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(영문) 인천지방법원 부천지원 2018. 1. 17. 선고 2017가합102562 제2민사부 판결
총회결의무효확인 청구의 소
Cases

2017A. 102562 Action to seek confirmation of invalidity of the resolution of the General Assembly

Plaintiff (Appointed Party)

1. A;

2. B

Defendant

C Regional Housing Association

Conclusion of Pleadings

December 13, 2017

Imposition of Judgment

January 17, 2018

Text

1. The Defendant confirms that a resolution on each item of agenda indicated in the separate sheet at the extraordinary general meeting of May 28, 2017 is null and void.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The Defendant is a regional housing association established with the approval to establish a regional housing association pursuant to the Housing Act for the purpose of implementing a regional housing association project that creates two underground floors and 434 apartment units of 19 stories above ground on the ground of 22,518 square meters in Kimpo-si, Kimpo-si.

B. As a result, the Defendant held an extraordinary general meeting on May 28, 2017 (hereinafter “instant extraordinary meeting”) and voting for the pros and cons in each item on the attached list, the agenda items 1 through 5 stated in the same list was resolved, and the agenda items 6 stated in the same list was rejected.

C. The contents of the relevant statutes and the Defendant’s bylaws (hereinafter “instant bylaws of association”) pertaining to the instant case are as follows.

Article 20 (Authorization Establishment, etc. of Housing Association) (2) (a) (a) (iii) of the Enforcement Decree of the Housing Act shall include the following matters: 9. Matters to be decided by the general meeting; and the quorum and procedure for resolution; 3) the matters determined by Ordinance of the Ministry of Land, Infrastructure and Transport, notwithstanding paragraph (2) (9) (9) shall be subject to the resolution of the general meeting; 4. The matters prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport under Article 7 (Application, etc. for Authorization of Establishment, etc. of Housing Association) of the Enforcement Rule of the Housing Act refers to the following:

[Reasons for Recognition] Items A, 3, 4, Eul's 3th floor, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff (Appointeds)'s assertion

Each resolution made at the special meeting of this case shall be null and void as follows:

1) The Defendant issued a notice of convening the instant special meeting, in violation of Article 22(7) of the instant covenant, and notified the members of the instant association by means of a registered mail, not a registered mail, and rejected to return, thereby making it impossible to ascertain whether the members were informed of the instant notification. Ultimately, some of the members, for whom the notice of convening the special meeting was omitted, did not attend the instant special meeting.

2) The Defendant: (a) allowed members who submitted a written resolution regarding the agenda brought before the instant special meeting to enter the general meeting of shareholders; (b) deemed that voting rights had already been exercised; and (c) granted only the right to speak. This is unlawful as it prevents members from exercising their voting rights directly through free discussions.

3) In accordance with Article 20(3) of the Enforcement Decree of the Housing Act, Article 7(5)4 of the Enforcement Rule of the same Act, and Article 23(1)4 of the instant Union Regulations, the Defendant shall undergo a resolution of the general meeting to select and change the construction work, or to conclude a construction contract. Nevertheless, the Defendant, although not having adopted a resolution of the general meeting to cancel the project agreement entered into with the Sinhee Construction Co., Ltd., the Sinhee Construction Co., Ltd., the Defendant passed a resolution to comprehensively delegate the affairs of the construction contract to the board of directors at the instant special meeting, on the premise that the construction was already changed to a Hyundai Construction Co., Ltd. to a Hyundai Construction Co., Ltd..

B. Summary of the defendant's assertion

Each resolution adopted at the special meeting of this case shall not be null and void for the following reasons.

1) On April 17, 2017, prior to the opening of the instant special meeting, the Defendant: (a) notified its members of the fact that it is difficult to carry out the project when selecting Shee as a contractor for the instant special meeting; (b) notified its members of the terms and conditions of participation, such as construction costs, from other contractors with the intent to participate; and (c) notified its members of the decision to modify the construction cost at the ordinary meeting on May 25, 2017. On May 25, 2017, the Defendant sent text messages to the members of the instant special meeting, stating the terms and conditions of participation at the time of their participation, and encouraging them to attend the instant special meeting and explain the contents of the general meeting. The Defendant sent text messages to the members of the instant special meeting on May 29, 2017, and the members did not raise any objection thereto.

2) Article 20(3) of the Enforcement Decree of the Housing Act, Article 7(5)4 of the Enforcement Rule of the same Act, and Article 23(1)4 of the instant covenant of the Association does not require the general meeting to directly conclude a contract for construction contracts. The contents of the contract determined by the general meeting are not subject to the resolution of the general meeting. A contract may be concluded by delegation to the board of directors at the general meeting under

3. Determination

(a) Defect in the convocation procedure;

Article 22(7) of the Union Regulations of this case provides that the purpose, agenda, date, place, etc. of the general meeting shall be posted on the bulletin board of the association office or posted on the Internet homepage, etc. from 14 days before the meeting is held, and each member shall be sent and notified by registered mail 10 days before the meeting is held.

The Defendant did not clearly dispute the Plaintiff (Appointed)’s assertion that the Plaintiff did not call a notice of convening a new general meeting by registered mail and that some of its members did not notify the Plaintiff (appointed parties) of the terms and conditions of participation in the new general meeting on April 17, 2017, which was scheduled to notify the union members of the terms and conditions of participation in the new general meeting, and on May 25, 2017, the Defendant asserted that the Plaintiff sent text messages to encourage the union members to attend the instant general meeting and explain the contents of the general meeting. Even if the Defendant’s assertion is a fact, it is difficult to deem that the notice of convening a meeting was issued in accordance with the procedure stipulated in Article 22(7) of the instant union rules. Accordingly, the Defendant cannot be deemed to have gone through the procedure for convening a new general meeting under Article 22(7) of the instant union rules prior to the opening of the instant general meeting.

(b) any defect in the decision process;

In full view of the purport of the argument in Gap evidence No. 3, the defendant, after submitting a written resolution, may recognize the fact that the defendant granted only the right to speak in the case of glutinous seat in the special general meeting of this case and prevented the direct exercise of voting rights. This is illegal to unreasonably restrict the exercise of voting rights through free debate at the general meeting

C. Sub-committee

Since the above defect in the convocation procedure and the defect in the resolution procedure exist in the special meeting of this case, all of the resolutions on each item on the agenda in the separate list consisting of the above defect in the special meeting of this case are null and void (as long as the resolution on each item on the said agenda is deemed null and void due to the procedural defect, no separate judgment is made on the assertion of defect in the contents of the individual agenda). As long as the defendant asserted this, there is a benefit to seek confirmation

4. Conclusion

Therefore, the plaintiff (appointed party)'s claim is reasonable, and it is decided as per Disposition by admitting it.

Judges

Judges Choi Byung-hee

Judges Cho Jae-ra

Judges Kim Byung-hun

Site of separate sheet

List of Applicants

1. A;

2. B

3. E.

4. F;

5. G.

6. H;

7. I

8. J;

9. K;

10. L;

11. M;

12.N

13.O;

14. P;

15. Qua

16. R

17. S;

18. Telecommunication

19. U;

20. V

21.W;

22. X

23. Y

24. Z;

25. AA

26. AB

27. AC

28. AD;

29. AE

30. AF

31. AG;

32. AH;

33. AI;

34. AJ

35. AK;

36. AL;

37. AM;

38.N;

39. AO

Finally.

List

1. Agenda 1: Cases of election of executive officers;

2. For agenda items referred to in subparagraph 2: Borrowing of the funds (land expenses), methods thereof, interest rate thereof, methods of repayment, loan method, debate, etc.;

3. Bills referred to in subparagraph 3: The methods and interest rates of part payments loans, and cases of a lender of part payments and part payments;

4. Agenda 4: Ratification of construction works and conclusion of contracts by the board of directors.

5. Agenda 5: Cases of reporting on the settlement of accounts and accounts.

6. Bills referred to in subparagraph 6: The cases arising from the proposal for the integration of AP zones.

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