The validity of provisional disposition suspending the execution of directors' duties with no fixed period of suspension of execution.

The provisional disposition that suspends the performance of duties of a director of a stock company and appoints his agent has the nature of provisional disposition that sets forth a temporary status under Article 714(2) of the Civil Procedure Act. Thus, the execution of such duties cannot be automatically null and void until the judgment of the court of first instance is rendered or the final and conclusive. However, if the provisional disposition is final and conclusive in the principal lawsuit seeking cancellation or invalidation or non-existence of the resolution of the general meeting of shareholders that appoints the director whose performance of duties has been suspended by the provisional disposition, the provisional disposition becomes null and void as a matter of course, even if the period of suspension of the performance of duties has not been fixed, the provisional disposition becomes final and conclusive upon the confirmation of the judgment

Article 407 of the Commercial Act, Article 714(2) of the Civil Procedure Act

Supreme Court Decision 88Meu9890, 9906 Decided May 23, 1989

[Defendant-Appellant] Plaintiff (Attorney Kim Young-chul, Counsel for defendant-appellant)

[Defendant-Appellant] Jinsan Co., Ltd., Counsel for defendant-appellant-appellant

Seoul High Court Decision 87Na1671 delivered on March 3, 1988

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

1. The grounds of appeal No. 1 by the defendant (the plaintiff, the defendant hereinafter) and the defendant's attorney are examined (the supplementary grounds of appeal by the defendant's attorney are examined to the extent of supplement in the event they were submitted after the lapse of the period for submitting the appellate brief).

According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the macroscopic evidence.

A. Defendant U.S. Co., Ltd. (hereinafter “Defendant Co., Ltd.”) established on March 25, 1936 and completed the registration of incorporation on April 25, 1936. The articles of incorporation are agriculture, forestry, reclamation, and lease of land. The general shareholders’ meeting shall be convened by the president. The general shareholders’ meeting shall be held in August of each year; the general shareholders’ meeting shall be held in August of each year; the general shareholders’ meeting shall be held from time to time when necessary; the general shareholders’ meeting shall be elected from more than three employees; the term of office for the company shall be three years; the president elected from the general shareholders’ meeting to perform all duties as the representative of the company; the term of office for the company shall be thirty years from the date of its establishment; and the company shall be changed to the present date.

B. On May 8, 1948, at a general meeting of shareholders, Nonparty 1 was appointed by Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 in the body of employees in the representative body of employees, and on November 20, 1948, Nonparty 1 was in the general meeting of shareholders and Nonparty 4 retired from office. Nonparty 6 was newly appointed in the body of employees, and Nonparty 1 died on July 20, 1955.

C. The defendant company

(1) On July 5, 1956, at a general meeting of shareholders, Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 5, and Nonparty 6, respectively, retire from office, and Nonparty 7, Nonparty 2, Nonparty 3, and Nonparty 6, in the body of body located in the representative body of employees, taken office by Nonparty 7, Nonparty 2, and Nonparty 6, in the body of body of employees.

(2) Nonparty 2, Nonparty 8, Nonparty 9, Nonparty 10, and Nonparty 11 were appointed at a general meeting of shareholders of June 29, 1960 to the master body station, the representative employees of which are Nonparty 2, Nonparty 9, Nonparty 10, and Nonparty 11;

(3) On December 3, 1964, at a general meeting of shareholders of December 3, 1964, Nonparty 2, directors Nonparty 8, Nonparty 9, and Nonparty 11 are reappointed, and Nonparty 10 is retired;

(4) A representative director and a director appointed at a general meeting of shareholders of December 27, 1971 and (5) of Sep. 19, 1973, respectively, appointed at a general meeting of shareholders of Sep. 19, 1973;

(6) The general meeting of shareholders of December 30, 1975, when the dissolution of the defendant company was resolved and the registration of the non-party 9 and the non-party 8 was completed as a liquidator. However, with respect to the resolution of the general meeting of shareholders of December 3, 1964, the non-party 10 and the non-party 12 filed a lawsuit against the defendant company for confirmation of existence of the resolution of the general meeting of shareholders (the Gwangju District Court Decision 69No727 delivered on June 13, 1974) and the non-party 73Na366 delivered on June 13, 1974, the plaintiffs of this case won the plaintiffs of this case, and the Supreme Court dismissed the appeal 74Da1236 delivered on July 8, 1975, and the above judgment became final and conclusive on July 5, 1956 (1) and each of the above judgment of the non-party 1 and the non-party 2, 1964 decided on June 27, 1972

D. As to the representative director and director of the defendant company:

(1) In accordance with the Seoul District Court's decision of provisional disposition 4289 civil petition No. 1592, Sep. 3, 1956, the Seoul District Court's 4289 civil petition No. 1592 (1), the duty of Non-party 7, non-party 3, and non-party 6 who are the representative body station in the main body station is suspended, and the non-party 2 and non-party 10 are appointed respectively to the representative body representative of the body station, but the execution of the provisional disposition is cancelled later;

(2) In accordance with the Seoul District Court's notification of April 18, 1959 and the decision of provisional disposition 1064 of the 4292 Civil Code 1064, the above "C" (1) was suspended from performing duties of Non-party 7, non-party 3, and non-party 6, a representative body station in the main body station, and Non-party 9 and non-party 10 were appointed respectively to the representative body for the head of the body station, and the execution of the above provisional disposition is revoked.

(3) Upon the application of Nonparty 13 and Nonparty 3, the Seoul District Court's Mapopoon on June 21, 1961, and the 4294 Mapoon decision of 389 Mapoon, the above "C" was suspended without setting the deadline for the execution of duties by Nonparty 2, 2, 8, 9, 10, and 11, who is the representative taking part in the body station during the suspension period. Nonparty 13, 3, and 14 were appointed respectively to the representative taking part in the body station during the suspension period, and the registration was completed on June 22, 1961. On June 28, 1961, the respondent filed an objection on June 28, 1964 with the above support 4294 Mapoon, which was the public official on October 13, 196, and the above provisional disposition was cancelled by being aware of the fact that the public official had taken part in the above application for provisional disposition.

E. As to the liquidator of the defendant corporation:

(1) According to the order of provisional disposition 76Ka69 on February 6, 1976 by the Gwangju District Court Decision 76Ga669 on February 6, 1976, the above support 76Gahap152 was suspended from the execution of duties by the liquidator 9 and Nonparty 8 until the judgment of claim for confirmation of existence of the resolution of the general meeting of shareholders was rendered, and Nonparty 13 was appointed as a liquidator. However, on January 11, 1978, the above support was rendered and the decision of provisional disposition became invalid. (2) After filing an appeal against the above judgment, the above support was announced on February 21, 1978, and the provisional disposition order 78Ka455 on February 21, 1978 was ordered to suspend the execution of duties by the liquidator 9 and Nonparty 8 until the judgment of provisional disposition was rendered, and the above non-party 13 was appointed as liquidator, but the above decision of provisional disposition was invalidated by the above appellate court on December 30, 1980.

(3) The case was remanded to the Supreme Court Decision 81Da358 Decided April 27, 1982, which was the judgment of final appeal against the judgment of December 30, 1980 rendered by the above Gwangju High Court, which was the judgment of final appeal against the judgment of December 30, 1980. The notification of July 27, 1983, and the notification of provisional disposition 83Ka98, which was pending in the appellate court of Gwangju High Court, the above liquidator 9 and the non-party 8 were suspended by the time the execution of duties of the above liquidator 82 or 369 of the same court, which was the main case, until the final judgment of the court of final appeal was rendered, and the above provisional disposition became null and void because the non-party 15 and the non-party 16 were appointed as the acting representative during that period.

(4) According to the order of provisional disposition 81Ka10 on January 9, 1981, Gwangju District Court Decision 81Da17 against the defendant company of the non-party 17, the execution of duties by the liquidator, the non-party 9, and the non-party 8 were suspended until the judgment on the claim for confirmation of existence of the resolution of the general meeting of shareholders became final and conclusive, and the non-party 13 was appointed to the acting liquidator during that period, but on March 5, 1981, the decision of provisional disposition became null and void by the defendant's acceptance of the plaintiff's claim of the above case (the defendant of this case of this case was the defendant of this case, on September 27, 197, and on December 30, 1975, the request for confirmation of existence of the resolution of each general meeting of shareholders as of February 18, 1982, the above decision of the appellate court became final and conclusive and dismissed through the above decision of 381,298.3

F. As the above judgment became final and conclusive to confirm that the resolution of each general meeting of shareholders of the defendant company was not in existence in law after the death of the above non-party 1, the non-party 1, the non-party 2, the non-party 3, the non-party 5, and the non-party 6 were duly appointed by the resolution of the general meeting of shareholders before the death of the above non-party 1, the representative director of the defendant company and the director of the defendant company were the non-party 1 and the non-party 3 were the non-party 3 were the non-party 1 and the non-party 3 were the non-party 3 were the non-party 1 and the non-party 5 were the non-party 1 and the non-party 6 was removed from office on June 18, 1983; the non-party 5 was the non-party 1 and the non-party 1 and the non-party 2 were selected and appointed at the general meeting of shareholders held on May 25, 1984.

In light of the records, the above fact-finding by the court below is just, and there is no error of law by misunderstanding the facts or failing to provide the reasons by failing to comply with the rules of experience and logic such as theory of litigation.

In this regard, the above decision of provisional disposition No. 4294, Jun. 21, 1961, which was notified as of June 21, 1961, should be deemed to have been revoked by itself. However, according to the records, the provisional disposition cannot be deemed to have been revoked by itself, only if the objection against provisional disposition was withdrawn by the record. The argument is groundless.

2. Next, we examine the defendant's second ground for appeal.

In the event that there is no time limit on the validity of a provisional disposition itself, the court below presumed that the provisional disposition has the effect regardless of whether the judgment on the merits became final and conclusive, unless the judgment is revoked or altered in accordance with the legal procedure, and the above Gwangju District Court's Yan District Court's 4294 civilian notification June 21, 1961 did not mention the suspension period, and since the above provisional disposition's 389 notification was revoked or altered thereafter, the execution of duties as a director of the non-party 2 has been suspended until now by the above provisional disposition's decision. Thus, the above provisional disposition's resolution on September 19, 1973 and the general meeting's resolution on July 19, 1984, which was convened without the authority of the non-party 2, who was not entitled to represent the above representative director of the non-party 1, the board of directors held that the non-party 2 cannot be held as a director of the above company's 16th meeting.

However, a provisional disposition that suspends the performance of duties of a director of a corporation and appoints his proxy has the nature of provisional disposition that determines temporary status pursuant to Article 714(2) of the Civil Procedure Act. Thus, the effect of the provisional disposition shall not be automatically null and void until the decision of the court of first instance is rendered or the final and conclusive. However, if the provisional disposition obligee won the case in the principal lawsuit seeking cancellation or invalidation or non-existence of the resolution of the general meeting of shareholders that appoints the director, etc. whose performance of duties has been suspended by the provisional disposition, and the judgment becomes final and conclusive, the provisional disposition shall naturally lose its effect by attaining its purpose at the same time as the judgment in favor of the principal lawsuit is final and conclusive, even if the period of suspension of performance of duties is not fixed, and if the registration of cancellation or invalidity of the resolution of appointment of the director, etc. has been completed, it is also assumed that the suspension of the performance of duties of the director, etc. and the registration of appointment of the acting director should be completed.

However, if evidence Nos. 7-2 and 5 (the copy of the decision of provisional disposition) of the court below's finding facts acknowledged by the court below were collected, the case for confirmation of existence of the resolution of the general meeting of shareholders is about 76-2 and 76-152 of the above Gwangju District Court, the above case for confirmation of existence of the non-party 3, etc., who was the non-party 3, etc., who was the non-party 3, who was the non-party 1, the provisional disposition creditor of the above case, was a lawsuit seeking confirmation of invalidity or non-existence of the resolution of the general meeting of shareholders as of June 29, 1960, which was the above decision of the court below after the remand of the lawsuit in this case, and thus, it constitutes the lawsuit on the above provisional disposition. Thus, the above judgment of the court below which affected the conclusion of the judgment of the provisional disposition as to the non-party 2's rejection of directors' appointment of the above provisional disposition as of February 14, 1984.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won