직무대행자선임가처분의 법적 성격과 그에 따른 실무적 쟁점

Abstract

The decisions of a provisional disposition appointing provisional directors along with a provisional disposition suspending the performance of duties against the directors of, the organizations under the Civil Act or, the companies under the Commercial Act are frequently made in practice, while academic researches on a provisional disposition appointing provisional directors are barely conducted. Therefore, this paper will analyze the legal nature of a provisional disposition appointing provisional directors and review its related issues in establishment and extinction. This paper will take a brief look at the types, legal nature and erga omnes effect of a provisional disposition suspending the performance of directors’ duties, and inquire and critically appraise Japanese and Korean theories and judicial precedents on the legal nature of a provisional disposition appointing provisional directors. Furthermore, it will testify that a provisional disposition appointing provisional directors corresponds to ‘provisional dispositions fixing a temporary position against the disputed relation of right’ as prescribed in Article 300(2) of the Civil Execution Act, and the appointment of a specific person as a provisional director among the provisional disposition is ‘disposition required to accomplish the purpose of application’ in accordance with Article 305(1) of the Civil Execution Act and can be determined ex officio by the court. Moreover, it will explain the distinct characteristics of a provisional disposition appointing provisional directors by introducing the concept referred to as the subordinate nature in establishment and extinction of a provisional disposition suspending the performance of duties. With regard to practical issues related to the subordinate nature in establishment of a provisional disposition appointing provisional directors, this paper will verify that ordering several provisional dispositions appointing provisional directors in relation to a single provisional disposition suspending the performance of duties is possible. In addition, it will prove that members of a civil or commercial organization and organization itself, which are not the Plaintiffs of a provisional disposition suspending the performance of duties, but have legal and direct interests with respect to the appointment of a provisional director, can have legal standing to file a provisional disposition appointing provisional directors, but the directors whose duties are suspended by a provisional disposition suspending the performance of duties has no legal standing of the provisional disposition. In respect to practical issues related to the subordinate nature in extinction of a provisional disposition appointing provisional directors, this paper will examine general causes of invalidation of a provisional disposition appointing provisional directors, including objection or revocation of the provisional disposition, the advent of the expiration date of the provisional disposition, confirmation of the decision on the merit, death of a provisional director, and withdrawal of litigation, and it will demonstrate that the revocation can be made only to a provisional disposition appointing provisional directors even though both a provisional disposition suspending the performance of duties and a provisional disposition appointing provisional directors are made. Furthermore, it will point out that the decision dismissing a provisional director rendered by the court actually has an equal effect of terminating the case concerning the provisional disposition appointing provisional directors, prove the necessity for the termination of the case by the dismissal decision, and refute criticism predicted against this method.