205Du1458 Nullification of the resolution of an extraordinary general meeting

00

Busan

소송대리인 변호사 ㅇㅇㅇ

ㅇㅇㅇ 공동목장조합

Jeju

대표자 조합장 ㅇㅇㅇ

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

September 29, 2005

October 20, 2005

1. The defendant's special meeting of May 13, 2005 confirms that the resolution to reduce the quorum and the quorum under Article 22 of the Articles of Incorporation is null and void.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is borne by the Plaintiff, and the remainder 50% is borne by the Defendant.

The defendant's special general meeting of May 13, 2005 determined the distribution of profits to union members by 15 million won, and the resolution that reduced the quorum and the quorum under Article 22 of the Articles of Incorporation is invalid.

1. Basic facts

A. On May 15, 1936, the Defendant Union was established with 128 composition members with one unit of investment, with the aim of promoting the mutual consent of the union members, such as the friendly trees of the union members, the installation of facilities necessary therefor, and income business. The number of union members currently after the process of inheritance and transfer of union members is 117 (11 of the union members have two shares due to the acquisition of the shares of the union members).

B. On May 13, 2005, the defendant union opened an extraordinary general meeting (hereinafter referred to as the "special general meeting of this case") with the attendance of 78 persons among the union members, and divided the following: ① the approval of the settlement of accounts in 2004; ② the articles of association Article 22 of the articles of association: (a) the sum of the cash held by the defendant union (as stipulated in Article 21 of the articles of association) and real estate sales proceeds, and cash refunds among the fixtures, shall be at least 2/3 of the union members of the general meeting; and (b) the decision to pay shares shall be held with the attendance of at least 30 persons registered at the general meeting and at least 2/3 of the number of union members present; and (c) the amendment of the articles of association to the articles of association to the effect that the decision to pay shares shall be 30 percent or more of the number of union members present; and (d) the total amount of shares sold shall be 160,000 won or more of the sale proceeds.

C. The Plaintiff, as a member of ○○○○○○, succeeded to the status of the Plaintiff’s member under Article 6(1) of the Articles of Incorporation of the Defendant Union.

[인정 근거] 다툼없는 사실, 갑 2호증의 1, 2, 3호증, 6호증, 을1호증의 1 내지 4,2호증, 6호증의 각 기재, 증인 ㅇㅇㅇ의 증언 , 변론전체의 취지

2. The parties' assertion and judgment

A. The plaintiff's assertion

① The Defendant Union’s substance falls under a partnership under the Civil Act. Since the sale disposition is null and void because it did not obtain the consent of all the union members in selling the above land which is a union’s property, the resolution of the general meeting that distributed it is also null and void, regardless of the value of the investment in its contents, as it violates the provisions of Article 711(1) of the Civil Act which provides that the sales price shall be equally distributed in proportion to the value of the investment, regardless of the value of the investment in its contents. ② In amending Article 22 of the Articles of association, a resolution to amend the articles of association is null and void as it did not obtain the consent of at least 2/3 of all union members, and the execution of its business is null and void as it violates the provisions of Article 706(2) of the Civil Act, which provides that the management of its affairs shall be arbitrarily distributed by

B. Defendant’s assertion

Since the defendant association is a non-corporate association under the Civil Act, it is a non-corporate association, it has equally distributed the purchase price of the property of the association to its members as determined by the general meeting of its members in accordance with the articles of association.

C. Determination

(1) Whether a resolution to equally distribute the proceeds from disposing of the assets of the defendant association is valid

In general, a union and a non-corporate body without a legal personality under the Civil Act should be determined on the basis of the strongness of its collective nature, because it is established under a contractual relationship with two or more persons to contribute money, other property, or labor to operate a joint business by investing them, and therefore, it is restricted from a certain degree of collective nature. However, compared to the human combination with the strong disclosure of the personal nature of the members, a non-corporate group has a characteristic of an independent organization that can be the subject of rights and obligations, separate from the personal nature of the members, apart from the personal nature of the members. Any organization has a rule that has its own nature as an association with its own objective and has a position of establishing a decision-making body and appointing a representative who is the executive body and the executive body based on it. A resolution or execution method of an organization is conducted by the principle of majority, regardless of the membership, withdrawal, etc., the organization itself continues to exist, regardless of its membership, operation of the general meeting or board of directors, composition of capital, and other important matters of the company (see, e.g., Supreme Court Decision 994Da494.

According to the above evidence, the defendant union was established for the purpose of the establishment of friendship and facilities necessary therefor of its members. The defendant union established its articles of association from the time of its establishment to determine the appointment and dismissal of executives, the determination and implementation of its business plan, the settlement of accounts, etc. Based on the above articles of association, which consists of the head of the association and its executive officers and employees below the head of the association and the head of the association take overall charge of the affairs of the defendant union. The above articles of association stipulate matters concerning the assignment of the status of the union members and expulsion of the union members so that the union continues to exist regardless of changes in the union members. The resolution of the general meeting is without the consent of a majority of the number of union members present at the meeting, and the resolution of the general meeting is without the consent of a majority of the number of union members (However, since the general meeting was alleviated by the attendance of 30 members in around 197). According to the above facts that the president of the defendant union did not have any legal act on behalf of the members of the association.

Furthermore, even if the provisions of the Civil Act regarding the internal pro rata property portion of the defendant association are applied to the employee association, if there is no special provision regarding the distribution of profits, it is merely a voluntary provision allowing the defendant association to follow the amount of the investment, and so long as the defendant association resolves to distribute the profits equally according to the number of contribution units of the union members at the general meeting of union members as prescribed by the articles of association, the amount of distribution should be

(2) Whether Article 22 of the Articles of Incorporation is valid

As seen earlier, according to the articles of incorporation of the defendant association, the defendant association constitutes a non-corporate association, and the evidence Nos. 1-1 to 4, there is no provision concerning the quorum necessary for the amendment of the articles of incorporation of the defendant association. In this case, the provisions of Article 42 of the Civil Act concerning the amendment of the articles of incorporation of an association with the consent of at least 2/3 of all the members shall apply mutatis mutandis to the amendment of the quality of the association. However, upon the statement of evidence No. 2, it can be known that the number of members who agreed to the amendment of the articles of incorporation of the above 64 is less than 78, a quorum for the amendment of the articles of incorporation. Thus, the above amendment of articles of incorporation is null and void because it does not meet the requirements for the amendment of the articles of incorporation.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

High Court (Presiding Judge)

Kim

Objection