[1] Whether a director of an incorporated foundation at the expiration of the term of office is capable of conducting the previous business until a new director is appointed (affirmative with qualification), and whether there is a legal interest in seeking confirmation of invalidity of a resolution of the board of directors replaced by a new director who is capable of performing the previous business (affirmative)

[2] Whether the judgment to nullify the resolution of the board of directors has a detailed validity (negative)

[3] Whether the registration of change of director has substantive validity (negative)

[1] Where a director of an incorporated foundation has not been appointed after the expiration of the term of office, or where the number of other directors whose term of office has not expired are not sufficient to engage in normal activities of the incorporated foundation, even though all or part of the directors of the incorporated foundation were to be appointed after the expiration of the term of office, barring special circumstances to deem it inappropriate to allow the former director to engage in the corporate affairs, the former director may perform the former duties until the latter director is appointed. As such, the former director who can perform the former duties has legal interests to seek confirmation of invalidity of the resolution to replace the director by asserting the defect of the resolution of the board of directors as part of his/her duties.

[2] Where there is a defect in the resolution of the board of directors of a corporation under the Civil Act, and there is no separate provision in the law as to the case of a defect in the resolution of the board of directors of the corporation, the interested party may at any time claim the invalidity of the resolution at any time and in any other way. However, where the lawsuit seeking nullification of the resolution of the board of directors was filed and the judgment in favor becomes final and conclusive, the effect of the judgment shall not be deemed to be effective only

[3] According to Article 54(1) of the Civil Code, registration of a juristic person other than the registration of incorporation is stipulated as a requisite for setting up against the company. Thus, registration of change of director is not effective as registered.

[1] Article 226 of the Civil Procedure Act, Articles 57, 58, and 691 of the Civil Act / [2] Article 204 of the Civil Procedure Act / [3] Article 54 (1) of the Civil Act

[1] Supreme Court Decision 84Da319 Decided December 10, 1985 (Gong1986, 235), Supreme Court Decision 95Da40915 Decided January 26, 1996 (Gong1996Sang, 754), Supreme Court Decision 97Da26135 Decided December 23, 1998, Supreme Court Decision 97Da26142 Decided December 23, 1998 (Gong199Sang, 216) / [2] Supreme Court Decision 87Nu399 Decided April 25, 198 (Gong198, 915)

Plaintiff 1 and three others (Attorney Song Man-chul, Counsel for the plaintiff-appellant)

The ADsan Hospital Maintenance Foundation, a foundation (Attorney Lee Jong-hoon, Counsel for the defendant-appellant)

Gwangju High Court Decision 96Na6645 delivered on May 15, 1998

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

1. The judgment of the court below

The court below held on February 6, 1996 that since the temporary board of directors of the defendant foundation was not convened by a legitimate convening authority, and it was invalid due to the defect in the convocation procedure and resolution process, such as the failure to meet the quorum if the non-party 1 and the non-party 2, who is an acting director who is unable to change the organization itself of the board of directors, and the non-party 1 and the non-party 2, who is not entitled to exercise voting rights, and that the resolution of the temporary board of directors of March 19, 196 was convened by the non-party 3 elected as the chief director as well as the above non-party 1 and the non-party 2, etc. were attended and held. Since the resolution of the board of directors of the defendant foundation was not convened by the legitimate convening authority or the non-party 1 and the non-party 2, and the plaintiff 4 retired from office due to the expiration of the term of office before the closing of argument of the court below, regardless of whether the plaintiff 3 was entitled to seek the above non-party 1 and the above non-party 97.

2. Determination of the grounds of appeal and the grounds of supplementary appeal within the scope of supplement

A. Parts of Plaintiffs 1, 2, and 4

In the event that there is no appointment of a former director even after the expiration of all or part of the directors of an incorporated foundation, or that there was an appointment of a former director, even if such appointment was null and void and thus the number of other directors whose term has not expired cannot be carried out activities of a normal corporation, barring special circumstances where it is deemed inappropriate for the former director to carry out the activities of the incorporated foundation, the former director may carry out the former duties until the latter director is appointed. As such, the former director who can carry out the former duties can be deemed to have legal interests to seek confirmation of invalidity of the resolution to replace the director by asserting the defect of the resolution of the board of directors as part of his/her duties (see Supreme Court Decision 97Da26142, Dec. 23, 198).

However, the records are examined, in case where the resolution of each board of directors seeking the plaintiffs as the lawsuit in this case is proved to be null and void, the legitimate directors of the defendant foundation at the time of the conclusion of the pleadings in the court below can be known to the effect that only 3 plaintiffs will remain. In such a case, the former directors including the plaintiffs shall perform their previous duties until they are duly appointed and appointed and then the plaintiffs shall be deemed to have legal interest in claiming the defect of the resolution of each board of directors as part of their duties and seeking nullification of the resolution.

In light of the above circumstances, the court below should consider whether there exist such defects as alleged by the plaintiffs in each resolution of the board of directors, and if the plaintiffs' arguments are justified, it can be recognized that there exists a benefit of lawsuit against the plaintiffs. Thus, the court below should render a judgment on the merits. If the plaintiffs' arguments are without merit, the plaintiffs are appointed to a new director according to legitimate procedures, and they naturally retire from office at the expiration of the term, and thus, they should dismiss the lawsuit as they have no standing or legal interest in seeking the invalidation of

Nevertheless, the court below did not review and decide the plaintiffs' assertion and determined that there was no interest in the lawsuit immediately on the ground that the term of office of the plaintiffs expired. The court below erred by misapprehending the legal principles as to the interest in the lawsuit for nullification of the resolution of the board of directors or the right of the expired director to perform his duties, which affected the conclusion of the judgment.

Therefore, the grounds of appeal by Plaintiffs 1, 2, and 4 pointing this out are justified.

B. Plaintiff 3

If a resolution of the board of directors of a corporation is defective and there is no other provision in law as to the case where a resolution of the board of directors of the corporation is invalid, an interested party may assert the invalidity at any time and in any other way. However, in the case where a lawsuit seeking nullification of the resolution of the board of directors has been filed and the judgment in favor of the court has become final and conclusive, such judgment shall not be deemed to have the effect of the said lawsuit only between the parties (see Supreme Court Decision 87Nu399, Apr. 25, 198). Meanwhile, according to Article 54(1) of the Civil Act, since a registration of a corporation other than the registration of incorporation is stipulated as a requisite for setting up against the company, it shall not have the substantive effect as registered.

Therefore, even if the judgment seeking nullification of the resolution of the board of directors of the Jeonju District Court 97Kahap1906 became final and conclusive as seen above, barring any special circumstance, Plaintiff 3, who is not a party to the lawsuit or is not at the position of receiving a notice of lawsuit, has no effect on the judgment, and if there is a defect in the resolution of the board of directors appointed the plaintiff as a director, such substantive defect should be asserted and proved, and if there is a defect in the resolution of the board of directors appointed as a director, it shall not be denied the status of the plaintiff as a director of the defendant foundation merely

Nevertheless, the judgment of the court below which rejected the plaintiff's status as a director of the defendant foundation just because the above final judgment exists and the registration was made accordingly is erroneous by misapprehending the legal principles on the confirmation of existence of a resolution of the board of directors and the validity of the registration of the corporation.

In addition, the record shows that the plaintiff has already expired during the trial of the court, but for the reasons as seen earlier, the plaintiff is still able to perform his duties as a former director with other plaintiffs.

Therefore, the plaintiff 3's ground of appeal, which is the same purport, is justified.

3. Conclusion

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

Justices Kim Jong-sik (Presiding Justice)