(영문) 광주고등법원 2010.9.8.선고 2009나289 판결

The judgment of the court of first instance is revoked. The defendant's special meeting of April 24, 2008 confirms that a resolution dismissing the plaintiff from the director of the defendant's credit cooperative to the director of the defendant's credit cooperative is

Reasons

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking account of the respective descriptions and the whole purport of the arguments in Gap's 1, 13, 14, Eul's 1, 7, 9, and Eul's 11-2.3:

A. The Plaintiff is a corporation established from February 6, 2007 to April 24, 2008 with the aim of raising and using funds, improving the economic, social, and cultural status of its members, fostering a sound national spirit through community development, and contributing to the development of the national economy, based on an independent cooperative organization of its members.

B. On April 11, 2008, when the Defendant submitted a request for dismissal of 1590 members who demanded the Plaintiff to dismiss the Plaintiff at an open regular meeting (hereinafter “instant request for dismissal”), the Defendant decided to hold an extraordinary general meeting on April 24, 2008 by presenting the proposal for dismissal to the Plaintiff as an agenda item of the extraordinary general meeting. On April 16, 2008, the Plaintiff, the president of the Defendant’s Federation, as the president of the Plaintiff, included the instant request for dismissal and the instant request for dismissal of executives, etc. as an object item of the extraordinary general meeting, and issued a notice for convening an extraordinary general meeting to the members on the same content.

C. On April 24, 2008, 11:00 Gwangju 00, 819 registered members from among 3,107, 819, and 520, 222, 6, 31, and 31, respectively, decided to dismiss the Plaintiff from the president of the Defendant’s Treasury (hereinafter “the instant resolution of dismissal”) by the president of the Defendant’s Treasury. If the dismissal of an officer was decided at the general meeting, the pertinent officer shall be deemed dismissed on April 24, 2008, pursuant to Article 41(3) of the Defendant’s Articles of incorporation, that the Plaintiff shall be deemed dismissed from office on April 24, 2008.

D. The articles of incorporation of the defendant’s credit cooperative provides that those who have an address or domicile in, or live in, Gwangju Metropolitan City members and have paid at least one unit of investment in cash (Articles 8 and 9), and those who have paid at least six months after having joined a minor or a credit cooperative among them shall not have voting rights and suffrage (Article 10(1)), and the community credit cooperative law provides that the officers shall be dismissed by the resolution of the general meeting, and the procedures therefor and other necessary matters shall be prescribed by Presidential Decree (Article 19(8)). The Enforcement Decree of the Community Credit Cooperatives Act provides that the request of at least 1/3 of the incumbent members shall be made (Article 9(1)) in order to resolve the dismissal of executives at the general meeting (Article 41(1)). The defendant’s articles of incorporation provides that the request for dismissal of executive officers shall be made in writing signed and sealed by at least 1/3 of the incumbent members (Article 41(1)).

2. The parties' assertion and judgment

A. The plaintiff's assertion

The purport of the Plaintiff’s assertion is that: (a) the instant resolution of dismissal was erroneous in the procedure for requesting the removal; (b) the submission of a request for dismissal signed and sealed by the members at the time of the request for dismissal; and (c) the number of members who submitted the instant request for dismissal did not meet the quorum for the request for dismissal; and (d) the instant resolution of dismissal is null and void. The Plaintiff’s assertion is examined in the following order.

B. As to the violation of the request procedure for dismissal

(1) The plaintiff's assertion

The plaintiff asserts that, first of all, at least 1/3 of the removed members are defective in the resolution of the general meeting, since the defendant's credit cooperative shall convene the general meeting and submit their signatures and seals on the list of members where the purpose and reason of the general meeting for the resolution of dismissal have been stated, and then the president or the auditor shall convene the general meeting and preside over the meeting, the members of the defendant's credit cooperative shall submit the member signature book with no specific statement of the purpose and reason of the general meeting and request the removal of the plaintiff.

(B) Determination

① First of all, Article 19(1) of the Articles of Incorporation of the Defendant’s Treasury provides that “Special General Meeting shall be convened by the chief director in cases falling under any of the following subparagraphs. 1. When the chief director deems it necessary, 2. 3. Members request in writing, stating the purpose and reason of the meeting and signing and sealing thereon in writing.” The requirements prescribed in Article 19(1)3 of the above Articles of incorporation are prescribed in the procedures and methods necessary when the members refuse the convocation of the general meeting and require the convocation of the general meeting. Thus, if the chief of the board of directors, who is the person who has the authority to convene the special meeting, voluntarily convened the general meeting, and the chief of the board of directors, voluntarily convened the general meeting, he/she cannot be deemed to have violated the above Article 19(1)1 of the Articles of incorporation, and thus, he/she cannot be deemed to have the Plaintiff’s assertion that it should go through the National Assembly Ordinance No. 2008, Aug. 28, 2008.

B. As to the assertion that the name and seal of the members was omitted

(i)The plaintiff's assertion

The Plaintiff asserts that Article 41(1) of the Articles of Incorporation of the Defendant’s Treasury provides that the request for dismissal of an executive officer must be made in writing with the name and seal affixed by at least one-third of the incumbent members. This means that the two requirements for the name and seal affixed are all satisfied, and that the number of the members meeting the requirements is merely 122 and that the request for dismissal of this case did not meet the requirements.

(B) Determination

However, the Enforcement Decree of the Community Credit Cooperatives Act only stipulates that a general meeting requires the request of at least 1/3 of the incumbent members to make a resolution on the dismissal of executive officers at the general meeting. However, the Defendant’s articles of incorporation limit the signature and seal in writing. The purpose of the request is to clarify the party’s confirmation (the confirmation of authenticity) or responsibility. The signature also performs the same function, and reflects the changes in society and economic requirements, domestic and commercial practices, the Commercial Act (Articles 30(2), 96(2), 179, etc.), the Bills of Exchange and Promissory Notes Act (Articles 1 subparag. 8, 13(1), and 16(1), etc.), the Check Act (Articles 1 subparag. 6, and 16(1), etc.), and the Check Act (Article 1 subparag. 6, and Article 16(1), etc.) also requires the Plaintiff’s request for dismissal by strengthening the Plaintiff’s signature and seal to secure the authenticity of the proposal, so long as the Defendant’s request for dismissal is not justified.

C. As to whether the quorum for requesting dismissal satisfies the quorum

(1) As to the meaning of registered members

First, the Plaintiff asserts that the registered members who are the basis for requesting the dismissal of executive officers under the Enforcement Decree of the Community Credit Cooperatives Act and the Articles of incorporation of the Defendant’s Credit Cooperatives refer to those who are regularly entered in the list of the members of the Defendant’s Credit Cooperatives and are not limited to the voting rights and voting rights members. As such, the Defendant’s Credit Cooperatives does not grant voting rights and voting rights to those who have not passed six months since they joined a minor or a credit cooperative as members. Furthermore, unlike Article 17 subparag. 35 of the Saemaul Cooperatives Act and the Articles of incorporation of the Defendant’s Credit Cooperatives Act require a resolution of the board of directors on matters to be referred to the general meeting (Article 31(1) of the Articles of incorporation of the Community Credit Cooperatives Act; Article 31 subparag. 1 of the Articles of incorporation of the Korea Community Credit Cooperatives Act), unlike those of the registered members’ request for dismissal of executive officers, the purport of the Plaintiff’s request for dismissal is to reflect the opinion of the general members and to give them an opportunity to lead in the election of executive officers after the proposal of the members.

(2) As to the number of removed members

The plaintiff asserts that the number of members who are not overlapped with the above two lists shall be 7822, April 12, 2008 through June 24, 2008, 99, 782, 37, and 37, from 3,107 members with voting rights listed in the membership list of the special meeting of this case (Evidence A No. 14) and 3,434 as of June 24, 2008, and as a result, the number of members who are not overlapped with the above two lists shall be 7822, April 12, 2008 to 39, and the number of members who are new subscribers during the above period shall be 3,107 to 7,99 of the number of members who were not recovered from 3,107 to 37,99 of the number of members who were new subscribers (=3,107, + 7829).

Therefore, it should be interpreted by limiting the number of members with voting rights and voting rights to be the basis for requesting the dismissal of executives. While the membership list of No. 14 is the list of members with voting rights at the time of the instant special meeting, while the membership list of No. 17-2 is the list of all members with voting rights, regardless of the existence of voting rights at the time of June 24, 2008, the number of members with voting rights cannot be calculated by calculating the number of members with voting rights by simply comparing the above two members list as alleged by the Plaintiff. In addition, the membership list of No. 17-2 of the above evidence No. 17 is not only the date of preparation, but also the number of members with voting rights to be deducted from all members with no voting rights including those for whom six months have not passed after they become a member, the above part of the Plaintiff’s assertion is without merit. Therefore, it is reasonable to deem that the number of members with voting rights at the time of the instant special meeting is 14 and 107.

(3) As to whether a quorum is satisfied

The Plaintiff’s interpretation is limited to the number of incumbent members with the right to vote and voting rights. Even if the request for dismissal of the instant case is made, the Plaintiff constitutes non-member, such as 109 persons who have repeatedly signed the request for dismissal, 115 non-member persons, 26 persons suspected of non-member, 40 persons other than the business area, and 117 persons who have forged their signatures. Although the Plaintiff requested the Defendant to submit resident registration numbers, 117 persons who did not comply with the request, are also the Defendant himself/herself, and 417 persons out of the total number of 1,590 persons entered in the written request for dismissal of the instant case (=109 + 115 + 26+ 10 + 117). Thus, the Plaintiff’s request for dismissal cannot be concluded to be null and void as the Plaintiff’s request for dismissal of 13 persons more than 15/17 members, and thus, the Plaintiff’s request for dismissal cannot be concluded to be null and void as the Plaintiff’s’s request for dismissal of 13171/1.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.