Plaintiff

Development of Pian Industry Co., Ltd

Incheon District Court Order 2012 Gohap16748 dated March 4, 2013

The appeal of this case is dismissed.

1. Facts of recognition;

A. On October 20, 2011, the appellant was appointed and appointed as the inside director and representative director of the other party (if so, the representative director of the other party became two persons who were the previous representative director and the appellant). On November 10, 2011, the appellant filed a lawsuit seeking the implementation of the above registration procedure against the other party, as Incheon District Court 201No. 16748, by asserting that the other party did not register the change following the above resignation even though the Nonparty’s representative director declared his/her intention of resignation of director and representative director.

B. On January 16, 2013, the presiding judge of the court of first instance ordered the appellant to make an order to correct the defects of the complaint within seven days from the date of service of the order. The content of the order was that “the representative of the other party is deemed to be not the representative director but the auditor, so the other party’s indication is corrected.” The above order was served on the appellant on January 21, 2013.

C. On January 30, 2013, the appellant filed an amendment to the effect that “the resignation of a director takes effect only by the declaration of intention, and thus the appellant has already lost his status as a director of the other party. Therefore, the appellant did not correct the other party’s indication by submitting an amendment to the effect that it is inconsistent with the appellant’s claim and the other party’s claim.”

D. On March 4, 2013, the presiding judge of the court of first instance ordered the appellant to correct the defects of the complaint, but ordered the appellant to dismiss the complaint on the ground that the appellant did not comply with the order within the time limit set by the order.

2. The appellant's assertion;

The declaration of intention of resignation of a director of a corporation is a sole act and becomes effective immediately by the unilateral declaration of intention to the company, and without any registration of change due to resignation, immediately lose the capacity of the director. Therefore, since the appellant who declared intention to resign from the director and the representative director is no longer in the position of the other party, the order of correction to replace the representative of the other party to the audit pursuant to Article 394(1) of the Commercial Act is unfair, and the order of the first instance court that dismissed the appellant’s complaint on the ground that the appellant did not comply with such order.

3. Determination

A. An act of resignation of a director of a corporation is a sole act with the other party, and the expression of such intent reaches the other party and the act becomes effective simultaneously is alleged by the appellant (see Supreme Court Decision 2009Da31260, Sept. 8, 201, etc.).

B. However, as to whether the appellant has lawfully resigned from the office of director and representative director of the other party in the case on the merits, the appellant is only required to prove and clarify the matters (the appellant has not submitted any evidence to prove that the appellant has lawfully declared his/her intention to resign from the office of director and representative director) and as long as the appellant is registered as a director of the other party, it is reasonable to view that only the auditor can represent the other party in the lawsuit in accordance with Article 394(1) of the Commercial Act, since the appellant's lawsuit is filed against the company as long as the appellant is registered as a director of the other party. Therefore, the order of the presiding judge of the court of first instance ordering the representative director to correct the other party as the auditor and the order of the first instance court that dismissed the appellant's complaint on the grounds that the appellant did not comply

4. Conclusion

Therefore, the order of the first instance court is legitimate, and the appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Sang-sung (Presiding Judge)