[1] The legal nature of the council of occupants' representatives of multi-family housing (=non-corporate association) and in a case where the procedures for election of the representatives of the following buildings are not effective due to illegality after the council of occupants' representatives was duly organized (=previous representative of each building)

[2] Whether a director of a non-corporate association whose term of office or resignation has expired can continue to perform his/her duties until the appointment of a new director (affirmative with qualification)

[3] The case holding that, in case where the election of the former president following the expiration of the term of office of the chairman of the council of occupants' representatives of the apartment house becomes null and void, the former president may continue to perform the duties of the representative within a certain scope and the ability of the council of occupants' representatives is not extinguished until the latter

[1] Article 31 of the Civil Act, Article 38 (7) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 43 (3) of the Housing Act), Article 10 of the former Decree on Management of Multi-Family Housing ( repealed by Presidential Decree No. 18146 of Nov. 29, 2003) (see current Article 50 of the Enforcement Decree of the Housing Act), Article 52 of the Civil Procedure Act / [2] Articles 31, 57, 58, and 691 of the Civil Act / [3] Articles 31, 57, 58, and 691 of the Civil Act, Article 38 (7) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003), Article 38 (7) of the former Enforcement Decree of the Housing Act (refer to the current Enforcement Decree No. 130140 of the Housing Act)

[1] Supreme Court Decision 91Da4478 delivered on April 23, 1991 (Gong1991, 1475) / [2] Supreme Court Decision 81Da614 delivered on March 9, 1982 (Gong1982, 428) Supreme Court Decision 95Da5686 delivered on October 25, 1996 (Gong196Ha, 3409), Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong197Sang, 323) (Gong202Da74817 delivered on July 8, 2003)

The council of occupants' representatives of the Seo Jong-ju apartment (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

The debtor 1 and 20 others (the debtor 2 to 10, 12 to 21 et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2005Na8537 decided Dec. 28, 2006

The part of the judgment of the court below against the creditor against the remaining debtors except the debtor 1 is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeal by the creditor is dismissed.

1. Determination on the appeal against the debtor 1

The obligee appealed against the obligor 1 of the lower judgment, but did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the lawful period.

2. Determination on the grounds of appeal against the remaining debtors

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. The court below held that, on July 21, 2004, the amended management rules reported by creditors to the competent authority on December 31, 2004 with the consent of occupants, the council of occupants' representatives consists of 68 representatives elected in proportion to the number of households of each Dong, and the representatives of each Dong are elected through the election management of the election commission. The council of occupants' representatives is not allowed to hold concurrent offices of members of the election commission. The council of occupants' representatives of each Dong may not hold concurrent offices of members of the election commission if the chairperson deems it necessary or the council of occupants' representatives is requested to convene an auditor's meeting on the grounds of the illegality of the management body or at the request of the management body, the council of occupants' representatives shall convene the election commission consisting of one representative of each Dong and two representatives of each Dong on December 26, 2004, and the council of occupants' representatives cannot elect the representatives of each Dong as members, and the council of occupants' representatives cannot elect the representatives of each Dong on the ground that the council of occupants' representatives was not elected.

Furthermore, the court below held a meeting on October 27, 2004 and elected the representative for each Dong by a resolution of the board of directors convened by the board of directors at the meeting of the board of directors, which was convened on October 27, 2004, and held a meeting on December 4, 2004 and elected the debtor as the next chairman of the creditor. However, although the 10th council of occupants' representatives held a meeting on December 4, 2004 and elected the debtor as the next chairman of the creditor, the 10th council of occupants' representatives did not have the effect of convening the meeting. Thus, the 10th council of occupants' representatives continued to have the right to ordinary business and the 10th council of occupants' representatives can perform their duties as the previous representative until the 10th council of occupants' representatives is duly constituted, the 10th council of occupants' representatives was limited to a considerable period of time. Even though both parties agreed to commence the procedure for organizing the 10th council of occupants' representatives' representatives, the creditor and the 100th council of Hyundai.

B. However, it is difficult to accept the judgment of the court below.

(1) First, pursuant to Article 38 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003), Article 10 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 18146 of Nov. 29, 2003), Article 43 of the former Housing Act (amended by Act No. 8239 of Jan. 11, 2007), and Article 50 of the Enforcement Decree of the same Act, the council of occupants' representatives of multi-family housing consisting of members of a non-corporate association consisting of representatives of each Dong elected in proportion to the number of households of each Dong (refer to Supreme Court Decision 91Da478 of Apr. 23, 191), since the representatives of each Dong are selected lawfully by representatives of each Dong, the council of occupants' representatives' representatives cannot be deemed to have changed the term of existence of the previous non-corporate representatives' representatives' representatives' representatives without being elected as members of each Dong.

Therefore, as recognized by the court below in this case, since the 9th council of occupants' representatives was legally constituted of the 9th council of the 19th council of the 19th council of the 19th council of the 19th council of occupants' representatives, if the procedures for the election of the new representatives of each Dong are unlawful and invalid, the council of occupants' representatives

(2) On the other hand, the relationship between a corporation and its director under the Civil Act is the same as the legal relationship between the delegating and the delegated person, and in principle, once the term of office expires, the delegated relation shall be terminated, but if there is no director until the appointment of the succeeding director, the corporation shall be placed in a situation where the normal activity of the current director cannot be discontinued unless there is an urgent circumstance provided for in Article 691 of the Civil Act. Thus, even if the director is terminated or resigned, the corporation may continue to perform its duties until the new director is appointed within the necessary scope (see Supreme Court Decision 81Da614 delivered on March 9, 1982, etc.). The same legal principle applies to an unincorporated association (see, e.g., Supreme Court Decision 2002Da74817 delivered on July 8, 2003).

In light of the above legal principles, in this case where the council of occupants' representatives of the Cheongju apartment is legally constituted and the non-applicant 1 was legally elected and operated as the chairperson, if the election of the re-chairperson after the expiration of the term of office of the chairperson is illegal and invalid, barring special circumstances, it shall be deemed that the non-applicant 1 may continue to perform duties as the chairperson of the council of occupants' representatives, i.e., the representative, within a certain scope, until the next chairperson is legally elected.

Therefore, just because the term of office of non-party 1 of the creditor's representative council expires and the term of office of non-party 1 of the creditor's representative council expires for a considerable period, it cannot be said that the right of non-party 1

(3) Furthermore, inasmuch as the legal principles on the council of occupants' representatives and its representatives are as above, even if the council of occupants' representatives committed an act contrary to the principle of good faith or the representative performed a duty not belonging to ordinary business, such act alone cannot be deemed as extinguished or denied, and the representative's representative's power cannot be deemed as extinguished or suspended as a matter of course.

(4) Nevertheless, the court below rejected the obligee's ability to stand as a party and the obligee's right of representation other than the applicant. Thus, the court below erred by misapprehending the legal principles as to the non-corporate council of occupants' representatives, which is a non-corporate body, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error has merit.

3. Therefore, among the judgment of the court below, the part against the creditors against the remaining debtors except the debtor 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the creditors are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)