209Na3488 Invalidity of the election of the chief director

Kim 00 (49*******************))

Daegu Seogdong-gu Lee-dong

Law Firm Dae-Gyeong, Attorney Shin Jae-ok et al., Counsel for the plaintiff-appellant-appellant-appellant

Yellow 00

Daegu Seogu Seo-dong

Daegu Private Taxi Transportation Business Association

Daegu Suwon-dong 761 - 10

2,000,000,000

Attorney Lee this-soo et al.*

New00 (50*******************))

Daegu Suwon-gu Yellow-gu 2

Law Firm Sejong, Attorneys Choi Young-chul et al., Counsel for the plaintiff-appellant-appellant *

Daegu District Court Decision 2008Gahap13467 Decided April 8, 2009

September 4, 2009

November 27, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. Of the total litigation costs, the part pertaining to the participation by the Plaintiff’s Intervenor is borne by the Plaintiff’s Intervenor, and the remainder is borne by the Plaintiff including the costs incurred by the participation by the Intervenor’s Intervenor.

1. Purport of claim

It is confirmed that the election of the president held by the Defendant on November 27, 2008 is null and void.

2. Purport of appeal

It is identical to paragraphs 1 and 2 of this Decree.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by Gap, Eul, Eul, as a whole, by taking into account the respective descriptions and arguments set forth in subparagraphs 1, 3, 2-1 through 3.

A. Status of the parties

The Defendant Union shall become its members for the purpose of enhancing friendship, unity, and status among its members, with the name changed to that of the former Automobile Transport Business Act (wholly amended by Act No. 5448, Dec. 13, 1997; Act No. 5448, Jun. 13, 1998; hereinafter referred to as "the Passenger Transport Service Act") which was in force from June 13, 1998.

24. A corporation established with the authorization of the establishment of the Daegu Metropolitan City Mayor, the competent authority, and the number of members exceeds 10,00, and both the Plaintiff, the Plaintiff, the Intervenor, and the Intervenor joining the Defendant are members of the Defendant Union.

B. The amendment of the articles of incorporation of the Defendant Union (1) provides that the articles of incorporation of the Defendant Union (Article 13, Article 14 subparag. 1, and Article 36) shall deliberate at a general meeting of not more than 35 representatives elected among union members, the president, vice-president, and directors with the consent of not less than 2/3 of the union members, and the amendment of the articles of incorporation shall be decided with the consent of not less than 2/3 of the union members. The amendment of the articles of incorporation shall be decided with the approval of the Daegu Metropolitan City Mayor under Article 56 of the Passenger Transport Business Act. As above, the provision that the general meeting composed of representatives, etc. has the authority to amend the articles of incorporation was continued until the nine-party election of the chairman of the Defendant Union was amended 16 times on November 27, 2008. At that time, the amendment of the articles of incorporation of the Defendant Union was approved every time.

(2) On February 29, 200, the defendant union received a sentence of imprisonment without prison labor or heavier due to a five violent crime (homicide, rape, robbery, narcotics, kidnapping) or a person who was sentenced to an amendment of the articles of association and a person who was sentenced to an amendment of the articles of association and a person who was sentenced to an order of imprisonment without prison labor or heavier punishment due to a five violent crime (homicide, rape, robbery, narcotics, abduction) under Article 13, subparagraph 1 of Article 14 and Article 36 of the above articles of association (hereinafter referred to as the "large General Meeting of Representatives") on February 29, 200, with respect to the qualifications of executive officers and representatives: Provided, That the person who was sentenced to a five violent crime (homicide, rape, robbery, robbery, drug, abduction) under Article 23, Paragraph 2 of the previous articles of association and the person who was subject to the amendment of the articles of association or the amended articles of association for not less than three years (3) years after the date of execution of the sentence.

다. 2008. 11. 27. 자 이사장 선거의 결과 등 ( 1 ) 2008. 11. 27. 실시된 피고 조합의 제9대 이사장 선거에서 원고, 원고보조참가인, 피고보조참가인, 도 * *, 장 * * 등 11인의 후보자가 경선한 결과, 피고보조참가인 이1, 480표, 원고가 1, 159표, 도 * * 이 1, 127표, 원고보조참가인이 551표, 장 * * 가 82표를 얻어 최고득표자인 피고보조참가인이 피고 조합의 이사장으로 당선되었다 . ( 2 ) 그런데 제9대 이사장 선거에 출마한 후보자 중 직전 이사장 도 * * 및 부이사장장 * * 가 피고 조합의 업무와 관련하여 저지른 불법행위로 기소되어, 2008. 2. 4. 대구고등법원 2007도 409호 형사재판에서 도 * * 에 대하여는 업무상횡령죄 등으로 징역 8월 및 추징금 1, 000만 원, 장 * * 에 대하여는 배임수재죄로 징역 6월 및 추징금 1, 000만 원의 형이 각 선고되었고, 그 무렵 위 각 형이 확정되었다 .

2. The parties' assertion

A. Summary of the Plaintiff’s assertion (1) by the Plaintiff and the Plaintiff’s Intervenor

Article 14 Subparag. 1 and Article 36 of the above Articles of Incorporation, which provide that the articles of incorporation of a defendant association may be amended by a resolution of a representatives’ general meeting, not all members of the association, is null and void by violating Article 42(1) of the Civil Act, which is a mandatory law, the amendment procedure of the above Articles of Incorporation, which is made at a representative general meeting in accordance with the provisions of the above Articles of Incorporation, is not only unlawful as well as the amendment procedure of the above Articles of Incorporation. In light of the amended contents, the amendment procedure of the articles of Incorporation is unlawful as it is that a person who was sentenced to imprisonment, etc. due to an offense such as occupational embezzlement, etc. in relation to the affairs of the association, holds the right to be elected at an election of the president again without a certain grace period, and thus is contrary to good morals and other social order. Therefore, the amended provisions of the articles of incorporation are null and void due to the defect in the above procedural contents.

(2) Summary of the assertion by the original senior intervenor

Article 18 of the Election Management Rules of the Defendant Union provides that the election campaign may be carried out only from the time when the period of registration of the candidate expires until 24 cc prior to the election day, and that no election campaign may be carried out except for the above election campaign period. Article 25 subparag. 4 provides that "a candidate, election campaign worker, or member shall not provide any food or drink, money, goods, or demand or receive any property interest or public office in connection with the election." Nevertheless, the Defendant’s Intervenor election campaign against the members at the entrance of the polling station on the election day of the 9th president, such as providing the members with food, food, or demanding a member to obtain this right, etc. However, the Defendant violated Articles 18 and 25 subparag. 4 of the Election Management Rules of the Defendant Union, and the aforementioned illegal election campaign by the Defendant’s Intervenor had influenced the result of the election of the 9th president. Thus, the election of the 9th president is null and void.

B. Defendant and Defendant Intervenor’s assertion

As to this, the Defendant and the Defendant asserted that the amended articles of incorporation cannot be deemed null and void since they obtained approval from the Daegu metropolitan market with regard to the amendment of the articles of incorporation of this case. In addition, the Defendant asserted that the amendment of the articles of incorporation of this case was unlawful, on the ground that the Plaintiff did not raise any objection, such as filing a provisional disposition seeking the suspension of election after the amendment of the articles of incorporation of this case in 2000, and that the Defendant’s Intervenor did not participate in an election campaign with the 8th president candidate in accordance with the amended articles of incorporation * * even if the Defendant and the Defendant were to carry out an election campaign with the 9th president, they were sent to the 9th president candidate for the election of the 9th president, and they were sent to the 9th president candidate for the election

3. Judgment on the validity of the amended provisions of the articles of incorporation

A. The purport and nature of the relevant legal provisions (1) Article 55 of the former Passenger Transport Business Act (amended by Act No. 8980 of Mar. 21, 2008) provides that passenger transport business operators may establish an association with the approval of the competent Mayor/Do Governor, and the association shall be a juristic person. In order to establish an association, the association shall prepare its articles of association, promoted by at least 1/5 of the persons who are eligible to become members of the association, with the consent of at least 1/2 of the persons who are eligible to become members of the association, and shall apply to the competent Mayor/Do Governor for the approval of the association, except as otherwise provided for in the same Act, and Article 42(1) of the Civil Act provides that the articles of association of an association shall apply mutatis mutandis to the association only when the consent of at least 2/3 of all the members of the association is obtained. However, if other provisions concerning the quota are provided for in the articles of association, the provisions shall apply mutatis mutandis.

(2) The former Passenger Transport Business Act provides that the provisions on the articles of association of an incorporated association under the Civil Act shall apply mutatis mutandis to a transport service provider association, since the nature of the association is human combination. Furthermore, the former Passenger Transport Business Act provides that the provisions on the articles of association of an incorporated association under the Civil Act shall apply mutatis mutandis to a transport service provider association. Furthermore, an incorporated association shall be established through the preparation of the articles of association, i.e., a document stating the fundamental rules of the incorporated association, and the articles of association shall be an internal norm binding upon all its members. Considering the fact that an incorporated association needs to amend its articles of association within the extent that it does not lose its identity so long as it is required to independently act in response to social and economic circumstances with independent corporate personality, the Civil Act provides that it may amend its articles of association with the consent of at least 2/3 of all its members. The legislative intent of such provisions under the Civil Act is to secure the identity of an incorporated association, the amendment of the articles of association, which is its fundamental rules, shall be the exclusive power of a general meeting, which is the highest resolution body.

(3) In light of the legislative intent and character of Article 42(1) of the Civil Act as seen above, and the fact that if there is a defect in the resolution to amend the articles of incorporation, which is the basic act, it shall not be deemed that the resolution to amend the articles of incorporation, which is the basic act, is valid even though authorization was granted for it, the defendant association, an incorporated association, allowed the amendment of the articles of incorporation only by the resolution of the representatives general meeting, not the resolution of the general meeting of members, and the competent authority authorized it, barring any special circumstance, such articles of incorporation may be deemed null and void as it violates Article 42(1) of the Civil Act, which is a mandatory provision.

B. Real rationality (1) of the procedures for amendment of the articles of association of the defendant association (i) as seen earlier, the defendant association prepared its articles of association through a resolution of a majority of the members at its inaugural general meeting at the time of its establishment, and obtained authorization from the competent administrative agency, as well as at the time it amends its articles of association. (ii) It is necessary for the association to amend its articles of association timely in accordance with changes in the situation inside and outside the country after its establishment. In the case of a large-scale association, which is anticipated to increase continuously in the future, it is very difficult for all members to meet at a certain place and express their opinions directly. (ii) It is reasonable to view that it is unreasonable to allow the association members of the defendant association to voluntarily amend its articles of association at the general meeting of the general meeting of its members, instead of a resolution of the inaugural general meeting of its members, and thus, it is unreasonable to deem that the amendment of the articles of association is in violation of the right of association of the general meeting of its members, which is composed of representatives at the general meeting of the defendant association.

C. The old Passenger Transport Service Act (which was amended by Act No. 7712, Dec. 7, 2005) which was newly established pursuant to Article 59-2 of the former Passenger Transport Business Act (which was in force before the amendment by Act No. 8980, Mar. 21, 2008) provides that "any association with more than 1,00 members may have a board of representatives substituted for the general meeting as prescribed by the articles of association, and the organization and operation of the board of representatives shall be prescribed by the Presidential Decree, and it shall be deemed that the number of members of the association exceeds 1,00,000, and the association shall be in proportion to the number of members of the association under Article 20 of the former Enforcement Decree of the Passenger Transport Business Act (which shall be amended by Presidential Decree No. 19476, Oct. 7, 2008) which is established pursuant to Article 158-2 of the former Act.

(2) Although the amendment of the articles of association of the defendant association is null and void as provided in Articles 13, 14 subparagraph 1, and 36 of the articles of association of the defendant association, and even if the amendment of the articles of association of this case, which was made by a resolution of the representatives' general meeting is likely to become null and void, since the general meeting of representatives does not expressly stipulate that the representative general meeting of the defendant association shall replace the general meeting of the members under the former Passenger Transport Business Act (amended by Act No. 7712 of Dec. 7, 2005), which was applied at the time of the amendment of the articles of association of this case, the contents and legislative purport of the newly established provisions of the defendant association, the articles of association and operational status of the defendant association, the articles of association of the defendant association and its operational status, and the general meeting of representatives of the defendant association, which were decided to grant the authority to amend the articles of association of this case to the general meeting of delegates with the intention of the representatives of the 9th general meeting of delegates.

D. Furthermore, the violation of the principle of good faith (1) was 1 to 7. On the other hand, Gap's 2-1 to 3-1 to 8-2, and Eul's 10-1 to 12-7, and the overall purport of the evidence No. 12 was changed to remove the grounds for restricting the qualifications of officers of the defendant union as of February 29, 200, and then some of the members of the defendant union were required to amend the articles of association 1 to 0-1 to 3-1 to 3-2. It was recommended that the 2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-2-2-3-2-3-2-2-2-2-2-3-2-2-2-3-3-2-2-3-3-3-2-3-3-3-2-3-3-3-3-3-3-3-3-2-3-3-3-3-3-2-3-3-2-3-3-3-3-3-3-3-

(2) In addition to the above facts, (1) since the enactment of the articles of association at the general meeting of the defendant association based on the intention of all the members at the general meeting of the association, the representative general meeting has been performing the right to amend the articles of association over 16 times, and the election of the chief executive officer, such as the president, has already been conducted over 16 times, and the chief director elected from the election has performed external legal acts on behalf of the defendant association, and it seems that no objection has been raised by any of the members of the defendant association has been raised. (2) If the provisions of the articles of association of the defendant association which allows the amendment of the articles of association at the general meeting of the plaintiff as asserted by the representative general meeting are null and void, the 9th election of the chief executive officer implemented by the amendment of the articles of association at the same time becomes null and void due to any defect in the procedures, and all of the articles of association which have been implemented so far are contrary to the legitimate grounds for the amendment of the articles of association at the general meeting of the defendant association.

E. Whether Article 103 of the Civil Act is violated

Finally, with respect to the plaintiff's assertion that the amended provisions of the articles of incorporation are invalid in violation of Article 103 of the Civil Code, the provision can be evaluated as violating good morals and other social order stipulated in Article 103 of the Civil Code only if the provision contains any prior matters beyond the limit permitted by social norms.

In this case, it is somewhat problematic that the provisions of the amended articles of association do not limit the qualifications of officers or eligibility for election as an executive officer. On the other hand, since occupational corruption should vary depending on specific circumstances, such as the background, motive, mode of act and consequence, the duties of the offender, the contents of the work in charge, etc., it cannot be assessed uniformly. The defendant association directly elect all executive officers and representatives. If the defendant association deprives those who were sentenced to punishment due to occupational corruption or misconduct as provided in Article 23(2) of the former Articles of association of the same association of the qualification or eligibility for election on a permanent basis without referring to the seriousness of the case, it is difficult to determine that the party is not a member of the association's right to receive relief by being tried by the seriousness of the case from the members of the association through election, and it is highly likely that occupational corruption and side effects are contrary to good morals and equality, and even if the amendment of the articles of association and other regulations of this case are contrary to the purpose of free voting, it is difficult to determine that the person who is subject to punishment for election without an overall reason.

F. Sub-decision

Therefore, the reason for the plaintiff's claim under the premise that the amended provisions of February 29, 200 under the articles of incorporation are invalid due to the procedural defect is without merit.

4. Determination as to whether the Intervenor joining the Defendant was illegal election campaign

Where there is a reason in violation of Acts and subordinate statutes in the election procedure, the relevant election does not become null and void merely because it does not constitute a violation of such Acts and subordinate statutes, and only if it is recognized that the freedom and fairness of the election, which is the basic ideology of the election, has been substantially infringed and thereby has influenced the result of the election, is null and void (see Supreme Court Decision 2003Da11837, Dec. 26, 2003, etc.).

Each of the statements in Gap, Gap, or evidence Nos. 2, Gap, or evidence Nos. 3, 4-1, 2, and 5-1 through 11, respectively, returned to the instant case, the defendant joining the defendant did an unlawful campaign on the election day of the chairman of the 9th National Assembly, and expressed a ticket against its members. Such acts interfered with the free decision of its members, thereby affecting the result of the election.

It is difficult to see it, and there is no other evidence to prove it.

Therefore, the argument of the plaintiff's assistant intervenor on the premise that the defendant's intervenor was engaged in illegal election campaign that could affect the election is not reasonable.

5. Conclusion

Therefore, the plaintiff's claim seeking confirmation of invalidation of the 9th Chief Director election shall be dismissed as it is without merit, and the first instance judgment is unfair as it is so unfair as the conclusion is accepted by the defendant and the defendant joining the defendant, and the first instance judgment is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges of the presiding judge, public officials - - – -

Judge Kim Jae-ok

Judges Kim Jae-sik