(영문) 울산지방법원 2019.6.12.선고 2018가합431 판결

2. The plaintiff between the plaintiff and the defendant confirms that the plaintiff is in the status of the 10th unit of ○ apartment* Dong representative.

Reasons

1. Basic facts

A. The Plaintiff resided in the ○○ apartment located in Ulsan-gu, Ulsan-gu (hereinafter referred to as the “instant apartment”) and was elected as the president of the 9th council of occupants’ representatives. From June 1, 2015 to May 31, 2017, the Plaintiff was performing his/her duties as the president.

B. On May 8, 2017, the instant apartment house was elected by the representatives of the Dong 21 out of the total 25 units of Dong. At the time, the Plaintiff was elected as the representative for each Dong ***. After that, the instant apartment election commission took the 10th council president and the auditor election procedure, and two persons including the Plaintiff were registered as the candidates for the chairman of the council of occupants’ representatives. During the said election period, the other party’s candidates raised objections against the Plaintiff during the said election period for the chairman of the council of occupants’ representatives and the auditor, and the resident filed a written request for dismissal against the Plaintiff with the election commission. On May 17, 2017, the Plaintiff held a council of occupants’ representatives on the election day, and presented the agenda that the election management committee dismissed all election management members on the same day, and the resolution that both the above election management members dismissed all the above election management members.

D. As above, the election of the chairman of the 10th council of occupants’ representatives and the auditor was forced to be delayed for a considerable period on the wind where all members of the election management committee are dismissed. Accordingly, the head of the management office of the instant apartment was convened on June 5, 2017 by the council of occupants’ representatives consisting of the representatives of the 10th buildings based on Article 37(2) of the management rules of the instant apartment building. On June 12, 2017, the said council of occupants’ representatives held on June 12, 2017, which was held by the said council of occupants’ representatives, was elected as directors D

E. D, the oldest among the above directors, was commissioned as election management members on or around June 2017, based on Articles 28(3) and 45 of the above management rules, from among the qualifications of the chairman of the council of occupants’ representatives, based on the qualifications of the chairman of the council of occupants’ representatives. Accordingly, the newly organized election management commission re-enters the election procedure for the chairman of the council of occupants’ representatives and the auditor, and on July 5, 2017, G was elected as the chairman from the above election that the Plaintiff et al.

F. After that, the election commission conducted the procedure to dismiss the representative of each Dong against the plaintiff, and the reason for dismissal is that ① even after the term of office expires, the Speaker pro tempore did not transfer to the plaintiff, thereby interfering with the business. ② The election management commission illegally dismissed the election management member and ③ the election management commission did not pay the election expenses (hereinafter “the reason for dismissal”).

G. Meanwhile, the Plaintiff was dismissed from office as the representative of each Dong's voting on July 25, 2017 (hereinafter referred to as "the instant resolution of dismissal") following the Plaintiff's attendance at the dismissal voting by the 109 total number of 199 electors from among the 195 total electors and the majority of the Plaintiff's dismissal against the Plaintiff.

H. The main contents of the Enforcement Decree of the Multi-Family Housing Management Act and the Management Rules of the instant apartment are as follows:

(1) The council of occupants' representatives shall have the following executives pursuant to Article 14 (5) of the Act:

1. One chairperson; two or more auditors; (2) The executives referred to in paragraph (1) shall be elected from among the representatives of each building according to the following classifications pursuant to Article 14 (7) of the Act: (a) Where at least 50 households are multi-family housing; (b) where two or more candidates are elected through general, equal, direct, or secret election of occupants, etc. according to the following classification: Where at least 1/10 of all occupants, etc. and where one candidate is elected: (a) at least 1/10 of the total number of occupants, etc. and a majority of the candidates are elected; (b) where no one is elected, the election of the representatives of each building shall be held with the consent of a majority of the members of the council of occupants' representatives; (c) where no one is required to be elected by the chairperson of the council of occupants' representatives with the consent of a majority of all occupants, etc.; and (d) where no one is required to be elected by the chairperson of the council of occupants' representatives, the term of office of at least 1/7 of candidates for each building is selected.

In any of the following cases, the chairperson shall convene a meeting of the council of occupants within 14 days from the relevant date, and if the chairperson fails to convene a meeting, a director prescribed by the management rules shall convene the meeting and act for the chairperson on behalf of the chairperson; 2. When requested by 1/10 or more of the members of the council of occupants, etc., the council of occupants' representatives shall have the following officers pursuant to Article 28 (Composition of the Officers' Council) of the Management Rules of the relevant apartment; 3. 12. 3. 14. 3. 15. 15. 2. The term of office of the members of the council of occupants' representatives shall be the representative of the relevant building; 3. 4. The term of office of the executives of the council of occupants' representatives shall be the same for the term of office of the representative of the relevant building; 4. 1. The term of office of the representative of the council of occupants' representatives who has violated the regulations and wages of each building under Article 30 (2) 13. 14. 5. 2. 2. 2. 2. 2. 3.

(2) When the council of occupants' representatives fails to attend the council of occupants' representatives on at least eight consecutive occasions (including voluntary withdrawal from the council of occupants' representatives) without any special reason; 10. When the council of occupants' representatives fails to take corrective measures in relation to the management of multi-family housing; 2. When the representative of each Dong falls under any of the subparagraphs of paragraph (1), 1/10 or more of the members of the council of occupants' representatives may request the council of occupants' representatives to proceed with the procedure of dismissal by a resolution of the council of occupants' representatives or with the consent of the majority of the members of the council of occupants' representatives; 3. Where the representative of each Dong falls under any of the subparagraphs of paragraph (2), the council of occupants' representatives shall, with the consent of the majority of the members of the council of occupants' representatives, request the council of occupants' representatives to convene the procedure of dismissal (including the committee of occupants' representatives who wish to be removed from the council of occupants' representatives, and the committee of occupants' representatives shall, upon receipt of such request, not more than 2.

2. When the member of the council of occupants' representatives is in violation of the regulations related to the management of multi-family housing; 3. When the member of the council of occupants' representatives is in violation of the regulations related to the management of multi-family housing; 4. When the member of the council of occupants' representatives is in violation of the regulations related to the management of multi-family housing or is provided with embezzlement, receipt of money, entertainment, etc.; 4. When the member of the council of occupants' representatives is in violation of the regulations related to the election management; 6. When the member of the council of occupants' representatives is in violation of the regulations related to the election management; 7. When the member of the council of occupants' representatives fails to notify the chairperson of the reasons for failure to attend the meeting in advance; 3. When the election management committee fails to pay management expenses, etc. for more than three consecutive months; 3. When the member of the council of occupants' representatives submits a written consent with the chairperson of the whole occupants' representatives, he/she shall dismiss all the members of the council of occupants' representatives after checking the details of the election:

[Reasons for Recognition] Facts without dispute, Gap's statements (including branch numbers; hereinafter the same shall apply), Eul's statements, 1, 3, 10, 11, 13, 14, 17, 22, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

(a) procedural defects;

1) Since the plaintiff who was the chairperson of the 10th unit chairman of the defendant could continue to perform his duties until he is legally elected, the authority to call the council of occupants' representatives of the case shall be deemed to be the plaintiff. Even if the representative of each Dong does not so, even though the representative of each Dong should call a meeting with the permission to call a meeting, the director of the management office of the apartment building of this case who did not have the authority to call a meeting shall convene a council of occupants' representatives and elect the director. Among them, the appointment of the chairman as the representative of the chairperson as the representative of the chairperson violates the Enforcement Decree of the Multi-Family Housing Management Act and the management rules, and

2) In the process of voting for dismissal of representatives by buildings, the Plaintiff did not give the opportunity to vindicate properly to the Plaintiff. Not only did the voting witnesses of the Plaintiff’s voting witnesses failed to properly perform the voting, but also the Plaintiff received the application for provisional disposition 2017Kadan246 from the Ulsan District Court on July 24, 2017 and requested the suspension of dismissal voting, the procedure for the dismissal voting in violation of Article 31(14) of the Management Rules of the instant apartment building.

B. Absence of reasons for dismissal

The grounds for dismissal of this case constitute legitimate grounds for dismissal stipulated in the management rules, etc. of the apartment of this case

It did not occur at the time when the plaintiff was in office as the chairperson of the 9th apartment complex, and it cannot be dismissed as the representative of the 10th apartment complex of this case for the above reasons for dismissal.

3. Determination

A. Determination of procedural defects

1) Whether the Defendant’s 10th election commission was lawful

Article 37(2) of the Management Rules of the apartment complex of this case provides that "where the council of occupants' representatives newly constitutes the council of occupants' representatives (including the first time when the council of occupants' representatives is converted to parcelling-out or rental housing), the head of the management office shall convene the meeting, and the person who holds the meeting shall perform the extension from among the representatives of each Dong elected." In light of the language and text of the above provisions and the regulatory system, it is reasonable to interpret the provision to prevent the vacancy in the convocation of the meeting which may occur due to the absence of the council of occupants' representatives, including the time when the council of occupants' representatives first constitutes the council of occupants' representatives, even if the council of occupants' representatives was newly organized, it is difficult to consider that the representative of each Dong's 10th election was already elected by the representative of the defendant, and thus, the above executive member was removed from the office of the chairman of the management committee of this case as the chairperson of the election management of this case, and the term of office of the plaintiff's council of occupants' representatives has expired.

2) Determination on defects in the process of the resolution of dismissal of the instant case

A) In a case where there is a reason in violation of Acts and subordinate statutes or internal regulations in the election procedure, the relevant election does not become null and void merely because it is deemed that there is a violation of such Acts and subordinate statutes or internal regulations, 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 had influenced on the result of the election, is null and void. Meanwhile, the term "where it is deemed that the result of the election had influenced on the result of the election" means the case where it is deemed that the result of the election would have been different from that of the election, that is, the result of the election, if there was no violation of the provisions on the election (see, e.g., Supreme Court Decisions 2003Da11837, Dec. 26, 2003; 2015Da41495, Aug. 24, 2016).

B) Article 31(4) of the Management Rules of the apartment building of this case provides that the time when a representative of each building is dismissed shall be 5 days or more, and the grounds for dismissal and supporting materials shall be disclosed to the occupants, etc. of the relevant constituency for 7 days or more at the same time as the voting notice. Article 33 of the Management Rules of the apartment building of this case provides that the candidates may report not more than 2 voting witnesses in the case of candidates. According to the purport of each of the statements and arguments in subparagraphs 13 through 16 of Article 13 of the Management Rules of the apartment building of this case, the plaintiff was given an opportunity to submit the supporting documents as to the request for the dismissal of the representative from the defendant on July 11, 2017, and the plaintiff was admitted that the witness was present at the request of the plaintiff and the procedure for the dismissal voting for the resolution of dismissal of this case. Thus, the plaintiff seems to have been guaranteed sufficient right of defense

C) Meanwhile, according to Article 31(14) of the Management Rules of the apartment building of this case, the grounds for dismissal shall be suspended at the time of filing a petition for review or filing a lawsuit with a court on the grounds for dismissal of the representatives and executive officers of each Dong, and the same shall enter into force at the

In full view of the purport of Gap evidence No. 6 and the whole arguments, it is acknowledged that the plaintiff received a provisional disposition application to the defendant on July 24, 2017 against "the defendant on July 25, 2017" with the Ulsan District Court on July 2017, 2017, which was the day before the plaintiff's dismissal voting of this case. However, in the case of the so-called satisfactory provisional disposition which forms the same legal relationship as the contents of the plaintiff's order through the main decision, it may be the same as the plaintiff's right is ultimately satisfied. Considering that it is reasonable to interpret "the case of filing a lawsuit with the court" under Article 31 (4) of the apartment management rules, it is difficult to see that the application for provisional disposition was suspended as alleged by the plaintiff, and that the removal decision of this case is not in line with the legal principles of the defendant's removal resolution, even if it is somewhat difficult to view that the removal decision of this case did not coincide with the above removal resolution of this case.

B. Determination as to the existence of reasons for removal

1) In light of the purport of the management rules that intend to ensure that the composition and operation of the council of occupants' representatives are carried out in a democratic manner based on the occupants' total mind, whether there is grounds for dismissal for the officers of the council of occupants' representatives or not shall, in principle, be subject to the occupants' autonomous determination. Therefore, the decision of dismissal reflecting the occupants' intent should be respected as much as possible unless

As seen earlier, in the resolution of dismissal of this case, * the apartment of this case, which is the Plaintiff’s constituency * the majority of the two occupants cast their vote to dismiss the Plaintiff. As seen earlier, it is necessary to respect, in principle, the autonomous decision of the occupants as to whether there is a ground for dismissal under Article 31(1) of the Management Rules of this case.

2) Furthermore, the following facts and circumstances acknowledged by the overall arguments, i.e., the Plaintiff unilaterally dismissed all members of the election management committee during the election period under the age of 10,000, while the Plaintiff was suffering from various suspicions during the term of office, but did not take the procedure for obtaining written consent from the majority of occupants under Article 47(3) of the Management Rules, and the Plaintiff’s dismissal of all of the above members of the election management committee under Article 37(1)13 of the Management Rules, which caused damage to the fairness of election management, such as defamation of candidates and defamation of the above members of the election management committee. However, the Plaintiff appears to have lawfully dismissed the Plaintiff through the resolution of the council of occupants’ representatives, on the premise that the evidence alone submitted by the Plaintiff was insufficient to prove that all members of the election management committee, who were dismissed, were in violation of the management rules of the above 10-party election, were in violation of the management rules of the council of occupants’ representatives, and there was no other evidence to acknowledge that the Plaintiff’s above measures were against the chairman of the election management committee.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The presiding judge, the senior judge;

Judges Senior Sung-chul

Judges Lee Dong-young

참조조문

-공동주택관리법

-공동주택관리법 시행령

-공동주택관리법 시행령 제12조

참조판례

-대법원 2003. 12. 26. 선고 2003다11837 판결

유사 판례

-울산지방법원 2019.06.12 2018가합431

-부산고등법원 2020.01.15 2019나54446

-부산고등법원 2020.01.15 2019나54798

-부산고등법원 2020.01.15 2019나54446

-부산고등법원 2020.01.15 2019나54798