Plaintiff (Attorney Yoon Jae-gi et al., Counsel for the plaintiff-appellant)

Defendant Social Welfare Foundation

An intervenor;

July 27, 2007

Seoul Eastern District Court Decision 2005Kahap13347 Decided June 23, 2006

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. ① The resolution of the board of directors which elected the Defendant’s assistant intervenor as representative director among the 62th temporary emergency board of directors held by the Defendant on February 24, 2004, the resolution of the board of directors which the Defendant dismissed the Plaintiff from the board of directors among the emergency board of directors held on April 27, 2004, and the Defendant’s March 15, 2005 (which appears to be a clerical error in November 5, 2004), and each resolution of the board of directors which appointed Nonparty 3 as a director on April 20, 205, shall be confirmed to be null and void. ② It is confirmed that the non-party 4’s status as director on the Defendant corporation is nonexistent.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings as stated in Gap evidence 1-1, 2, 5 through 7, 8-1, 2, 13, 14-1, 2, 8-2, 2, 26, 27-1, 27, 27-1, 3, and 6:

A. Status of the parties

The defendant foundation is a social welfare foundation established under the provisions of Article 3(1) of the Social Welfare Services Act to carry out life-saving activities, follow-up services for emergency patients, and safety prevention activities due to various disasters, and the plaintiff is discharged from office by a resolution of the board of directors of the defendant foundation on April 27, 2004.

B. Progress of resolution by board of directors

(1) On December 30, 2003, the Defendant corporation held the 61st board of directors (hereinafter “the 61st board of directors”) in the presence of Nonparty 1, the 1st board of directors, the 4, the 5, and the 61st board of directors (hereinafter “the 61st board of directors”). The above board of directors passed a resolution to dismiss Nonparty 1 from office as the representative director and the 4th board of directors of the Defendant corporation with the consent of all the other four directors except Nonparty 1 who are the party.

(2) On February 24, 2004, the Defendant corporation held the 62th temporary emergency meeting in the presence of the Plaintiff, Nonparty 4, 5, and 6 of the board of directors. The said board of directors re-examines Nonparty 1’s legality of the resolution of the 61st board of directors and the details of the minutes, etc. of the instant resolution dismissing Nonparty 1, and made a resolution appointing the Defendant Intervenor as a director or representative director of the Defendant corporation.

(3) On April 27, 2004, the emergency board of directors convened by the Defendant’s Intervenor on the part of the representative director of the Defendant’s Intervenor, who was appointed by the Defendant’s Intervenor, passed a resolution to dismiss the Plaintiff from the board of directors. On November 5, 2004, the board of directors on November 5, 2004 passed a resolution to appoint Nonparty 2 as a director (Therefore, “ March 15, 2005” stated in the purport of the claim appears to be the clerical error of “ November 5, 2004,” and the board of directors on April 20, 2005, passed a resolution to appoint Nonparty 3 as a director.

(4) However, although Nonparty 1 did not have a resolution to dismiss himself at the 61st meeting of the instant 61st meeting, Nonparty 1 convened a provisional meeting on January 30, 2004 by asserting that Nonparty 4, 5 et al. conspired to prepare false meeting minutes and convened a provisional meeting on January 30, 204. The minutes of the board of directors were prepared that Nonparty 4 and 5 were dismissed in the presence of the representative director in the said provisional meeting.

C. Relevant parts of the defendant's articles of incorporation

(1) Officers of the Defendant Corporation shall have one representative director, one standing director, not more than 10 directors (including the representative director and the standing director), and two auditors (Article 15).

(2) Officers shall be elected by the board of directors, and the term of office of the directors shall be three years, but they may be reappointed, and if a vacancy occurs among the officers, they shall be appointed within one month (Articles 16 and 18).

(3) When intending to call the board of directors, the representative director shall notify each director and auditor of the date, time, place, and agenda in writing or by other appropriate means seven days prior to the meeting of the board of directors. The representative director shall call the board of directors within fourteen (14) days from the date on which the auditor requests the meeting to be convened jointly (Article 25).

(4) Except as otherwise provided in the articles of incorporation, the board of directors shall be duly formed with the attendance of the majority of the registered directors and with the consent of the majority of the present directors or more (Article 26). The representative director or the director shall not participate in the resolution on his own matters in the appointment and dismissal of officers (Article 2

2. Determination on this safety defense

(1) As to the part of the instant lawsuit seeking confirmation of invalidity of the resolution of each board of directors as stated in paragraph (1) of the claim, the Defendant and the Defendant Intervenor asserted that the Plaintiff, who was dismissed from the office of director of the Defendant Corporation, is not eligible to seek confirmation of invalidity of the resolution of each board

(2) On the other hand, there is a benefit to seek confirmation of invalidity of the resolution of the board of directors by the resolution of the board of directors. Since the plaintiff was dismissed by the resolution of the board of directors dated April 27, 2004, which was convened by the defendant's assistant intervenor, the plaintiff was appointed as the representative director, the resolution of the board of directors dated February 24, 2004, the resolution of the board of directors of April 27, 2004, the removal of the plaintiff from the director from the director, the resolution of the board of directors of November 5, 2004, the resolution of the board of directors of November 204 and the confirmation of invalidity of the resolution of the board of directors of April 20, 205, which appointed the non-party 2 as the director, there is no benefit to seek confirmation of invalidity of the resolution of the board of directors of April 20, 2005. Thus, the safety defense of the defendant and the assistant intervenor is without merit.

3. Judgment on the merits

A. The parties' assertion

(1) The plaintiff's assertion

(A) The Defendant corporation made a resolution to dismiss Nonparty 1 from office as the representative director and the director at the 61st meeting of the instant board of directors. The Defendant corporation did not notify the directors of the dismissal agenda with respect to Nonparty 1 at the time of the above board of directors meeting, and even if five directors present at the above board of directors were to make an urgent agenda to dismiss Nonparty 1, the Defendant corporation, as well as five directors present at the above board of directors meeting, was a director at the time of the above board of directors meeting, but there was no legitimate notice to dismiss Nonparty 1. Thus, the resolution to dismiss Nonparty 1, which was made at the 61th meeting of the instant board of directors, is null and void.

(B) Therefore, under the premise that Nonparty 1 was dismissed, the resolution of the board of directors made on February 24, 2004, which was convened by Nonparty 4, who was not a legitimate convening authority, elected the Defendant’s assistant participant as the representative director, and was convened by the Defendant’s assistant participant who was not the representative director’s authority, and dismissed the Plaintiff from the board of directors. The resolution of the board of directors made on November 5, 2004, that was appointed by Nonparty 2 and 3 as the director, and that of April 20, 2005, all of the resolution of the board of directors made on April 20, 200. Rather, the resolution of dismissal of Nonparty 4, which was convened by Nonparty 1 on January 30, 204, is legitimate, and Nonparty 4 is not in the position of the director of the Defendant corporation.

(2) The defendant and defendant assistant intervenor's assertion

At the time of the 61st board of directors, Nonparty 8 had already expired the term of office of directors, and Nonparty 7 had already expressed his intention to resign. Thus, even if all five directors were present at the 61th board of directors, the 61st board of directors of this case did not notify in advance the dismissal agenda against Nonparty 1, the board of directors present at the 61st board of directors to resolve to dismiss Nonparty 1 and thus is lawful. Accordingly, the plaintiff's assertion seeking confirmation of invalidity of each resolution of the board of directors on the premise that the dismissal resolution against Nonparty 1 made by the 61 board of directors of this case is invalid is

B. Determination

(1) When the articles of incorporation of the defendant corporation call a meeting of the board of directors, the representative director must notify each director and auditor of the date, time, place, and agenda in writing or by other appropriate means seven days prior to the meeting. However, it is reasonable to view that the resolution is valid unless there are special circumstances, if all the directors present at the meeting of the board of directors, and the resolution was made without any particular objection.

(2) In full view of the purport of evidence No. 4-1 and evidence No. 5, Nonparty 8, as of September 7, 200, was appointed as a director of the defendant corporation as of September 7, 200, and his term of office expires. Thus, the defendant corporation decided to re-election Nonparty 8 in the 60th provisional society held on November 203, 200, which was about one month before the 61st board of directors, as of November 203. The minutes of the 61st board of directors stated Nonparty 1, the representative director, the plaintiff 4, 5, and 6 as of the 7th board of directors, and the non-party 8, the non-party 1, the non-party 7, the non-party 1, the non-party 2, the non-party 7, the non-party 1, the non-party 7, the non-party 1, the non-party 7, the non-party 1, the directors of the defendant corporation, and the 1, the defendant 8.

(3) Furthermore, the fact that Nonparty 7 was appointed as a director of the defendant corporation on October 21, 2002 is not disputed between the parties, but in full view of the entries of Nos. 14-1, 19, 27-1, 6, and 28-1, 27-2, and partial testimony of Non-Party 5 of the first instance trial witness, Non-Party 7, who attended the board of directors on October 9, 2003, delivered the intention of resignation to Non-Party 1 who was the representative director at the time of the last, and on November 20, 203, attended the board of directors as an individual qualification and delivered the intention of resignation again. Thus, the director of the corporation can terminate the legal relationship by the unilateral declaration of resignation to the corporation, and the fact that Non-Party 7 had already retired on December 37, 2003, which is the time of the second board of directors at the time of this case.

(4) On this issue, the Plaintiff asserts that, as long as there is no appointment of a new director even after the resignation or the expiration of the term of office of the director, the Plaintiff shall perform the previous duties until the new director is appointed. Thus, even if Nonparty 7 expressed his intention of resignation, the term of office of the Plaintiff shall expire, and even if Nonparty 7 expressed his intention of resignation, the remaining director shall be deemed to have been in the position of the former director so long as there was no appointment of the former director until the 61st board of directors at the time of the instant 61st board of directors. However, if the remaining director can carry out the activities of the former director, the former director shall not be required to have the former director carry out his duties as a director. Meanwhile, Article 5(1) of the Act on the Establishment and Operation of Public Interest Corporations provides that the number of directors may be increased or decreased with the approval of the competent authority, and the articles of incorporation of the Defendant corporation provides that the fixed number of directors of the Defendant corporation at the time of the instant 61st board of directors shall be deemed to have satisfied the requirements for appointment of directors.

(5) Accordingly, at the time of the 61st meeting of this case, the defendant corporation's director at the time of the 61st meeting shall be deemed to have five persons who were non-party 1, the plaintiff, the non-party 4, the non-party 5, and the defendant corporation's articles of incorporation provide that the representative director or the director shall not participate in the resolution on his own matters in the appointment and dismissal of officers. As such, the 61st meeting of this case at the time of the 61st meeting of the defendant corporation present at the 61st meeting of this case shall not be deemed to have any procedural defect even if the dismissal resolution against the non-party 1 was made with the consent of all the non-party 1 other than the non-party 1, and therefore the 61th meeting of this case shall be deemed to have any procedural defect. Accordingly, the plaintiff's assertion seeking confirmation of invalidity of each resolution of the board of directors' request stated in the above board of directors' request on the premise that the resolution to dismiss the non-party 1

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Ahn Young-hun (Presiding Judge) and Cho Chang-hun;