[1] In a case where the term of office of all or a part of a director of a corporation under the Civil Act expires or resigns, whether the former director can continue to perform his or her duties until the appointment of the latter director (affirmative with qualification)

[2] 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)

[3] Where the term of office expires or it is inappropriate for the former director who has resigned to perform his/her duties, 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 (negative)

[1] Even though the term of office of all or part of a director of a corporation under the Civil Act has expired or has resigned, the appointment of a successor director is null and void, and the remaining director cannot act as a normal corporation only with other directors, unless there are special circumstances to deem that it is inappropriate to allow the former director who has expired or resigned to act as a director, the former director may act as the former director until the latter director is appointed.

[2] Where the former director can perform his/her former duties until his/her term of office expires or a new director is appointed, the former director shall be dismissed as part of his/her duties, or there is a legal interest in seeking confirmation of invalidity by asserting the defect of the resolution by the board of directors appointed by the latter director.

[3] If there are special circumstances where it is deemed that the former director whose term of office expires or resigned is inappropriate to have him/her perform the corporation's duties, such dismissal of another director raised by the former director or the subsequent director's appointment is unlawful as there is no benefit in confirmation.

[1] Articles 57, 58, and 691 of the Civil Act / [2] Article 691 of the Civil Act, Article 250 of the Civil Procedure Act / [3] Article 691 of the Civil Act, Article 250 of the Civil Procedure Act

[1] [2] [3] Supreme Court Decision 97Da26142 delivered on December 23, 1998 (Gong199Sang, 216) / [1] Supreme Court Decision 98Da26187 delivered on January 28, 200 (Gong2000Sang, 554) Supreme Court Decision 200Da56037 delivered on July 27, 2001 (Gong2001Ha, 1933) / [1] Supreme Court Decision 95Da40915 delivered on January 26, 1996 (Gong196Sang, 754) / [197Da1997206 delivered on December 10, 199; Supreme Court Decision 2003Da3729389 delivered on December 13, 199 (Gong194).

Plaintiff

Bosung Vocational Professional School, a foundation

Seoul High Court Decision 2003Na74304 delivered on October 26, 2004

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

The court below rejected the Defendant’s defense of this case as follows, since the Defendant’s board of directors on October 23, 200, the board of directors dismissed the non-party Kim U.S., the grandchildren, Kim Jong-young, Kim Jong-sung, and the Plaintiff’s claim seeking confirmation of invalidity of the resolution of appointment of each director, and the Plaintiff’s withdrawal of the Defendant’s director on October 23, 2000, and prepared and delivered a written waiver of the Defendant’s waiver of all rights as the Defendant’s director on February 5, 2001, the Plaintiff who had already lawfully resigned, has no legal interest in seeking confirmation of invalidity of the resolution of the board of directors of this case. Accordingly, the court below rejected the Plaintiff’s defense of this case’s illegality, based on its stated reasoning.

However, it is difficult to accept such judgment of the court below for the following reasons.

Even if the term of office of the plaintiff is expired or some of the directors of a juristic person, or there was no subsequent appointment of the directors, despite the expiration of the term of office of the plaintiff, or the remaining directors cannot do normal activities of the juristic person, the former directors may perform their previous duties until the expiration of the term of office or the former directors are appointed, and if the former directors are able to perform their previous duties until the expiration of their terms of office or the former directors are appointed, there is no legal interest to seek confirmation of invalidity by the former directors' board of directors who had been appointed as part of their duties. However, if there are special circumstances to deem that it is inappropriate for the former directors to perform their duties by 10 years because of the lack of legal principles regarding the above 10-year period of office or 10-year period of office, it would be unreasonable to conclude that there is no benefit of confirmation in the lawsuit for nullification of the resolution of the board of directors filed by the former directors from the 20-year office to the 20-year president or 20-year office, respectively.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)