(영문) 대구고등법원 2014.10.10. 선고 2014누4734 판결

On October 19, 2012, the defendant revoked the revocation of the certification of social enterprises and the recovery of subsidies against the plaintiff on October 19, 2012.

2. Purport of appeal

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

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows, except for the deletion or dismissal of some of the contents as follows, and the defendant's main defense of safety is added with the reasoning for the judgment of the court of first instance. Thus, this Court shall accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

○ Removal of evidence No. 10 out of the grounds for recognition of the third party judgment of the first instance court.

○ The 12th judgment of the first instance court is the ‘if profits accrue'. The 7th judgment of the first instance court is the ‘if profits accrue.'

2. Additional determination

A. The defendant's main defense

In light of the fact that the location of the Plaintiff’s office is the same as the location of the B’s articles of incorporation, and that matters not specified in the rules of the Plaintiff’s articles of incorporation are stipulated as “subject to the resolution of the articles of incorporation or the steering committee”, the Plaintiff’s representative C is registered as a director B from the time of the application for social enterprise certification to the present day, that the disciplinary action was taken due to the instant disposition, that the substance of the operating committee, which is the highest resolution body of the Plaintiff, is unclear, and that the existence and existence of the operating committee, which is the highest resolution body of the Plaintiff, is also endangered at the present point

B. Determination

Article 52 of the Civil Procedure Act recognizes the capacity of a non-corporate association as a party to a legal entity, not a legal entity, in cases where it has an entity as an association and conducts social activities or transactions through its representative or manager, disputes arising therefrom shall be resolved through litigation in its own name by the organization. Thus, an association referred to in this context refers to an association which is a combination of many persons organized for a certain purpose and has a provision regarding the press to externally represent an association. One of the subordinate organizations of an incorporated association is an independent non-corporate body separate from the incorporated association if it has its own substance as an organization and is performing its independent activities (see Supreme Court Decision 2006Da60908, Jan. 30, 2009).

In full view of the overall purport of the arguments in the statements in Evidence Nos. 2, 8 through 15, 26, 44 through 62, 65, 67, 72 and evidence Nos. 14 and 19 (including various numbers), the Plaintiff already established an independent rule under the inherent purpose of creating social jobs through the business of manufacturing and selling recycled bicycles, leasing and selling art bicycles, street culture and tourism planning, etc. at the time of the application of this case, and prepared an independent work site and a attendance book. On April 1, 2010, the Plaintiff independently prepared an independent rule and managed personnel management by preparing an independent work site and a attendance book under the name of the Plaintiff. After issuing the business registration certificate under the name of the Plaintiff, the Plaintiff used an account under the name of another foundation B with the Plaintiff, while establishing separate rules of employment, accounting decision-making, etc. from a foundation B, and established separate website, accounting decision-making, etc. under the name of the Plaintiff and the external social enterprise, it can be objectively confirmed that it directly concluded with the labor contract and external business entity.

According to these facts of recognition, the plaintiff is fully separated from and operated in the personnel affairs, accounting, and labor as well as with organizations or mother corporations under B as incorporated foundation, and it is sufficiently recognized that it performed social activities in the name of the plaintiff. Thus, the plaintiff is not a simple internal organization of B as incorporated foundation, but a non-corporate body different from that of the incorporated foundation.

Therefore, the defendant's main defense is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.