Plaintiff (Law Firm Ap, Attorneys Kim Ap-o et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na14466 delivered on May 1, 201

March 21, 2013

Seoul Western District Court Decision 2010Gahap15509 Decided December 15, 2011

1.The judgment of the first instance, including any claims added in the trial, shall be modified as follows:

A. Of the instant lawsuit, the part on which the Defendant seeks to confirm the invalidity of the resolution on the agenda items Nos. 1, 2, 4, 5, and 6 of the attached Table Nos. 1, 4, 5, and 6 at the extraordinary general meeting of September 19, 201

B. It is confirmed that the ratification resolution on the agenda item 3 in the attached Table No. 3 is null and void among the resolutions made by the Defendant at the ordinary general meeting on April 1, 2012 on the "case of ratification of the agenda item by the resolution at the ordinary general meeting on September 19, 2010."

C. All remaining claims of the Plaintiff are dismissed.

2. Of the total litigation costs, 90% is borne by the Plaintiff, and the remainder is borne by the Defendant.

1. Purport of claim

A. The Defendant confirms that the resolution on each agenda listed in the separate sheet in the separate sheet prepared by the special general meeting on September 19, 2010 is null and void.

B. On April 1, 2012, the Defendant confirms that the resolution on “a case of ratification of the agenda for the Resolution of Special General Meeting” made at the ordinary meeting on September 19, 2010 is null and void.

(2) The plaintiff added the claim of the part of the above (B) to the court of first instance.

2. Purport of appeal

The judgment of the first instance court shall be revoked. The defendant confirms that the resolution of each item on the agenda stated in the separate sheet at the extraordinary general meeting on September 19, 2010 is null and void.

1. Basic facts

The reasons why this Court shall explain concerning this part are as follows under the fourth fifth sentence of the first instance judgment:

When a dispute relating to the validity of the resolution of the instant special meeting continues to exist by the Plaintiff, who is a member of the Defendant Union, arguing the validity of the resolution of the instant special meeting, etc., the Defendant Union decided to hold a board of representatives on March 9, 2012 to submit the "case of ratification of the resolution of the special meeting as of September 19, 2010" to the general meeting. After the resolution, the Defendant Union held a general meeting as of April 1, 2012 (hereinafter referred to as the "instant general meeting") on April 1, 2012, and passed a resolution with the consent of 989 from among the total number of the members present at the meeting of 1,70 and 1,078, "the case of ratification of the resolution of the special meeting as of September 19, 2010" (hereinafter referred to as "the first resolution of September 19, 2010"), and "the resolution of the instant general meeting as of April 21, 2012").

A. In addition, each entry of the evidence of Nos. 71 through 73 in Part 7 of the 7th [based basis for recognition] is the same as that of Paragraph 1 of the judgment of the first instance except for the addition of the “in addition,” and this is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Requests to nullify the invalidity of the first and second resolutions on the agenda to be selected as a contractor (the agenda referred to in attached Table 3);

(a) Main safety defenses against a resolution on the agenda item to be selected as a contractor;

The defendant, at the general meeting of this case, has adopted the second resolution to ratification the agenda items to be selected as contractor (attached Form 3 agenda items). Accordingly, the part seeking confirmation of invalidity of the first resolution concerning the agenda items to be selected as contractor in this case should be dismissed as there is no benefit of confirmation.

On the other hand, if the second resolution which ratified the first resolution is valid, the second resolution will be made with the same contents as the first resolution. Thus, seeking confirmation of invalidity of the first resolution is merely seeking confirmation of the past legal relations or legal relations, and it does not have any interest in confirmation. However, as seen below, the second resolution on the matter to be selected as a contractor is null and void. Thus, the part seeking confirmation of invalidity of the first resolution on the matter to be selected as a contractor among the lawsuit in this case is the interest in confirmation. The defendant's defense of safety is without merit.

(b) Whether the primary resolution on the agenda to be selected as a contractor is invalid;

The court's explanation on this part is consistent with the reasoning of Paragraph 2 of the judgment of the court of first instance, except for the removal of the part (Article 2-3(d)) from No. 27 to No. 11 of the judgment of the court of first instance as follows, and the removal of the part (Article 2-4(d)) from No. 12 to No. 29 of the 27-12 of the judgment of the court of first instance is identical to that of Paragraph 2 of the judgment of the court of first instance. Thus, it is acceptable in accordance

[Supplementary Use]

(c) Defects concerning the selection of a contractor;

1) The plaintiff's assertion

Article 11(1) of the Urban Improvement Act provides that the selection of a contractor shall be made by means of a competitive bidding, and Article 12(1) of the Articles of the Defendant Union provides that the selection of a contractor shall be made by means of a competitive bidding. However, a lot construction shall interfere with competitive bidding and be convicted of interference by providing the members with money and goods, etc. to be selected as a contractor from the instant special meeting. As such, the part concerning the "case of the selection of a contractor", which is the item No. 3 of the first resolution, is invalid in violation of Article 11(1) of the Urban Improvement Act and the articles of incorporation of the Defendant Union, which is a mandatory provision.

2) Determination

Article 11 (1) of the Urban Improvement Act amended by Act No. 7960 of May 24, 2006 provides that "a housing redevelopment project cooperative or an urban environment rearrangement project cooperative shall select a constructor or a registered project operator after obtaining authorization to establish the housing redevelopment project, after obtaining authorization to implement the project." Paragraph (2) provides that "a cooperative under paragraph (1) shall select a contractor under paragraph (1) through competitive bidding as determined by the Minister of Construction and Transportation." Paragraph (2) of the Addenda provides that "in the case of a housing redevelopment project and an urban environment rearrangement project under Article 11 (2), the first approval of the Promotion Committee shall be applied from the amended provisions of Article 11 (2) to the housing redevelopment project and the urban environment rearrangement project after the enforcement of this Act." According to subparagraph 81, according to the statement of subparagraph 81, the defendant cooperative is a housing redevelopment project cooperative established by the Promotion Committee prior to August 25, 2006, and thus, Article 201 (2) of the Urban Improvement Act is not applicable to the prescribed provisions of Article 217

However, as seen earlier, Article 12(1) of the articles of incorporation of the Defendant Union provides that the selection of a contractor shall be made by competitive bidding, and the resolution of the general meeting is null and void. According to the above macro evidence, Gap evidence, Eul evidence Nos. 72, and Eul evidence Nos. 4 through 6, the Defendant Union held an extraordinary general meeting on June 19, 2010; the defendant Union participated in the bidding of three companies at the time; ② the receipt of a written resolution and voting of the members directly present at the extraordinary general meeting as of June 19, 2010; but the number of votes (including written resolution) exceeds 250,000, compared to the number of the members present at the general meeting as of which many written resolutions were submitted, the fact that the defendant Union again declared the closed meeting after consultation with the above three companies participating in the bidding, and the fact that the defendant Union did not constitute a violation of the provisions of Article 12(1) of the Framework Act on the Construction Industry (including the above three 15th general meeting).

Rather, as seen earlier: (a) After the 19th day of June, 2010, the Defendant Union, after the 19th day of the 2010 extraordinary meeting, shall newly undergo the procedures for selecting the work executor; (b) on August 16, 2010, the Defendant Union shall re-elect the work executor by means of general competitive bidding; and (c) on the resolution to select two enterprises to be presented to the general meeting by means of confidential voting at the meeting in which the majority of the incumbent members of the Assembly participate; (c) on August 17, 2010, the Defendant Union newly announced the selection of the work executor on the 19th day of the 10th day of the 1st day of the 2nd day of the 10th day of the 1st day of the 1st day of the 2nd day of the 10th day of the 1st day of the 2nd day of the 10th day of the 1st day of the 1st day of the 2nd day of the 2nd day of the 3th day of the 10th day of the 2nd day of the 2nd day of the 2.

(c) Whether the second resolution on the agenda for the selection of a contractor is invalid;

On the other hand, since a ratification resolution is made with the same content as the previous resolution, in order for the ratification resolution to be valid, the resolution itself must meet the valid requirements as a new resolution. In full view of the facts of recognition and the overall purport of oral arguments, disputes relating to the validity of the first resolution made at the general meeting of this case on September 19, 2010 continue to exist, the defendant union held a general meeting of this case on April 1, 2012 with the consent of 989 out of the total number of 1,70 members present at the general meeting of this case, with the consent of 1,078 members present at the meeting of 1,07, the second resolution on "the ratification of the special meeting of this case on September 19, 2010" on the "the confirmation of the agenda of the general meeting of this case on September 19, 2010, the defendant's request for ratification resolution on the attached list 3 of this case (the case of the selection of work executor) cannot be deemed valid as the plaintiff's request for ratification approval of the above part of the method of the work executor.

D. Sub-committee

Therefore, there is no reason to seek confirmation of invalidity of the first resolution on the agenda for the selection of a contractor, and it is reasonable to seek confirmation of invalidity of the second resolution on the agenda for the selection of a contractor.

3. Requests to nullify the invalidity of the second and second resolution on the agenda items Nos. 1, 2, 4, 5, and 6 of the attached list (hereinafter referred to as "satisfy agenda");

(a) Main Safety Defenses to the first resolution on the remaining agenda;

The defendant has adopted the second resolution to ratification the remaining agenda at the general meeting of this case. Thus, the part seeking confirmation of invalidity of the first resolution on the remaining agenda among the lawsuit of this case asserts that it is unlawful as there is no benefit of confirmation.

On the other hand, if the second resolution ratified the second resolution is valid, the second resolution is a new resolution with the same contents as the first resolution, and thus seeking confirmation of invalidity of the first resolution is merely a claim for confirmation of legal relations or legal relations in the past and there is no interest in confirmation. Thus, as seen earlier, the second resolution with respect to the remaining agenda is valid as seen above, as the second resolution with respect to the remaining agenda has been ratified by the defendant union. As such, the part seeking confirmation of invalidity of the second resolution with respect to the remaining agenda among the lawsuit in this case is unlawful as there is no interest in confirmation. The defendant's defense of safety is with merit.

B. Whether the second resolution on the remaining agenda is null and void

(1) The Plaintiff’s provision of the Urban Improvement Act stipulating the quorum of the general meeting of the partnership is a mandatory provision, and thus, the second resolution on the remaining agenda that ratification of the first resolution is null and void because it does not meet the initial quorum is contrary to the compulsory provision. However, the compulsory provision on the procedure is sufficient if the pertinent resolution is complied with. As long as the second resolution ratification of the first resolution is made for a new resolution with the same content as the first resolution, it is sufficient to satisfy the quorum in making a new resolution. However, on April 1, 2012, the Defendant Union held a general meeting of the instant case on April 1, 2012 and made a second resolution on the remaining agenda with the consent of 989 members among the total number of 1,70 members present at the general meeting of the union. Accordingly, the Plaintiff’s assertion on the other premise is without merit.

(2) The Plaintiff held a board of representatives on March 9, 2012 to present the “case of ratification of the agenda of the resolution of the special general meeting as of September 19, 2010” to the instant general meeting on April 1, 2012. However, the number of representatives at that time exceeded 84 persons who are less than 10 persons provided for in the articles of incorporation due to the resignation, death, etc. of representatives, and the organization of the board of representatives is not effective as a resolution of the board of representatives. Accordingly, the Plaintiff asserted that there is no second resolution on the remaining agenda at the instant general meeting as of March 9, 2012. However, even if the number of representatives at that time when the board of representatives was held on March 9, 2012 falls short of 10 persons provided for in the articles of incorporation, the said resolution of the board of representatives alone cannot be deemed null and void or the second resolution on the remaining agenda at the instant general meeting cannot be deemed null and void.

(3) In addition, the Plaintiff asserts that the Defendant Union did not guarantee the union members to express their pros and cons on the remaining agenda because it did not guarantee the union members to express their pro and cons on the individual agenda by submitting the “case of ratification of the resolution on the special general meeting of September 19, 2010” at the instant general meeting. However, the second resolution on the remaining agenda is null and void only on the ground that the agenda was presented en bloc as alleged by the Plaintiff, but the second resolution on the remaining agenda cannot be deemed null and void, and there is no special provision on the method of presenting agenda in the articles of incorporation of the Defendant Union. Therefore, the Plaintiff

C. Sub-committee

Therefore, the part of the lawsuit in this case seeking the confirmation of invalidity of the second resolution on the remaining agenda is unlawful, and the part seeking the confirmation of invalidity of the second resolution on the remaining agenda is without merit.

4. Conclusion

Therefore, the part of the lawsuit in this case seeking the confirmation of invalidity of the first resolution on the remaining agenda (attached Form 1, 2, 4, 5, and 6) shall be dismissed as unlawful, and the part seeking the confirmation of invalidity of the second resolution on the agenda for the selection of the contractor among the plaintiff's claims shall be accepted as well as the remainder of the plaintiff's claims shall be dismissed as without merit. Thus, the judgment of the first instance court, including the claim added in the trial, shall be modified as above. It is so decided as per Disposition.

[Attachment]

Judges Cho Jae-ho (Presiding Judge)