, this part of the ground of appeal on the premise that the defendant is a public interest corporation under Article 2 of the Act on the Establishment and Operation of Public Interest Corporations is without merit.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)