In a case where Gap was elected as the head of Eul-affiliated branch, and the election commission of Eul-affiliated branch was decided to invalidate Gap's election of the head of Eul-affiliated branch on the ground that the candidates including Gap did not agree to implement an election campaign in accordance with the election management regulations, the case holding that Gap, the largest winner, was legally elected as the head of Eul-affiliated branch in accordance with the election management regulations, on the ground that there were no grounds for invalidation in the above election.

A was elected as the head of the branch of the Eul-affiliated branch, and the election commission of the Eul-affiliated branch (hereinafter referred to as the "election tax, etc.") to implement the election campaign according to the election management regulations in the election campaign process is a case where A, including Gap, passed a resolution to nullify Gap's election of the head of the branch.

The case holding that since there is no explicit provision that the election tax, etc. is necessarily implemented under the articles of incorporation or the election management regulations of Eul corporation, since the election tax, etc. cannot be deemed an essential procedure for the election, the measures of the election commission which omitted the election tax, etc. according to the agreement of the candidates who decided not to implement the election tax, etc. and the above agreement cannot be deemed to have violated the election management regulations, and since it is difficult to recognize that the freedom and fairness of the election were considerably infringed due to the omission of the election tax, or that there was a significant impact on the result of the election, the above election cannot be deemed to have existed, and therefore, Gap, the largest winner, was elected as the head of Eul corporation as the head of

Article 68 of the Civil Act, Article 250 of the Civil Procedure Act

Plaintiff (Attorney Kim Hyun-do, Counsel for the plaintiff-appellant)

Seo-gu Branch of the Seoul Metropolitan City Association of Korea Food and Drug Association (Law Firm Mac, Attorneys Seo-jin et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2017Gahap54093 Decided February 22, 2018

July 11, 2018

1. Revocation of the first instance judgment.

2. Ascertainment that the plaintiff is the head of the defendant's branch office.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

The defendant is an organization organized for members in Gwangju-gu among the members of the Korea Overseas Food Service Federation (hereinafter referred to as the "Federation"), which is a branch under the jurisdiction of the Gwangju Metropolitan City Branch of the Federation (hereinafter referred to as the "Magju Branch"), and the plaintiff is the defendant's member.

B. Election of the head of the defendant's branch office

1) On March 15, 2017, at an ordinary meeting held on March 15, 2017, the Defendant elected the 12th Defendant’s chapter head (hereinafter “instant election”), and was elected as the head of the Defendant’s branch (No. 2) upon obtaining 76 marks out of the 169 valid votes (169 electors, 214 voters, 173 voters, and 80.8% total voting rate), from among the votes held after three candidates, including the Plaintiff, Nonparty 1, and Nonparty 2, etc. posted the political views for seven minutes prior to the voting (No. 2).

2) The chairman of the election commission affiliated with the Defendant (hereinafter “election commission”) notified the Plaintiff that the Plaintiff was elected at the head of the Defendant’s branch on the same day.

3) Meanwhile, the election commission decided on March 14, 2017 in accordance with the election management regulations in the initial election campaign process of the instant case (hereinafter “election tax, etc.”). The election commission agreed to not implement the election tax, etc. at the third party candidate conference held on March 10, 2017 by the Plaintiff, Nonparty 1, and Nonparty 2, etc., and the election commission agreed not to implement the election tax, etc. accordingly, the election commission did not implement the election tax, etc. scheduled at the time of the instant election.

(c) Decision on invalidation of election by an election commission;

1) On March 20, 2017, Nonparty 1 and Nonparty 3 filed a petition on the grounds that: (a) the election tax, etc. was to be held once during the election period; and (b) the election commission did not implement it; and (c) the petition was filed on March 20, 2017.

2) As a result of questioning about the validity of the instant election to the Federation, Gwangju District Council received a reply from the Federation that “Article 27(1)10, and (3) of the Election Management Regulations provide that the Election Commission shall decide on detailed matters concerning the election tax, etc. instead of prohibiting individual visits to guarantee the representatives’ right to choose candidates. Therefore, the election tax, etc. cannot be arbitrarily omitted, and the instant election, which omitted the procedure, is unlawful and invalid,” and on March 27, 2017, notified the election commission that “the Plaintiff’s election, which was elected in the instant election, is null and void,” to the effect that “the Plaintiff’s election is held in the instant election, and thus, the re-election is held within 60 days.”

3) On March 28, 2017, the election commission held a meeting for the invalidation of the election of the head of the Defendant’s branch office, which held a meeting for the invalidation of the election of the head of the Plaintiff, and passed a resolution that “the election of the Plaintiff shall be invalidated” (Evidence A 5).

(d) Implementing a reelection;

On the other hand, upon the first instance judgment that the election of this case is null and void, the Defendant held a reelection at the extraordinary general meeting held on February 27, 2018 at which the 12th defendant's chapter head was elected, and Nonparty 4 (the plaintiff and Dong name) was decided as the winner without voting, and the election commission did not implement the election tax, etc. even during the re-election.

E. Relevant provisions

The National Federation Election Management Regulations related to the validity of the instant election (hereinafter “Election Management Regulations”) shall be as follows:

(1) The election campaign for a candidate and election campaign worker shall not be held as the elected person, in the following cases: (1) The National Federation Chairperson and sub-chairperson of the National Federation, and the head of the branch office, in addition to the matters provided for in subparagraphs 1 through 10, may not be held as taxes by individually visiting the electors.

[Basis] Facts without dispute; Gap evidence Nos. 1 through 6, 8; Eul evidence Nos. 3, 4, 7, 9, 10, 11, 16, 17, and 18; the testimony of non-party 5 of the first instance trial witness and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

1) The failure to implement the election tax, etc., which was decided on March 14, 2017, is determined by the agreement of candidates, including the Plaintiff. However, the interpretation of the instant election management regulations does not necessarily require an essential procedure to be implemented, but rather, it cannot be deemed that the instant election, which was held without omission, infringes on the freedom and fairness of the election.

2) The decision that the election commission’s election invalidation on March 28, 2017 against the Plaintiff cannot be deemed as a lawful existence of defects, such as where there is no seal of some election management members in the minutes.

3) Therefore, the Plaintiff is legally elected as the head of the Defendant’s branch in the instant election. Since the Defendant is disputing this, the Plaintiff seeks confirmation that the Plaintiff is in the status of the head of the Defendant’s branch.

B. Defendant

1) Article 27 of the instant Election Management Regulations stipulates that the election tax, etc. is essential in order to guarantee the elector’s right to vote. Therefore, the instant election, which was omitted, has a significant and apparent defect that infringes on the elector’s right to vote, and thus, the Plaintiff’s election as a result of the instant election, is null and void.

Even if there is a defect as alleged by the plaintiff in the resolution of the election commission, the election of this case is invalid as long as the election of this case is void in violation of Article 27 of the Election Management Regulations, regardless of whether or not the election of the election commission against the plaintiff is invalidated.

2) In addition, according to Article 32 of the Defendant’s articles of incorporation, where the head of a branch office is elected, the election has the effect of accepting the appointment of the head of the branch office. Since the Plaintiff did not obtain the approval of the head of the branch office, the Plaintiff cannot be deemed to be in the Defendant’s position.

3. Determination

A. Determination as to the invalidity of the instant election

1) Whether the failure to implement the election tax is illegal

A) The fact that the election commission decided to implement the election tax, etc. one time, but did not implement it according to the candidate’s agreement, and that the Gwangju District Council asked the National Federation about the effect of the election of this case, and as a result, Article 27(1)10 and (3) of the instant Election Management Regulations delegates the National Election Commission to determine the detailed matters on the election tax, etc. instead of prohibiting individual visit pay taxes, the fact that the election tax, etc. received a reply to the effect that “the procedures that the election tax, etc. can not be arbitrarily omitted”

B) However, in light of the following circumstances, since the election tax, etc. cannot be deemed the essential procedure for the instant election, the measures of the election commission, which omitted the election tax, etc. pursuant to the agreement of the candidates who decided not to implement the election tax, etc. and the said agreement, cannot be deemed to have violated the instant election management provisions.

① There is no express provision that the Defendant’s articles of incorporation or the election management regulations in this case must be implemented.

(2) However, Article 27(1)10, (3), and (4) of the Election Management Regulations prohibit individual visit oil taxes and delegate the detailed matters (place, time schedule, frequency, etc.) to the Election Commission within five times with respect to election taxes, etc.

③ Since there is no ground to interpret the provision that "five or less times" is based on the premise of "not more than once", it shall be interpreted that it is also possible for an election commission to make a decision that does not implement the election tax, etc.

④ The election commission omitted taxation, etc., which was scheduled to be implemented once at the request of all candidates. The agreement that all candidates omitted election taxation, etc. is significantly different from that that that expressed the free will to waive the opportunity to participate in the election tax, etc., one of the methods of election campaigns. As such, where all candidates express their intent not to participate in the election tax, etc., the election commission seems to have no reason to proceed with the procedure, such as the tax without intention.

⑤ In light of the fact that the Defendant’s previous regulations on election management allow the door-to-house visit pay taxes to prevent adverse effects, and the election commission amended to prohibit the door-to-house visit rent from the instant election to the election, and the election commission did not implement the election pay scheduled by the candidate’s agreement; the election commission including the candidates and the persons related to Gwangju branch did not raise any objection to the omission of the election rent, etc.; and Nonparty 1, etc., who was the candidate for the instant election, submitted a petition to the election commission after the death of the candidate, etc., the election commission did not recognize the election rent, etc. as the essential procedure for the instant election at the time of the instant election.

① The purport of the election tax, etc. lies in providing an elector with an opportunity to determine information about a candidate and a candidate’s policies, and ensuring the right choice of electors. As seen thereafter, the above purport is to achieve sufficient goals by means of distributing promotional materials permitted by the instant election management regulations, sending text messages, particularly giving an opportunity to publish political views for the same time as the election tax.

7) The traditional methods of election campaign, which is the way of election campaign, has been exposed to problems such as the mobilization of audience, black promotion, and high expenses, and has already been abolished in various elections for public office. Considering the tendency to expand election campaigns using various media such as broadcasting in line with the information age, the meaning of election campaign methods, one of the election campaign methods, is set back, and such tendency needs to be respected in interpreting the relevant provisions.

2) Whether the freedom and fairness of the election were infringed and the result of the election was affected

A) Relevant legal principles

Even if there is a reason in violation of the Acts and subordinate statutes in the election procedure, the relevant election does not become null and void merely because it does not constitute a violation of the said Acts and subordinate 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 by impeding the vote by the free decision of electors due to a violation of the said Acts and subordinate statutes, and that the result of the election has influenced by the election (see, e.g., Supreme Court Decisions 2003Da11837, Dec. 26, 2003). Here, the term "when it is deemed that the result of the election had influenced by the election" means the case where it is deemed that if there was no violation of the provisions concerning the election, the result of the election, i.e., the result of the election, which would have been different from that of the candidate's current situation (see Supreme Court Decisions 200Da216, Jul. 13, 2001; 2003Da266

B) Determination

According to the following circumstances, it is difficult to recognize that the freedom and fairness of the instant election was considerably infringed upon due to the omission of election campaign, etc., or that the result of the election was affected by the omission thereof, based on the comprehensive consideration of the aforementioned facts and the purport of the entire arguments.

① Articles 27, 27-2, and 27-3 of the Election Management Regulations provide for various means to obtain information about candidates, such as election campaigns using computer communications, such as printed matter, text, voice, image, and video, and election campaigns using telephone or name cards, in addition to the election taxes.

In fact, all candidates, including the Plaintiff, distributed promotional incentives to voters, sent text messages, etc., and the above promotional incentives included basic information necessary for the right holder to select candidates, such as the summary power and pledge of candidates (Evidence A, No. 10, No. 11).

In addition, all candidates agreed to publish the political views for each seven minutes (the same time as the time given to one candidate in the election tax, etc.) on the voting day instead of taking the campaign tax, etc., and accordingly seven minutes of the voting day have passed after the voting day.

Comprehensively taking account of these circumstances, it is difficult to view that failure to implement the election tax, etc. in the process of the instant election has significantly impeded the free and fair exercise of voting rights of electors, including access to information on candidates and options to choose candidates.

② The initial election tax, etc. was planned to be 14:00 on March 14, 2017, but it is difficult to readily conclude that the attendance rate on the annual election tax, etc. was high, considering that electors of the instant election were all self-employed persons. In fact, on March 13, 2017, the number of participants in the public debate for the election of the heads of departments in the Southern District of Gwangju Branch Office was 20-30.

Furthermore, considering the fact that the above election tax is expected to be immediately preceding the voting day, there is a high possibility that electors have completed the decision of candidates at that time.

As seen earlier, the difference in the votes obtained between the Plaintiff and Nonparty 1, who is the next highest votes, is 15 marks (Plaintiff 76 marks, Nonparty 161 marks), and considering that the difference in the votes obtained based on the total valid votes 169 marks reaches approximately 8.9% (Plaintiff 45%, Nonparty 136.1%), it is difficult to deem that there was a difference in the result of the instant election, such as the election tax, etc. originally planned by the election commission, and another candidate who is not the Plaintiff, is elected.

3) Sub-decisions

Therefore, the election of this case cannot be deemed to exist as a ground for invalidation, and the plaintiff, who is the largest winner in the election of this case, has been elected as the head of the defendant's branch lawfully in accordance with Article 38 of the Election Management Regulations (Therefore, the plaintiff's assertion that there is a defect in the decision to invalidate the election of the election commission against the plaintiff on the premise that the plaintiff's election

B. Determination as to the assertion that the election has no effect due to the failure of the head of the branch office to be approved

Article 32(2) of the Defendant’s articles of incorporation provides that “When the head of a branch office has been duly elected pursuant to the articles of incorporation and regulations of the branch office, the head of the branch office shall affix his/her appointment to him/her.” Article 32(3) of the above articles of incorporation provides that “If the head of the branch office fails to obtain the authorization under paragraph (2) of the above Article, the head of the branch office shall withdraw from the general meeting of temporary representatives within 60 days from the date of receipt of the notification thereof and obtain the authorization (Evidence A No. 1).” Meanwhile, after the instant election, the Gwangju District Court notified the election commission that “the election of the Plaintiff elected in the instant election is invalid, the election of the head of the branch office against the Plaintiff is returned, and the head of the branch office

Unless there is any express provision that the election becomes effective only after the ballot counting is announced or announced after the voting for the election of officers of the organization, the candidate is elected as an officer (see Supreme Court Decision 94Da52225, Apr. 14, 1995, etc.). Thus, there is no express provision that the election of the head of the branch is effective only when the defendant's articles of association or the election management regulations of this case "as seen earlier, Article 38 (1) of the election management regulations of this case provide that the candidate who has the highest number of votes of the electors present at the attendance of the majority of the new electors shall be decided as the elected person). If the highest number of votes is decided as the elected person pursuant to Article 38 of the election management regulations of this case, the chairman of the branch office bears the duty to accept the elected person as the head of the branch office (not the discretion of the head of the branch office, but the election of the branch office of this case shall not be confirmed only when the election of the head of the branch office of this case becomes finalized.

Therefore, the defendant's assertion that the plaintiff, who was the largest number of votes in the election of this case, did not receive the approval of the president of the branch does not have the effect of election.

4. Conclusion

Therefore, since the plaintiff is deemed to be in the position of the head of the defendant's branch, the plaintiff's claim of this case must be accepted for the reasons. Since the judgment of the court of first instance, which has different conclusions, is unfair, the plaintiff's appeal is accepted, and

Judges Choi Jin-hee (Presiding Judge)