2016AD 205803 Invalidity of Resolution of Extraordinary General Meeting

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

[Judgment of the court below]

J District Housing Redevelopment and Improvement Project Association

Attorney Choi Young-chul et al., Counsel for the defendant

K

【Court-Appellee】

[Defendant-Appellant]

March 21, 2017

April 20, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

On November 3, 2015, the Defendant confirms that each of the resolutions listed in the separate sheet made by the Defendant at an extraordinary general meeting is null and void.

1. Basic facts

A. Status of the parties

The defendant is the Housing Redevelopment Project Association established pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act") for the purpose of implementing the Housing Redevelopment Project by making the Daegu Nam-gu Lies as the project implementation district, and the plaintiffs are the members of the defendant

(b) Public announcement on registration of candidates for executives or representatives;

Around September 30, 2015, the defendant requested 146 members (562 members) to hold an extraordinary general meeting for the purpose of appointing executive officers of the partnership (the president of the partnership, the auditor, the director), and the representative (hereinafter referred to as "executive officers, etc."). Around September 30, 2015, the defendant published the registration of candidates such as executive officers of the partnership (hereinafter referred to as "the public notice of this case"). At this time, the qualification of candidates such as executive officers, etc. was restricted by Article 12 and Article 19 (hereinafter referred to as "the election management regulations of this case").

C. Each resolution of this case

On November 3, 2015, the Defendant passed a resolution to select the Defendant’s Intervenor (hereinafter referred to as the “Supplementary Intervenor”) as the head of the partnership (hereinafter referred to as the “each of the instant resolutions”) with the consent of 270 with respect to the total number of 317 persons present (29 persons in written resolution + 18 persons directly present) from among the 317 persons present at the special meeting held on November 3, 2015.

D. Article 12(1)3 and 4 of the Election Management Regulations provides that the contents of the instant Election Management Regulations stipulate that two or more persons, including the candidate himself/herself, shall submit written consent for the establishment of the association in the case of a person who wishes to become a representative candidate, and that five or more persons, including the candidate himself/herself, shall submit written consent for the establishment of the association in the case of a person who wishes to become a candidate for the establishment of a partnership. Article 19(1)2 of the said Regulations provides that a person who intends to become a candidate for the establishment of a partnership shall submit written consent for the establishment of the association including 30 or more members and written consent for the establishment of the association including 30

[Ground of recognition] Facts without dispute, Gap 1 through 5, 15 evidence (including paper numbers; hereinafter the same shall apply), Eul 12, 19, 20 evidence, Eul 1 and 3 evidence, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

The plaintiffs are qualified as candidates for union officers, etc. due to the consent of the establishment of the association, and there is no interest in confirmation of the lawsuit in this case since each resolution of this case cannot be viewed as having any apprehension or risk that exists in the rights or legal status. Furthermore, the lawsuit of this case is brought to the plaintiffs for the purpose of causing damage to the defendant only without any interest.

B. Determination

However, even if the plaintiffs agree to establish an association, the plaintiffs' right to appoint executives of the association may be restricted if they unfairly restrict the candidate qualification of executives of the association. Thus, the above circumstance alone does not lead to a lack of interest to seek confirmation of invalidity of each resolution of this case.

Furthermore, since the court's right to trial belongs to the fundamental rights guaranteed by the Constitution, it should be careful in determining that the filing of a lawsuit in order to realize the rights of substantive law is an abuse of the right of action against the good faith principle. However, the circumstances of the defendant's assertion that the plaintiffs did not have any question about the election management regulations of this case before the filing of the lawsuit in this case do not constitute abuse of the right of action to the extent that the plaintiffs' lawsuit in this case should deny the right of action, and there is no other evidence to acknowledge

Therefore, the defendant's defense prior to the merits is without merit.

3. Judgment on the merits

A. The parties' assertion

1) Summary of the plaintiffs' assertion

The election management rules of this case and the public notice of this case, which limit the qualification of candidates, such as union officers, to the members who agreed to establish the association, shall be null and void by unfairly deprived of the rights to be elected, such as union officers, and each resolution of this case in accordance with the above regulations and public notice shall also be null and void because

2) Summary of the Defendant and the Intervenor’s assertion

A) In light of the fact that a housing redevelopment project does not proceed smoothly or even may result in the failure of the project itself, the restriction on the qualifications of an executive officer, etc. of a cooperative to consent to the establishment of a cooperative constitutes a reasonable restriction based on the autonomy of the cooperative. Therefore, the above election management regulations and public notice are valid, and each of the instant resolutions are also valid.

B) Even if the instant election management regulations are unlawful, there is no reason to deem that such unlawful cause interferes with the voting by free judgment of union members and affected the outcome of each of the instant resolutions, each of the instant resolutions is valid.

B. As to the validity of the Election Management Regulations and the Notice

In light of the following facts and circumstances, the election management rules of this case and the notice of this case cannot be deemed null and void, in light of each of the above evidence and each of the above evidence and evidence Nos. 7, 8, 11, and 21 as well as the whole purport of the pleading:

1) Article 23(1) of the Urban Improvement Act provides for the grounds for disqualification of an executive officer of a cooperative. Article 20(1)6 and 7 of the same Act provides for the rights, obligations, remuneration, method of appointment, change and dismissal of an executive officer of a cooperative, the number of representatives, method of resolution, method of appointment, and procedures for appointment. Article 36(2) of the Enforcement Decree of the Urban Improvement Act provides that the appointment and dismissal of representatives shall be governed by the articles of association. Thus, if a corporate redevelopment project partnership does not violate the said provision according to independent judgment and does not violate the said provision, and is within the reasonable scope, the qualification of an executive officer of a cooperative may be limited to the autonomous legal norm, such as the articles of association (see Supreme Court Decision 2012Du17780, May 29, 2014).

2) Article 14(2) of the Defendant’s articles of association (amended by the resolution of the general meeting of shareholders on March 5, 2016) provides that “any executive officer of a housing redevelopment project cooperative shall be appointed from among union members with the attendance of the majority of union members and the consent of the majority of union members,” Article 23(3) provides that “any executive officer of a cooperative who is not the head of a cooperative shall be elected from among union members, and any executive officer of a cooperative who is not the head of a cooperative may not become a representative.” Article 15(7) of the above articles of association provides that “any of the election regulations of a cooperative may be stipulated in the articles of association, such as the election management regulations of a cooperative, if deemed necessary for the execution of its affairs.” Accordingly, the election management regulations of a cooperative established accordingly require a person who wishes to be a candidate of an executive officer, etc. to submit a written consent for the establishment of the cooperative. However, each of the above articles of association appears to have more emphasis on appointing an executive officer, etc. as an executive officer of a cooperative member, rather than the articles of association.

3) In addition, (1) The representative of the association, and the executive officers of the association, etc. have the authority to operate a huge business fund and enter into a contract that imposes a burden on the association members; (2) it is unreasonable to expect members who do not consent to the establishment of the association to act in conflict with the interests of the association if they are selected and appointed as executive officers of the association, etc.; (3) the actual defendant's part of the association is an organization of the non-standing committee and is promoting cancellation of the association improvement zone; and (4) According to the election management regulations of this case, even if members who did not consent to the establishment of the association before the establishment of the association, they can become candidates of the association if they submit written consent to the establishment of the association when they are registered as candidates for the executive officers of the association, etc., and (5) The housing redevelopment project can not be seen as having consented to the establishment of the association, such as land owners within the business area, regardless of whether they consent to the establishment of the association, as well as to the appointment of executive officers of the association.

C. As to the validity of each of the instant resolutions

1) Relevant legal principles

Where there is a reason in violation of the statutes in the election procedure, the relevant election does not become null and void merely because it does not constitute a violation of such 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 thereby has influenced the result of the election, is null and void (see, e.g., Supreme Court Decision 2009Da10258, Jul. 15, 2010).

2) Determination

In light of the following circumstances, even if there is a defect in each of the instant resolutions made by the Ministry of Health and Welfare due to the invalidation of the Election Management Regulations and the Notice, the Rules and the Notice were invalid, in light of the above legal principles, it does not seem to have affected the outcome of the instant special meeting because the freedom and fairness of the election of union members were considerably infringed upon, and thus, the freedom and fairness of the election of union members could not have been affected. Accordingly, the Plaintiffs’ assertion is without merit, since each of the instant resolutions cannot be deemed null and void.

① During the period of registration of a candidate according to the instant public announcement, the instant election management regulations and public announcement are problematic, and the members who raise an objection against the restriction on qualification of a candidate for executives, etc. did not have any single name including the Plaintiffs.

② A person (46) who did not consent to the establishment of the association directly or in writing participated in the resolution of the special meeting of this case. At the special meeting, the members, including those who did not consent, did not deal with the validity of the Election Management Regulations and the Notice.

③ Each of the instant resolutions was adopted by 317 members, among 562 members, present at the extraordinary general meeting (including members who have presented a letter of direct attendance or written resolution) and 270 members, among whom at least 85% of the members are at least 85%, and even if those who did not consent to the establishment of the association, the result of the election would not have changed.

④ Since the Defendant’s resolution was passed at the inaugural general meeting on November 2008, the instant election management regulations were equally applied to the appointment of the head of an association, director, or auditor at the extraordinary general meeting on May 10, 2014 and the appointment of the head of an association at the extraordinary general meeting on July 26, 2014. However, there was no objection to limiting the right to appoint an officer as the person consenting to the establishment of an association.

⑤ As seen earlier, on March 5, 2016, the Defendant passed a resolution to amend the Articles of Incorporation to grant the qualification of executive officers, etc. to those who have consented to the establishment of the partnership at an ordinary general meeting of shareholders, and the majority of the union members seems to consent to the restriction on qualification of executive

4. Conclusion

Therefore, the plaintiffs' claims of this case are without merit, and all of them are dismissed. It is so decided as per Disposition.

The presiding judge, new judge

Judges or private citizens;

Judges Yellow-gu

A person shall be appointed.

A person shall be appointed.