[인터넷도메인이름사용금지등][공2008하,1433]
Criteria for determining the identity of an incorporated association or an unincorporated association
An incorporated association refers to the recognition of a combination of persons for a certain purpose as a juristic person, and matters concerning acquisition, loss, and acquisition of qualifications for membership are stated in the articles of incorporation (Article 40 subparag. 6 of the Civil Act). As such, in principle, whether an incorporated association and another incorporated association are identical to those of its partners should be determined depending on whether the partners are identical. Provided, That in cases where the articles of incorporation regarding the acquisition, loss, and acquisition of qualifications for membership differs from those of its partners and changed after due process, an incorporated association before and after the change remains in existence
Articles 31 and 40 subparag. 6 of the Civil Act
World Lead Cooperative et al. (Law Firm Yangyang, Attorneys Park Byung-hee et al., Counsel for the plaintiff-appellant)
Defendant 1 and 2 others (Law Firm Gyeong, Attorney Lee Lee-woo, Counsel for the defendant-appellant)
Seoul High Court Decision 2005Na23034 decided May 24, 2006
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
An incorporated association refers to the recognition of a combination of persons for a certain purpose as a juristic person, and the matters concerning acquisition, loss, and acquisition of qualifications for membership are stated in the articles of incorporation (Article 40 subparagraph 6 of the Civil Code). As such, in principle, whether an incorporated association and another incorporated association are identical to those of its partners should be determined depending on whether the partners are identical. However, in cases where the articles of incorporation regarding the acquisition, loss, and acquisition of qualifications for membership are changed following legitimate procedures, an incorporated association before and after the change remains in existence, even if there are differences between its partners,
According to the facts established by the court below and records, the leading member of the 2nd Do Council shall be composed of the 3th 10th 198, and the senior member of the 2nd Do Council shall be composed of the 4th 5th 5th 5th 199, and the senior member of the 2nd Do Council shall be composed of the 4th 5th 5th 5th 5th 5th 5th 5th 5th 5th 199, and the senior member of the 2nd 4th Do Council shall be appointed by the president of the 2nd 4th Do Council, who shall be appointed by the 3th 5th Do governor of the 2nd 5th Do Council, and shall be appointed by the 3th Do governor of the 4th Do Council, who shall be appointed by the president of the 4th Do Council, and shall also be appointed by the president of the 4th Do Council, who shall be appointed by the president of the 5th Do Council.
Examining these facts in light of the aforementioned legal principles, the board of directors of March 4, 2003, which was collected by four directors, including the non-party 5, without appointment and participation of auditors, and it is difficult to conclude that there is room for doubt about the legality of the resolution or the validity of the resolution, and that the old-do Constitution was lawfully repealed, because the non-party 2 was originally appointed as the representative of the World Bureau Guidance Federation, at that meeting, and the old-do Constitution was abolished. However, it cannot be readily concluded that the above circumstance alone is an organization that the non-party 5, etc. initially withdrawn from the World Bureau Guidance Federation or separate from it, and that it was a legitimate representative of the World Bureau Guidance Federation or the Plaintiff World Bureau Guidance Federation, and that the Plaintiff’s Guidance Federation was a legitimate representative of the World Bureau Guidance Federation or the Plaintiff Council Guidance Federation’s newly prepared articles of association in accordance with the procedures and the composition of the Plaintiff Association in the form of a foundation, which was established in order to comprehensively succeed to the rights and obligations of the World Bureau.
Nevertheless, without examining and determining the above point, the court below concluded that the plaintiff's global leading cooperative is an unincorporated association established by the non-party 5 et al. after withdrawing from the world leading cooperative, and that the plaintiff's global leading cooperative is identical in its substance to the plaintiff's global leading cooperative, and that the defendant's global leading cooperative continues to exist as an organization that maintains the identity with the plaintiff's global leading cooperative, and that all of the plaintiffs' claims of this case were dismissed on this premise. Thus, the court below erred in the misapprehension of legal principles as to withdrawal or identity in an unincorporated association, which affected the conclusion of the judgment, by misconceptioning the facts by failing to exhaust all necessary deliberation. The ground of appeal on this point is with merit.
Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)