In case where a special representative is appointed by the court of the lawsuit on the grounds of a defect in the qualification of the representative of a corporation or the power of representation, and the defect is supplemented while the litigation procedures are in progress, whether such representative may conduct litigation for the sake of the corporation even before a decision to dismiss the court of the lawsuit is made

The special representative appointed by the court of the lawsuit pursuant to Articles 64 and 62 of the Civil Procedure Act to conduct procedural acts against the juristic person or the qualification of the representative of a juristic person due to any defect in the qualification of the juristic person or the power of representation. Since the special representative appointed by the court of the lawsuit pursuant to Articles 64 and 62 of the Civil Procedure Act has been prepared to supplement the defect in which the representative is unable to exercise his/her power of representation, in light of the purport of this system, if the special representative was appointed and the defect in the qualification of the representative or the power of representation of the juristic person was supplemented while the proceedings

Articles 62 and 64 of the Civil Procedure Act

E. A.I.D.

Defendant 1 and two others

Daejeon High Court Decision 2008Na7213 Decided October 23, 2008

The judgment of the court below is reversed and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

The special representative appointed by the court of the lawsuit pursuant to Articles 64 and 62 of the Civil Procedure Act to conduct procedural acts against the juristic person or the qualification of the representative of a juristic person due to any defect in the qualification of the juristic person or the power of representation. Since the special representative appointed by the court of the lawsuit pursuant to Articles 64 and 62 of the Civil Procedure Act has been prepared to supplement the defect in which the representative is unable to exercise his/her power of representation, in light of the purport of this system, if the special representative was appointed and the defect in the qualification of the representative or the power of representation of the juristic person was supplemented while the litigation

Examining the reasoning and records of the judgment of the court below in light of the above legal principles, the non-party 1, one of the joint representative directors of the plaintiff company, on behalf of the plaintiff company, filed the lawsuit in this case against the defendant 1, the joint representative director of the plaintiff company, the only auditor of the plaintiff company, and the defendant 3, who is the defendant 1. On February 14, 2007, the court of first instance, upon the application of the non-party 1, appointed the non-party 2 as a special representative under Articles 64 and 62 of the Civil Procedure Act between the plaintiff company and the defendant 1, and the non-party 3, respectively. While the plaintiff 1 was declared bankrupt during the proceeding in the court of first instance, the plaintiff company was appointed the non-party 1 as the representative director, and the non-party 1 loses the qualification of the representative director of the plaintiff company, the court of first instance declared the judgment against the plaintiff on July 11, 2008, and the special representative of the plaintiff company in this case is legitimate.

Nevertheless, the court below rejected the appeal of this case on the ground that only the special representative has the authority to represent the plaintiff company, on the ground that it is unlawful, by misapprehending the legal principles as to the powers of the special representative to act as a lawsuit and the authority to act as a legal representative, which affected the conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)