Law Firm Gangnam-LLC, Attorneys Park Jong-woo et al., Counsel for the plaintiff-appellant

2. The costs of appeal shall be borne by the Defendant.

The defendant shall deliver to the plaintiff each of the documents and articles listed in the attached list (hereinafter referred to as "the documents, etc. of this case").

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

(a) Establishment of market improvement project cooperatives;

① The Plaintiff is in accordance with the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”) for the purpose of the improvement project of the A market by setting a plan for the improvement of the A market as a project implementation district, which consists of a total of 3,

A union established on March 30, 2002 was authorized by the head of Dongjak-gu, the head of the Gu, and completed the registration of incorporation on April 19, 2002.

② The main contents of the articles of incorporation are as follows.

Article 15 (Executive Officers) (1) of the Articles of Incorporation shall have officers falling under any of the following subparagraphs. 1. 1. 1. 1. 1. 5. 2. 5. 5. 3. Directors of the Partnership. 2. ... 1. The president of the Partnership shall be appointed at the general meeting with the consent of a majority of the union members present: 1. 1. The president of the Partnership shall be appointed with the consent of the majority of the union members present.

(2) If an officer resigns from office or is dismissed under the provisions of paragraph (1), a new officer shall be elected without delay. Dismissal of an officer shall be made with the attendance of the majority of the union members and the consent of the majority of the union members present at the general meeting convened on the proposal of at least 1/10 of the union members or of at least 2/3 of the representatives. In this case, the representative of the proposing person may be elected with the temporary society with the consent of at least the majority of the union members present at the general meeting convened on the proposal of at least 1/10 of the union members. If it is deemed that the officer resigned or dismissed under the provisions of paragraph (2) is not suitable to perform his duties until the new officer is appointed or dismissed, he shall be suspended from performing his duties in accordance with the resolution of the board of directors or the board of representatives and the president of the partnership may temporarily appoint the auditor to perform his duties: Provided, That if the president of the partnership resigns or is dismissed, the general meeting shall be convened with the statement of the intention of the union members falling under the provisions of paragraph (1).

(b) Resolution to dismiss the president of an association or provisional disposition to suspend the performance of duties;

① On June 1, 2018, the Plaintiff held an extraordinary general meeting and passed a resolution to dismiss the Defendant, which was the president of the Plaintiff’s association, from the president of the association (hereinafter “resolution to dismiss the Defendant as of June 1, 2018”). On August 3, 2018, the Plaintiff convened the board of representatives to suspend the Defendant’s performance of duties.

② On January 10, 2019, the Defendant publicly announced the convening of an extraordinary general meeting as the president of the Plaintiff’s association. On January 10, 2019, D, E, and F (hereinafter “D, etc.”) filed an application for provisional disposition against the Plaintiff and the Defendant on January 17, 2019, seeking suspension of performance of duties and appointment of acting directors, etc., Seoul Central District Court 2019Kahap20092. On January 24, 2019, the said court rendered a decision to suspend performance of duties as the president of the Defendant’s association on January 24, 2019. However, on the part seeking appointment of acting directors, it did not accept the application on the ground that the oldest could act as the president of the association pursuant to Article 16(5) of the Plaintiff’s Articles of association. D, etc. filed a lawsuit against the Plaintiff and the Defendant on April 2, 2019 for revocation of the said provisional disposition as the Seoul Central District Court 2010.

(c) Convocation of an acting representative G special general meeting and election of the president of an association, etc.

① After the Defendant was dismissed from the head of the association pursuant to Article 16(5) of the Plaintiff’s articles of association, D, the oldest of the Plaintiff’s director, was the president of the association. On March 15, 2019, the Plaintiff made a resolution of dismissal of D from the Plaintiff’s director (hereinafter “resolution of dismissal as of March 15, 2019”). Accordingly, D, etc. against the Plaintiff on March 28, 2019, filed an application for a provisional disposition suspending the validity of the resolution of dismissal as of March 15, 2019 with the Seoul Central District Court 2019Kahap20513, the said court dismissed this on August 7, 2019, and thereafter D et al. (hereinafter “the instant resolution of dismissal as of March 29, 2019”), which was the 20th director to be elected as the president of the Seoul Central District Court 201Da51976, Mar. 29, 2019.

③ On July 10, 2019, the Plaintiff obtained authorization for the establishment of an association from the head of Dongjak-gu to change the Plaintiff’s president into H, and the registration for the change of the president of the association was completed on September 4, 2020. [Grounds for recognition] The Plaintiff did not dispute, Gap’s evidence Nos. 1 through 21, Eul’s evidence Nos. 2, 3, and 5, and the purport of the entire pleadings.

2. Summary of the parties’ assertion

A. The plaintiff

The Plaintiff dismissed the Defendant from the partnership’s president on June 1, 2018, suspended the Defendant’s performance of duties on August 3, 2018, and then elected H on June 14, 2019 as the president of the partnership. As such, H is a legitimate representative of the Plaintiff. Nevertheless, since the Defendant’s failure to deliver the instant documents, etc., causes problems in the performance of its duties, the Defendant is obligated to deliver the instant documents, etc. to the Plaintiff.

B. Since the Defendant’s special meeting is a serious defect that was convened by G, not a legitimate convening authority, as follows, the instant resolution at the general meeting of this case is null and void. Accordingly, since the Defendant, not H, still holds the position of the president of the Plaintiff, the Plaintiff’s request cannot be complied with.

① A resolution of dismissal on June 1, 2018 against the Defendant did not meet legitimate convening requirements. In addition, since most written resolution at the time of the above resolution did not arrive at the address of the union by the day before the general meeting, in violation of Article 22(3) of the Plaintiff’s Articles of incorporation, the above resolution is null and void because it falls short

② Since a lawsuit seeking confirmation of invalidity of a resolution to dismiss a director against acting D is pending and the resolution has not been finalized, G cannot become an acting director of the partnership.

(3) Even if G is an acting head of the partnership, G is authorized to convene a general meeting for the election of officers, as the acting head of the partnership appointed in accordance with the decision of provisional disposition by the court.

3. Determination

A. The defendant's duty to deliver the documents of this case

According to the above facts of recognition, the defendant was dismissed from office from the head of the plaintiff's association in accordance with the resolution of dismissal on June 1, 2018, and the execution of duties was suspended in accordance with the resolution of the board of representatives. Since H was elected as the head of the plaintiff's association according to the resolution of this case, the legitimate representative of the plaintiff is H. Thus, barring special circumstances, the defendant is no longer in the status of the plaintiff's association head, and there is no title to retain the documents of this case, etc., owned by the plaintiff. The fact that the defendant keeps the documents of this case

B. There is no dispute between the parties as to the validity of the Defendant’s argument regarding the instant resolution, as to the fact that the instant resolution satisfies the quorum and the quorum. The Defendant, on the grounds of invalidity of the instant resolution, deemed that the special general meeting of this case is a defect called by G rather than the legitimate convening authority, and thus, is concerned.

(1) As to the assertion on the premise that the resolution of dismissal on June 1, 2018 is null and void

In light of the following circumstances, it is difficult to view that the resolution of dismissal of the Defendant on June 1, 2018, which was issued on June 1, 2018, did not meet legitimate convening requirements or did not meet the quorum or the quorum, and thus, constitutes null and void. Therefore, the Defendant’s above assertion is without merit.

① At least 1/10 of the members or at least 2/3 of the members of a general meeting to decide on the dismissal of an executive officer requires a proposal (Article 18(3) of the Articles of incorporation). On June 1, 2018, a resolution to dismiss an executive officer was convened by 21 out of 166 members, and was duly convened upon meeting the requirements. On June 1, 2018, a resolution to dismiss an executive officer was duly convened upon meeting the requirements. On June 1, 2018, the number of 7 members directly present among 166 members and 84 members by a written resolution, 82 of them agreed. Since the quorum and the quorum of the general meeting to dismiss an executive officer are the majority present at the meeting of the members and the majority of the members present at the meeting (Article 18(3) of the Articles of incorporation), the above resolution to dismiss an executive officer satisfies the quorum and the quorum of the resolution.

③ Article 22(3) of the Plaintiff’s Articles of Incorporation provides that “A partner shall, when attending a cooperative in writing, state his/her intention on the agenda and make him/her arrive at the cooperative until the day before the general meeting is held.” It is insufficient to recognize that the written resolution at the time of the resolution to dismiss the Plaintiff on June 1, 2018 was not arrived at the cooperative by May 31, 2018, the day before the general meeting is held, and there is no other evidence to acknowledge it. Even if some of the written resolution at the time of the resolution to dismiss the Plaintiff on June 1, 2018 did not reach the cooperative by the day immediately before the above resolution, the above resolution cannot be deemed null and void on such sole basis, as long as it was submitted at

(2) On March 28, 2019, D et al. filed a lawsuit against the Plaintiff seeking confirmation of the invalidity of the resolution of dismissal of directors on March 28, 2019, for which D et al. dismissed on August 7, 2019; however, the aforementioned court dismissed it; and thereafter D et al. filed a lawsuit seeking confirmation of the invalidity of the resolution of dismissal of directors on March 15, 2019 against the Plaintiff on March 29, 2019, as Seoul Central District Court Decision 2019Gahap518976, supra. Even if D et al. filed a lawsuit against the Plaintiff seeking confirmation of the invalidity of the said resolution of dismissal of directors, the validity of the resolution of dismissal of directors on March 15, 2019 is not suspended upon the filing of the lawsuit. Accordingly, G et al.’s assertion on the premise that G et al. convened the special general meeting of this case without any further reason is without merit.

(3) As to the assertion that the acting director exceeded the scope of authority of the acting director

(A) In the case of Seoul Central District Court 2019Kahap20092, which filed against D et al. against D et al., the Seoul Central District Court dismissed the provisional disposition on appointment of an acting director on the ground that the Plaintiff may appoint an acting director pursuant to Article 16(5) of the articles of incorporation even without the court’s decision on the provisional disposition on appointment of an acting director. G is only an acting director appointed pursuant to Article 16(5) of the articles of incorporation, not an acting director appointed pursuant to the

(B) In light of the following circumstances that can be seen by comprehensively taking account of the facts acknowledged earlier and the purport of the entire pleadings, the authority of the representative for the president of the association appointed by the Plaintiff’s articles of association as a matter of principle is identical to the authority of the president of the association and the scope of his duties, such as the acting representative appointed by the court in accordance with the court’s provisional disposition order, cannot be deemed limited to ordinary affairs. Thus, the convening of the instant special general meeting is within the scope of his authority. Accordingly, the Defendant’

① Article 60-2(1) of the Civil Act provides that “An acting director following the registration of provisional disposition such as the suspension of execution of duties shall not engage in any conduct that does not belong to the ordinary affairs of a corporation unless otherwise stipulated in the provisional disposition order: Provided, That this shall not apply where permission has been obtained from the court.” In such cases, the fact that an acting director appointed in accordance with the court’s decision of provisional disposition can perform only the affairs that fall under the ordinary affairs of a corporation is due to the inherent nature of provisional disposition that is merely an emergency means to maintain legal peace temporarily until the dispute is finally resolved upon (see, e.g., Supreme Court Decision 94Da12371, Apr. 14, 195). Therefore, Article 60-2(1) of the Civil Act applies only to the acting director appointed in accordance with the court’s decision of provisional disposition,

② Unless otherwise expressly provided for in the relevant articles of association, such as the Plaintiff’s articles of association and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the authority of an acting director for the president of a cooperative under the articles of association may be deemed as equal in principle to the authority of the president of a cooperative (see, e.g., Supreme Court Decision 2017Da254266, Sept. 10, 201). Article 20(2) of the Plaintiff’s articles of association provides that the president of a cooperative shall convene

③ Unlike the cases where it is impossible to return to the head of a cooperative, such as resignation or death of the head of the cooperative, only the authority to manage the affairs of the head of the cooperative may not be deemed to exist if it is possible to return to the head of the cooperative, such as hospitalization of the head of the cooperative or a provisional disposition to suspend his/her duties. In other words, Article 16(5) of the Plaintiff’s Articles of association appears to mean cases where the head of the cooperative is unable to perform his/her duties due to death, illness or other unavoidable circumstances before his/her term of office expires, and there is no provision that the scope of the acting head’s duties varies or is limited depending on where the head of the cooperative can return to the head

4. Conclusion

The first instance judgment is justifiable. The defendant's appeal is dismissed.

Judges Laos

Judges Lee Jae-at