[1] Legal status and scope of authority of a person appointed as an acting director of an incorporated foundation by the court's decision of provisional disposition

[2] The nature of the act of approval by the competent authority for taking office of the Incorporated Foundation

[1] Provisional disposition, which determines a temporary position under Article 714(2) of the Civil Procedure Act, is a provisional and provisional measure to remove or prevent risks the right holder may face in the event of a dispute in relation to the relationship of rights, and is merely an emergency measure to maintain the legal peace temporarily until a final judgment of the dispute is rendered. Thus, in the case where a director of the foundation is appointed by a provisional disposition decision to act as an agent of the foundation in accordance with the provisional disposition, the agent is only in a temporary position to act as agent of the foundation. Thus, the foundation corporation can perform only the business belonging to the ordinary business of the foundation within the scope of management while maintaining and managing the foundation corporation as before. Unless otherwise stipulated in the provisional disposition decision, it goes against the essence of such provisional disposition that does not belong to the ordinary business of the foundation, such as changing the composition of the

[2] Even though the office's taking office of the Incorporated Foundation is based on the articles of incorporation of the Incorporated Foundation, as long as the act of approval (authorization) by the administrative agency is limited to the supervisory authority of the competent administrative authority over the Incorporated Foundation, the act of approval or refusal is an administrative disposition under public law, and the issue of whether or not to authorize or refuse the taking office belongs to the authority of the competent administrative authority, and it is not necessary for the competent authority to accept the application for approval of taking office of the Incorporated Foundation as a matter

[1] Article 714(2) of the Civil Procedure Act / [2] Articles 32, 37, 40 subparag. 5, 42(2), 43, and 45(3) of the Civil Act, Article 9 of the former Regulation on the Establishment and Supervision of Non-profit Corporations under the supervision of the Minister of Health and Welfare and the head of the affiliated agency (amended by Ordinance of the Ministry of Health and Welfare No. 70 of Aug. 13, 1998) (see Article 3 subparag. 5 of the current Regulation on the Establishment and Supervision of Non-profit Corporations under the Ministry of Health and Welfare and its affiliated agency), Article 9-2 (see Article 4 of the current Regulation on the Establishment and Supervision of Non-Profit Corporations under the Ministry of Health and Welfare and its affiliated agency), Articles 2 and 27 of the Administrative Litigation Act

[1] Supreme Court Decision 81Meu1085 delivered on December 14, 1982 (Gong1983, 274) (Gong1983, 351 delivered on December 28, 1982) Supreme Court Decision 94Da12371 delivered on April 14, 1995 (Gong195, 184), Supreme Court Decision 96Nu4657 delivered on February 11, 1997 (Gong197, 778) / [2] Supreme Court Decision 4292Nu90 delivered on July 25, 1962 (Gong10-1, 33), Supreme Court Decision 95Nu298395 delivered on July 25, 195 (Gong1995, 195)

The Aquatic Hospital Maintenance Foundation, a foundation (Attorney Han Man-chul, Counsel for the defendant-appellant)

The Minister of Health and Welfare (Attorney Down-hun, Counsel for defendant-appellant)

Seoul High Court Decision 95Gu32015 delivered on September 30, 1998

Each appeal shall be dismissed. The costs of appeal shall be assessed against each party.

1. The defendant's grounds of appeal and supplemental appellate brief are examined as well.

(1) As to ground of appeal No. 1

Article 714(2) of the Civil Procedure Act provides that a provisional disposition that determines a temporary position of an incorporated foundation under Article 714(2) is a temporary and temporary measure to remove or prevent the risk the holder of the right in a case where there is a dispute in the relationship of rights, and is merely an emergency means to maintain legal peace temporarily until the dispute is finally determined. Thus, if a director of the incorporated foundation is appointed by the decision of provisional disposition as an agent of the incorporated foundation, the agent is in a temporary position to act as agent of the incorporated foundation. Thus, it should be deemed that the incorporated foundation can perform only the affairs belonging to the ordinary affairs of the incorporated foundation within the extent that it maintains and manages the incorporated foundation as it is in the previous case. Unless otherwise provided in the decision of provisional disposition, it goes against the essence of such provisional disposition (see Supreme Court Decisions 94Da12371, Apr. 14, 1995; 96Nu4657, Feb. 11, 1997).

According to the reasoning of the judgment below, the court below dismissed the plaintiff's director non-party 1, non-party 2's acting director, non-party 3 and non-party 4, who are non-party 7's acting director, and appointed the non-party 6 as the chief director and the new non-party 7 as the chief director, and changed the composition of the board of directors itself by appointing the non-party 7 as the chief director, unless otherwise stipulated in the scope of authority of the provisional disposition decision that was appointed as acting director, it shall not be deemed that it does not belong to the plaintiff's ordinary business, and it does not fall under the scope of authority. Thus, the provisional board of directors decision that appointed the non-party 7 as the chief director on February 6, 1996 and the provisional board of directors on March 19 of the same year who appointed the above non-party 6 as the chief director cannot be deemed to be null and void as the non-party 3 and the remaining non-party 42. The above non-party 7 cannot be viewed as the chief director.

(2) As to the second ground for appeal

According to the reasoning of the judgment of the court below, the court below acknowledged the facts of the judgment, and found that Article 15 (1) of the plaintiff's articles of incorporation was appointed as a director who falls under subparagraphs 1 through 4 of the above article of incorporation, and agreed with the institution concerned, and, in the case of the wedding hospital operated by the plaintiff, there was an interview with the person from the institution concerned. However, in the case of the maintenance director, there is no agency to consult with the appointment of the director, and in the case of the maintenance director, there was no 'Dong' as one of the maintenance of each department under Article 15 (1) 3 of the articles of incorporation, and in the case of the non-party 8, who is the former director, the board of directors was appointed as a director under subparagraph 3 of the above article of incorporation without recommendation or consultation, it is just that the "Dongdae-dong's name" under the above provision was a name of the person from the institution under the articles of incorporation, and therefore, it cannot be viewed that the plaintiff's prior approval of the director's appointment cannot be justified.

(3) As to the grounds of appeal Nos. 3 and 4

According to the reasoning of the judgment below, the court below decided to appoint Nonparty 1 on July 5, 191 on behalf of Nonparty 1 and Nonparty 2 on behalf of the defendant for the appointment of Nonparty 1 on October 5 of the same year after the resolution was passed to appoint Nonparty 1 on the expiration of the term of office at the general meeting meeting meeting of Nonparty 10. After that, the plaintiff decided to appoint Nonparty 2 on February 28, 1992 as the successor of Nonparty 11, while the plaintiff had delayed filing an application for approval for the appointment of directors, the court below decided to appoint Nonparty 1 on behalf of the maintenance director at the temporary interest society of September 3 of the same year, and decided to appoint Nonparty 2 on behalf of the maintenance director at the general meeting of Nonparty 1 on behalf of the maintenance director at the general meeting of Nonparty 2, the court below did not err in the misapprehension of legal principles as to the appointment of the director at the general meeting of Nonparty 2 or as to the appointment of Nonparty 1 on January 25, 1993.

In addition, if there are circumstances, it cannot be said that the above non-party 1 and the non-party 2 participated in the resolution of the board of directors made on June 13, 1995 as the plaintiff's director and appointed the non-party 9 as a director. Thus, the non-party 1 and the non-party 2 who are not in the position of director are not in the above board of directors and who are premised on invalidation because they fall short of the quorum, are not justified.

(4) The Defendant’s assertion that Nonparty 9 expressed his/her intention to refuse to take office on December 10, 1998 is not only an action in the supplemental appellate brief that was filed after the deadline for submitting the appellate brief, but also it is evident that the assertion itself was based on facts arising after the closing of arguments in the fact-finding trial. Thus, it cannot be a legitimate ground for

2. The Plaintiff’s grounds of appeal and supplemental appellate brief are examined as well.

(1) Article 32 of the Civil Act provides that permission from the competent authority shall be obtained in the establishment of an association or foundation, Articles 45(3) and 42(2) of the Civil Act provides that any change in the articles of incorporation of an incorporated foundation shall be null and void without permission from the competent authority, and Articles 43 and 40 subparag. 5 of the Civil Act provide that the competent authority shall enter the necessary matters in the articles of incorporation of the incorporated foundation, and Article 37 provides that the competent authority shall inspect and supervise the affairs of the incorporated foundation. In light of the above provisions, there is a law that provides that the competent authority shall review the provisions on the appointment and dismissal of directors of the incorporated foundation and decide whether to permit the establishment or change in the articles of incorporation of the incorporated foundation (see, e.g., Supreme Court Decision 9Da9700 delivered on the application of the competent authority for appointment and dismissal of directors of the incorporated foundation) and that the appointment and dismissal of directors of the incorporated foundation shall be deemed to have been extended by the competent authority to supervise the incorporated foundation by examining the articles of the above provisions on appointment and dismissal of directors.

(2) According to the reasoning of the judgment below, the court below affirmed the following facts: the non-party 12, who was appointed as the head of the Hospital at March 27 of the same year, filed a lawsuit against the plaintiff on the grounds of the above non-party 1 and the non-party 2's status as the director; the non-party 1 and the non-party 13 directors were to exercise the lead right to the overall operation of the hospital for a long time, even involved in a matter belonging to the authority of the hospital; the non-party 1 and some of the directors were prevented from exercising the lead right to the overall operation of the hospital; furthermore, the non-party 1 and the above non-party 1 were to have a conflict with each other depending on their friendship relationship with the above non-party 1, and the court below's decision that the non-party 1 and the non-party 13 directors were legitimate by exercising their influence on the temporary meeting held on August 17, 1995, and the defendant's non-party 1 and the non-party 1's executive officer's reason for dismissal.

3. Therefore, each appeal shall be dismissed, and all costs of appeal shall be assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)