[1] The meaning of "where necessary" under Article 386 (2) of the Commercial Code, which is a requirement for the court to appoint a person to perform the duties of a temporary director, and the criteria for its determination

[2] The case holding that where there is a vacancy for the head of a director under the Act or the articles of incorporation due to the expiration of the term of office of the representative director and the director's representative director and the director's representative director whose term of office expires cannot be deemed to constitute a case where it is impossible or inappropriate to hold the rights and duties of the representative director and the director whose term of office expires

[1] Article 386 of the Commercial Code provides that, in cases where the retirement of a director is decided by the head of the law or the articles of incorporation due to the retirement of a director, he shall have the retired director perform the rights and duties of a director until the expiration of his term of office or his resignation is newly appointed, and the court shall appoint a person to perform the duties of a temporary director upon the request of a director, auditor, or any other interested person, and Article 389 of the Commercial Code shall apply mutatis mutandis to the representative director. The necessary time here means the cases where it is impossible or inappropriate to have the retired director exercise the rights and duties of a director, such as the case where a vacancy occurs due to the death of a director or the former director is dismissed due to the absence of a long period of time. However, in detail, the decision shall be made individually in relation to the purpose of the temporary director and acting director system.

[2] The case holding that where there are vacancies for the chief director and the director's term of office under the law or the articles of incorporation due to the expiration of the term of office of the company, it cannot be deemed that it is impossible or inappropriate to hold the rights and duties of the representative director and the director whose term of office expires merely because the dispute over the business is pending among the partners

[1] Articles 386 and 389 of the Commercial Act / [2] Articles 386 and 389 of the Commercial Act

Re-appellant

World Telecom Co., Ltd. (Law Firm Mancheon-in, Attorneys Song Jae-in, Counsel for the plaintiff-appellant)

Busan High Court Order 2000Ra3 dated August 17, 2000

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Article 386 of the Commercial Act provides that, in cases where the retirement of a director is decided by the head of the law or the articles of incorporation due to the expiration of the term of office or the resignation of a retired director until his/her newly appointed director is appointed, if it is deemed necessary, the court may appoint a person to perform the duties of a temporary director upon the request of a director, auditor, or any other interested person, and Article 389 of the same Act shall apply mutatis mutandis to the representative director. In this regard, the term "when necessary" means cases where it is impossible or inappropriate for a retired director to have the rights and duties of a director as a director, such as where a vacancy occurs due to the death of a director or the former director is dismissed due to his/her absence of a long period of time, such cases refer to cases where it is impossible or inappropriate for the retired director to do so, such as where the director resigns from

According to the reasoning of the order of the court below, the court below maintained the decision of the court of first instance that dismissed the application of the re-appellant for the appointment of the representative director and the director of the company of this case on the ground that the initial term of office of the officer of the company of this case expired on April 15, 1999, but barring any special circumstance, the previous representative director and the director, non-appeal 1, non-appeal 2, and non-appeal 3, etc. still have the rights and duties as the representative director and the director of the company of this case under Article 386 (1) of the Commercial Act, and even if there are circumstances that the dispute over the business partnership between the parties of this case and the above non-appeal 1, etc. continues to exist, it cannot be said that it is impossible or inappropriate to hold the rights and duties as the representative director and the director of the company of this case. In light of the purport of the system of temporary director and temporary representative director acting for the representative director and records, the judgment of the court below is just

The grounds for reappeal are rejected.

2. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)