2013 Gohap7107 Removal and Nullification of the Resolution of Suspension of Performance of Duties

1. Siriwon;

2. 김★★

3. ○○○.

4. Fixedness.

5. Maternum;

6. Place.

7. Fixedness.

8. Prostitution; and

9. Kim

[Judgment of the court below]

Attorney Kim Jae-young, Justice Kim Jae-young, and Justice Park Jin-jin

▲▲▲ 연합주택재건축정비사업조합

Representative Audit and Inspection xx▽▽, Korea

Attorney Kim Jae-sub, Counsel for the plaintiff-appellant

May 1, 2014

June 19, 2014

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

피고의 2013. 6. 14.자 임시총회에서 원고 정☆☆를 조합장에서 해임하고 직무정지한 결의, 원고 김★★, 장00, 정, 서, 장소, 정◆◆, 윤□□, 김■■을 이사에서 해임하고 직무정지한 각 결의는 무효임을 확인한다.

1. Basic facts

A. Status of the parties

피고 조합은 대구 XXXXXX 일원 51,912.20m에 대한 재건축정비사업을 시행하기 위해 설립한 도시 및 주거환경정비법상의 조합이고, 원고 정☆☆는 피고 조합의 조합장, 원고 김★★, 장OO, 정●●, 서 ③, 장, 정◆◆, 윤, 김■■은 각 피고 조합의 이사들이다.

B. Holding of the general meeting of this case

1) An audit and inspection of the Defendant Union, with the consent of 89 members exceeding 10/100 of the total members, proposed a proposal to dismiss the Defendants and suspend the performance of their duties.

2) 피고 조합은 2013. 6. 4. 내용증명우편으로 원고들에게 소명기회를 부여하는 통보서를 발송하였고 원고 장①0, 서, 정◆◆, 윤그, 김■■은 위 통보서를 수령하 하였으나, 원고 정☆☆, 김★★, 정●●, 장은 위 통보서의 수령을 거부하였고, 이에 피고 조합은 수령을 거부한 원고 정☆☆, 김★★, 정●●, 장소에게 일반우편물로 다시 통보서를 발송하였는데 원고 정☆☆에 대한 통보서만 반송되었다. 3)피고 조합은 2013. 6. 14. 19:00경 대구 ******* 회의실에서 피고조합의 총회(이하 '이 사건 총회'라 한다)를 개최하였다.

4) The result of the resolution at the Assembly of this case with respect to the above agenda is as follows:

A person shall be appointed.

C. Meanwhile, the relevant parts of the articles of incorporation of the Defendant Union at the general meeting of the instant case are as follows.

Article 9 (Qualifications, etc. of Members) (4) If a union member transfers his/her rights to a union member due to transfer, inheritance, donation, judgment, etc., the rights of the union member shall be deemed changed to a person who has acquired the rights of the union member, and the person who has acquired the rights shall comprehensively take over the rights and obligations of the union member, the disposition by the former right holder or by the former right holder at the time of liquidation, the scope of the rights and obligations of the union member. (3) If a union member transfers his/her rights or changes his/her address or seal impression, the transferee or the changed party shall report the details of change to the union within 14 days after the act is terminated. In such cases, the union member may not raise an objection to the disadvantage, etc. caused by the failure to report, in violation of the provisions of Article 18 (Dismissal of Officers) (1) and (2) and the relevant Acts and subordinate statutes, and if the head of the union fails to give an opportunity to explain in advance, such as a hearing, he/she shall be deemed to have given an opportunity to be removed by the general meeting.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 1 through 5 (including branch numbers; hereinafter the same shall apply), the result of this court's order to submit documents to the defendant association, the purport of the whole pleadings

2. Judgment on the merits

A. The plaintiffs' assertion

The plaintiffs asserts that the resolution of the general assembly of this case is null and void for the following reasons.

1) Provision of opportunity to vindicate, such as hearings

Article 18(1) of the Articles of the Defendant Union’s articles of association provides that in the event of a resolution to dismiss an executive officer, the relevant executive officer shall be given an opportunity to provide an opportunity to provide an explanation, such as a hearing. Although the fact that the employee has given the Plaintiffs an opportunity to provide an explanation, he/she did not notify the Plaintiffs of the specific dismissal subject to the explanation and the reason for suspending the performance of his/her duties, not only did he/she notify the Plaintiffs of the specific dismissal and the reason for suspending his/her duties, but also that he/she was notified of attending the general meeting

(ii) any defect caused by a notice of convening a representative of the proposer;

Article 18(3) of the articles of association of the defendant association provides that the president of the association shall be the joint name of the proposing person in the case of dismissal. Since the proposing person is not an institution of the reconstruction and improvement project association as prescribed by the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and the articles of association, the requirement for convening a convocation notice shall be strictly determined. Even if the proposing person delegated the authority for convening a convocation notice to the representative of the proposing person, it is merely an

3) Failure in the court's convening permission

Except as otherwise provided for in this Act, the provisions concerning incorporated associations in the Civil Act shall apply mutatis mutandis to associations under Article 27 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, so in order to dismiss executives, such as the president of the association, the proposing person is required to obtain permission to convene a court by applying Article 70(3) of the Civil Act that prescribes the convening of an extraordinary general meeting of the minority members of the association.

4) Failure to meet a quorum

A) Failure to meet the quorum for direct attendance

Article 24 (5) (proviso) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (in the case of a resolution by a general meeting, 10/10 or more of the members of the association) is a mandatory provision to prevent the harm of the written resolution. Since the members who attend the general meeting of this case fall short of

B) The instant resolution is null and void as it was based on the list of cooperative members, which was not approved by the competent authority granting voting rights to those who are not cooperative members, and granted voting rights to 40 persons who are neither cooperative members nor cooperative members, and 26 persons among them exercised voting rights.

C) Of the defective written resolution, 4 copies of the written resolution do not include the name of the union members and the seal is affixed. 45 copies of the signature or seal affixed to the column for the seal affixed to the person consenting to the written resolution, and 52 copies of the seal affixed to the association, which are different from the seal affixed to the seal affixed to the association, and 9 copies of the seal affixed to the front of resident registration number. Since the union members0 △△△△ withdrawn the intention on the written resolution prior to the instant general meeting, the instant general meeting resolution was null and void because it did not meet the quorum and the quorum.

5) Non-existence of grounds for removal or suspension of performance of duties

Defendant Union stated the reasons for failure to disclose information, illegal borrowing of funds, embezzlement of public funds, defamation, etc. as reasons for dismissal and suspension of performance of duties at the general meeting of this case (hereinafter referred to as "reasons for dismissal"), but is not all true, the resolution of this case is invalid.

B. The defendant union's assertion

The meaning of convening a hearing, etc. under the name of the proposing person is not that all the proposing persons should be stated in the name of the proposing person, but that the representative of the proposing person under Article 23(4) of the Urban Improvement Act includes the authority to convene a dismissal general meeting, and thus the permission of the court is unnecessary. The number of union members who directly attend the general meeting at the time of the general meeting of this case must be at least 56 members and meet the requirements of at least 10/100 of the union members, and there is a difference between the list of union members asserted by the plaintiffs due to the change in the name of the union members. Since there is no provision on the written resolution, the voting of the general meeting of this case is valid, and it is difficult to believe that the declaration of withdrawal submitted by the △△△△△△△△△△△△△△△△△△ is made in the city of the plaintiff, the quorum and the quorum are satisfied even considering the plaintiffs' claims. In addition, the plaintiffs's dismissal of the executive officers of this case is not necessary.

C. Determination

1) Determination on non-assignment of opportunity to vindicate, such as hearings

According to the above facts of recognition, the defendant union provided the plaintiffs with an opportunity to vindicate, and even if it did not notify the specific grounds for dismissal subject to vindication, the purport of Article 23(4) of the Urban Improvement Act is to facilitate the dismissal of partnership officers according to the will of the union members in accordance with the principle of delegation. Thus, barring any special provision, it is not necessary to give the dismissed union officers an opportunity to vindicate, such as the disciplinary procedure, unless otherwise provided in other Acts. In addition, even if the defendant union gives a written notice of attendance at the general meeting on the day of the special meeting and explanation from the union members present in the written voting, it is not a defect in the convening procedure of the general meeting in accordance with Article 22(2) and (3) of

2) Determination on the defects caused by the convening notice by the representative of the proposing person

Article 18 (3) of the articles of association of the defendant association provides that, in cases where the head of the association is dismissed, the representative of the proposing person shall be the joint name of the proposing person. In light of Article 23 (4) of the Urban Improvement Act that provides that the representative of the proposing person acting for the head of the association shall act for the head of the association, the representative of the proposing person shall not be deemed to have any defect in the notice for convening the general meeting of this case where the representative of the proposing person collected the proposing person's intent and received a notice for convening

3) Judgment on the deficiency in the court's convening permission

According to the provisions of Article 27 of the Act on the Maintenance and Improvement of Urban Areas, the provisions concerning incorporated associations in the Civil Act concerning associations apply mutatis mutandis to the associations, because they are not prescribed in the Act on the Maintenance and Improvement of Urban Areas, and therefore there is a gap in the application of the Civil Act or in need of supplementation. However, in the latter part of Article 23(4) of the Act on the Maintenance and Improvement of Urban Areas, the latter part of Article 23(4) of the Act provides that "in this case, a person elected as the representative of a proposing shall act on behalf of the president of the association in convening and proceeding with the convocation of a general meeting of dismissal.

It can not be seen as being the case.

Therefore, the plaintiffs' assertion that Article 70 (3) of the Civil Code applies mutatis mutandis to the general meeting to dismiss the partnership's officers under Article 23 (4) of the Urban Improvement Act is not accepted.

4) Determination on the failure to meet the quorum

A) Comprehensively taking account of the purport of the entire arguments and arguments, comprehensively taking into account the determination of the quorum for direct attendance, each entry of evidence Nos. 5 and 7, and the result of this court’s order to submit documents to the Defendant Union, the number of union members who did not directly attend 374 among the 374 union members and voted in the form of a written resolution shall be 168 union members, 50 union members who attended and voted in the form of a written resolution prepared for the preparation and 6 union members who did not attend the written resolution.

Therefore, the plaintiffs' assertion is without merit, since the members who attend directly at the general meeting of this case are 56 persons in total and at least 10/100 of the members of the defendant union.

B) Comprehensively taking account of the overall purport of the pleadings in the statement No. 18, the determination on granting voting rights to non-member cooperatives was changed in the name of 43 members, and two of the changed members shall be considered as one single-person two housing owners, and the defendant union may recognize the fact that the name was made out of a new list of members.

According to Article 16(1) of the Urban Improvement Act, Article 30(2) of the Enforcement Decree of the same Act, and Article 9(4) of the Articles of Incorporation of the Defendant Union, when the rights of a union member are transferred after authorization to establish an association, the person who acquired the rights of the union member shall be deemed to be the union member, and even without authorization from the competent authorities, the status of the union member shall be recognized. In addition, if the association does not report the change to the association, it is not possible to raise an objection against the disadvantage suffered by the union member, and it is unnecessary to allow the association to exercise its rights against the new union member. Therefore, it cannot be said that there is any defect in the resolution of the general meeting of this case on the ground that the Defendant Union

C) Determination of the defect, etc. in the written resolution is based on the description of No. 5 and the result of this court’s order to submit documents to the defendant association

In full view of the purport of the entire arguments, such as written resolution submitted by the Defendant Union, four of the six persons, who were directly present at the general meeting of the instant case, have cast a vote in an indefinite name on the written resolution, and the members 0 △△△△△△ of the Plaintiff may recognize the withdrawal consent to withdraw the intention on May 31, 2013 to the Defendant Union.

In the event that a written resolution is presented at a general meeting without attending the written resolution and voting is held, the voting shall not be deemed null and void, even if the voting was made in an indefinite name on the written resolution form. In addition, as long as a written resolution is prepared and submitted at the request of the union members, there is no provision as to the form of the written resolution form, it shall not be deemed null and void. In addition, even if the signature or seal is affixed to the column on the seal affixed to the consenting person, or the front place of the resident registration number is written, the voting shall not be deemed null and void. However, as the members0 △△△△, even if the sender withdraws his intention to the defendant association before the general meeting of this case in his name, and thus the sender is written as the

The plaintiffs' assertion other than the △△△△'s withdrawal of intention is without merit.

D) Sub-committee

총 조합원 374명 중 직접 참석하지 않고 서면결의서로 투표한 조합원은 168 명(= 169 - 1, 조합원 백△△ 의사 철회), 직접 참석하여 준비해온 서면결의서로 투표한 조합원은 50명, 서면결의서를 지참하지 않고 직접 참석한 조합원은 6명이므로, 직접 참석 요건은 충족하였고, 조합원 과반수 참석(서면참석 168명+직접 참석 56명 = 224명)에 출석 조합원 과반수 찬성(원고 정, 김★★, 장OO, 장소, 정◆◆, 윤미 □, 김■■ 각 212표, 원고 정●●, 서◎◎ 각 213표)으로 이 사건 총회 결의는 각 정족수를 모두 충족하였다.

5) Determination as to the existence of grounds for dismissal

A) Article 23(4) of the Urban Improvement Act (amended by Act No. 9444 of Feb. 6, 2009) provides that "the dismissal of partnership officers may be conducted at the general meeting convened at least 1/10 of the partnership members with the attendance of a majority of union members and the consent of a majority of union members present at the general meeting convened at least 1/10 of the partnership members: Provided, That where the articles of association separately provide for dismissal, the dismissal of partnership officers shall be governed by the articles of association." Article 24(3)8 of the Urban Improvement Act provides that "the dismissal of partnership officers shall require the resolution of the general meeting." Article 23(4) of the current Act amended by Act No. 9444 provides that "the dismissal of partnership officers may be conducted with the attendance of a majority of union members and the consent of a majority of union members present at the general meeting convened at least 1/10 of the partnership members, and Article 24(5) of the Urban Improvement Act provides that "the convocation procedure, timing and method

B) In addition, Article 23(4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents added the phrase “Notwithstanding Article 24,” and did not impose any restrictions on the grounds for dismissal, it appears that the previous articles of association stipulate that the grounds for dismissal of partnership officers should be restricted by the articles of association to prevent the grounds for dismissal of partnership officers from limiting the grounds for dismissal of partnership officers in order to eliminate the closure where majority of partnership partners want to elect new officers due to the failure of trust between partnership officers and partnership's failure. The relationship between the defendant and the defendant association constitutes delegation under the Civil Act. The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents falls under delegation under the Civil Act. Article 689(1) of the Civil Act provides that a party may freely terminate delegation contract without any inevitable reason. However, in the case of the termination of delegation contract at a disadvantage of the other party without any inevitable reason, trust relationship between the parties should be more severe, and thus, in the case of delegation relationship, it is desirable to appoint a number of association executives at any time in light of the trust provisions.

C) In the instant case, the Plaintiffs are merely performing their previous duties until a new officer was elected without a resolution of the general meeting for the appointment or reappointment of an officer even after their term of office has expired, and thus, constitute the dismissal of an officer during his term of office, i.e., dismissal of an officer.

In this case, it is reasonable to view that the reason for dismissal is not necessary when it is dismissed by a resolution of the general meeting of partners.

D) Therefore, in the case of this case, the resolution of the general meeting of this case is valid inasmuch as the majority of the members present and the majority of the members present agree with respect to the agenda on which the defendant's executives lose trust by various suspicions, regardless of whether there are specific grounds for dismissal to the defendant executives, and the defendant's executives are absent from the partnership. Therefore, this part of the plaintiffs' assertion is

3. Conclusion

Therefore, the resolution of the general assembly of this case is valid, and the claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, fixed-ranking judge

Judge power failure

Encouragement of Judge Creation

1) According to the statement of Eul evidence No. 5 (Resolution on Removal of Head of Partnership, Removal of Director and Suspension of Duties from Office), the affirmative votes are more than two separate votes, respectively, against the defendant of this Court.

In light of the result of the order to submit a letter, the following ballot counting results are recognized. In addition, according to the description of the evidence No. 5, the member △△△△△

Since it may be recognized that the declaration of consent has been withdrawn by a written resolution, one vote shall be reduced in the affirmative votes.

1) The members, who did not directly attend the meeting and voted in a written resolution, were 169 members or the members 00 △△△△ withdrawn their intention.

(c)