(영문) 수원지방법원 여주지원 2020.1.15.선고 2019가합10728 판결

1. In an election of the president of a cooperative conducted by the Defendant on March 13, 2019, the decision that the decision that the Kim○ was made as the elected person is invalid.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Facts of recognition;

A. The defendant is a regional livestock cooperative established pursuant to the Agricultural Cooperatives Act (hereinafter referred to as the "Agricultural Cooperatives Act"), the entire Si area of which is the Si, and the plaintiff is the defendant's member.

B. On March 13, 2019, the Defendant carried out an election for the president of the partnership (hereinafter “instant election”), and 973 of the 1,053 members listed on the electoral registry were present in the voting. As a result of the voting, Kim○○, 363 marks, 326 marks, 326 marks, 197 marks, and 84 marks, respectively, and the Defendant decided Kim○, a multi-beneficiary, as the elected person.

(c)The main contents of the relevant laws and the Defendant’s articles of incorporation are as shown in Appendix 1.

[Grounds for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 7 (including branch numbers), the purport of the whole pleadings;

A. The plaintiff's assertion

Among the members who participated in the instant election, 59 persons are disqualified for membership or are disqualified for lack of capacity to assume membership eligibility based on the list of members. In other words, the said 59 persons were automatically withdrawn from the instant election in accordance with relevant Acts and subordinate statutes, such as the Agricultural Cooperatives Act, and the Defendant’s articles of incorporation as they did not operate livestock business since 2015, as stated in the column of “the details of fact-finding surveys on the attached Table 2” from 2015 to 2018. Therefore, the decision on the elected members of the instant election is to confirm that the decision on the elected members of the instant election is null and void, since there are significant

B. Defendant’s assertion 1) It cannot be deemed that the said 59 members asserted by the Plaintiff as an unqualified member were forced to withdraw from the association.

2) Even if the above 59 persons were automatically withdrawn, the Defendant’s fact-finding survey in 2018 and the procedure for re-admission to the said 59 persons was conducted on September 19, 2018. Accordingly, the said 59 persons are not disqualified members.

3) Even if there is a procedural defect in relation to the above 59 persons who had gone through the procedure for verifying the qualification of a member of the board of directors without going through the procedure for joining, such procedural defect did not entirely affect the result of the instant election.

3. Judgment on the main defense of this case

A. On February 27, 2019, the Defendant brought the instant lawsuit to the effect that, even though the Plaintiff confirmed the Defendant’s electoral registry around February 27, 2019, the Plaintiff abused the instant lawsuit for invalidation of election, the Plaintiff’s filing of the lawsuit was not raising any objection.

B. However, the evidence presented by the Defendant alone is insufficient to acknowledge the fact that the Plaintiff abused the election invalidation lawsuit, and there is no other evidence to acknowledge it. The Defendant’s main defense against the safety is not acceptable.

4. Judgment on the merits

A. Article 29(2)1 of the Agricultural Cooperatives Act provides that 59 persons listed in the attached table 2 shall be disqualified members (whether a member is automatically removed if a member is not qualified due to suspension of business, etc.) shall be determined as withdrawing from the cooperative as a matter of course if a member is not qualified. Article 105(2) of the same Act provides that "the scope of farmers operating a livestock farming business as a member of a regional livestock cooperative agreement shall be delegated to the Enforcement Decree, and Article 10(1)1 of the Enforcement Decree of the Agricultural Cooperatives Act provides that "the scope of farmers operating a livestock farming business" shall be determined as "the scope of farmers operating a livestock farming business" under each subparagraph of Article 10(2) of the Enforcement Decree of the Agricultural Cooperatives Act. Article 10(2) of the Enforcement Decree of the Agricultural Cooperatives Act provides that where a member of the regional livestock cooperative fails to meet the requirements for temporary qualification (Article 10(1)1: expropriation and sale of land and buildings used in livestock business management, temporary sale and disposal of livestock, temporary disposal of livestock, and disposal of livestock, etc."

2) According to the former part of Article 19(1) and Article 29(2) and Article 29(3) of the former Agricultural Cooperatives Act (amended by Act No. 9620, Apr. 1, 2009), if a member of the association falls under the grounds for deferred withdrawal, he/she is naturally disqualified as a matter of course, and the confirmation of the board of directors is merely for convenience and consistency in handling affairs, and it does not mean that the member’s qualification is maintained as it is (see Supreme Court Decision 2009Da9180, Sept. 30, 2010, etc.). In addition to the above relevant statutes and legal principles, it is reasonable to deem that a regional livestock cooperative established a regional livestock industry cooperative for the purpose of enhancing the livestock industry productivity of its members, promoting the expansion of markets for livestock products produced by its members and facilitating their distribution, and enhancing the economic, social, and cultural status of livestock products, and thus, it does not go against the purpose and purpose of the regional livestock industry cooperative’s establishment of membership.

4) In addition to the overall purport of the pleadings in 1 to 59, 2015, 59 of the evidence No. 6-1 to 6-1 of the 2015, 2015, and 59 of the results of the investigation of actual conditions of members of the 2015, "the fact that the investigation was conducted as being conducted," 2016, 59 of the 2016, 59 of the 2016, as a result of the investigation of actual conditions of members of the 2017, 14 of the 2017, 59 of the 2017, 19, 59 of the 2017, was investigated as being temporarily suspended, and "the fact that the 59 persons were investigated as being temporarily suspended." According to the above facts, the above 59 persons

B. Whether the procedure for re-convening 59 persons listed in the attached Table 2 was conducted (Judgment on the defendant's defense)

1) The fact that the above 59 members were automatically withdrawn from the Defendant Cooperative is as seen earlier. Therefore, the Defendant must prove that the said 59 members met the qualifications of the members and re-enters into the Cooperative.

2) In light of the purport of the entire pleadings in Gap's evidence Nos. 6, 7, Eul evidence Nos. 4, 9, 10, and 11 (including branch numbers), it is recognized that, as a result of the investigation into actual condition of the 59 members of the Agricultural Cooperative in 2018, "the fact that the investigation was conducted as a result of the investigation into actual condition of the 59 members of the Agricultural Cooperative Act" under each subparagraph of Article 10 (1) of the Enforcement Decree of the Agricultural Cooperative Act, the fact that the results of the investigation into actual condition of the members of the Agricultural Cooperative in September 19, 2018 was reported in a regular society

3) However, in full view of the following circumstances acknowledged by the aforementioned facts and evidence, Gap evidence Nos. 7, 11-16, Eul evidence No. 9-13, and Eul evidence Nos. 16 (including the number of branches), it is difficult to deem that the above 59 persons were re-entered into the cooperative only on September 19, 2018 by reporting the results of the investigation into actual conditions of union members in 2018 and by the board of directors on September 19, 2018 (verification of the qualification of union members) and there is no evidence to prove that the procedures for re-Joining the above 59 persons were completed. Accordingly, the defendant's defense of this part is not acceptable.

① Article 43(3)1 and (5) of the Agricultural Cooperatives Act provide that “No more than a majority of the members of the board of directors shall hold a meeting with respect to qualification examination and acceptance of membership” and “no more than a majority of the members of the board of directors shall hold a meeting,” and Articles 48 and 49 of the Articles of Incorporation provide the same matters.

However, on September 19, 2018, the board of directors of the Defendant only reported the results of the fact-finding survey conducted by the members in 2018. Such a report procedure was held with attendance of a majority of the members, and a resolution of the board of directors that requires the consent of a majority of the members present cannot be deemed the same as the procedures for the examination of qualifications

② In fact, the report made by the board of directors on September 19, 2018 at the meeting of the Defendant is comprised of 1,041 persons for each year, 433 persons for each year, 433 persons for business closure, 19 persons for death, 5 persons for migration, 14 persons for withdrawal, and 14 persons for each year as a result of the investigation on actual conditions of union members in 2018. The report was merely a comprehensive and verbal report on the results of the investigation on actual conditions conducted on a regular basis every year for all union members. The said report did not include the contents that the said 59 persons were forced to withdraw from office due to business suspension for at least one year, and that they will re-contribute, or that the actual quantity was reduced (qualification examination).

③ On October 26, 2018, the Defendant decided to withdraw from the board of directors and executive meetings several times, and decided to withdraw from the said 59 members on December 31, 2018. The 59 members listed in the attached Table 2 were not included in the withdrawn members. As seen earlier, the said 59 members were to withdraw from the board of directors. However, in light of the fact that the said 59 members were to withdraw from the board of directors on December 31, 2018, even though the said 59 members were to withdraw from the board of directors, it is reasonable to view that the Defendant did not re-enter the said 59 members at the meeting of the board of directors on September 19, 2018, but does not necessarily include the said 59 members who were to withdraw from the board of directors. Therefore, the Defendant has to process the withdrawal in violation of the law by including the said 59 members in the electoral register.

④ Examining the contents of the investigation report on actual conditions of a cooperative member in 2018, among the above 59 members, ○○○, Kim ○○ and Kim ○○ were the same volunteer group among the above 59 members, and Kim ○, Park ○○, and Song ○○ among the above 59 members were also the same; among the above 59 members, Kim○○, Kim○, Kim○, Kim ○, Lee ○, Lee ○, Lee ○, Lee ○, and Lee ○, the maximum number of ○, among the above 59 members, were possessed by taking over milling cattle and Han Y before and after the period of the investigation on actual conditions of a cooperative member in 2018 and transferred it again to a third party on the election day. In light of the contents of the investigation report or re-investigation on actual status of a cooperative member in 2015, it was more specific that the above 59 members were not subject to the investigation on actual status of a cooperative member, and it was more specific as the result of the Defendant’s investigation on actual status.

C. Sub-decisions (whether the election of this case is invalidated or not)

The difference between the elected president of the instant election and the Plaintiff’s votes is 37 votes, but the fact that 59 persons listed in the attached Table 2, who are not qualified as a cooperative member, participated in the instant election is as seen earlier. Thus, the instant election is an election in violation of Article 26 of the Agricultural Cooperatives Act and Articles 62 and 63 of the Articles of the Defendant Cooperatives’s Articles of association, which grant only a person who is qualified as a cooperative member, and affected the result of the relevant election. Therefore, the decision that Kim○-○ was decided as the elected president in the instant election is null and void, and the Defendant is dissatisfied with this decision, there is a benefit of confirmation.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.