[edit] Supreme Court Decision 2001Da68969 delivered on February 8, 2002 [Commitment Deposit]

【Main Issue】

In case of a merger pursuant to Article 4-2 of the Political Parties Act, whether the concerned political party may limit the succession of rights and obligations arising out of such merger through its resolution

【Summary of Decision】

According to Article 4-2, Paragraphs (1) and (2) of the Political Parties Act, multiple political parties may merge into a single party under a new name (merger through establishment of a new party), or a political party may merge into another political party (merger by acquisition), by a resolution of the joint meeting of the organs representing the concerned political parties or their respective delegated organs, and is effectuated by registration or report of the merger with the National Election Control Commission in accordance with the prescribed procedure. Meanwhile, Article 4-2, Paragraph (5) stipulates that the political party that is newly established or survives as a consequence of the merger succeed to the rights and obligations of the pre-merger political parties. In case of a merger pursuant to the above provisions of the Political Parties Act, the provisions on succession of rights and obligations pursuant to the merger are compulsory provisions, and therefore a decision otherwise, through a resolution of the relevant organs of the pre-merger political parties, or resolution of the joint meetings of such organs, is invalid.

【Reference Provisions】 Article 4-2 Paragraphs 1, 2 and 5 of the Political Parties Act

Article 4-2 of the Political Parties Act (Merge of Political Parties) (1) Political parties may merge into a single party under a new name (merger through establishment of a new party), or a political party may merge into another political party (merger by acquisition), by a resolution of the joint meeting of the organs representing the concerned political parties or their respective delegated organs.

(2) Merger between political parties is effectuated by registration or report of the merger with the National Election Control Commission in accordance with the provisions under Article 11, Paragraphs (2), (3) and (5); provided, however, that if the political parties merge during the period from the commencement date of the election period to the election date for public office, during which the political parties may nominate candidates for such public office, such merger shall become effective twenty (20) days after the election date.

(3)~(4) <omitted>

(5) The political party that is newly established or survives as a consequence of the merger succeed to the rights and obligations of the pre-merger political parties.

【Plaintiff, Appellee】 Coalition for Freedom and Democracy (Attorney Lee Jae-hun, Counsel for plaintiff-appellee)

【Defendant, Appellant】 Lee Pil-seon (Attorney Choi Won-gil, Counsel for defendant-appellant)

【Court of First Instance】 Seoul District Court Judgment 99Gahap23777 delivered on March 29, 2000

【Court of Second Instance】 Seoul High Court Judgment 2000Na18891 delivered on September 21, 2001

【Disposition】The appeal shall be dismissed. All costs of appeal are assessed against the defendant.

【Reasoning】According to Article 4-2, Paragraphs (1) and (2) of the Political Parties Act, multiple political parties may merge into a single party under a new name (merger through establishment of a new party), or a political party may merge into another political party (merger by acquisition), by a resolution of the joint meeting of the organs representing the concerned political parties or their respective delegated organs, and is effectuated by registration or report of the merger with the National Election Control Commission in accordance with the prescribed procedure. Meanwhile, Article 4-2, Paragraph (5) stipulates that the political party that is newly established or survives as a consequence of the merger succeed to the rights and obligations of the pre-merger political parties. In case of a merger pursuant to the above provisions of the Political Parties Act, the provisions on succession of rights and obligations pursuant to the merger are compulsory provisions, and therefore a decision otherwise, through a resolution of the relevant organs of the pre-merger political parties, or resolution of the joint meetings of such organs, is invalid.

The court below was justified in accepting that the former Coalition for Freedom and Democracy (CFD) and the former New Democratic Party (NDP) merged through establishment of a new party in accordance with the procedures set forth in the Political Parties Act, and became the plaintiff political party by registration with the National Election Control Commission, and concluding that since the plaintiff political party succeeded to all of the rights and obligations with respect to property owned by the pre-merger political parties in accordance with the provision of Article 4-2, Paragraph (5) of the Political Parties Act, the defendant, as custodian of the NDP's property, must return such property to the plaintiff. There was no misunderstanding of any legal principle in that decision.

The court below did not accept the defendant's assertion that, at the time of the merger, the plaintiff political party effected a merger of the members of the two parties but did not succeed to any property rights and obligations of the former NDP, taking into consideration the complex internal situation of the NDP at that time, on grounds that there was no evidence supporting such assertion. The grounds for appeal contends that such decision of the court below violated the rules of evidence and resulted from a failure of sufficient deliberation. However, even if there was such an agreement as the defendant asserts, such agreement is invalid as discussed above, and therefore the said determination of the court below was unnecessary, and such determination, regardless of whether it was proper, could not have influenced the conclusion of the court below. The arguments in the grounds for appeal are unacceptable.

Based on the foregoing, this appeal shall be dismissed and it is decided as per Disposition. This decision is delivered with the assent of all Justices who reviewed the appeal.

Justices Yoo Ji-dam (Presiding Justice)

Cho Moo-jeh

Kang Shin-wook

Son Ji-yol (Justice in charge)

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