Whether there is a benefit of confirmation in a case where the defendant who had a dispute over the legal relationship before and after the filing of a lawsuit for confirmation does not dispute the legal relationship in the appellate court (affirmative)

In principle, there is no legal apprehension that there is no dispute between the parties as to the legal relationship and there is no benefit of confirmation. However, if the defendant asserted the legal relationship and the defendant claimed in the lawsuit, barring any special circumstance, it cannot be said that there is no benefit of confirmation solely on the ground that the defendant does not dispute the legal relationship at the appellate trial unless there is a special reason.

Article 250 of the Civil Procedure Act

Plaintiff

Defendant clan (Law Firm, Attorney Kim Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2007Na86404 decided August 28, 2008

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

The grounds of appeal are examined.

In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of rights. The benefit of confirmation is recognized only for the most effective and appropriate means to eliminate such apprehension and danger, and therefore, the defendant of the lawsuit for confirmation must have concerns over causing anxiety and danger in the legal status of the plaintiff through dispute over the plaintiff's rights or legal relations, and there is a benefit of confirmation against the defendant (see Supreme Court Decisions 91Da14420, Dec. 10, 1991; 96Da11747, Oct. 16, 1997, etc.). Therefore, if the parties dispute over the relation of rights and duties and there is no legal apprehension, in principle, there is no benefit of confirmation. However, if the defendant asserted that the plaintiff filed a lawsuit for confirmation, and the defendant claimed the relation of rights and duties in the lawsuit, barring special circumstances, it cannot be said that there is no benefit of confirmation by the defendant merely because the defendant did not dispute the relation of rights and duties in the appellate court.

According to the records, at the time of the defect of the resolution to appoint Nonparty as chairperson at the extraordinary general meeting of November 25, 2006 (hereinafter “the resolution of this case”), Defendant clan filed a lawsuit of this case seeking nullification of the resolution of this case on January 3, 2007. Defendant clan asserted that the resolution of this case was lawful or ratified by new resolution of this case at the first instance court of the lawsuit of this case, and that the relation of rights was cured. Defendant clan rejected Defendant clan’s assertion on August 24, 2007 and rendered a favorable judgment to confirm that the resolution of this case is null and void. Defendant clan appealed appealed to the effect that this case’s resolution of this case was lawful, while disputing legal relations, Defendant clan called a new extraordinary general meeting of this case on April 13, 2008, and then Defendant clan asserted that “the non-party is not the chairperson of this case’s new interest to appoint the non-party as chairperson,” and Defendant clan No. 20 of this case’s new interest to seek nullification of the right relationship of the non-party 28.20.

Nevertheless, the court below decided that the defendant clan did not dispute the invalidity of the resolution of this case on the ground that it is evident that the resolution of this case is invalid, and dismissed the lawsuit after cancelling the first instance court. This decision of the court below is erroneous in the misapprehension of legal principles as to the interest in confirmation, which affected the conclusion of the judgment.

On the other hand, the defendant clan argued that the non-party was appointed as a new chairperson at the special meeting on April 13, 2008, which was convened with the delegation of the non-party by the president after the expiration of the term of office as the president of the plaintiff, and that the plaintiff also convened by a non-competent person, and that the above special meeting is null and void. If the above resolution is valid, the plaintiff's claim for nullification of the above special meeting of this case is incidental to seeking confirmation of the past legal relations or legal relations, and it can be deemed that the plaintiff lacks the requirement of protection of rights as a litigation for confirmation. However, if the above resolution of the special meeting of this case is null and void and the chairperson is able to perform the previous duties until the appointment of the plaintiff, the court below, upon which the above special meeting of this case was remanded, shall also point out whether the plaintiff, the president of the defendant clan, was called by a legitimate authority to convene the general meeting of this case without justifiable grounds.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)