209Du3886. Invalidity, etc. of a resolution of the representative appointment

1. A;

2. Al:

3. A2.

4. A3.

5. A4.

6. A5;

7. A6.

8. A7.

9. A8;

10. A9;

11. A10

12. Acc;

13. A12

[Plaintiff-Appellant] Plaintiff International Law Firm

[Defendant-Appellant]

1. The council of occupants' representatives;

The representative.

2. B2

3. B3.

[Judgment of the court below]

Attorney Kim Jong-ok

August 26, 2009

September 16, 2009

1. Each of the plaintiffs' lawsuits against the defendant B2 and B3 shall be dismissed.

2. The council of occupants' representatives of the defendant apartment;

(a) a resolution in which Defendant B2 was elected as Dong 103 Representatives from the election of the representative of the non- apartment building held on April 5, 2008; and

B. A resolution passed on May 2, 2008 by which Defendant B2 was elected as the representative at the election of the representative of the council of occupants' representatives of the unregistered apartment.

confirm that each invalidation is void.

3. Of the litigation costs, the part arising between the plaintiffs and the defendant's council of occupants' representatives that occurred between the defendant's representative council of this apartment, and the part arising between the plaintiffs and the defendant B2 and B3

In the first place, the defendant B2 is dismissed from office as the representative of the council of occupants' representatives of the defendant B, and the defendant B3 is dismissed as the director of the council of occupants' representatives of the defendant B.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the statements in Gap evidence 1-1, 2, 2-2, 3-1, 2, 4, 28-2, 2-2, 3-1, 3-3, and 3-1, 3-3.

A. The plaintiffs and the defendant B2 and B3 were the occupants of the Da-dong 1, Busan Seo-gu apartment (hereinafter "the apartment of this case"), and the council of occupants' representatives of the defendant' representatives of the defendant apartment of this case (hereinafter "the defendant's council of occupants' representatives") are autonomous management organizations composed of occupants to manage the apartment of this case. The head of the management office of the apartment of this case formed an election committee for the formation of the first apartment of this case pursuant to Article 43 of the Housing Act and Article 50 of the Enforcement Decree of the Housing Act, around March 21, 2008, the election commission for the formation of the council of occupants' representatives of this case was announced on March 21, 2008. At the election of the representatives of each Dong-dong, the defendant B2 was elected as the 103 Dong-dong representative, the defendant B3 was the 213 Dong representative, and the representative of the 1st regular representative council implemented on May 2, 2008 as the representative of the defendant B (the defendant) and the director.

C. The major contents of the management rules of the apartment of this case, the related Acts and subordinate statutes, and the election announcement of the representatives by buildings are as follows.

[Management Rules] Article 3 (Definition of Terms) The definitions of terms used in this Code are defined in the Housing Act, the Enforcement Decree of the Housing Act, and the Housing Decree of the same Act (hereinafter “Housing Decree”), as follows:

(2) The term "occupant" means the owner of the relevant collective housing, or his/her spouse, or lineal ascendants or descendants representing such owner.

Article 8 (Qualifications of Occupants, etc.)

(1) Qualifications for occupants shall occur when sectional ownership of one household of multi-family housing has been acquired, and they shall be extinguished when sectional ownership has been lost.

Article 18 (Grounds, etc. for Disqualification of Representatives of Each Building)

(1) Qualifications for representatives by buildings shall, under Article 50 (3) of the Enforcement Decree of the Housing Act, be the occupants (referring to the cases consistent with the resident registration on the building register) residing in the relevant apartment complex for not less than six months after the completion of resident registration in the relevant apartment complex (excluding the case of the first council of occupants' representatives or elected as representatives by buildings to constitute the council of occupants' representatives under the proviso of Article 50 (2) of the Enforcement Decree of the Housing Act) as of the date of public announcement of election of representatives by buildings, and even if the occupants

Article 19 (Term of Office of Representatives and Officers of Each Building, etc.)

(4) An officer shall, when he/she loses his/her qualification for representative by buildings, lose such qualification. Article 20 (Election, Public Notice, etc. of Representatives by Building)

(1) The written public announcement for the election of representatives of buildings shall include the following matters and shall be publicly announced one month prior to the expiration of the term of office:

5. Documents for registration of candidates;

(c) A copy of the certified copy of the register (within one month from the date of receipt);

(d) One copy of resident registration (issuance within seven days from the date of receipt);

7. Qualifications for candidate registration (related to Article 18);

[Related Acts]

Housing Act

The definitions of terms used in this Act shall be as follows:

10. The term "occupants" means the persons referred to in any of the following items:

(3) The representative of each building shall be elected from among the occupants residing in the relevant collective housing complex for not less than six months (excluding the cases where the first council of occupants' representatives is organized or the representatives by buildings are elected to constitute the council of occupants' representatives under the proviso to paragraph (2)) after the resident registration is completed as of

【Public Notice of Selection of Representative of each Dong】

2. The period of candidate registration: March 21, 2008 to March 28, 2008 (eight days).

3. Election period: The period from March 29, 2008 to April 5, 2008 (eight days). The candidate registration documents

(c) A copy of the certified copy of the register (within one month from the date of receipt);

(d) One copy of resident registration (issuance within seven days from the date of receipt);

7. Qualifications for candidate registration: Residents, their spouses, lineal ascendants and descendants (Article 50 (2) of the Enforcement Decree) who coincide with the resident registration number of relevant actual residents as of the date of public announcement of election and the names on the building register;

D. On January 8, 2008, Defendant B2 completed the move-in report with 103 units of the instant apartment building, and Defendant B2’s mother completed the registration of ownership transfer on March 31, 2008 with respect to the instant apartment building 103 units X.

E. The Plaintiffs, on the ground that Defendant B2 failed to meet the qualification requirements for representatives by buildings, filed an application with the Busan District Court for a provisional disposition of suspending the performance of duties by Defendant B2, Busan District Court 2009Kahap436, and the above court

On April 16, 2009, Defendant B2 suspended the performance of duties as the representative of Defendant B2’s council of occupants’ representatives and decided to appoint D3 as the acting representative the vice-chairperson of the Defendant’s council of occupants’ representatives.

2. Determination as to the legitimacy of the lawsuit against the defendant B2 and B3

A. The plaintiffs seek confirmation of invalidity of the resolution that elected Defendant B2 as the representative of the same unit of the apartment of this case with Defendant B2 as the primary defendant, and the resolution that elected Defendant B2 and B3 as the representative of the defendant's representative, and seek dismissal of Defendant B2 as the representative of the defendant's representative, and Defendant B3 as the representative of the defendant's representative, respectively.

B. In a preliminary or selective co-litigation under Article 70(1) of the Civil Procedure Act, “legal compatibility” means, unlike a different evaluation of the same factual basis, where the legal effect of either of the two claims is acknowledged, and the legal effect of the other is denied, and both claims cannot be accepted, or where either of the two claims is affirmed or denied by a selective fact-finding which constitutes a factual basis or a cause for a claim, and as a result, the other party’s legal effect is denied or affirmed by the alternative fact-finding that constitutes a cause for a claim, it is reasonable to view that the two claims affect the reasoning for the determination of the other claim, and that the process of determination of each claim is necessarily mutually combined, as well as that of a preliminary or selective co-litigation (see Supreme Court Decision 2005Da49430, Mar. 27, 2008; Supreme Court Decision 70Da17060, Mar. 27, 2008).

D. A lawsuit seeking the alteration or formation of the existing legal relations is recognized only where the law expressly provides for the change or formation of the existing legal relations, and it is not permissible if there is no legal basis (Supreme Court Decision 92Da35462 delivered on September 14, 1993). A lawsuit claiming the dismissal of the defendant B2 and the defendant B3, who is the representative of the defendant's council of occupants' representatives, for the reason that the defendant B2 and the director committed an unlawful or unjust act regarding their duties, constitutes a lawsuit seeking the formation of a lawsuit. Thus, the lawsuit of this case against the above defendant B2 and B3 is unlawful (the apartment's council of occupants' representatives constitutes an organization consisting of representatives elected in proportion to the number of households of each apartment building by apartment, pursuant to the relevant provisions, such as Article 43 of the Housing Act and Article 50 of the Enforcement Decree of the Housing Act, and this constitutes an association consisting of representatives of the apartment buildings, the right of the council of occupants' representatives to dissolve or manage the relevant apartment building, and thus, it cannot be applied to this case.

3. Determination on claims filed against the defendant's council of occupants' representatives

A. Determination on the cause of the claim

According to the Housing Act and the management rules of this case, the term "occupant" means the owner of the apartment house, or his spouse or lineal ascendants or descendants representing the owner of the apartment house, and the representative of the first council for representatives of occupants shall reside in the apartment complex after the completion of resident registration within the apartment complex as of the date of the public announcement of the election. The candidate for the representative of each Dong shall submit a certified copy of resident registration at the time of candidate registration, and the defendant B2 completed the move-in report on January 8, 2008, but the mother of the above 103 Dong Dong 103 Dong x as of March 31, 208, the fact that the representative of the above 103 Dong Dong 2 had completed the move-in registration on March 31, 208, the representative of the apartment house shall be the owner or his spouse who resides in the apartment house as of the date of the public announcement of the election, and the resolution on the move-in registration of the representative of the defendant B 205 Dong 208.

B. Determination on the assertion by the Defendant’s representative council

1) On December 13, 2004, Defendant B2’s mother, Defendant B2, purchased the instant apartment No. 103 unit from a stock company, which is the selling company of the instant apartment on December 13, 2004, and completely paid the sale price by January 31, 2008, which is the date of the public notice of election of the representative of each Dong, and issued the registration certificate of the selling company, and issued C’s ownership transfer registration delayed, and if the ownership requirements are strictly determined during the qualification requirements of the representative of each Dong, Nonparty D1, D2 and Plaintiff A1, A9, A11 and acting representative D3 who did not meet the ownership requirements at the time of the public notice of election of the representative of each Dong are not entitled to the representative of each Dong. Since it is improper for Plaintiff A, A1, A2, A3, A5, A11 and other representatives of each Dong who were appointed after the expiration of the candidate registration period, and thus, it does not meet the qualification requirements of the above Dong.

In full view of the fact that Defendant B2’s mother, the seller of this case’s apartment 103 apartment x from the seller company and completed the registration of ownership transfer, even if Defendant B2’s mother, he cannot be deemed as the owner until the completion of the registration of ownership transfer, and if the representative of each building is deemed to meet the ownership requirements as above, it is difficult to uniformly determine whether the qualification for candidate registration is satisfied as of the date of the public announcement of election, and whether the eligibility for candidate registration should be determined strictly by the candidate registration document as of the time the eligibility for candidate registration is determined in the election procedure, the fact that a sales contract is concluded or a right to claim ownership transfer is not satisfied. The fact that there is a right to claim ownership registration does not change because the plaintiffs or other representatives of each building have the same grounds for disqualification. Thus, the above argument by the defendant’s council of occupants’ representatives is without merit.

2) Next, the defendant 2's council of occupants' representatives asserts that since the mother of the defendant 2 completed the registration of ownership transfer on March 31, 2008 on the instant apartment No. 103 unit No. 103 unit No. x within the election period for each building, the defect in the requirements for the ownership was cured. Thus, according to the above facts, the qualification of the representative of each building is required to be an occupant of the relevant apartment house as of the announcement date of the election for each building. Thus, the defect is not cured because the representative of each building acquired ownership after the announcement date of the election for each building and met the requirements of the tenant. Thus, the defendant 2's council of occupants' representatives

4. Conclusion

Therefore, the plaintiffs' lawsuits against the defendant B2 and B3 are dismissed, respectively, and the claims against the defendant's representative meeting shall be accepted for all of them. It is so decided as per Disposition.

Chief Judge Park Tae-tae

Judge Lee Dong-dong

Judges Kang Jeong-hee