The validity of a resolution on matters not stated in the extent and purpose of the meeting when convening the council of occupants' representatives (negative in principle)

Article 51 of the Enforcement Decree of the Housing Act, Articles 71 and 72 of the Civil Act

Supreme Court Decision 92Da50799 Decided October 12, 1993 (Gong1993Ha, 3062) Supreme Court Decision 95Da5686 Decided October 25, 1996 (Gong1996Ha, 3409) Supreme Court Decision 2001Da23379 Decided September 25, 2001 (Gong2001Ha, 2338)

Plaintiff (Law Firm Sejong, Attorneys Kim Ba-young et al., Counsel for plaintiff-appellant)

Free Apartment Council of Residents (Law Firm Hun-Ga, Attorney Lee Gyeong-won, Counsel for defendant-appellant)

Busan High Court Decision 2010Na6185 decided November 25, 2010

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Busan High Court. The appeal as to the primary claim is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the primary claim

According to the reasoning of the judgment below, although the lawsuit for confirmation of non-existence of a resolution exists internal decision-making as alleged by the plaintiff, the court below recognized the benefit of confirmation only when it confirms that the resolution cannot be deemed a legally effective resolution because there is a "serious defect" in the convocation procedure or method of resolution for such decision-making. The main claim of this case is seeking confirmation that there is no resolution to exempt the heating costs on the ground that the defendant only made a decision to suspend the imposition of the heating costs and that there was no final resolution to fully exempt the heating costs from the heating costs. Thus, the plaintiff's assertion itself is premised on the premise that there was no internal decision-making of the council of occupants' representatives, such as the plaintiff's assertion, and thus, the plaintiff dismissed the main claim of this case seeking confirmation of non-existence of each resolution of this case on the ground that there was no object and interest of confirmation, and therefore, there was

In light of the relevant legal principles and records, the court below was just in rejecting the main claim of this case for the above reasons, and did not err by misapprehending the legal principles on the interest in confirmation.

2. As to the ground of appeal on the conjunctive claim

A. The third resolution of this case

(1) As to the misapprehension of legal principles concerning the resolution by the council of occupants' representatives

The court below held that the third resolution of this case does not include the exemption of the heating costs individually used by the individual heating generation, and it is reasonable to view the third resolution of this case as the resolution of the council of occupants' representatives as falling under the "resolution of matters inconsistent with mutual interests between occupants, etc." under Article 17 (1) 5 of the Management Rules, and it cannot be deemed as a violation of the above management rules and the relevant mandatory regulations, as it infringes on the basic rights of other occupants, in full view of the fact that the third resolution of this case is included in the general management expenses paid by them, and it is difficult to consider that the above resolution of this case unilaterally imposes unfair burden on the other occupants except the individual heating generation.

In light of the records, the judgment of the court below is just and acceptable, and there is no error by misapprehending the legal principles on the resolution of the council of occupants' representatives.

(2) As to the misapprehension of legal principles as to the convocation notice and the quorum of the council of occupants' representatives

(A) According to the evidence adopted, the court below determined that the council of occupants' representatives is composed of 20 members, including 14 representatives of occupants (the representative of each Dong) and 6 members with specialized knowledge, etc. However, since 6 members with specialized knowledge at actual cost did not have been selected, the defendant formed and operated the council of occupants' representatives only 14 members (the representative of each Dong). ② Matters stipulated in each subparagraph of Article 17(1) of the Rules on the Management of Apartment Housing are decided to be resolved with the consent of a majority of the members of the council of occupants' representatives, and the proviso of the same paragraph stipulates that if 2/3 or more of the members of the council cannot be elected without the consent of the majority of the members of the council of occupants' representatives, if 2/3 or more of the members of the council of occupants' representatives are elected, it can be decided with the consent of the majority of the elected members of the council of occupants' representatives, and the defendant cannot be viewed that there was no other evidence to acknowledge that the above resolution had been adopted with the consent of the above 13 members of the council of representatives of each Dong.

(B) However, it is difficult to accept such a determination by the lower court for the following reasons.

1) The purport of convening a council of occupants' representatives that states the purpose of the meeting is to stipulate in advance the matters to be resolved by the members of the meeting in order to allow them to attend the meeting or prepare for the pros and cons for the resolution. Thus, the purpose of the meeting is to stipulate in detail the matters to the extent sufficient to understand the purpose of the meeting when the members present the meeting in advance. In addition, in the event that the notice of convening the meeting lists the purpose of the meeting and specifies "other matters", the notice of convening the meeting is limited to matters related to the basic purpose of the meeting and matters necessary for daily operation, in light of the legislative purport of the provisions of the Civil Act, Article 71 of the Civil Act, which provides that the matters to be resolved shall be stated in the notice of convening the meeting. If a resolution is adopted on matters not stated in the notice of convening the meeting, such a resolution shall be null and void unless all the members present at the meeting and have resolved on such matters (see Supreme Court Decisions 92Da50799, Oct. 12, 1993; 95Da362965609.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① Article 18(4) of the apartment management rules of this case provides that when convening the council of occupants' representatives, five days prior to the call of the council of occupants' representatives shall be individually notified or publicly notified of the purpose, date, time, and place of the meeting, ② the defendant announced the agenda (the case concerning the selection of the parking lot construction company, the hot water tank repair, the adjustment of employee's benefits, etc.) and other agenda items on April 13, 2009, ③ the fact that the third resolution of this case on whether to exempt the heating expenses for individual heating households by unanimous consent of all 10 persons except for the 10 representatives of the 13 buildings of each Dong, who are vacant as of April 209, 209. According to the above facts, according to the above recognition, the third resolution of this case is not related to the matters at the time of the convocation of the council of occupants' representatives' representatives. Thus, the resolution of this case is null and void.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court concluded that there was no procedural defect in the resolution on the matters for which the third resolution was not notified in advance, and that this is erroneous by misapprehending the legal doctrine on the procedure for convening a notice of convening a council of occupants' representatives.

2) Article 51(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2254, Jul. 6, 2010) provides that “The council of occupants’ representatives shall make a decision on the following matters with the consent of a majority of its members under Article 43 of the Act: Provided, That where the council of occupants’ representatives determines the collective housing management rules (hereinafter “management rules”) under Article 44(2) of the Act, if two-thirds or more of the members of the council of occupants’ representatives are elected, a decision may be made with the consent of the majority of its elected members.” Furthermore, Article 17(1) of the instant management rules provides that “The council of occupants’ representatives may make a decision with the consent of a majority of its members pursuant to subparagraphs 1 through 8 and 9 of Article 51 of the Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22254, Jul. 6, 2010).

According to the above provisions, the defendant can make a resolution with the consent of at least 8 majority of the elected members only when he/she obtains the consent of at least 11 members who have a majority of 20 members or has failed to elect all members due to unavoidable circumstances, but at least 2/3 of the members have not been elected.

However, according to the facts acknowledged by the court below, the defendant only obtained the consent of 10 persons who are less than a majority of 20 members of the council of occupants' representatives in making the third resolution of this case. Thus, the defendant failed to meet the quorum under the main sentence of Article 17 (1) of the apartment management rules of this case, and the representative of 13 persons who are less than 2/3 of the total number of 20 members at the time of the above third resolution was elected by each Dong. Thus, the quorum under the proviso of Article 17 (1) of the apartment management rules of this case was not satisfied.

Nevertheless, solely based on the circumstances stated in its reasoning, the lower court concluded that the third resolution of the instant case satisfied the quorum, and that this is erroneous by misapprehending the legal doctrine on the requirements for the resolution of the council of occupants' representatives.

B. The part of the first and second resolutions in this case

The lower court rejected the conjunctive claim seeking confirmation of invalidity of the 1/2nd resolution on the ground that the 3rd resolution of this case was unlawful on the ground that the 1/2nd resolution of this case was not a new ratification resolution, but a new ratification resolution of this case, merely a claim seeking confirmation of legal relations or legal relationship in the past, on the ground that the 1/2nd resolution of this case was not a legal interest in the lawsuit,

However, as seen earlier, insofar as the third resolution in this case is null and void due to the violation of the notification procedure and the failure of the quorum, it cannot be readily concluded that seeking confirmation of invalidation of the first and second resolution in this case is merely seeking confirmation of the past legal relationship or legal relationship.

Therefore, the lower court’s dismissal of the preliminary claim seeking confirmation of invalidity of the First and Second Resolutions was erroneous.

3. Conclusion

Therefore, the part of the lower judgment regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)