The case accepting an application for a provisional disposition suspending validity of a decision on invalidation of election, on the ground that it is difficult to maintain the validity of a decision on invalidation of election, which was made by an election commission of an association without any particular explanation that the act of slandering a third party against the other party candidate was conducted under the mutual communication with the applicant who is the elected person

Article 714 of the Civil Procedure Act

Applicant

Respondent Association

Cheongju District Court Order 93Kahap147 dated April 24, 1993

1. The decision of the first instance shall be revoked;

2. The effect of the decision of invalidation of election against an applicant who won in the fourth chief election conducted on March 19, 193 by the election commission under the respondent on March 20, 1993 shall be suspended until the judgment of the case on the merits against the respondent becomes final and conclusive on the condition that the applicant deposits the amount of five thousand won in security.

3. The applicant's remaining requests are dismissed.

The disposition shall be made in addition to the provision of security to the applicant.

1. Basic facts

A. On April 30, 1984, the respondent association is a juristic person established with the purpose of promoting the rationalization of management of (Omission) business and promoting mutual friendship among members by actively responding to national policies with respect to (Omission) members of the Chungcheongbuk Japan, which may fulfill the mission of public interest business operators.

B. The chief director, who is the representative of a respondent association, shall be elected by an inorganic vote of all union members (Article 16 subparag. 1 of the Articles of Incorporation), his term of office shall be three years, and even after the expiration of his term of office his successor shall continue to perform his duties until his appointment until the expiration of his office (Article 17 subparag. 1 and 5 of the Articles of Incorporation); the respondent association has separately enacted the articles of association for the purpose of fair and efficient election management by prescribing matters concerning various elections under Articles 10(1), 15, 16, and 20 of the articles of association.

C. According to the Respondent Election Management Regulations, when there is a violation of the provisions of Article 10 (Restriction on Election Campaign) or subparagraph 5 of Article 18 (production, Distribution, Attachment, or Broadcasting, etc. of the candidate individually), the election commission’s chief executive officer, who is elected by the representatives’ general meeting, shall be held invalid upon receiving an application for invalidation of the election and shall be decided with the consent of at least 2/3 of the incumbent election members (Article 31), and Article 10(1) of the same Regulation provides that, within five days after the decision on the elected person, any person shall be held to vote with at least 2/3 of the incumbent election members (Article 31), from the election day (20 days prior to the election day) to have him/her elected or not elected as a representative or an executive officer (Article 11(2)); and (2) The election commission provides or promises to provide the elected person with the ticket, poster, poster, shoulderer, printed matter, printed matter, personal microphones, etc.;

D. On March 19, 1993, according to the above articles of association and the election management regulations, 2,348 members of the Respondent participated in voting and 1,300 votes among 2,521 members of the Respondent and 1,035 votes among 2,521 members of the Respondents, and 2,348 members of the Respondents participated in voting and 1,035 votes among Respondents were obtained respectively. Accordingly, the Election Commission affiliated with the Respondents (hereinafter "the Election Commission") declared the applicant as the Respondents immediately after the ballot counting is completed at around 23:00 on the same day.

E. However, at around 09:00 the following day, the above election commission accepted a lawsuit of violation of the election management regulations by Nonparty 1’s candidate, who violated the above election management regulations by sending printed materials to the union members twice prior to the above election day in collusion with Nonparty 2, who is the second chief of the Cheongju-si, the Respondent under the Respondent, and decided that the election of the applicant is null and void with the consent of ten of the incumbent election management members under Article 31 of the above election management regulations at around 11:00 on the 12-day later without any special fact-finding.

F. The term of office of the chief executive officer elected in the election of the fourth chief executive officer begins from May 1 of the same year, and at present, other than the chief executive officer, under the provisions of the above articles of association, he/she takes charge of the office of the chief executive officer.

【Premium】

Evidence Nos. 1, 2, 3, Evidence Nos. 4-1, 4-2, Nos. 4-9,10, Nos. 4-10, Nos. 1 through 15, Nos. 8, and 8, the result of an examination on the uniforms of witness for the original trial, and the whole purport of the examination.

2. Judgment on the parties' arguments

A. The parties' assertion

The Claimant is an advisory member belonging to Chapter 2 of the Respondent, but under mutual communication with the applicant and the non-applicant 2, it does not send an inducement that slanders the applicant and non-applicant 2 to the members for the purpose of creating a candidate for the non-applicant 1 who competitively competed with the applicant. Thus, the decision of invalidation of election of the above election commission is null and void. Accordingly, the Claimant asserts that the application of this case was reached in order to preserve his status prior to the principal lawsuit, the Respondent argues that the dispatch of printed items twice prior to the above election day of the non-applicant 2 was made in collusion with the applicant in advance, and therefore, the decision of invalidation of election of the above election commission

(b) Markets:

(1) First, we examine the applicant’s right to be preserved.

According to the results of examination as to evidence 7-15, above evidence 8, evidence 6, evidence 9-1,2, and evidence 9-3 of the above lawsuit, and the examination as to the non-applicant 2, and non-applicant 3, as seen earlier, the non-applicant 2's name, the non-applicant 2's name, the non-applicant 2's name, the non-applicant excluding Cheongju area, before the date of the public announcement of the first-lane 4 election, the non-applicant 1, and the non-applicant 1, the non-applicant 2, the non-applicant 1, the non-applicant 1, and the non-applicant 1, the non-applicant 2, and the non-applicant 1, the non-applicant 2, the non-applicant 1, and the non-applicant 2, the non-applicant 1, and the non-applicant 1, as the result of the above fourth 4, the non-applicant 1, the non-applicant 2, and the non-applicant 1, the non-party 1, the non-party 1, were distributed.

However, as to whether non-applicant 2 sent printed materials to non-applicant 1 on two occasions under the mutual contact with the applicant, it is insufficient to recognize that the non-applicant 2 sent out the above non-applicant 1 to non-applicant 2, evidence 12, evidence 13-1 through 7, evidence 16-1 through 8, evidence 21-2, and evidence 21-1, 2, and 3 of the above non-applicant 2. The non-applicant 2 sent out non-applicant 1 to non-indicted 2, the non-applicant 2, the non-applicant 2, the non-applicant 2, and the non-applicant 1 to non-indicted 3, the non-indicted 1 to non-indicted 4, the non-indicted 2, the non-indicted 2, the non-applicant 3, the non-indicted 3, the non-indicted 1 to the non-indicted 2, the non-indicted 1 to whom the non-indicted 2, the non-indicted 3, after the non-indicted 2, the same opinion.

According to the above facts, although non-applicant 2 sent inducements that slandered non-applicant 1 to the union members on two occasions, it is reasonable to deem that such dispatch results from a conflict with each other over several years between the non-applicant 1 and the non-applicant 2 in light of the circumstances of dispatch, even though it affected the result of the above election, it does not have any material to conclude that the above election is made under the mutual communication with the applicant. Furthermore, in light of the fact that the above election of the chief executive officer is made through the direct election of all union members, the above election commission shall take procedures such as giving an opportunity to vindicate the winning party or strict investigation into facts, even though the above election commission declares the winning party without going through such procedures, it is difficult to view that the above decision to invalidate the election was made on the basis of the above inducements only for two hours after the elected person was declared without going through legitimate procedures, and therefore, it is difficult to maintain the effect of the election invalidation decision as of March 20, 193 as an entity or procedure.

(2) Furthermore, we examine the need for conservation.

The term of office of the above 4th president is three years, and it begins from May 1, 1993, and the non-applicant 1, who was the former president who was absent from the above election, continues to perform his office as seen earlier. Moreover, to determine invalidation through the petitioner's lawsuit on the merits of the case, even if the applicant won the lawsuit on the merits of the case, the validity of the above decision may be suspended until the judgment on the merits of the case becomes final and conclusive in order to avoid significant damages.

3. Conclusion

Therefore, the applicant's application of this case, which is subject to the suspension of validity of the decision of invalidation of election in the above Election Commission, shall be accepted under the condition that the applicant deposits the amount of KRW 5,00,00 as a guarantee, and the decision of the first instance shall be unfair in conclusion, and the appeal of the applicant is with merit, and it shall be partially accepted and decided as per the disposition.

Judges Kim Tae (Presiding Judge)