[1] Whether Article 50 (1) of the former Enforcement Decree of the Housing Act provides that each building's representative elected according to the constituency "in proportion to the number of households of each building" constitutes a mandatory provision (affirmative) and the requirements for election of representatives proportional to the number of households of each building

[2] In a case where Gap, who was elected as the representative of each Dong by a method of uniformly selecting one representative for each Dong without considering the number of households of each Dong, is elected as the chairperson of the council of occupants' representatives, the case holding that where the representatives of each Dong are selected by the above method, such as where the minimum number of households per representative and the maximum number of households per representative are generated by a letter of 1:3.9, which leads to a letter that makes it impossible to recognize the rationality in the number of households per representative, and thus, Article 50 (1) of the former Housing Act, which is

[1] Article 50(1) and (6) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22479, Nov. 10, 2010) / [2] Article 50(1) and (6) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22479, Nov. 10, 2010)

Plaintiff

The council of occupants' representatives (Law Firm Jinjin, Attorneys Jinsung-gu et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na32695 decided October 28, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

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

1. As to the violation of law

A. The council of occupants’ representatives of multi-family housing shall be comprised of representatives elected according to the constituency stipulated by the rules on collective housing management in proportion to the number of households by Dong (hereinafter “representatives by Dong”). In this case, the constituency may be integrated into two or more units, or divided into passages or floors. The president of the council of occupants’ representatives of multi-family housing with 500 or more households may be elected from among the representatives of each Dong by general, equal, direct, and secret election of all occupants, etc. [Article 50(1) and (6) of the Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22479, Nov. 10, 2010].

Article 50 (1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22479, Nov. 10, 2010) provides that the portion of the provision that requires the representatives of each building to be elected according to the constituency prescribed “in proportion to the number of households of each building” (hereinafter “instant provision on the method of election method”) shall be a compulsory provision that prescribes the equality of voting values in elections to elect representatives of each building, and the provision is a compulsory provision. In order to be called as the election of representatives proportional to the number of households of each building, the number of households of each representative shall not be necessarily identical, but it shall not be limited to the number of households of each representative to the extent that it is impossible to recognize rationality due to the number of households of each representative.

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On December 31, 2010, the election commission under the Defendant’s control of the Defendant’s second buildings (hereinafter “election commission”) held an election to elect representatives from each building on February 28, 201, and elected representatives from each 16 buildings including Nonparty 1.

(2) On March 30, 2011, Nonparty 1 was elected as the president of the Defendant with 488 voters and 462 voters among the 1,372 households, who were eligible as representatives of each Dong, and were elected as the 1,372 voters.

(3) Meanwhile, the method of election method applied to the election of February 28, 201, which was held by Nonparty 1 as representative by Dong, had to be uniformly elected one representative by Dong without considering the number of households by Dong. However, the apartment of this case consists of 20 households, 32 or 40 households, 14 households, and 66 or 78 households.

(4) If one representative is to be elected for each Dong, the number of units per representative shall take place between the minimum number of units (20 units) and the highest number of units (78 units).

(5) In the case of the instant apartment, it is not impossible to reduce the number of households per representative within a reasonable scope even while maintaining the representative of each building, if a constituency is demarcated by combining several Dongs with a small number of households, or by dividing a Dong with a large number of households into one constituency by passage or floor, etc., in accordance with the apartment management Ordinance.

(6) In fact, in the amendment of the management rules proposed by some occupants, including Nonparty 2, etc., the number of Dongs consisting of less than the number of households is intended to be elected from 26 to 18 representatives from 26 Dongs using a method of combining one constituency. According to that, the number of households per representative (66 households) and the number of the largest number of households (84 households) is 1:1.27.

(7) According to the Defendant’s management rules, even though some occupants raise an objection and accordingly issued an administrative order to suspend the election of representatives of each building in accordance with the existing regulations on February 28, 201, on the grounds that the minimum number of households and the largest number of households per representative are too large, there are no inevitable materials to view that the Defendant had to have elected representatives of each building in accordance with the existing regulations in the election of February 28, 201.

C. In light of the above facts, the Defendant’s uniform selection of representatives by way of selecting one representative for each Dong without considering the number of households for each Dong without considering the above number of households for each Dong brings about a deviation to the extent that it is impossible to recognize the rationality in the number of households for each representative, and thus, is in violation of the provision on the selection method of this case, which is a mandatory provision

Therefore, the decision of the court below is justified in its conclusion that the election of representatives by the above Dong does not take effect, and that the non-party 1 elected in the election as the chairperson of the council of occupants' representatives cannot be deemed a legitimate representative of the defendant, as long as the non-party 1 elected in the election as the chairperson of the council of occupants' representatives by Dong was elected in the position of the representative of each Dong. Although there are some inappropriate parts in the reasoning of the court below, contrary to what is alleged in the ground of appeal, there is no error of law that affected the conclusion of the judgment in violation of Article 50 (1) of the Enforcement Decree of the Housing Act, contrary to

2. As to the incomplete hearing

As long as the method of election method applied to the election of Nonparty 1 as representative by Dong violates the provision on the selection method of this case, which is a mandatory provision, and thus becomes null and void, it does not affect the conclusion of this case as to whether the management rules on the selection method have been amended through legitimate procedures. Therefore, the judgment below did not err in the incomplete hearing as alleged in the

3. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)