(영문) 광주지방법원 2014.8.22.선고 2013가합9613 판결

On July 15, 2013, the board of directors of the Defendant’s meeting of July 15, 2013 (hereinafter referred to as the first resolution) confirms that the resolution (hereinafter referred to as the “third resolution”) in which the Defendant’s assistant participant (hereinafter referred to as the Intervenor) was elected as a director by the board of directors who recommended ○○○, ○○, and ○○○ as a candidate for a regular director on August 26, 2013, and by the board of directors of the board of directors of September 30, 2013, the resolution (hereinafter referred to as the “participating”) in which the Intervenor was elected as a director is invalid.

Reasons

1. Facts which have no dispute;

(a) Status of parties;

(a) Defendant: Educational foundations established under the Private School Act to provide higher education and secondary education;

2) The Plaintiff: A person appointed as a general director (a director who is not an open director) on January 1, 2010 by the Defendant’s board of directors on January 1, 2010:

3) Intervenor: A person appointed as a general director on September 30, 2013 at the Defendant’s meeting;

B. The defendant's organization of the board of directors and appointment of directors

1) Private School Act (Law No. 8545, July 27, 2007)

A) At least seven directors must be appointed for a private school foundation (Article 14(1)), and the directors (open directors) who correspond to one fourth (Provided, That this shall be rounded to a minority number) of the total number of directors shall be appointed from among the persons recommended by the Open Director Recommendation Committee as twice times the number of directors (Article 14(3)).

B) If a director becomes vacant due to the expiration of his term of office, etc. after the enforcement of the provision of paragraph (a) above, the director must be selected upon the recommendation of the committee for recommending the open director in accordance with the amended provision of paragraph (a) above (Article 2 of the Addenda of this case) (hereinafter referred to as the “Supplementary Rule”).

2) Articles of incorporation

(A) The board of directors shall consist of nine directors, including the president (22).

B) The term of office of directors shall be three years (23)

(c)The Board of Directors shall be appointed by the Board of Governors and shall be appointed two months before the expiration of their terms of office with the approval of the competent authorities, apply for approval of their inauguration to the competent authorities one month prior to the commencement of their terms of office, and if any vacancy occurs (Article 24).

D) Three (3) the number of open directors among the directors (24bis).

(e) If a cause for appointment of an open director arises, the president shall request the Recommendation Committee of an open director to recommend the candidate within 15 days after the cause occurs (in the case of a new director, not later than three months before the expiration of the term of office); the Recommendation Committee shall recommend within 30 days two times the number of persons in question; and if no recommendation is made within the period, the corporation shall request the competent authorities to recommend (24bis

F) Unless otherwise stipulated in the articles of incorporation, a decision of the board of directors on the approval of a majority of the board of directors (Article 32)

C. Details of the instant case

1) Seven general directors on January 1, 2010 (Plaintiff, ○○○,00,000,000,000,000,000) appointed on January 1, 201 (the expiration date of the term of office: December 31, 2012)

2) On March 10, 2010, two general directors (○○, ○○○○) appointed on March 10, 201 (the expiration date: March 01, 2013).

3) On February 19, 2012, 2012, ○○ Director ○○

4) Appointment of an open director on February 20, 2012 (the 23th board of directors) ○○ director’s successor to the appointment of an open director.

5) On March 13, 2012, April 24, 2012, or July 10, 2012, a request was made to the Open Director Recommendation Committee to recommend two candidates on July 10, 2012, but is not recommended within a specified period.

6) On December 6, 2012, 2012, to recommend six candidates (two candidates for the replacement of ○○○ director and four candidates for the replacement of other directors whose terms of office expire) to the Open Director Recommendation Committee on December 6, 2012

7) At the Open Director Recommendation Committee on April 12, 2013, six candidates as follows:

O0 Transition Director (Open Director) 2 candidates (OO,00)

4 candidates (OO,000,000,000), among 8 open directors whose terms of office have expired until March 9, 2013, 4 candidates (O,00,000)

8) On April 22, 2013, a proposal for the appointment of directors for ○○○, ○○○○○ was rejected on April 22, 2013 (the 37th board of directors) to fall short of the quorum for resolution (a majority of the number

19) In the event that a proposal for the appointment of a director for six candidates under paragraph (7) of May 27, 2013 (38th Board of Directors) was rejected as a result of the failure to meet the quorum, the remaining director of ○○○○○ director requests the Ministry of Education to appoint a candidate, and six general directors are appointed by the next board of directors (38th Board of Directors).

10) On June 17, 2013 (Board of Directors 39), the rejection of the election of six general directors and the appointment of open directors are decided to be discussed after the appointment of general directors.

11) On July 15, 2013, the appointment of an open director was discussed after the appointment of a general director, and a resolution is adopted to appoint one general director from among the candidates recommended by the directors including the candidates referred to in paragraph (7) from the next board of directors (by July 22, 2013), including the candidates referred to in paragraph (7) (i).

12) on August 26, 2013 (Board of Directors 41) recommending the Intervenor and the Sscarlet as a candidate for a general director (Resolution 2 as indicated on the date of the claim)

13) Appointment of an intervenor on September 30, 2013 (Board 42) as a general director (Resolution 3 of the purport of the claim)

14) On January 22, 2014 (46th board of directors) 5 general directors (Plaintiff, ○○○, ○○○○, ○○○○, ○○○○, ○○○), 3 open directors (00,000), and 3 open directors (0,000).

2. The plaintiff's assertion

The supplementary decree of this case is a mandatory provision to the effect that an open director should be appointed preferentially to the replacement of a vacant director. Since the first resolution violates it, the first resolution is null and void, and the second and third resolution is null and void.

3. Progress of the instant lawsuit

A. On April 21, 2014, the Defendant: (a) shipped out the briefs stating the purport of recognizing the Plaintiff’s claim on April 21, 2014; and (b) the said briefs were made a statement on the third date for pleading of the instant case ( May 9, 2014).

B. On May 16, 2014, the Defendant again submitted a preparatory document to the same effect as the foregoing paragraph (a) with the evidence of a notarial office, and the said preparatory document was deemed to have been made a statement on the fifth day for pleading ( July 25, 2014) of the instant case.

C. On March 20, 2014, the Intervenor filed an application for intervention in the instant lawsuit, while he/she has a direct legal interest in the outcome of the instant lawsuit.

4. The intervenor's assertion;

(a) the invalidity of an appellant’s abortion and the validity of a resolution 1,2,3;

1) Since the intervenor was elected as the defendant's director by the order of resolution Nos. 1, 2, and 3, there is an interest in the outcome of the instant lawsuit to confirm the invalidity of the above resolution, and the effect of the re-market of this case extends to the intervenor.

2) Therefore, an intervenor may, as a co-litigation assistant intervenor, engage in any conduct inconsistent with the defendant's conduct of litigation as the original party.

3) However, the issue of whether to recognize the claim of this case is an important matter regarding the operation of the defendant corporation, and thus, it did not go through a resolution or consent of the board of directors. Thus, the recognition and acceptance of the claim of this case 3-B is invalid.

4) Even if it is not so, the above recognition and recognition are for the benefit of only the plaintiff, not the defendant, and it is invalid since it constitutes an abuse of the representative authority by the chief director, who is the defendant's representative.

5) Furthermore, in light of the autonomy of private schools and the purport of the open director system, the Addenda of the instant case ought to be considered as regulatory provisions. The Defendant’s appointment of a general director first by the board of directors was inevitable for the normal composition and operation of the board of directors meeting, and thus, the resolution Nos. 1,2, and 3 cannot be deemed null and void.

B. Absence of interest in confirmation

Even if there was a defect in the resolution Nos. 1, 2, and 3, the defect was cured and the validity of the resolution was in the past legal relationship, and there was no benefit to seek confirmation of the invalidity of the resolution, as it was decided May 2, 2014, since an open director meeting the fixed number (three persons) of 1-C14, 201.

(a) The validity of abortion of an applicant;

1) A supplementary intervention in a co-litigation is allowed where the effect of the judgment directly affects an intervenor (Supreme Court Decision 2010Da38168 Decided October 14, 2010; Supreme Court Decision 2011Da63758 Decided June 28, 2012).

2) Furthermore, since the effect of a judgment directly affects a third party is exceptional, it is limited to the case where a third party is in charge of a lawsuit (Article 53(1)2 and Article 218(3)3 of the Civil Procedure Act), where a law recognizes a large-scale effect of a judgment (Article 21(1)4 of the Family Litigation Act), Article 190(5) of the Commercial Act, and Article 29(1)6 of the Administrative Litigation Act, etc.).

3) However, even if the Defendant did not have the right to conduct the instant lawsuit with or on behalf of the Intervenor, and the judgment that the resolution of the board of directors of the school foundation is null and void, it cannot be said that the said judgment has a detailed effect (see Supreme Court Decision 2001Da13013, Jul. 13, 2001). There are no other grounds to deem the effect of the instant judgment directly on the Intervenor.

4) Thus, the intervenor is not a co-litigation intervenor but a ordinary supplementary intervenor. Thus, it is not effective that the intervenor violates the defendant's procedural acts during the intervenor's procedural acts (Article 76 of the Civil Procedure Act).

5) Therefore, the argument in Paragraph 4-A (3)-4)-5 of the intervenor, who denies the defendant's abortion, cannot be deemed as effective as a procedural act regardless of the legitimacy thereof, and there is no other reason to deny ex officio the validity of the recognition and recognition of the above claim.

6) Therefore, the Intervenor’s argument on this part cannot be accepted.

(b) Benefits of confirmation8

In addition, as seen below, the first, second, and third resolutions contain defects in violation of the mandatory provisions, and the plaintiff as the plaintiff has an interest in seeking confirmation of the invalidity of the above resolution. Thus, the intervenor's assertion on this part is without merit.

1) In light of the following 1 points, the Addenda of this case shall be deemed to be a mandatory provision.

A) In the event that the term of office of an executive becomes vacant due to the expiration, etc. of the term of the executive after the enforcement of this Act, the supplementary decree of this case takes a method of not giving discretion to the appointing authority of the executive officer by first ordering the appointment of the executive officer upon recommendation by an open director recommendation committee in accordance with the amended provisions of Article 14(3).

B) The open director system was first introduced in the private school foundation in order to promote the sound development of the private school by enhancing the public initiative, transparency and public nature of the operation of the private school. However, if the current private school law and its enforcement decree fail to complete the recommendation of the open director within 30 days, it shall be recommended by the competent authorities (Article 14(5) of the Act), and if it is intended to appoint an open director, it shall request the recommendation to the open director recommendation committee within 15 days (3 months before the expiration of the term of office in the case of a new director) from the date on which the reason for appointment occurred (Article 7-21 of the Enforcement Decree), it is reasonable to deny the validity of the instant supplementary order, which is a means to secure the normal operation of the open director system, by prescribing that the recommendation and appointment of the open director is enforced (Article 14(3) of the Act or the means to secure the normal operation of the open director recommendation system.

C) If it is interpreted that, as in the instant case, a general director may be appointed in preference to an open director in the event that a large number of vacancies occur simultaneously as in the instant case, it would be likely to distort the purpose of the open director system by first appointing a friendly general director to the school juristic person and organizing the board of directors together with the existing directors (including those with this authority to take emergency measures), and then the existing directors and tendency are similar to those of the existing directors at the board of directors, and by avoiding the appointment of other candidates (Article 16(1) of the Private School Act provides for matters concerning the appointment and dismissal of officers as matters to be deliberated by the board of directors).

2) However, the resolution Nos. 1, 2, and 3 is a series of procedures with which the entire members can be integrated, and one general director was appointed first than an open director through the above procedures in the event of the vacancy in the entire members, so it is apparent that it is contrary to the Addenda of this case, which provides for the preferential appointment of an open director.

3) In addition, considering the circumstances in sub-paragraph (c) of sub-paragraph (1), the fact that an open director meeting the quorum of the articles of incorporation was appointed after the above resolution cannot be deemed to have been cured of the defect in the above resolution or to have become a previous legal relationship.

6. Conclusion

If so, it is decided as per Disposition by the assent of all participating Justices on July 25, 2014 that the lawsuit in this case was terminated to the defendant's defeat.

Judges

Maximum Yong-Nam (Presiding Judge)

Kim Dong-dong Kim

Sickhos

Note tin

1) At that time, it is difficult to find out the circumstances in which all nine (102) total sum of paragraph 102 was appointed as a general director even after the enforcement of the open director system.

2) If many persons having a common interest do not fall under the provisions of Article 52, they shall not fall under the provisions of Article 52.

a party or persons to whom such party has become a party or persons for all of them may be appointed or altered from among them.

3) A final judgment rendered on behalf of another person on behalf of the plaintiff or defendant shall also have effect on that other person.

4) A final and conclusive judgment which cited a claim for a family litigation case of Category A or B shall be effective for a third party.

5) The judgment of the court for nullification or revocation of the incorporation of a company shall also have effect on the third party.

6) A final and conclusive judgment revoking a disposition, etc. shall also be effective as against a third party.

7) Since a resolution of the board of directors of a corporation is a decision-making by a corporation, the actual subject of dispute over the validity of the resolution is a corporation (Supreme Court)

Seoul High Court en banc Decision 80Da2425 delivered on September 14, 1982

8) The existence of any interest in confirmation may not be a requirement of lawsuit that is subject to the recognition and recognition (the rights or legal relations which the parties may dispose of freely).

Therefore, it is judged regardless of the recognition of the claim.

9) As amended by Act No. 7802 of Dec. 29, 2005, Article 14 of the above Act and Article 3 of the Addenda are as follows. An open director recommending institution is a school steering committee or university deliberation.

With the exception of the parliamentary circuits, Article 14 of the current Private School Act as amended on July 27, 2007 and its contents are almost the same as the Addenda of this case.

참조조문

참조판례

-대법원 2001. 7. 13. 선고 2001다13013 판결

-대법원 2010. 10. 14. 선고 2010다38168 판결

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