(영문) 대구고등법원 2009.11.27.선고 2009나3488 판결

3. Of the total litigation costs, the part pertaining to the participation of 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 of the Intervenor’s Intervenor.

Purport of claim and appeal

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 as set out in paragraphs 1 and 2 of this Decree.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or acknowledged by Gap, Gap, Eul, as a whole, by taking account of the respective descriptions and arguments in subparagraphs 1, 3, 2-1, 2-3, and the whole purport of arguments.

A. Status of the parties

The defendant association is established with the authorization of the establishment of the Daegu Metropolitan City Mayor, the competent administrative agency on October 24, 1983, after the resolution of the inaugural general meeting of the members, for the purpose of promoting friendship, unity, and status among the members of the association by having those who obtained a private taxi business license in the Daegu Metropolitan City under Article 64 of the Passenger Transport Service Act (hereinafter referred to as "the Passenger Transport Service Act", which was amended by Act No. 5448 of Dec. 13, 1997 and enforced on June 13, 1998) as its members, and the name has been changed to that of the defendant association. The plaintiff, the plaintiff, the plaintiff and the defendant joining the defendant are all members of the defendant association.

B. Amendment of the articles of association of the defendant cooperative

(1) Articles 13, 14 subparag. 1, and 36 of the Articles of Incorporation, which have been resolved at the general meeting of the Defendant Union’s general meeting, provide that the articles of incorporation shall deliberate at the general meeting composed of not more than 35 representatives elected among the union members, and not more than 2/3 of the union members, and shall pass a resolution with the concurrent vote of not less than 35 representatives, the president, vice-president, and directors. The draft of the Articles of Incorporation stipulated that the draft of the Articles of Incorporation shall be approved and confirmed by the Daegu Metropolitan City Mayor under Article 56 of

on November 27, 2008, the articles of incorporation of the Defendant Union continued to have been amended over 16 times until the 9th president election of the Defendant Union was held. At that time, the Daegu Gwangju District Mayor authorized the articles of incorporation to be amended.

(2) The defendant union shall comply with the provisions of Articles 13, 14 subparagraph 1, and 36 of the above Articles of Incorporation on February 29, 200.

(d) A person who was sentenced to imprisonment without prison labor or a heavier punishment due to violent crimes (homicide, rape, robbery, narcotics, kidnapping, etc.) with respect to the qualifications of executive officers and representatives at a general meeting comprised of the chief executive officer, vice chief executive officer, directors, and representatives (hereinafter referred to as the "general meeting of representatives") or a person who was sentenced to imprisonment without prison labor or a heavier punishment due to such crimes as occupational breach of trust, bribery, public fund appropriation, embezzlement, etc. in relation to partnership affairs in relation to partnership affairs, shall be limited to qualification, or a person who was sentenced to a disposition under Article 10 of the former Articles of Incorporation, which provides that the qualification shall be limited for five violent crimes (homicide, rape, robbery, robbery, narcotics, abduction), or a person who was sentenced to a disposition of restriction on rights under Article 10 for at least three years after the date on which the execution of the punishment is completed, and for at least three years after the date on which he/she was sentenced to a disposition of restriction on qualification.

A resolution to amend the articles of incorporation was passed with light of the contents of the amendment (hereinafter referred to as "the amendment of the articles of incorporation of this case"), and the contents of the amended articles of incorporation are "the amended articles of incorporation".

(1) 2008. 11. 27. 실시된 피고 조합의 제9대 이사장 선거에서 원고, 원고보조참가 인, 피고보조참가인, 도■■, 장00 등 11인의 후보자가 경선한 결과, 피고보조참가인 이 1, 480표, 원고가 1,159표, 도■■이 1,127표, 원고보조참가인이 551표. 장OO가 82 표를 얻어 최고득표자인 피고보조참가인이 피고 조합의 이사장으로 당선되었다.

(2) 그런데 제9대 이사장 선거에 출마한 후보자 중 직전 이사장 도■■ 및 부이사 장 장00가 피고 조합의 업무와 관련하여 저지른 불법행위로 기소되어, 2008. 2 . 4. 대구고등법원 2007도409호 형사재판에서 도■■에 대하여는 업무상횡령죄 등으로 징 역 8월 및 추징금 1,000만 원, 장00에 대하여는 배임수재죄로 징역 6월 및 추징금 1,000만 원의 형이 각 선고되었고, 그 무렵 위 각 형이 확정되었다.

2. The parties' assertion

A. The plaintiff and the plaintiff assistant intervenor's assertion

(1) Summary of the Plaintiff’s assertion

피고 조합의 정관을 조합원 전원으로 구성된 총회가 아닌 대의원총회의 결의에 의해 개정할 수 있도록 규정한 위 정관 제14조 제1호, 제36조는 강행법규인 민법 제42 조 제1항에 위반되어 무효인 만큼 위 정관규정에 의거하여 대의원총회에서 이루어진 이 사건 정관개정은 그 개정절차가 위법할 뿐 아니라. 개정된 내용을 보면 조합업무와 관련하여 업무상횡령 등의 범죄를 저질러 징역형 등을 선고받은 자가 일정한 유예기간 도 없이 다시 이사장 선거에서 피선거권을 가진 다는 것으로서 선량한 풍속 기타 사회 질서에 반한다. 따라서 개정 정관규정은 위와 같은 절차상 내용상 하자로 인하여 무효 에 해당하고 , 위와 같이 무효인 개정 정관규정에 의하면 피선거권이 있지만 구 정관규 정에 의하면 피선거권이 제한되는 도■■ 및 장00가 출마한 상태에서 실시된 제9대 이사장 선거는 무효이다.

(2) Summary of the Plaintiff’s Intervenor’s assertion

Article 18 of the Election Management Rules of the Defendant Union provides that an election campaign may be carried out only from the time when the period of registration of a candidate expires until 24 days prior to the election day, and no election campaign may be carried out except for the said period. Article 25 subparagraph 4 of the same Act provides that “A candidate, election campaign worker, or member shall not provide any food or drink, money or goods, or demand or receive any property interest or public office in connection with an election.” The Defendant for the Defendant, even at the same time, was engaged in an election campaign against the members at the entrance of the polling station on the date of the 9th election, and was engaged in an illegal election campaign in violation of Article 18 and subparagraph 4 of Article 25 of the Election Management Rules of the Defendant Union, such as providing food to the members, or requesting any person to obtain such right by taking advantage of the fact that the said illegal election campaign by the Defendant for the Defendant had influenced the result of the election of the 9th president.

B. Defendant and Defendant Intervenor’s assertion

이에 대하여, ① 피고 및 피고보조참가인은 이 사건 정관개정에 대하여 대구광역 시장으로부터 인가를 받았으므로 개정 정관규정을 무효로 볼 수 없다고 주장하고, 이 와 별도로 ② 피고보조참가인은 원고가 2000년 이 사건 정관개정을 한 이후 선거의 중지를 구하는 가처분의 신청을 하는 등의 이의를 전혀 제기하지 아니하였을 뿐 아니 라 개정 정관규정에 기하여 제8대 이사장 후보로 출마한 도■■을 도와 선거운동을 하 기도 하였다가 자신이 제9대 이사장 선거에 후보로 출마하여 차점자로 낙선한 이후에 야 비로소 이 사건 정관개정이 위법하다고 하여 제9대 이사장 선거의 무효를 주장하는 것은 신의칙에 반한다고 주장한다.

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

A. 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; each of the following provisions is the same as the current Passenger Transport Business Act) provides that "passenger transport service providers may establish an association with the approval of the Mayor/Do Governor, and the association shall be a juristic person. When it is intended to establish an association, at least 1/5 of the persons who are qualified as partners of the association shall prepare its articles of association with the consent of at least 1/2 of the persons who are qualified as partners of the association, and shall apply to the Mayor/Do Governor for the approval of the association, and Article 42 (1) of the Civil Act provides that "the articles of association of an incorporated association shall apply mutatis mutandis to the association except as otherwise provided for in the same Act." However, the articles of association of an incorporated association may be amended with the consent of at least 2/3 of all the members."

(2) Since the nature of a transport service provider association established under the former Passenger Transport Business Act also belongs to the category of an incorporated association under the Civil Act, 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, in the case of a private corporation, the former Passenger Transport Business Act shall apply mutatis mutandis to a transport service provider association in writing stating the fundamental rules of the corporation, i.e., the establishment of a corporation through the preparation of the articles of association, and its articles of association shall be the internal norms binding all the members. In addition, an incorporated association shall have independent corporate personality and independently act in response to social and economic circumstances, so long as it is necessary to revise its articles of association to the extent that it does not lose its identity, the Civil Act provides that it may amend its articles of association with the consent of at least two thirds of all the members. The legislative intent of the Civil Act provides that the amendment of the articles of association, which is the fundamental rules, shall be the exclusive rights of the general meeting of members, which is the highest resolution authority.

(3) In light of the legislative intent and character of Article 42(1) of the Civil Act as seen above, as well as the supplementary act that completes the legal effect of an incorporated association’s amendment of the articles of incorporation as a basic act, and that if there is a defect in the resolution on the amendment of the articles of incorporation, which is the basis thereof, the resolution on the amendment of the articles of incorporation cannot be deemed valid even if the approval was granted, even if the incorporated association did not adopt a resolution on the amendment of the articles of association, and even if the competent authority approves it, such a statutory provision may be deemed invalid as it violates Article 42(1) of the Civil Act, which is a mandatory provision, barring any special circumstance.

B. Actual rationality in the amendment process of the defendant association

(1) However, as seen above, as seen in the above basic facts, the Defendant Union prepared its articles of association at the inaugural general meeting at the time of its establishment through a resolution of a majority of the members, and obtained authorization from the competent administrative agency as well as at each time it amends its articles of association. ② It is necessary for an incorporated association to amend its articles of association in a timely manner in line with changes in the internal and external circumstances after its establishment. In the case of a large-scale incorporated association, which is anticipated to increase continuously in the future, the number of members, as in the Defendant Union, shall meet at a certain place and express their opinions at the general meeting at the meeting of the board of directors at the time of its establishment, is very difficult to cause substantial increase in time and effort, and economic expenses are to be reduced. ③ Even if members of the Defendant Union enacted its articles of association through a legitimate resolution of the inaugural general meeting, the amendment of the articles of association at the general meeting of directors at the general meeting of the board of directors, which is composed of representatives, may be substituted by a resolution of the board of directors at the general meeting of directors at the general meeting of directors.

(2) Therefore, it is difficult to conclude that the Defendant Union granted the right to amend the articles of association to the representative general meeting of delegates and allowed the Defendant Union to continue to exercise the right to revise the articles of association to be in violation of the nature of the association of human combination chain is justifiable. There is no room to regard the above practical circumstance or rationality in its operation as a mere acute judgment, excluding the above practical circumstance or rationality in its operation.

(1) On the other hand, the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005 and enforced on Jun. 8, 2008 prior to the amendment by Act No. 8980 of Mar. 21, 2008) newly establishes Article 59-2 and provides that "any association, the number of members of which exceeds 1,000 persons, may have a board of representatives substituted for the general meeting as prescribed by the articles of association, and matters necessary for the organization and operation of the board of representatives shall be prescribed by the Presidential Decree." Upon delegation of the above, it shall be determined by the articles of association for more than 20 years from the date of the amendment of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 19476 of Oct. 8, 2008) to ensure that it is reasonable to establish and operate a board of representatives within 06 months from the date of the amendment of the Civil Act, which shall be proportional to the number of members of the association.

(2) Although Articles 13, 14, and 36 of the articles of incorporation of the defendant association are null and void because 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 does not stipulate that the representative general meeting shall substitute the general meeting of association members, and even if there is a possibility that the amendment of the articles of association of this case, which was made by a resolution of the general meeting of representatives, would be null and void, the contents and legislative purport of the newly provisions of the above provisions of the Acts and subordinate statutes of passenger transport business, the articles of incorporation and operational status of the defendant association, and the articles of association and its operational status of the defendant association's general meeting of association, since the general meeting of representatives decided to grant the rights to

A resolution to amend the articles of incorporation was made on 16 occasions until the nine-class president was elected, and at the time of the amendment of the articles of incorporation, the representative general meeting of the defendant association directly elected by members, the chief director, the vice chief director, the

In light of the fact that Article 18(2) of the Enforcement Decree of the former Enforcement Decree of the Passenger Transport Business Act was met with the elements of the board of representatives substituted for the total meeting established as a member, there is sufficient room to view that the procedural defect of the resolution granting the right to amend the articles of incorporation to the board of representatives in lieu of the general meeting of the members is cured due to the enforcement of the provisions of Article 59-2 of the Passenger Transport Business Act on June 8, 2006, by the Defendant Union’s general meeting of delegates.

D. Violation of the good faith principle

(1) 나아가 살피건대, 갑가 제4호증의 1 내지 7. 갑가 제5, 6, 8, 9호증, 갑가 제10 호증의 1 내지 6, 갑가 제11호증의 1 내지 7. 을가 제12호증의 각 기재 및 변론 전체 의 취지를 종합하면 , 2000. 2. 29. 업무상 비리 행위로 형을 선고받은 자에 대한 임원 자격 제한사유를 삭제하는 것으로 변경된 후 피고 조합의 일부 조합원들이 2004년 상 반기에 제8대 이사장 선거를 겨냥하여 임원자격 제한완화의 부당성을 지적하면서 정관 개정을 요구하였지만 당시 이사장인 ●●● 등의 반대에 부딪쳐 정관개정이 이루어지 지 않았던 사실, 결국 2004. 11.경 개정 정관규정에 터 잡아 피고 조합의 제8대 이사장 선거가 실시된 결과 도■■ 이 이사장으로 당선되었는데, 원고는 당시 도■■ 후보 측 의 선거본부장을 맡아 선거운동에 진력한 공로를 인정받아 피고 조합의 남·달서지부장 으로 임명되어 도■■과 함께 4년의 임기를 마친 사실, 도■■이 2008. 2. 4. 업무상 배임죄 등으로 집행유예를 선고받았음에도 개정 정관규정에 터 잡아 제9대 이사장선거 에 출마하려고 하자 조합원 ●●● 등은 이를 저지하기 위하여 '업무상 비리로 형이 확정된 자에 대한 임원 자격을 제한하는 내용의 정관개정을 추진하였고, 주무관청인 대 구광역시장도 여러 차례 정관개정을 촉구한 사실, 이에 2008. 7. 31. 정관개정을 위한 임시 대의원총회가 소집되었으나, 이사장 도■■을 비롯한 집행부의 조직적인 반대로 정관개정 안건은 상정조차 되지 않았던 사실, 그 후 ●●● 등이 다시 정관개정추진위 원회를 결성하여 2008. 10. 1.부터 12 .까지 직접 조합원들을 상대로 정관개정을 위한 임시총회 소집요구에 대한 동의를 구하였는데, 당시 조합원들 사이에 '제9대 이사장 선 거가 임박한 상태에서 임원자격제한을 변경하는 것은 부적절하고 혼란을 초래할 수 있

Therefore, it is desirable to promote the amendment of articles of incorporation in the next executive organ after election.

The reason is that the consent of 3,823 of all 10,120 members was obtained. Ultimately, even though the amendment was not made before the election of the 9th president, all of the candidates, including the plaintiff, who participated in the election of the 9th president, were unable to comply with the amended articles of association in consideration of the above majority opinions of the 9th president, and it was found that "to implement an election in accordance with the amended articles of association, and if elected, it was difficult to implement an amendment of the regulations on qualification of officers as a pledge."

(2) In addition to the above facts, since the establishment of a correction officer based on the intention of the entire members of the association at its inaugural general meeting and the authority to amend the articles of association has been granted to the general meeting of the association members, the election of executives such as the president has already been made 16 times during the 16th general meeting of the association members, and the president elected in the election has engaged in external legal acts on behalf of the defendant association, and any objection has not been raised until the last day, and if the articles of association of the association were null and void by the amendment of the articles of association of the association due to the plaintiff's assertion, the amendment of the articles of association and the 9th general election by the 19th general meeting of the union members are null and void merely due to any defect in the procedures and the 9th general election by the 19th general meeting of the union members, all of which have been implemented so far shall be null and void by the amendment of the articles of association and the 19th general election by the 19th general meeting of the association without any defect in its existence.

E. Whether Article 103 of the Civil Act is violated

Finally, with respect to the plaintiff's assertion that the amended articles of incorporation is null and void in violation of Article 103 of the Civil Code, the provision can be evaluated as a violation of good morals and other social order stipulated in Article 103 of the Civil Code only if it is included in the case where it exceeds the limit permitted by social norms for the qualification of officer or the reason for limiting eligibility for election.

In this case, there is a little problem that the amended articles of association does not limit the qualifications of officers or eligibility for election as an officer for those who are sentenced to punishment due to an act of corruption related to partnership affairs. However, occupational corruption cannot be assessed uniformly when there are many cases where it is necessary to change the severity according to the specific circumstances, such as the background, motive, mode of act and result of the act, the offender's position and duty in charge, etc. In addition, the defendant association can not directly elect all officers and members of the association. In the case of deprivation of qualifications of officers or eligibility for election on a permanent basis as provided by Article 23(2) of the former articles of association without considering the seriousness of the case, it is difficult for the parties to view that there is no possibility that the act of corruption would seriously affect the interests of the association members by fundamentally blocking the opportunity to receive adjudication from the members of the association through election, and that there is no possibility that it would result in an adverse effect on the interests of the association members of this case due to the amendment of the Civil Act, and that there is no possibility that it would violate the overall regulations and right to vote.

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 and the content 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 solely on the ground that there is 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 that the result of the election has influenced, by interfering with the vote by free judgment of electors due to the reason in violation of such Acts and subordinate statutes, such election shall be null and void (see, e.g., Supreme Court Decision 2003Da11837,

Each of the statements in Gap's return to the instant case, Gap's evidence 2, Gap's evidence 3, and evidence 1, 2, Gap's evidence 5-1, and 11, respectively, was made by the defendant joining the instant case by making an illegal line with the witness on the election day of the chairman of the 9th National Assembly, or by making an offer of a ticket against the union members. Such acts interfere with the free decision of the union members, which affected the result of the election, and there is no other evidence to prove otherwise.

Therefore, before the defendant joining the defendant was engaged in an illegal election campaign that could affect the election.

The argument of the plaintiff assistant intervenor as well as the plaintiff assistant intervenor is without merit.

5. Conclusion

Therefore, the plaintiff's claim seeking confirmation of invalidation of the election of the chief director of the 9th National Assembly shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair as it is so unfair as the judgment of the court of first instance is accepted, and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition