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Ga-O

Gwangju Northern-gu

Attorney Park Jong-hoon et al., Counsel for the defendant-appellant

Gwangju Metropolitan City OO000 Council

Gwangju Northern-gu

Representative President, President O0

Attorney Jeong-chul et al., Counsel for the defendant

Gwangju District Court Decision 2008Gahap13090 Decided February 20, 2009

October 23, 2009

November 13, 2009

1. Revocation of a judgment of the first instance;

2. A. On November 21, 2008, the Defendant confirmed that the revocation of appointment made against the Plaintiff on November 21, 2008 is null and void.

B. From December 1, 2008 to December 1, 2008, the Defendant shall pay to the Plaintiff an amount equivalent to KRW 1,750,000 per month from the date when the Plaintiff is reinstated within the scope of the last day of the 2012 regular meeting of the Plaintiffs.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2-b. A provisional execution may be effected.

The same shall apply to the order.

1. Basic facts

A. The Defendant Association is a non-profit corporation that is established with the aim of promoting the development of OOO suitable for regional characteristics and promoting the OOOO activities of local residents and contributing to the construction of a society in a comfortable and explicit region under the jurisdiction of the ○○○○○○ Council affiliated with the National ○○○○ Council (hereinafter referred to as the “City Council”).

B. On March 28, 2003, the Plaintiff was commissioned as the leader of the axis classroom of the Defendant Association, and on February 12, 2004, the term of office from February 12, 2004 to February 2, 2006, was appointed as the auditor of the Defendant Association. On September 2, 2006, the Plaintiff was appointed as the secretary of the Defendant Association, and retired as of March 31, 2008. The Plaintiff was elected as the director at the temporary representative meeting of the Defendant Association held on April 25, 2008, and the term of office was from the date of approval of the president of the City Association ( May 2, 2008) to the last representative of the general meeting of the members of the Defendant Association from February 29, 2008 to the last day of the general meeting of members of the Defendant Association, and was again appointed to the secretary general of the Defendant Association.

C. However, on May 208, the board of directors of the Defendant Association, on April 29, 2008, when there was a conflict between the employees of the secretariat, including the president of the Defendant Association, on the part of the president of the Defendant Association, who was elected as the president of the president of the Defendant Association, and on the part of the president of the Association, demanded the submission of a report on the affairs of the secretariat of the Defendant Association and approval on behalf of the president of the Defendant Association. During this process, the employees of the secretariat removed the standing president system from the standing vice-president system to request an interview with the president. After that, on August 27, 2008, the above ○○○ had continued to be in conflict between the employees of the secretariat, including the president of the Defendant Association, who was elected as the president of the Defendant Association’s standing vice-president, and forced the Plaintiff to resign from the office of the president of the Plaintiff Association for 0 days with the consent of some other members of the Association, who were the president of the Defendant Association and the vice-president of the Defendant Association for 10 days.

D. On November 5, 2008, the defendant association held a board of directors to revoke the appointment of the president. ① The plaintiff neglected the duty of management and supervision as the president of the secretariat, such as non-Confidence and not cooperating with the president, who is a full-time vice-chairperson. ② The plaintiff set excessive expenses for producing promotional materials and used surplus without returning it to the City Association, etc. ③ The defendant association did not settle the usage fees of the director-general within the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

E. As seen above, on December 29, 2008, some members of the defendant's association demanding non-Confidence of the president and vice presidents of the defendant's association opened a temporary general meeting of delegates and resolved to order the president to hold office as the secretary general, and the plaintiff also attended the temporary general meeting of delegates and made a statement. Meanwhile, at that time, Park○ resigned resigned from the position of the vice-president of the defendant's association.

F. The relevant rules and regulations of the Defendant Association and the City Association are as follows.

(1) Rules of the defendant Association

Article 11 (Types and Fixed Number of Officers) The Association shall have the following officers:

1. Senior executives;

Not more than 30 directors (one president and several vice presidents), two auditors;

2. Commissioned executives;

Article 12 (Term of Office of Officers)

(2) The calculation of the term of office shall not be based on days and shall be based on the last day of the ordinary general meeting.

(c)

Article 13 (Selection Method of Appointed Officers)

(1) The chairperson shall elect persons recommended by the board of directors at a general meeting.

(3) The number of directors shall not exceed 50 persons, who may contribute to the promotion of ○○○○.

They shall be elected in writing: Provided, That the chairperson and the secretary general shall be ex officio directors.

Article 15 (Duties of Officers)

(1) The chairperson shall represent the principal meeting, exercise overall control over its affairs, and preside over the board of directors.

(2) The vice-chairpersons shall assist the chairperson, and the vice-chairperson designated by the chairperson shall be notified by the chairperson.

1. Agent;

§ 18 (Remuneration of Officers) Appointments and commissioning officers, excluding the Secretary General, shall be paid remuneration.

(b) the minimum amount of actual expenses necessary for the performance of the duties.

Article 27 (Non-Confidence of Officers)

(1) A general meeting may pass a resolution on partial or overall removal of an executive officer at a meeting.

(2) A proposal for dismissal shall be proposed with the consent of at least 1/3 of registered representatives, and 2/3 of registered representatives.

Resolutions with the above concurrent votes.

Article 41 (Establishment)

(1) A secretariat shall be established to handle affairs of the plenary session.

(2) The secretariat shall have a director general and other necessary personnel.

(3) The secretary general shall approve the chairperson of the Si Council within 30 days from the date of consent and approval.

and appointed by the Chairperson.

Article 42 (Duties of Director General) The Secretary General under the direction and supervision of the Chairman and the affairs of the Secretariat.

Overall control over employees shall be directed and supervised.

(2) Rules and rules of the City Association

Article 43 (Application Mutatis Mutandis and Revocation)

(1) The chairperson of the old ○○○○○ shall appoint it at the general meeting of representatives of the relevant representatives and within thirty days from the date of appointment.

shall be subject to the approval of the plenary session.

(2) A failure to perform his/her duties due to a defect in the details of authorization or failure to perform his/her duties.

of the board of directors, if any of the following events occurs, the

the corporation.

Article 46 (Secretariat)

(1) The Gu ○○○ Council shall have a secretariat and may have a secretary general and necessary employees.

(2) The secretary general of the Gu ○○○ Council shall obtain the consent of the relevant board of directors within 30 days from the date of consent.

The Chairperson of the Gu ○○○○○ shall be appointed by the Chairperson with the approval of the Chairperson of the Main Association.

(3) A reason causing interference with the performance of duties by the Secretary General due to his/her failure to perform his/her duties.

In case of Section B, the chairman of the Council may request the chairman of the Council to revoke the appointment.

[Ground of recognition] A without dispute, Gap's 1 through 6, 8, 10, 12, 14 through 16, 20, Gap's 21-1, 22, 25 through 27, Eul's 1-2, Eul's 1-2, Eul's partial testimony of 1-2, and the purport of the whole pleadings

2. Determination on the claim for confirmation of invalidity of the decision to revoke appointment of this case

A. The parties' assertion

(1) The plaintiff's assertion

As the plaintiff is a worker employed by the defendant association and is an ex officio director, the resolution of the general meeting is required for the dismissal of the defendant association. The defendant association only passed the resolution of the board of directors, not the general meeting, in order to revoke the appointment of this case. At the time of the revocation of the appointment of this case, the defendant association did not provide any opportunity to defend the plaintiff at the time of the revocation of the appointment of this case and did not specifically mention the appointment of this case, so the decision to revoke the appointment of this case is procedural defect, and the decision to revoke the appointment of this case was made even though the plaintiff did not interfere with the duties of the secretary general, and thus, the decision to revoke the appointment of this case was made without any substantial defect.

(2) Defendant Association’s assertion

Defendant Association does not elect the president at a general meeting but appoint the president of the Defendant Association with the consent of the board of directors and the approval of the president of the Si Association. As such, there is no procedural defect in the decision of revocation of appointment in this case because the appointment of the director elected at the general meeting is not required in cancelling the appointment of the secretary general, and ② Furthermore, the Plaintiff did not follow the direction of the president and the vice-president of the Defendant Association, and did not report to the president and the vice-president, or did not obtain the approval of the president and the vice-president, and submitted a proposal to dismiss the president and the vice-president in the name of the Yeongdeungpo-gu Association by receiving the recommendation to dismiss the president and the vice-president from the members of the Commercial Partnership in each category belonging to the Defendant Association. As such, the Defendant Association voluntarily used the surplus of the production cost of promotional materials as mentioned above, and the Defendant Association did not perform its duty of supervision, such as failing to settle or settle the user fee for three months, which led to the failure to perform its duties as a legitimate reason for failing to perform its duties.

B. Determination as to whether the Plaintiff is an employee

The issue of whether a worker is subject to the Labor Standards Act shall be determined according to whether the worker provided labor in a subordinate relationship with the employer for the purpose of wages in substance regardless of the form of a contract. Thus, even if an officer such as a director or auditor of a company is a formal and clear purpose, his status or title is in fact a certain amount of work under the direction and supervision of the representative director or the employer who has the right to work daily and is in a relationship of receiving remuneration, or a certain amount of work under the direction and supervision of the representative director, etc. in addition to performing duties delegated by the company, or performing duties delegated by the company, he/she is in a relationship of receiving remuneration in return for such work (see, e.g., Supreme Court Decision 2002Da64681, Sept. 26,

In light of the above legal principles, although the above evidence Nos. 9 and 11, Eul evidence Nos. 4-1 and 2 were examined, the plaintiff did not prepare a separate employment contract with the Si Association or the defendant Association, unlike the employees belonging to the secretariat of the defendant Association who received benefits from the Si Association after signing the employment contract with the Si Association upon the entrustment of the Si Association, and did not have the right to receive insurance money, income tax, resident tax, etc. The monthly remuneration is also received from the defendant Association 1,00,000 won per month and 7.50,000 won per month, which are subsidized by the defendant Association. However, according to the above evidence, the plaintiff's executive officer's right to receive wages is determined by the regulations of the Si Association, such as the direct regulations of the defendant Association or the senior executive officer of the defendant Association, and the plaintiff's right to receive remuneration under the regulations of the secretariat of the defendant Association is clearly determined within the scope of the former executive officer's right to receive wages from the defendant Association.

C. Determination on procedural defects

On the other hand, as seen above, in the case of appointment as the secretary general of the defendant association, the director-general shall concurrently serve as the director-general, but the director-general shall not include the director-general in the rules rules of the defendant association explicitly included in the rules rules of the defendant association, unlike the director to be directly elected at the general meeting, the director-general shall be appointed by the chairperson of the defendant association with the consent of the board of directors and the approval of the chairperson of the association of the Si association, the chairman of the Si association may request the cancellation of appointment to the chairperson of the defendant association, and the decision of the representative general meeting shall not be separately required in order to dismiss the plaintiff as the secretary-general.

In addition, as seen earlier, the rules of rules of the defendant association should give the opportunity to defend the plaintiff in cancelling the appointment of the secretary general or specify the reasons for revoking the appointment. Since there is no provision different, it is difficult to view that the defendant association has a duty to give the opportunity to defend the plaintiff in cancelling the appointment of the secretary general under the good faith principle, or to indicate specific reasons in the cancellation of the appointment of the secretary general. In addition, considering the whole purport of the arguments, the defendant association chairperson, ○○, who is the chairperson of the defendant association, has given the opportunity to defend by informing the plaintiff of the reasons for the cancellation of appointment before the cancellation of appointment in this case. Thus, there is no procedural defect in the decision of revocation of appointment in this case, even though the plaintiff is not required to dismiss the director of the defendant association in order to dismiss the plaintiff, since the plaintiff was elected as the director of the defendant association, the defendant association should undergo the resolution of the general meeting, and thus, it cannot be viewed that the plaintiff still remains dismissed from the office of the defendant association's appointment without the resolution of the general meeting.

(d) Determination as to the existence of grounds for cancellation of appointment.

First of all, among the grounds for cancellation of appointment asserted by the Defendant Association, the Plaintiff is not dissatisfied with the direction of the president and vice-president of the Defendant Association, and the testimony of the Defendant at Park Jong-○, who led the president and vice-president, is insufficient to recognize the above facts alleged by the Defendant. Rather, according to the evidence acknowledged above, Park Jong-○, after he became a full-time president of the Defendant Association, controlled the employees of the Defendant Association, including the Plaintiff, by holding the passbook and card of the Defendant Association, and by demanding a report and approval on the matters of the secretary general on behalf of the president, there is considerable room to view this part of the Defendant Association’s personal affairs as being without undergoing the regulations of the Defendant Association, or the resolution of the board of directors or the general meeting. In light of the fact that there is considerable room to view that the above part of the Defendant Association’s personal affairs, which was a mere reason for cancellation of appointment, could be seen as an unreasonable exercise of authority by the president and vice-president of the said Association, and that some of the above conflict between the president and vice-president of the Plaintiff’s.

In light of the remaining reasons for cancellation of appointment by the Defendant Association, it is insufficient to recognize that the Plaintiff neglected to report and transfer the remaining promotional materials to the ○○○○○○○○ witness’s testimony. The remaining promotional materials and surplus funds set forth by the Plaintiff at the expense of producing promotional materials are not returned to the Si Association, etc., and in particular, the remaining promotional materials were reported to the ○○○○, who was the president of the Defendant Association until March 2008, and the remaining promotional materials were used without reporting to the president and vice-chairpersons of the Defendant Association, who were newly elected at that time. The facts that the Defendant Association did not have been entrusted to the ○○○○○○○○○○○○○○○○○○○ Association’s disposal of the remaining promotional materials by reason of the fact that the remaining promotional materials of the Plaintiff did not fall under any other promotional materials of the Plaintiff Association’s new promotional materials and did not fall under any of the following subparagraphs 1 through 5. It is difficult to acknowledge the remaining promotional materials of the Association.

E. Sub-decision

Therefore, the decision to revoke the appointment of this case against the plaintiff of the defendant's association is null and void as a dismissal without a justifiable reason, since there is no objective and reasonable ground for the decision and it cannot be viewed as reasonable under the social norms. As long as the defendant's association contests this issue, there is a benefit to seek confirmation against the plaintiff.

3. Determination as to the claim for wages

As seen earlier, the decision to revoke the appointment of this case is null and void, and the rules of the defendant association stipulate that the executive secretary shall be paid remuneration. Meanwhile, the fact that the plaintiff received 1750,000 won per month with the remuneration of the executive secretary of the defendant association as the remuneration of the executive secretary of the defendant association does not conflict between the parties, or that the whole purport of the pleadings can be acknowledged on the evidence No. 9 and No. 20. Thus, the defendant association is liable to pay wages calculated at the rate of 1750,000 won per month from December 1, 2008, the following day of the decision to revoke the appointment of this case, to the date of the last day of the representative secretary general, the term of office of the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted for all reasons, and the judgment of the court of first instance which has different conclusions is unfair, and it is so revoked, and it is so decided as per Disposition by ordering the defendant association to confirm that the decision of revocation of appointment of this case is null and void and to pay unpaid wages.

Preliminaryity (Presiding Judge)

Written Questions

Jins