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(영문) 대법원 2018.06.28 2017다282889
선거무효확인
Text

The appeal shall be dismissed.

The costs of appeal are assessed against D.

Reasons

Judgment ex officio is made.

In a lawsuit seeking confirmation of the invalidity or non-existence of a resolution that elected a representative of a juristic person or an unincorporated association or foundation under the Civil Act, the person who represents the organization is the representative elected by a resolution that became the object of confirmation of nullity or non-existence.

However, if a provisional disposition suspending the performance of duties against the representative has been taken, the representative shall be excluded from the performance of duties, including his/her authority to represent the organization in the principal lawsuit (see Supreme Court Decision 95Da31348, Dec. 12, 1995). According to the records, the Seoul High Court Decision 2017Ra20037, Sept. 29, 2017, suspended the execution of duties as the representative of D until the judgment on this case became final and conclusive by the Seoul High Court Decision 2017Ra2037, Nov. 10, 2017; however, D submitted a petition for final appeal on behalf of the defendant on behalf of the defendant in the name of the defendant, and the court ordered the defendant to correct the lack of power to represent the defendant, but the defendant did not make an amendment so far.

Examining these facts in light of the legal principles as seen earlier, D cannot represent the Defendant until the judgment on the instant case becomes final and conclusive due to a provisional disposition suspending the performance of duties, and D did not comply with the order of correction of defects in the power of representation of this court, and there are no data to recognize the power of representation. Accordingly, the instant appeal is unlawful as being filed by a person

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

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