207Ga-22562 Invalidity, etc. of the resolution of the ordinary general meeting

P (42 years old, South)

Attorney Su-soo et al., Counsel for the defendant-appellant

XX Housing Redevelopment Improvement Project Association

Law Firm Hayn, Counsel for the defendant-appellant

Attorney Park Gi-won

Law Firm Barun, Law Firm Domin

Attorney Kim Jong-ok

December 24, 2008

January 14, 2009

1. Of a resolution made at an ordinary meeting held by the Defendant on September 30, 2006 at the ordinary meeting of shareholders, it is confirmed that the resolution for modification of the rearrangement plan and the resolution for modification of the affiliated organization of the partnership are null

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of arguments in the descriptions of Gap evidence 1, Gap evidence 2, 3, Eul evidence 3-1 through 6, Gap evidence 4, Gap evidence 6-1, 2, Gap evidence 8-1, Eul evidence 8-1, and Eul evidence 1 through 9:

A. On September 28, 2005, the defendant union issued a public notice of designation of a rearrangement zone (public notice number: No. 2005-271, the new designation classification: the name of the housing redevelopment project and the zone: the name of the zone: the housing redevelopment project and the zone: the name of the zone: the area and the size of the zone: 00 square meters: 96,876,77 square meters) in Busan-gu △△-dong, Busan-dong, 000 and 96,876.7 square meters in Busan-dong, △△△-dong, Busan-dong, △△△△-dong, △△△△-dong (96,876,77 square meters): the project district refers to the "project district" (the "project district subject to the necessary entry in the articles of association as stipulated in Article 20(1)4 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; hereinafter referred to as the "project subject to the entry under the above law

B. On September 20, 2006, the defendant union changed the size of the XX district housing redevelopment improvement zone to a square meter of 130,345.40 meters, and after the Busan Metropolitan City Mayor's public announcement of the change of the rearrangement zone (public notification number: No. 2006-329) was made, the defendant union applied for the change of the establishment establishment authorization on October 17, 2006 by changing the size of the prearranged zone of the rearrangement project into a square meter of 130,345.40 meters, and the establishment authorization was obtained from the head of Jin-si, Busan, on December 14, 2006, by applying for the change of the establishment authorization from the head of Jin-si, the implementer of the housing redevelopment project in the XX district, the project implementation area of the housing redevelopment project, and the head of Jin-jin on August 23, 2007.

C. On September 30, 2006, according to Gap evidence No. 1, which is the notice of the result of the regular general meeting of the members of the defendant union, the total number of the members of the defendant union at the time is 1,097, can be recognized as 1,097), and each of the following items was discussed at the general meeting. The resolution of the agenda No. 1 is as follows: 1, 2, construction outline and arrangement plan respectively (1, 3, 4, 1, 4, 4, 40, 3, 40, 40, 30, 40, 300, 40, 2, 2, 2, 2, 2, 2, 3,000, 3,000, 3,000,000, 3,000,000,000,000,000,000,000,00,000.

A person shall be appointed.

D. The plaintiffs (appointed parties, hereinafter referred to as "the plaintiffs") and the designated parties are members of the defendant's association.

2. The defense of this safety and the determination thereof

A. Summary of the defendant association's assertion

As to the lawsuit in this case by the plaintiff and the designated parties seeking confirmation of invalidity of each resolution set forth in subparagraphs 1 and 2 of the general assembly of this case by the defendant association, the defendant association asserted that the above resolution is unlawful because the plaintiff and the designated parties are merely to report to the members of the Busan Metropolitan City Mayor's improvement zone alteration public notice as of September 20, 2006 by the Busan Metropolitan City Mayor's modification of the rearrangement zone, without the consent of the members under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8125 of Dec. 28, 2006; hereinafter referred to as the "Do Government Act"), the defendant association's modified association or association's modified association's development project area without the consent of the members of the association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (the plaintiff and the designated parties should dispute the validity of modification of the designation of the head of the Busan Metropolitan City as an administrative litigation).

B. Determination

(1) Under Article 4 (1) of the Do Government Act, there is no ground to view the location and area of the prearranged zone of the housing redevelopment association (or the association under the articles of association) such as the defendant association as the designation of the improvement zone or the alteration thereof (the main sentence of Article 4 (1) of the Do Government Act), and there is no ground to view that the location and area of the prearranged zone of the housing redevelopment association (or the association under the articles of association) are altered without the consent of the association members (in this case, the purport that the location and area of the prearranged zone of the defendant association should be expanded to the same extent as that of the rearrangement zone of the head of Busan Metropolitan City on September 20, 206 of the Do Government Act, or that there is no legal ground to view as above, that the defendant association's assertion that there is no ground to view that the above alteration of the articles of association of the Do government's basic act such as the alteration of the articles of association of the 20th National Assembly (the Do government's amendment of the articles of association's basic act) can be accepted.

2. Judgment on the merits

A. Summary of the plaintiff's assertion

(1) The resolution of the general assembly No. 1 of this case practically expands and alters the location, size, project implementation plan, etc. of the prearranged zone for the rearrangement project of the defendant association, and then obtains authorization for the change of the association establishment and the authorization for the implementation of the project. In fact, the defendant association applied for authorization for the change of the association establishment and the authorization for the implementation of the project based on the above resolution. Since the above resolution agenda brings about significant changes in the rights and duties of the association members (such as sharing of expenses, etc.) and the project implementation plan (the outline, project cost, etc.) of the association, the prior consent of the association members

(2) The resolution agenda of the instant general assembly No. 2 is to modify (extension) the location and size of the prearranged zone for an improvement project as stipulated in the articles of association of the Defendant Association. Thus, even though the prior consent of the members should be obtained pursuant to the relevant provisions of the Do Government Act, it shall not be effective after the resolution is passed according to the general

B. Summary of the assertion by the Defendant Association

(1) The resolution of the general assembly No. 1 of this case is merely a mere report on the details of the public notice of the alteration of the rearrangement zone on September 20, 2006 at the Busan Metropolitan City Mayor’s head, and the location and area of the prearranged zone of the defendant association and the improvement project plan of the defendant association are also changed to the law as a matter of course pursuant to the above alteration of the

(2) The agenda item 2 of the resolution of the general meeting of this case constitutes "a minor matter prescribed by the Presidential Decree" under the proviso of Article 20 (3) of the Do Government Act, and therefore, it is legitimate and effective since the resolution of the general meeting was obtained in lieu of the consent procedure of the union members. Whether the resolution of the general meeting of this case is valid as to the resolution of No. 1

(1) As seen earlier, a public announcement of the designation of a rearrangement zone in XX area was made by the Busan Metropolitan City Mayor on September 20, 2006. The person authorized to formulate a rearrangement plan, such as a housing redevelopment project, is the head of a Si/Gun, and the person authorized to designate or modify a rearrangement zone upon the application of the head of a Si/Gun for the designation of a rearrangement zone is the Mayor/Do Governor (see the main sentence of Article 4(1) of the Do Government Act). Thus, if the resolution of the general assembly of this case is made by the Busan Metropolitan City Mayor, the person entitled to designate or modify a rearrangement zone, simply for reporting the contents of the public announcement of the designation of a rearrangement zone

(2) However, according to Gap evidence 2-2, Gap evidence 2-3, Gap evidence 8-3 and 4, the reason for proposing the agenda of the resolution of the general meeting of this case is stated as the general meeting agenda for ".......... the notification of union members and subsequent consent to the amendment of the union members' business plan", and the contents of the resolution on the above agenda as "......" the contents of the improvement plan and the amendment of the rearrangement zone" are stated as ".......", and the contents of the resolution on the above agenda are as ".......", the defendant association submitted to the head of Busan District Office for applying for authorization for the project implementation (the "project implementation plan" under Article 28 (1) of the Do Act) and the certificate of personal seal impression attached thereto are submitted from the members of the rearrangement zone of the Busan Metropolitan City before September 20, 2006.

In light of the fact that the number of association members of the defendant association increases, and therefore, the agenda of the resolution of the general meeting of this case seems to have been prepared or amended based on the location, size, etc. of the prearranged zone for the rearrangement project that the defendant association changed by the above resolution, etc., the agenda of the resolution of this case is simply to report to the association members on the contents of the public announcement of the alteration of the rearrangement zone as of September 20, 2006 of the Busan Metropolitan City Mayor, and furthermore, it can be deemed that the alteration of the "maintenance project plan (project implementation plan)" or its alteration is made as a way to obtain prior consent of the association members or to substitute for such consent (see Article 28(1) and (4) of the Do Act (current paragraph (5) of the same Article) is to be resolved upon (see Article 30 of the Do Government Act). Article 8(1) of the Enforcement Decree of the Do Government Act, but the amendment of the project implementation plan or its alteration should be made without the consent of the association members.

(3) Therefore, in order for the above resolution of the defendant union to be lawful and effective, the articles of association of the defendant union and the consent requirements and methods stipulated in Article 28(4) of the Enforcement Decree of the above Act shall be met pursuant to Article 28(4) and (5) of the Do administration Act (see current paragraphs (5) and (6) of the current Article 28(4) of the above Act (see current Article 41 of the articles of association of the defendant union provides that the consent of at least 60% of the union members should be obtained, and the quorum shall be met, and a written consent and a certificate of seal impression shall be attached by the letter of personal seal impression). On January 2, 20, 2001, the following circumstances, namely, the total number of union members 1,097 at the time of each resolution of the general meeting of this case did not meet the quorum requirements for the above resolution and the resolution of the defendant union did not meet the above articles of association or did not have the validity of the above written consent (see the above articles of association or certificate of seal impression).

(4) As to this issue, the defendant union argued to the effect that the size of the prearranged zone for the rearrangement project or the rearrangement project plan of the defendant union is also modified as a matter of course according to the alteration designation of the Busan Metropolitan City Mayor, and therefore, it is not necessary to obtain the consent of the association members. However, the defendant union's alteration of the size of the prearranged zone or the rearrangement project plan under Article 4 of the Do Government Act constitutes an insignificant matter as prescribed by the Presidential Decree, and thus, the modification of the size of the association's association's association establishment and the alteration of the size of the rearrangement project without the consent of the association members in the procedure for approving the alteration of the association's establishment and the proviso to Article 16 (1) of the Do Government Act, Article 27 subparagraph 3 of the Enforcement Decree of the Do Government Act, which provides for the alteration of the size of the association's association's association's association establishment and the alteration of the size of the prearranged zone or the alteration of the size of the development project's association's association's establishment and alteration of the size.

B. Whether the resolution of the general assembly No. 2 of this case was valid

(1) Article 20 of the Do Government Act provides that the location and size of the prearranged zone for a rearrangement project of a cooperative shall be the necessary matters to be stated (Paragraph (1) 4). In cases where a cooperative intends to modify any of the articles of association, the main text of paragraph (3) provides that approval shall be obtained from the head of a Si/Gun with the consent of a majority of union members (not less than 2/3 in cases of paragraph (1) 4) (the main text of paragraph (3). However, where a cooperative intends to modify any minor matter prescribed by Presidential Decree, the proviso of paragraph (3) provides that approval shall be obtained in lieu of the consent of the union members). In order to modify the location and size of the prearranged zone for a rearrangement project as prescribed by the articles of association, a revision without the consent of the association members pursuant to the above provision shall be null and void (However, it is not necessarily impossible to substitute for the consent of the association members. However, even in such a case, the method of attaching a certificate of personal seal impression pursuant to the above provisions or the consent under Articles 20 (4).

(2) However, as follows, Gap evidence Nos. 1, 2, 3, and 1 through 4 of Gap evidence Nos. 1, 2, 3, and 1 through 4 were comprehensively considered the purport of the entire pleadings. In other words, the resolution of the general assembly No. 2 of this case was made in accordance with the articles of incorporation of the defendant association, and the location and size of the prearranged area of the rearrangement project as well as 746 lots of land as "the total area of the site" is from 96,876.7m2, Busan Metropolitan City (29,305.22m) to 130, 345.40m (39,429.48m) with the total face value of the site as 00 and 984m (39,429.48m) without the above resolution of the defendant association's association's consent to the amendment of the articles of association other than the above resolution (so, the above resolution of the general assembly No. 2 of this case No. 1572).

(3) As to this, the proviso of Article 20(3) of the Do Government Act stipulates that a resolution by the general meeting shall be obtained in lieu of the consent of the association members when the defendant union intends to modify the "minor matters" as prescribed by the Presidential Decree. As such, since the location and size of the zone prearranged for the rearrangement project as prescribed in the main sentence of Article 3 of the articles of association of the defendant union falls under the "minor matters" as prescribed by the Presidential Decree, the defendant union asserts that the resolution by the general meeting is legitimate and effective only by the resolution of the general meeting pursuant to the general quorum of the defendant union, it shall be examined. As such, Article 32 of the Enforcement Decree of the Do Government Act stipulates that the name and address of the association with respect to minor matters of the articles of association which can be substituted by the resolution of the general meeting, the number and scope of the association's officers' rights, duties, remuneration, method of selecting the association's officers, and method of resolution of the general meeting (Article 20(1)1, 5, 10 of the above Do Government Ordinance No.14

(4) In addition, according to the proviso of Article 3 of the articles of association of the defendant association, the location and size of the rearrangement project of the defendant association can be modified without the consent of the association members (i.e., the alteration according to the alteration of the rearrangement zone of the Busan Metropolitan City Mayor), even if the above resolution did not meet the requirements for the consent of the association members under the Do Government Act, the proviso of Article 3 of the articles of association of the defendant association is stated as follows: Provided, That if there are lands to be additionally incorporated as prescribed by the relevant Acts and subordinate statutes and the articles of association, it shall be deemed that the project implementation district ("project implementation district") and the site area are altered. However, in this case, there is no evidence to view that the alteration of the area of the rearrangement project of the defendant association's prearranged zone is inevitable due to the expansion of the area of the rearrangement project without the consent of the association members (i.e., the alteration of the area of the land to be additionally incorporated as prescribed by the proviso of Article 3).

5. Conclusion

Therefore, each resolution of the general assembly Nos. 1 and 2 of this case by the defendant union is null and void, so the plaintiff and the designated parties shall accept all the claims for nullification of each of the above resolutions, with merit, and it is so decided as per Disposition.

presiding judge, presiding judge and vice-incompetent

Judge Jeong-young

Judges Choi Young-chul