(a) Whether the term of office of a director of a social welfare foundation, who is in a lawsuit seeking revocation of approval for taking office, is in progress (affirmative), and whether the former director whose term of office expires can continue to perform the previous duties where a temporary director is appointed under Article 11 of the Social Welfare Services Act at the

(b) In a case where the Minister of Health and Welfare revokes the approval of the appointment of directors of a social welfare foundation and appoints a temporary director under Article 11 of the Social Welfare Services Act, whether the above provisional director appointment disposition is revoked by the revocation final and conclusive judgment, or whether the above provisional director appointment disposition is void by the validity of the final and conclusive judgment (negative)

C. In the case of the above "B", the board of directors composed of temporary directors appoint regular directors in accordance with the articles of incorporation and appoint them as new directors of a corporation and retire from office, and the term of office of the plaintiffs whose appointment approval has been revoked expires at the date of the closing of argument in the court below's decision to revoke the above provisional directors' appointment disposition (negative)

A. The term of office of the director of a social welfare foundation, the approval of whose appointment is revoked by the Minister of Health and Welfare, is a case where the cancellation disposition of appointment is revoked by the final judgment of the court, and the director whose term expires is a principle that the former director whose term is excluded from his duties is excluded from his duties. However, the former director whose term expires only in exceptional cases such as some of the directors are likely to cause damage to the corporation, etc., may perform the former director's duties until he is elected ( barring special circumstances where it is deemed inappropriate for the former director to perform the corporation's duties). Thus, if the director's term of office has already been appointed under Article 11 of the Social Welfare Services Act at the time of expiration of the term of office, if the director's appointment is already made, the former director whose term of office expires cannot continue

B. Where the Minister of Health and Welfare revokes the approval of the appointment of a director of a social welfare foundation and appoints a temporary director pursuant to Article 11 of the Social Welfare Services Act, even if the cancellation disposition was revoked by the cancellation final and conclusive judgment, the above provisional director appointment disposition is not revoked by the validity of the final and conclusive judgment, and it cannot be said that the above disposition may be revoked by the final and conclusive judgment, separately from whether it can be revoked again.

C. In the case of the above "B", if the board of directors composed of temporary directors appoints a regular director in accordance with the articles of incorporation and appoints him/her as a new director of a corporation and the temporary directors retire, seeking cancellation of the appointment act of the above retired temporary directors would eventually dispute the validity of the past legal relations. In addition, even during the lawsuit seeking cancellation of the provisional director appointment approval, if the term of office of the plaintiffs is in progress even before the closing date of argument in the court below's lawsuit seeking cancellation of the provisional director appointment approval, if all the terms of office of the plaintiffs have expired, the above provisional director appointment disposition cannot be revoked, even if the plaintiffs were to return to the director or recover the status to perform the director's duties. Thus, the plaintiffs' lawsuit seeking cancellation

(b)Articles 11 and 16(2)(b) of the Social Welfare Services Act; Article 19 of the Administrative Litigation Act; Article 12 of the same Act;

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and four others

1. The Minister of Health and Welfare

Seoul High Court Decision 88Gu13016 delivered on May 31, 1990

The judgment of the court below is reversed.

The plaintiffs' lawsuit of this case is dismissed.

The total costs of litigation shall be borne by the plaintiffs.

ex officio, we examine the legitimacy of the instant lawsuit.

1. The term of office of a director of a social welfare foundation whose appointment approval is revoked by the Minister of Health and Welfare pursuant to Article 16 (2) of the Social Welfare Services Act, shall continue to perform his previous duties, even if the cancellation approval of appointment is revoked by the final and conclusive judgment of the court, and the director whose term expires shall be excluded from his duties. However, the former duties shall be performed until the new director is elected only in exceptional cases such as where there is a concern about damage to the corporation due to a vacancy in some directors ( barring special circumstances where it is deemed inappropriate to allow the former director to perform the corporation's duties). If a director is already appointed under Article 11 of the Social Welfare Services Act at the time of expiration of the term of office, unless the appointment is void by the final and conclusive judgment, the former director whose term of office is expired cannot continue to perform his previous duties, and even if the cancellation approval of appointment approval of the director of the Minister of Health and Welfare was revoked by the final and conclusive judgment, it shall not be revoked by the Minister, apart from whether it can be revoked again.

2. The facts duly admitted by the court below are as follows.

In other words, on February 6, 1986, pursuant to Article 16 (2) of the Social Welfare Services Act, the defendant revoked the approval of the appointment of all the directors including the plaintiffs who were directors at the time of the social welfare meeting for the non-party social welfare foundation, and appointed seven non-party 1, etc. as temporary directors pursuant to Article 11 of the same Act on February 8, 198, and the plaintiffs 1, 2, 3, 4, and 2 filed a lawsuit against the defendant on February 6, 1986 against the defendant for revocation of the approval of the appointment of the above plaintiff on April 12, 1988, the judgment in favor of the above plaintiff et al. became final and conclusive, the defendant dismissed all the temporary directors of the above corporation at the time of April 16, 198, and the term of office of the plaintiffs from May 25, 200 to 18 years prior to the expiration of the plaintiffs' appointment of temporary directors at the time of the above provisional directors' meeting.

3. The plaintiffs asserted that they are still directors during their terms of office or even if their terms of office expire, they constitute a vacancy of directors, and they file the suit in this case seeking cancellation of the provisional director appointment disposition on May 25, 198 with the defendant's above order to elect the new person while they are in a position to perform their duties as directors until the new person is elected.

However, according to the above legal principles, even when the defendant's lawsuit seeking cancellation of the provisional director appointment approval disposition was pending on February 6, 1986, the term of office of the plaintiffs was expired before the date of the closure of pleadings in the court below, and thus, the plaintiffs cannot be deemed as directors during their terms of office. Further, since the plaintiffs already appointed provisional directors by the defendant at the time of the expiration of their respective terms of office and the appointment was not void automatically, the plaintiffs cannot be deemed as being in a position to perform their duties as directors because they do not constitute a case of directors, and even if the defendant refused the above request as stated in the judgment of the court below, the above provisional director appointment disposition issued by the defendant cannot be deemed null and void automatically for the above reasons. Furthermore, since the board of directors composed of temporary directors appointed by them pursuant to the articles of incorporation of the company and appointed them again, and the temporary directors already retired, the plaintiffs' actions seeking cancellation of the above provisional director appointment disposition cannot be seen as being invalid or cancelled as they did not seek cancellation of the above provisional director appointment disposition.

Nevertheless, the court below's finding of the plaintiffs' claim based on the judgment on the merits with excessive points is an illegal litigation which misleads the legal principles as to the interest in the lawsuit in this case. Thus, the judgment of the court below is reversed, and the litigation costs are to be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-han (Presiding Justice)