2012A. 6350 Nullification of an election of the president of an association

Maximum○○ (60****** 14******))

Daejeon U.S. V. M.S. Omission

Law Firm C&A (Law Firm C&A)

[Defendant-Appellee]

National Agricultural Cooperative Federation of the Republic of Korea

Daejeon Jung-dong 158 - 8

Representative of the Association, President of the Association, Kim Young-young

Attorney Im Sung-sung et al., Counsel for the defendant-appellant

May 23, 2013

June 13, 2013

1. The defendant confirms that an election of the president of an association held on January 11, 2010 is null and void.

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

The order is as set forth in the text.

1. Basic facts

A. The defendant cooperative is a local agricultural cooperative whose district covers Daejeon, Seosan-si, Seosan-si, Yongsan-gun, Yongnam-gun, and the plaintiff is its member.

B. According to the results of the fact-finding survey conducted by the Defendant Union in 2009, 11 of the existing 1066 members became disqualified, and 30 new members became final and conclusive as 1,085 members ( = 1066 - 11 of the members + 30).

C. On January 11, 2010, for the election of the head of the Defendant’s association to be carried out, the Defendant Union drafted an electoral register on 1,075 members, excluding 10 members who were new subscribers from the above 1,085 members and failed to meet the requirements for acquiring voting rights.

D. On January 11, 2010, the Defendant Cooperative held the Defendant’s election for the president of the partnership; the number of voters 1,075 voting; the number of voters 1,075 voting; as a result, Kim ① 618 voting; the maximum 298 voting; and Kim ① 2 voting; and the invalidation voting; and Kim ① hereinafter referred to as the “instant election”).

E. In 2011, the Defendant Union conducted a practical investigation into the qualifications of a member of the National Agricultural Cooperative Federation in compliance with the direction of the reorganization of non-qualified union members and processed the withdrawal of 303 members, and 231 of them was found to have participated in the instant election.

(f) Kim ① and the maximum amount of knives ① during knives.

G. Relevant statutes and the articles of incorporation of the Defendant Union are as follows:

1) former Agricultural Cooperatives Act (amended by Act No. 10303, May 17, 2010)

Article 19 (Qualification for Membership)

(1) Members shall have addresses, residences, or places of business in a district of local agricultural cooperatives, and shall be at least two areas.

No person shall be admitted to agricultural cooperatives.

(4) The scope of farmers under paragraph (1) shall be prescribed by Presidential Decree.

Article 29 (Withdrawal)

(2) A member who falls under any of the following subparagraphs shall automatically withdraw:

1. If a member is disqualified;

(3) The board of directors under Article 43 shall fall under any subparagraph of paragraph (2) for all or some of its members.

must confirm whether the case is.

Article 43 (Board of Directors)

(3) The board of directors shall decide the following matters:

1. Examinations of qualifications for association members and approval for joining;

2) former Enforcement Decree of the Agricultural Cooperatives Act (amended by Presidential Decree No. 22493, Nov. 15, 2010)

Article 4 (Qualifications for Members of Local Agricultural Cooperatives)

(1) The scope of farmers who meet the qualification requirements for members of a local agricultural cooperative referred to in Article 19 (1) of the Act shall be as follows:

as set forth in section 1.

1. A person who manages or cultivates farmland of not less than 1,00 square meters;

2. A person engaged in agriculture for at least 90 days a year.

3. A person who raises at least 0.5 boxes (based on 20,000 boxes).

4. A person who raises livestock above the standards specified in attached Table 1, and other persons as defined in subparagraph 1 of Article 2 of the Livestock Industry Act.

A person who raises wild livestock above the standards determined and publicly notified by the Minister for Food, Agriculture, Forestry and Fisheries.

5. A person who installs facilities, the area of which is not less than 330 square meters, in farmland and cultivates horticultural crops.

6. A person who cultivates vegetables, fruit trees, or flowers in farmland of not less than 660 square meters.

3) Articles of association of the defendant association

Article 9 (Members)

Members of a Korean association shall be any of the following persons:

1. Facilities and debentures (including mushrooms) 2,000 square meters, which are located, or whose domicile, residence, or place of business is located in a cooperative zone;

More than 5,000 square meters, over 100 square meters, or over 100 square meters (including ginseng, reduction of capital) of fruit or lost trees (classified as forest products)

At least 5,000 square meters of room water, facility flowers at least 1,000 square meters, or fire flowers at least 3,000 square meters;

Farmers operated by farmers

Article 11 (Withdrawal)

(2) Where a member falls under any of the following subparagraphs, he/she shall automatically withdraw:

1. If a member is disqualified;

(4) The board of directors of a cooperative shall fall under any subparagraph of paragraph (2) for all or some of its members.

shall verify whether it is a member. In such cases, the verification for all members shall be conducted at least once a year.

(c)

Article 49 (Resolution of Board of Directors)

(1) The board of directors shall decide the following matters:

1. Examinations of qualifications for association members and approval of joining;

Article 84 (Decision on Elected Persons)

(1) A candidate shall be decided as the elected person from among candidates who has the highest votes: Provided, That at least two persons who have the highest votes shall be decided as the elected person.

The extension person shall be decided as the elected person.

H. According to the National Agricultural Cooperative Federation's administrative guidance of the Ministry for Food, Agriculture, Forestry and Fisheries, "An employee in charge of conducting a fact-finding survey and promotion plan for the adjustment of non-qualified cooperative members in 2009" requires "an employee in charge to conduct a fact-finding survey and comprehensive delegation of qualification to the head of a farming association, etc. with the cooperation of the president or the head of a farming association (the head of a livestock farming association)," "an employee in charge of conducting a fact-finding survey and comprehensive delegation of qualification to the head of a farming association, etc." and "an additional guidance related to the fact-finding survey of cooperative members in 2009" requires "an employee in charge of conducting a fact-finding survey, such as farmland ledger, if he/she can confirm the fact-finding through around 209 and on-site verification, it is difficult to verify the fact-finding survey by preparing an individual fact-finding survey certificate, such as a farmland lease contract, shock, and multiple members in the same household).

[Reasons for Recognition] Facts without a partial dispute, Gap evidence 1, Eul evidence 1 to 5 (including all numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Parties’ assertion

A. The plaintiff 1:

According to the research report on the actual condition of union members in 2009, among those who were confirmed as union members based on the above fact-finding survey, 147 members, except for those who lost their membership in 2011 and 2012, appears not to have been qualified as union members at the time of the investigation on actual condition of union members in 2009. However, 130 of 147 members who should have been disqualified as union members at the time of the election of this case were to participate in the voting of this case and 244 members who participated in the voting of this case, which is recognized by the defendant, as non-qualified union members, more than 374 members who participated in the voting of this case and more than 321 members who participated in the voting of this case, and thus, the election of this case is null and void.

(b) Defendant;

피고 조합은 매년 조합원 실태조사를 하여 무자격 조합원의 자격을 상실시켜 왔으 므로 2009년도 조합원 실태조사 결과에 기초하여 치루어진 이 사건 선거는 적법하고 설령 이 사건 선거 이후 조합원의 지위를 상실한 321명 ( = 2011년 303명 + 2012년 11 명 + 2013년 7명 ) 중 이 사건 선거에 참여한 244명이 모두 이 사건 선거 당시 무자격 조합원이었다고 하더라도 최고득표자와 차순위 득표자의 득표수 차이에 미치지 못하여 이 사건 선거의 결과에 영향을 미칠 수 없으므로 이 사건 선거는 유효하다 .

3. Determination

(a) the burden of proof;

In principle, the plaintiff who is dissatisfied with the existence of a member's qualification must prove the existence of the member's qualification. However, the election of this case was prepared on the basis of the fact-finding survey of the member's membership in 2009, and if it is difficult to view the probative value as a result of a defect in the preparation of a fact-finding survey of the member in 2009, the defendant should prove that the member's qualification is a member's qualification. Therefore,

The facts of the defendant's articles of incorporation have been established at least once a year on the investigation of actual conditions of association members. In full view of the above facts, Eul evidence No. 1 and evidence No. 67 of the witness testimony, the National Agricultural Cooperative Federation shall conduct a fact-finding survey on January 7, 2009 and notify the fact-finding survey on the actual conditions of 209, "it is hard to manage association members so that association members can be organized by conducting a fact-finding survey on the actual conditions of each association member" in accordance with the administrative guidance of the Ministry for Food, Agriculture, Forestry and Fisheries on January 7, 2009, and the fact-finding survey on the actual conditions of 209, as data of the defendant's association, submitted the farmland ledger for 1,066 members, and all of the arguments were presented, and the fact-finding survey on the actual conditions of 1,000 members of the association did not meet the above qualification No. 1,200 members of the association.

As such, in principle, it is difficult to believe the content of the investigation by the Defendant Union in 2009, and it is difficult to conclude that the fact-finding survey in 2009 is a matter of course to recognize the membership of the association, in light of the fact-finding survey conducted in 2009, and that it is difficult for the Defendant Union to believe that the fact-finding survey conducted in 2009, which is conducted in 2009, has the presumption or probative value to recognize the membership of the association, as a matter of course, inasmuch as it is possible for the union members to withdraw from the association as a matter of course when they are not qualified for membership, and that the National Agricultural Cooperative Federation demands documents, such as the farmland ledger, etc., or demands the National Agricultural Cooperative Federation to prepare an individual fact-finding survey report. Accordingly, the Defendant, claiming that some members of the Plaintiff’s claim in this case, who asserted that there is a defect in the qualification

B. Whether the election of this case is valid

In order to invalidate the election of this case on the grounds that a person who is not qualified as a member of the association participated in the election of this case in order to have an effect on the fairness, transparency, and objectivity of the election of this case and to have an effect on the result of the election of this case, a person who is not qualified as a member of the association of this case shall be recognized as having cast a vote in the election of this case by 321 or more members of the association.

However, according to a general fact-finding report prepared by the Defendant at the time of the investigation into actual conditions of a cooperative member in 2009, the Defendant is qualified as a cooperative member, even though it did not meet the qualification under Article 9 subparag. 1 of the articles of incorporation of the Defendant Union. Even after the investigation into actual conditions of a cooperative member in 2011, 130 of its members participated in the election of this case. 303 members of the 201 association lose their membership as a result of the investigation into actual conditions of a cooperative member in 2011, and 231 of them participated in the election of this case. According to the above facts, it is recognized that at least 361 members of the 361 association (=130 +231) participated in the election of this case.

(1) The defendant must prove the eligibility of a cooperative member to the participants in the election of this case. However, under the premise that there is no defect in the fact-finding survey conducted each year by the defendant association, the election of this case does not present any assertion and proof as to the existence of a cooperative member who participated in the election of this case after the election of this case, while maintaining the argument that the election of this case is valid, the election of this case does not present any assertion and proof as to the existence, etc. of a cooperative member, which occurred after the election of this case. ② The plaintiff submitted the farmland ledger as at the time of the fact-finding survey in 201, and submitted it to this court after being submitted the farmland ledger as at the time of the fact-finding survey, and the remaining head of the farmland ledger, one of the criteria for determining the eligibility of a cooperative member, which indicates one of the criteria for determining the eligibility of a cooperative member, has not been submitted. While some of the members prepared an individual fact-finding survey document and submitted evidentiary documents to the defendant's association 10th of each of the above facts.

Therefore, the voting by 361 persons who participated in the voting of the instant election as an unqualified member is null and void. Since it is recognized that those who are not qualified members participated in the instant election and have influenced the result of the instant election by impairing the fairness, transparency, and objectivity of the instant election, the instant election has no efficacy, and as long as the Defendant Union is disputing this, the Plaintiff, a member of the instant election, shall be entitled to seek confirmation.

4. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Justices Kim Jin-chul

Judge Jin Jinio

The effects of a judge are valid.