[1] The legal nature of "authorizations to amend the articles of incorporation" under Article 20 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and where such authorizations are not obtained, the effect of the amended articles of incorporation (i.e., invalid)

[2] In a case where a designer was selected formally through a resolution of the general meeting under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but there is a defect in the absence or invalidity of a resolution of the general meeting, whether the selection of the designer constitutes a matter

[1] Article 20(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012) provides that where a cooperative intends to amend its articles of association, it shall hold a general meeting to obtain authorization from the head of a Si/Gun with the consent of a majority of union members or at least 2/3 of all union members. Here, the approval of the head of a Si, etc. is an act to supplement the basic act subject to the approval and to complete the legal effect, and where the head of a Si, etc. fails to obtain such approval, the amended

[2] Article 24(3)6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”) provides that “the selection and change of a work executor or designer” shall be subject to the resolution of a general meeting. Article 85 Subparag. 5 provides that “the executives of a cooperative which voluntarily promotes the projects under the subparagraphs of Article 24(3) without going through the resolution of a general meeting under Article 24” shall be punished. Considering the legislative intent of Article 24(3) of the former Act, where a designer is selected through the resolution of a general meeting, the selection of a designer shall be limited to cases where there is any defect in the absence or invalidation of the resolution of the general meeting, barring special circumstances.

[1] Article 20 (3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012) / [2] Article 24 (3) 6 and Article 85 subparagraph 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012)

[1] Supreme Court Decision 2006Ma635 Decided July 24, 2007 / [2] Supreme Court Decision 2008Do10826 Decided March 12, 2009 (Gong2009Sang, 517)

Defendant

Defendant and Prosecutor

Law Firm Multiwon, Attorneys Jeong Sung-sung et al.

Incheon District Court Decision 2013No301 Decided September 6, 2013

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of violating the Act on the Maintenance and Improvement of Urban Areas and Residential Environments and Dwelling Conditions for Residents due to the refusal to disclose data on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle

2. As to the Prosecutor’s Grounds of Appeal

A. Article 20(3) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”) provides that where a cooperative intends to amend its articles of association, it shall hold a general meeting to obtain authorization from the head of a Si/Gun with the consent of a majority of union members or at least 2/3 of all union members. Here, the approval of the head of a Si/Gun, etc. is an act to supplement the basic act subject to the approval and to complete the legal effect, and where such approval is not obtained, the amended articles of association shall not take effect (see, e.g., Supreme Court Order 2006Ma635, Jul. 24, 2007).

In addition, Article 24(3)6 of the former Act provides that “the selection and change of a work executor or designer” shall be subject to a resolution of a general meeting, and Article 85 Subparag. 5 of the same Act provides that “the executives of an association which voluntarily promotes a project under the subparagraphs of Article 24(3) without a resolution of a general meeting under Article 24 shall be punished.” In light of the legislative intent of Article 24(3) of the former Act, where a designer is selected through a resolution of a general meeting, if there is any defect in the absence or invalidation of the resolution of the general meeting, the selection of the designer shall be deemed to fall under the absence of the resolution of the general meeting, unless there are any special circumstances (see Supreme Court Decision 2008Do10826, Mar. 12, 2009, etc.).

B. According to the evidence duly adopted by the court below, ① the articles of association of the association of this case provide that a majority of the union members shall be selected at the general meeting directly present. The association of this case shall attend the general meeting of this case on October 16, 2010 by 118 members directly from 1,147 members and 784 members shall hold the general meeting of this case by submitting a written resolution. ② The amendment of the articles of association to amend the articles of association to allow more than 1/10 of union members to select a designer at the general meeting directly present, and the selection of a designer as a designer at the non-indicted 1 Co., Ltd. (hereinafter "non-indicted 1") and the non-indicted 2 Co., Ltd. (hereinafter "non-indicted 2 Co. 1") were presented in order to obtain approval of the amendment of the articles of association of this case by 10 members, and the association of this case approved 15 members of the non-indicted 10 Co. 4, 199.

C. Examining these facts in light of the legal principles as seen earlier, since the amended articles of association by the resolution of the general meeting of this case is invalid without the approval of the mayor, the association of this case, in order to select the designer, shall undergo the resolution at the general meeting of the general meeting, which is directly present at the meeting, but the resolution of this case is null and void because it does not meet the quorum. Therefore, the selection of designer by the resolution of this case constitutes an act of arbitrarily promoting the designer’s selection without the resolution of the general meeting. It does not change even if the amended articles of association after the selection of designer was approved by the mayor, etc., or the resolution of this case

D. Nevertheless, the court below found that the defect of the resolution in this case cannot be deemed to be serious and clear, and found the resolution in this case valid, and rendered a not-guilty verdict on the violation of the former Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents due to the selection of a designer without a general meeting resolution among the facts charged in this case. Such judgment of the court below is erroneous in the misunderstanding of legal principles as to the approval to amend the articles of incorporation under Article 20(3) of the former Act, which affected the conclusion

3. Conclusion

Therefore, the part of the judgment of the court below regarding the violation of the former Act on the Maintenance and Improvement of Urban Areas due to the selection of designer without a general meeting resolution should be reversed. Since this part of the judgment below and the conviction part of the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment should be imposed on the whole, the whole judgment of the court below is reversed, and the case shall be remanded to the court below for a new trial and determination

Justices Kim So-young (Presiding Justice)