(영문) 부산지방법원 2009.9.9.선고 2009가합7772 판결

1. C1, C2, C3, C4, C5, C6, C7, C7, C7, C8, C9, C10, D1, D2, D3, D4, D5, D6, D7, D7, D8, D10, D11, D12, D13, D14, and D15 are not the defendant's officers or representatives of each Dong.

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

The following facts are not disputed between the parties, or evidence Nos. 1, 2 (the evidence No. 1, the evidence No. 3, and the evidence No. 2 of the evidence No. 5), evidence No. 4-1, 2 (the evidence No. 4-1 of the evidence No. 6, and the evidence No. 4-2 of the evidence No. 8-2 of the evidence No. 8), Gap 5, 6, 8, 9, evidence No. 1-1 through 35 of the evidence No. 1, evidence No. 2, 4-1, 2, 7, and evidence No. 8-1 of the evidence No. 8-1 of the evidence No. 1, and the whole purport of the pleadings can be acknowledged by considering the whole purport of the pleadings.

A. The plaintiffs were the occupants residing in the Busan Northern-dong, Busan-dong, U.S.O. (hereinafter "the apartment of this case") and were the members of the fifth council of occupants' representatives of the apartment of this case.

B. The main contents of the management rules of the instant apartment (hereinafter referred to as the “management rules of this case”) are as follows.

Article 9 (Rights of Occupants, etc.)

(1) Occupants, etc. shall have the following rights, in addition to matters prescribed by housing statutes:

3. Voting tickets elected by representatives for each Dong and non-Confidence tickets to be elected.

4. Right to elect the chairman of the council of occupants' representatives under the proviso to Article 17 (3), and the right to dissolve the council of occupants' representatives under Article 18 (4) ;

(1) Except as otherwise expressly provided for in the Housing Act and subordinate statutes, occupants, etc. shall determine the following matters with the written consent of a majority of occupants, etc.:

1. Election of representatives by buildings and non-Confidence in the relevant consent;

3. Dissolution and improvement of the council of occupants' representatives where defects exist under the provisions of Article 18 (4) ;

(1) The council of occupants' representatives shall have persons elected from among the representatives by buildings under Article 16 (1) as members (hereinafter referred to as "members").

(2) The council of occupants' representatives shall have the following executives:

1. One chairman;

2. One vice-chairperson;

3. One general director;

4. One auditor.

(3) The chairperson shall be elected from among the representatives of each building with the consent of a majority of members: Provided, That the chairperson shall, upon receipt of a written request from at least 1/10 of occupants, elect the chairperson with the consent of the majority of occupants, etc.

(4) Vice-chairpersons and auditors shall be elected by proposal from among the members of the council of occupants' representatives with the consent of a majority thereof: Provided, That the chairperson shall appoint a general director and obtain the approval of the representative meeting.

Article 18 (Disqualifications, etc. for Representatives of Each Building)

(1) The qualification of the representative of each building shall, under Article 50 (3) of the Enforcement Decree of the Housing Act, be the occupants (referring to the cases where the resident registration is consistent with the building register) who reside in the relevant multi-family housing for not less than six months after the completion of resident registration within the section for exclusive use as of the date of public announcement of the election of the representative of each

1. A minor, incompetent or quasi-incompetent;

2. A bankrupt who has not been reinstated;

3. A person in whose case two years have not passed since his/her imprisonment without labor or heavier punishment as declared by a court was completely executed (including where the execution is deemed to have been completed) or exempted;

4. A person who is under the suspension of the execution of imprisonment without labor or heavier punishment;

5. A person elected by fraud or other improper means;

6. A person for whom three years have not passed since his/her resignation before the expiration of the term (excluding cases where the entire council of occupants' representatives is dissolved).

7. A person who has become non-Confidence from occupants, etc. or has been expelled or dismissed by the council of occupants' representatives by making inquiries about the management affairs of relevant multi-family housing;

9. Officers and employees of an enterprise that supplies various works or services to the relevant multi-family housing;

(2) When the representatives by buildings fall under any of the following subparagraphs, they may dismiss by resolution of a majority of the members of the council of occupants' representatives. In such cases, persons falling under subparagraphs 5 through 8 shall be deemed naturally dismissed:

8. Where at least 2/3 of occupants, etc. of the relevant Dong who have elected representatives of each Dong have obtained non-Confidence written consent.

(4) When the council of occupants' representatives has caused a loss of property to occupants, etc. due to a defect intentionally or by gross negligence, occupants, etc. may determine the dissolution and improvement thereof with the written consent of the majority of occupants, etc., and the management body shall immediately proceed with the election procedure pursuant to the same management rules, since the effect of the decision of dissolution is immediately effective.

Article 21 (Holding of Meetings)

① Under Article 51(2) of the Enforcement Decree of the Housing Act, the council of occupants' representatives shall be divided into regular meetings and extraordinary meetings, and the chairperson shall convene and preside over them. The fifth council of occupants' representatives of the apartment of this case was dissolved with the consent of the majority of occupants, etc. under Article 18(4) of the Management Rules on December 29, 208, and accordingly, the election commission was organized to elect representatives of each building for the 6th council of occupants' representatives of the apartment of this case.

D. On February 2, 2009, the election commission of the apartment of this case announced a public announcement for the election of representatives by buildings, and added the representative of the five buildings by buildings except those falling under each subparagraph of Article 18(1) of the instant management rules to the disqualified and the representative of the five buildings by the resolution of the election commission. Accordingly, the election commission of the apartment of this case rejected the application for candidate registration by the occupants who were the representatives by the five buildings including the plaintiffs.

E. From February 20, 2009, as the representative of C1,103 apartment units of this case, C2,105 as the representative of C2,105 as C4,106 as the representative of C5,201 as the representative of C6,201 as C7,205 as the representative of C8,206 as the representative of C8,206 as the representative of C8,206 as the representative of C9,301 as the representative of D1,305 as the representative of D3,306 as the representative of D4,305,30 as the representative of D7,306 as the representative of D7,308,401 as the representative of D10,406 as the representative of D10,406 as the representative of D11,409, and 409, as the representative of each Dong, the representative of each Dong was elected as the representative of D21,201 as the representative of each Dong.

F. On March 13, 2009, the election commission of the apartment of this case issued an additional public notice for the election of representatives from the first building of this case for the representatives from the Dong, which were not elected by the representatives from each Dong, provided that the representatives from each Dong of this case as in the election of the representatives from the first building of this case were disqualified. On March 20, 2009, the election commission of the apartment of this case additionally elected representatives from each Dong of seven buildings, including D12,407 representatives from D12,407 representatives from D12,40 and D13,410 representatives from each Dong as representatives from the 104 units of the apartment of this case as C10,207 representatives from March 209 (hereinafter referred to as the "representative from the second building of this case").

2. The assertion and judgment

A. The parties' assertion

1) The plaintiffs' assertion

The plaintiffs asserted that the election commission of the first and second buildings of this case did not arbitrarily designate the representatives of the fifth buildings including the plaintiffs as disqualified, and that the violation of the Housing Act and the management rules of this case was null and void due to significant defects. Since C6 and D4 were elected from the extraordinary meeting held by the representatives of the first buildings of this case, which is null and void without the election of the representatives of the second buildings of this case, as the representatives of the second buildings of this case were elected as chairperson and vice-chairperson, the above resolution is null and void as it infringes on the rights to elect officers of the seven representatives of each building of this case, which are additionally elected in the election of the representatives of the second buildings of this case. Accordingly, the above resolution does not state C1, C2, C4, C5, C6, C7, C7, C8, C9, C9, D1, D1, D3, D6, D7, D7, D8, D9, D10, D10, D13, C14, D15 or the defendant's legitimate status of executives of each building of this case.

2) The defendant's assertion

Article 18 (1) 7 of the Management Rules of this case provides that a person who has suffered non-Confidence from occupants, etc. by causing water concerning the management affairs of this case shall not be the representative of each Dong. The "non-Confidence" prescribed here shall include not only 2/3 of the occupants, etc. of this case's consent under Article 18 (2) 8 of the Management Rules, but also the case where the occupants' representative council under Article 18 (4) of the Management Rules has dissolved the council of occupants' representatives with the majority written consent, on the ground that the residents' representative council has caused property losses to the occupants, etc. due to the defects caused intentionally or by gross negligence. Therefore, the fifth council of occupants' representatives of this case' representatives of this case' fifth council of occupants' representatives is dissolved with the majority written consent of the occupants, so the plaintiffs who were the representatives of each Dong under Article 5 of the Management Rules of this case's apartment as members of the 5th council of occupants' representatives of this case's apartment. Therefore, the plaintiffs

B. Determination

In light of the following circumstances: (a) the right of non-Confidence to the representatives of each Dong and the right of dissolution of all occupants, etc. who elected the representatives of each Dong under the management rules of this case (Articles 9, 11, and 18); and (b) Article 18(1)6 of the management rules of this case provides that the representative of each Dong who has resigned before the expiration of the term of office shall not be the representative of each Dong, but shall not be the case where the council of occupants' representatives is dissolved; (c) Article 18(1)7 of the management rules of this case concerning the disqualification of the representatives of each Dong shall not be included in the case where the council of occupants' representatives is dissolved pursuant to paragraph (4) of the same Article; (d) the representatives of the Dong 1, 2, 3, representatives of each Dong 1, 3, 3, 4, 1, 1, 3, 1, 3, 36, 36, 31, 36, 1, 36, 35, 3, 36, 1, 30.

3. Conclusion

If so, the plaintiffs' claims of this case are justified and each of them is accepted, and it is so decided as per Disposition.

Judges

Chief Judge Park Tae-tae

Judge Lee Dong-dong

Judges Kang Jeong-hee

참조조문

-주택법

-주택법 시행령 제50조 제3항

-주택법 시행령 제51조 제2항

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