December 18, 2019

A. All of the plaintiffs' lawsuits except plaintiffs 8, 11, 12, 22, 94, and 100 are dismissed.

B. Nonparty 1 confirmed that the Defendant’s status as the president of the association, Nonparty 8, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 did not recognize the Defendant’s status as the director, ○○ Credit Union, and Nonparty 7, respectively.

2. Of the total cost of litigation, the part arising between Plaintiffs 8, 11, 12, 22, 94, and 100 and the Defendant shall be borne by the Defendant, and the part arising between the Plaintiffs except the above Plaintiffs and the Defendant shall be borne by the remaining Plaintiffs.

Purport of claim

The text is as described in paragraph (b) of this Article.

The plaintiffs' incidental appeal

Of the judgment of the first instance, the part against the plaintiffs in the judgment is revoked. Nonparty 1 confirms that the defendant's status as the president of the association, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 are not the defendant's director status, ○○ Credit Union, and Nonparty 7 are not each defendant's auditor status.

The defendant's purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the revocation are dismissed.

A. Summary of the defendant's assertion

The Plaintiffs filed the instant lawsuit seeking confirmation of the absence of their respective audit status by the Defendant’s president, the Defendant’s director, and each of the Defendant’s respective audit positions, and received a favorable judgment from the first instance court only on the claim for confirmation of the absence of the status of Nonparty 8’s director. The Defendant appealed against this, and the Plaintiffs filed an incidental appeal by this court on the claim for confirmation of the absence of the status of the remaining

However, the instant lawsuit was combined with the Defendant’s partnership president, each of the Defendant’s directors, and each of the Defendant’s audit positions. As such, the Plaintiff’s claim for confirmation of the absence of the status of the remaining Defendant executives except for Nonparty 8’s claim for confirmation of the absence of the status of the Defendant director, who appealed by the Defendant, became final and conclusive as it did not appeal by the

B. Determination

If an appeal is filed against the judgment of the court of first instance, the confirmation of the judgment of the court of first instance shall be interrupted, and all of the claims, which were subject to the judgment of the court of first instance, shall be transferred to the appellate court and continued to exist. Thus, it cannot be deemed that the claim for confirmation of the absence of the status of executive officers of the remaining defendant except for the claim for confirmation of

In addition, the incidental appeal is a system that seeks to change the original judgment in favor of the appellant himself/herself on the premise of the existence of an appeal filed by the other party even after the right to appeal by the appellee has ceased to exist and it becomes impossible to file an independent appeal due to the extinguishment of the right to appeal by the appellee, and the scope of the appellee’s filing of the incidental appeal is not limited by the scope of the appellant’s filing of the appeal by the principal appeal (see, e.g., Supreme Court Decision 2001Da68914, Sept. 26, 2003). Thus, the Plaintiffs can file an incidental appeal against the remaining Defendant’s claim for confirmation of

Therefore, the incidental appeal by the plaintiffs is legitimate. The defendant's above assertion is not accepted.

2. Basic facts

A. The Defendant is a cooperative established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) for the implementation of an urban environment rearrangement project in the Seoul Northern-gu Seoul Northern-gu (hereinafter “Defendant project implementation district”), and the contents related to the instant case in the provisions of the Defendant’s articles of incorporation are as follows.

(1) Members shall be the owners of land or buildings within the project implementation district or their superficies (hereinafter referred to as "owners of land, etc."). (3) Where they fall under any of the following subparagraphs, the number of members shall be designated as the representative members in cases of paragraph (3) and make a statement on the appointment of the representative members, and the representative members shall have the rights and obligations under Article 10 (1). (2) The head of the association shall, if he/she fails to convene an extraordinary meeting within 2 years from the date on which an application is made for parcelling-out or within 3 years from the date on which an application is made for parcelling-out, represent the board of directors; and (3) The head of the association shall, if he/she fails to convene an extraordinary meeting within 4 years from the date on which an application is made for parcelling-out or the president of the association, represent the board of directors within 5 years from the date on which an application is made for parcelling-out or the president of the association;

B. On May 31, 201, the Defendant was unable to normally operate the cooperative by the head of Gwangju Metropolitan City North Korea (hereinafter “the head of the North Korean government”). On September 14, 2012, the head of the North Korean government issued a written opinion survey stating that “The head of the North Korean government, before being amended by Act No. 13508, Sept. 1, 2015; hereinafter the same shall apply), upon investigating the opinions of the Defendant’s union members regarding convening a general meeting to elect the executives of the Defendant under Article 24(7) Section 1 of the former Urban Improvement Act (hereinafter “instant opinion survey”), shall be deemed to have an intention to normalize the cooperative only when at least one-half of the union members participate in the survey, and at least two-thirds of the union members agreed, shall establish a general meeting to elect the executives of the association in charge of the North Korean government and shall seek their opinions thereon.”

C. From September 19, 2012 to October 17, 201 of the same year, the North-gu Seoul Metropolitan City: (a) conducted the instant opinion survey; (b) as a result, 352 persons, other than the address unknown, from among 382 owners of the land, etc. in the cumulative zone, were informed of the result of the opinion survey that “The 180 persons (51.14%) from among them (5.56% of the participants, 95.56% of the participants, 6 others, 2 of the invalidation) participated in the questionnaire and decided to convene a general meeting to elect executives by the majority of the members of the association.”

D. On July 8, 2013, 17, among 43 Defendant representatives, submitted a written request for convening a meeting of the board of representatives to Nonparty 10 (the president of the ○○ Credit Cooperatives at that time). Accordingly, on July 11, 2013, Nonparty 10 notified the convocation of the board of representatives (hereinafter “instant board of representatives”) on July 19, 2013, with the qualification of the Defendant auditor, of the election of union officers and the composition of the election commission as an agenda item. Nonparty 11, Nonparty 12, and Nonparty 13, among the Defendant members, were appointed as election management members.

E. On November 15, 2013, the head of North Korea convened an extraordinary general meeting to elect the executives of the Defendant Cooperative. On November 15, 2013, the head of the North Korea convened a resolution to appoint Nonparty 1 as the head of the Defendant Cooperative; each Defendant director, ○○ Credit Union, and Nonparty 5 as the chief of the Defendant Cooperative; and each Defendant director, ○○ Credit Union, and Nonparty 7 as the chief of the Defendant Cooperative (hereinafter “instant resolution on appointment”).

F. Of the executives appointed through the instant appointment resolution, Nonparty 14 resigned from office and appointed Nonparty 6 as a successor. On November 2015 and November 12, 2017, the Defendant held an extraordinary general meeting and made a resolution on the reappointment of the said executives (hereinafter “instant resolution on the reappointment”) on November 12, 2017. Meanwhile, Nonparty 15 resigned from office on May 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5 through 9, 11, and the purport of the whole pleadings

3. Summary of the plaintiffs' assertion

Since the following resolution to elect executives is null and void for the following reasons, Nonparty 1 asserts that the status of the head of the Defendant’s partnership, Nonparty 8, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 did not have the status of each Defendant’s director, ○○ Credit Union, and Nonparty 7’s status as the Defendant’s auditor, and sought confirmation thereof.

A. Part of the claim by the non-party 8 for confirmation of the non-existence of the defendant director status

Although Nonparty 8 shared the land with Nonparty 9, Nonparty 8 did not have the right to appoint a representative member under the Defendant’s articles of incorporation at the time of the instant decision to appoint and serve as a representative member.

B. The part on the claim that the non-existence of the defendant's executive status of the non-existence of the non-party 1, the non-party 2, the non-party 3, the non-party 4, the non-party 5, the non-party 6, the ○ Credit Union, and the non-party 7

1) Invalidity of the instant decision on appointment

A) Defect in the procedures for convening the Assembly

At least 1/2 of the members of the North Korean government participated in the questionnaire at the time of the investigation of the instant opinion, and the head of the North Korean government decided to convene a general meeting for the election of executive officers only when the two-thirds or more of the members consent. Although the number of persons participating in the said survey is less than 180 members and less than half of the total number of members, the head of the North Korean government convened an extraordinary general meeting of the defendant and made a resolution for the appointment of the instant case, the resolution for

B) Defect in the procedure for convening the board of representatives of this case

According to Article 24 of the Defendant’s Articles of Incorporation, a board of representatives shall be convened when deemed necessary by the president of the partnership, but at least 1/10 of the union members or at least 1/3 of the representatives shall convene a meeting when requested to convene a meeting, and if the president of the partnership fails to convene a meeting within 14 days without any justifiable reason, an auditor shall convene it without delay. However, the instant board of representatives requested to convene a meeting to Nonparty 10 without a request to convene a meeting against Nonparty 16, who was acting as the president at the time of the association. ② At the time, the Defendant’s auditor was the ○ Credit Union, which was not Nonparty 10, and thus, there is a defect in the convocation procedure of the above board of representatives. Accordingly, the instant appointment resolution administered by the

2) Nullity of the instant resolution for reappointment

A) Defect in the resolution of the board of directors on the convocation of a meeting

In order to hold a general meeting of the defendant, the defendant’s articles of incorporation provides that the purpose and agenda of the general meeting shall be subject to prior deliberation and resolution by the board of directors. The defendant’s board of directors held on October 20, 2017 to convene the general meeting on November 12, 2017 attended the meeting of the defendant’s board of directors, including Nonparty 8, among eight members of the board of directors, and passed the above resolution to convene the general meeting. However, the defendant’s board of directors held on October 20, 2017. However, for the above reasons as seen earlier, the above resolution of the board of directors did not meet the quorum of the board of directors, and the resolution of this case convened by the resolution of the board of directors

B) A defect in the executive officer’s supervision of an extraordinary meeting without organizing an election commission;

The Defendant’s articles of incorporation requires that the executives of an association be appointed from among the union members as of the date of withdrawal according to the election management regulations following a resolution of the board of representatives at the general meeting where a majority of the union members present. The Defendant’s election management regulations stipulate that all election of the Defendant shall be held by the election management commission. Although the election management commission requires them to be appointed by the board of representatives, the election management commission did not appoint election management members at the board of representatives prior to the special general meeting where the instant resolution for reappointment was adopted, and the election commission did not constitute the election commission. Since the appointment and the consecutive appointment of the executive is related to the election, the election commission did not perform its duties, but rather, the election management commission handled the reappointed agenda of the executive officer by taking part in the election management affairs, and carried out affairs, such as voting and

4. Judgment on the main defense of this case

A. Summary of the main defense

Among the plaintiffs, the remaining plaintiffs except plaintiffs 8, 11, 12, 22, 94, and 100 are eligible for cash settlement because they did not apply for parcelling-out within the period for application for parcelling-out set by the defendant and lose their status as the defendant's union members. Therefore, there is no legal interest in seeking confirmation of the absence of status of the defendant's executives.

B. Determination

1) In cases where a member of an urban environment improvement project association becomes a cash liquidation agent by falling under the requirements stipulated in Article 73(1)2 of the Act on the Maintenance and Improvement of Urban Areas and the articles of association by failing to apply for parcelling-out, etc., the status of the member shall be lost. The time when the member loses his/her status shall be the day following the end of the period for application for parcelling-out (see, e.g., Supreme Court Decision 2009Da81203, Aug.

As seen earlier, Article 11 of the Defendant’s Articles of Incorporation provides that a person who has failed to apply for parcelling-out within the period of application for parcelling-out shall be disqualified as an association member. In full view of the purport of the entire pleadings in the written evidence Nos. 5 and 6, the Defendant publicly announced the members to apply for parcelling-out from March 20, 2019 to April 30, 2019, and the remainder of the Plaintiffs except Plaintiff 8, 11, 12, 22, 94, and 100 shall not apply for parcelling-out within the aforementioned period.

In light of the aforementioned facts in light of the legal principles as seen earlier, the remaining Plaintiffs, excluding Plaintiffs 8, 11, 12, 22, 94, and 100, did not file an application for parcelling-out within the period of application for parcelling-out set by the Defendant, and thus, it is reasonable to deem that they lost their status as Defendant’s partner on May 1, 2019, following the expiration date of the period of application for

Therefore, the remaining plaintiffs except Plaintiffs 8, 11, 12, 22, 94, and 100 are not members of the defendant, and there is no legal interest in seeking confirmation of the absence of the status of executives of the defendant against the defendant. Ultimately, the plaintiffs' lawsuits except the plaintiffs 8, 11, 12, 22, 94, and 100 are unlawful.

2) As to this, the rest of the plaintiffs except for plaintiffs 8, 11, 12, 22, 94, and 100 are invalid on August 31, 2019 on the basis of the status of the application for parcelling-out under which the defendant's notice of parcelling-out was unlawful, and the management and disposal plan resolution was adopted at the defendant's extraordinary meeting on August 31, 2019 based on the status of the application for parcelling-out, and the defendant must follow the procedure for parcelling-out and the application for parcelling

However, the evidence submitted by the above plaintiffs alone is not sufficient to recognize that the defendant's notice of sale was illegal, or that there was a defect in the resolution of the management and disposal plan on August 31, 2019, and that the defect constitutes a serious and obvious invalidation, and there is no other evidence to acknowledge it, the above plaintiffs' assertion is not acceptable

5. Judgment on the non-party 8's claim for confirmation of the non-existence of the defendant's director status

Article 19 (1) 1 of the former Urban Improvement Act provides that "The members of a rearrangement project shall be landowners, etc., but if the ownership and superficies of land or buildings belong to several co-ownerships, one representative shall be deemed to be the members." As seen earlier, Article 9 of the defendant's articles of incorporation provides that "If the ownership of real estate in the project district of the defendant belongs to several co-ownerships, one representative shall be deemed to be the members, and such representative shall be designated as the representative member, and the representative shall be appointed as the representative member, and a juristic act as the representative member shall be done by the representative member, and shall be done by the representative member"

In addition, in full view of the overall purport of arguments in evidence Nos. 3, 12, 13, and 26-3, Nonparty 8 and 9, who own land within the project implementation district of the Defendant and the land of the same Dong ( Address 2 omitted). On October 2, 2018, the head of North Korea decided to include a director of the board of directors for deliberation on the "general meeting agenda for establishing the project implementation plan" which was held on January 15, 2018 and excluded the director of the association from the appointment of the director of the board of directors, the procedural defect was found below the quorum of the board of directors. Accordingly, in accordance with the relevant provisions, it is recognized that: (a) Nonparty 8 and 9 were properly carried out the board of directors and the general meeting procedures; and (b) Nonparty 3 and Nonparty 9 were sent the result to Nonparty 1 as the name of the association member by November 19, 2018; and (c) Nonparty 28, the head of the Si/Gun/Gu may change the contents of the establishment.

In light of the above facts in light of the aforementioned provisions, since Nonparty 8 and Nonparty 9 constitute a person sharing the land in the Defendant’s project implementation district, they may conduct a legal act as a representative partner after undergoing the procedures for appointing the representative partner. At least until October 2, 2018, the Defendant did not undergo the procedures for appointing the representative partner (it does not believe that each of subparagraphs 1 and 7-1 and 2 was contrary thereto). Accordingly, Nonparty 8 is not a representative partner until the above time, and Nonparty 8 cannot exercise its right as the Defendant’s member, including the right to appoint the officer. Thus, Nonparty 8 should not be appointed as the Defendant director at the time of November 15, 2013, the resolution for appointment of the instant case was adopted and the resolution for reappointment was adopted.

Therefore, it is reasonable to view that the appointment of Nonparty 8 among the resolution for appointment of this case as Defendant director and the reappointment of Nonparty 8 among the resolution for reappointment of this case as Defendant director is null and void. Thus, Nonparty 8 is not in the defendant's position as director, and as long as the defendant contests this, there is benefit of confirmation

6. Determination as to the claim for confirmation of the non-existence of the defendant's executive status by the non-party 1 and eight others

A. Whether the resolution for reappointment of this case is null and void

As seen earlier, according to the Defendant’s articles of incorporation, in order to hold the Defendant’s general meeting, the purpose and agenda of the general meeting shall be subject to prior resolution by the board of directors (Article 20(6)); the board of directors shall consist of the president and directors (Article 27(1)); the Defendant shall have not less than seven but not more than ten directors (Article 15(1)); and the board of directors shall constitute a majority attendance of the members and shall pass a resolution with the consent of the majority of the members present (Article 29(1)

According to the above provisions of the defendant's articles of incorporation, the defendant's board of directors should consist of at least eight persons (at least one president of the association + at least seven directors). In order to open the defendant's board of directors, at least five of the members of the board of directors must be present.

However, according to the statement in Gap evidence No. 10, the defendant's board of directors was held on October 20, 2017 for convening the general meeting of the defendant on November 12, 2017, which was adopted the resolution for reappointment of this case. The board of directors is recognized that the non-party 1 appeared as the defendant's president's director qualification, non-party 17, non-party 8, non-party 4, and non-party 2 as the defendant's director qualification, and passed a resolution for convening the general meeting of this case. As seen earlier, the above board of directors is not the defendant's director's qualification, and the non-party 8 is not the defendant's director's qualification, and there is a defect that only four of the members of the board of directors is present

As above, the resolution of the Defendant’s board of directors for convening an extraordinary general meeting on November 12, 2017 is null and void. As such, the Defendant’s general meeting convened under such circumstance constitutes a case where the procedure for convening an extraordinary general meeting is contrary to the articles of incorporation, and the instant resolution for reappointment adopted at the said extraordinary general meeting is null and void.

B. Determination as to the claim for confirmation of the absence of the status of an executive officer of the Defendant by Nonparty 1, etc.

As seen earlier, the instant resolution for reappointment is null and void. As such, even if the term of office of eight Defendant executives, including Nonparty 1, etc., is valid on or around November 2015, it shall be deemed that the term of office of eight Defendant executives, including Nonparty 1, was expired on November 15, 2017.

Meanwhile, as seen earlier, Article 5 of the Defendant’s Articles of Incorporation provides that “An executive whose term of office expires shall perform his/her duties until his/her successor is appointed.” However, even if it is necessary to recognize the right to perform duties until the appointment of a director after the expiration of his/her term of office, the status of the director whose term of office has expired shall not be recognized (see Supreme Court Decision 96Da37206, Dec. 10, 1996, etc.). Therefore, even if it is recognized that the right to perform duties has been granted to eight persons, including Nonparty 1, pursuant to Article 5 of the Defendant’s Articles of Incorporation, until the appointment of the former president, director, and auditor, etc., the status of the head of the Defendant’s partnership, director, and auditor is naturally and comprehensively granted to eight persons, including Nonparty 1, as well as Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6, each of the Defendant’s status, ○○ Credit Union, and Nonparty 7, as long as the Defendant did not dispute.

C. Judgment on the defendant's argument

The defendant asserts that eight persons, including Nonparty 1, etc., are still in the status of the defendant's executive officer, since he/she again passed a resolution for reappointment of all the defendant executive officers at an extraordinary general meeting held on November 9, 2019.

As seen earlier, Article 15(3) of the Defendant’s Articles of Incorporation provides that “the term of office of an executive shall be not more than two years, but may be renewed consecutively through a resolution of the general meeting.” Thus, the prior meaning of “re-election” refers to continuing to be in that position after the expiration of the original term and continuous maintenance of that position after the completion of the term of office, and there is no ground to interpret differently the meaning of “re-election” under Article 15(3) of the Defendant’s Articles of Incorporation. In light of the foregoing, an officer who may be reappointed through a resolution of the general meeting of the Defendant must be in the position of an executive at the time of the general meeting where the resolution for

However, as seen earlier, since the term of office of eight Defendant executives, including Nonparty 1, etc. expires at the latest on November 15, 2017, eight Nonparty 1, etc. at the time of the extraordinary general meeting held on November 9, 2019, did not have the status of an officer who can be reappointed following the resolution of the Defendant’s general meeting. Therefore, even if there was a resolution for reappointment of eight Nonparty 1, etc. at the extraordinary general meeting held on November 9, 2019, it shall be deemed null and void, so the Defendant’s above assertion premised on this cannot be accepted.

7. Conclusion

Therefore, the remaining plaintiffs' lawsuits except for plaintiffs 8, 11, 12, 22, 94, and 100 are dismissed as unlawful. The claims of plaintiffs 8, 11, 12, 22, 94, and 100 shall be accepted as reasonable.

Since the judgment of the first instance is unfair in its conclusion, it receives incidental appeal from Plaintiffs 8, 11, 12, 22, 94, and 100. The defendant's appeal against the remaining plaintiffs except Plaintiffs 8, 11, 12, 22, 94, and 100 is partially accepted, and the judgment of the first instance is modified as stated in paragraph (1) of this Article.

(attached Form omitted)

Judges Yu Hun-tae (Presiding Judge)

(7) Notwithstanding paragraphs (2) and (5), where an executive of an association has not been appointed for at least six months after the retirement or dismissal of executive officers of the association, the head of the competent Si/Gun may convene the general meeting in order to elect executive officers of the association.

2) Article 73 (Measures for Persons, etc. who did not file an application for parcelling-out) (1) A project implementer shall hold consultation with the following persons within 90 days from the date following the date the management and disposal plan has been authorized and publicly announced: Provided, That a project implementer may commence consultation on compensation for losses for land, buildings, or other rights: Provided, That a project implementer may commence an agreement on compensation for losses from the date following the expiration date of the period for application for parcelling-out;