The plaintiff's representative council (Attorney Lee Young-young, Counsel for plaintiff-appellant)

Defendant 1 and 20 others (Attorney Cho Jong-sik, Counsel for the defendant-appellant)

November 23, 2006

Gwangju District Court Decision 2005Gahap147 Delivered on September 15, 2005

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All the costs of litigation shall be borne by Nonparty 1 (resident registration number and address omitted) in the first and second instances.

1. Purport of claim

Defendant 1 through 20 entered in the attached list of the Defendants shall be removed from each of the management offices of ( apartment name omitted) apartment buildings in the Seo-gu, Seo-gu, Gwangju (Saeong and apartment name omitted) apartment buildings. The Defendants shall not interfere with the Plaintiff’s possession to the management office and the management of ( apartment name omitted) apartment houses.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

A. Organization of the plaintiff's representative council

(1) 2,972 households reside in the (name omitted), apartment (name omitted), and (name omitted apartment) apartment (name omitted), Seo-gu, Gwangju (name omitted). The expiration date of the term of office of the 9th council of occupants' representatives (name omitted), the 9th council of occupants' representatives (name omitted, Nonparty 1, the president, and Nonparty 1, on November 8, 2004, notified the head of the management office (non-party 11) of the temporary opening of the council of occupants' representatives, with the following contents:

○ Date and time of meeting: November 13, 2004 15:00

○ Meeting place: (Name omitted) 2 floors of Dong Office.

○ Meeting Bill: ① a change in the method of management, ② a public announcement of tender, approval of the selection criteria, and ③ an election management member to elect the 10th representative election.

○ Other matters: ① Notice of meeting and progress: special agenda, so the meeting progress and the notice of meeting will be voluntarily resolved by the council of occupants' representatives, ② the participation of the staff of the management office in the meeting shall be made only by the chief of the management office and the staff to take charge of recording.

(2) On November 13, 2004, the temporary council of occupants' representatives held on November 13, 2004, changing the place of the meeting to the second floor of the Consumer Association in Seo-gu in Gwangju (Saeong omitted). The council of occupants' representatives held on November 13, 2004 attended 29 out of the total number of 49 representatives for each Dong (10 members present, 19 members present a written resolution). The council of occupants' representatives approved the agenda items (19 members) and decided to appoint not more than five members from among the head of the Tong/Dong and the (Dong Dong name omitted) autonomous council members in the company with delegation to the president of the agenda items (3). Accordingly, Nonparty 1 commissioned Nonparty 2 and 12 as the election management member for the election of the representative of the

(3) On November 20, 2004, Nonparty 2 and 12 held a meeting of the election commission (hereinafter Nonparty 1’s election commission) on which Nonparty 2 and 12 elected Nonparty 2 as the chairman. Nonparty 10 decided on the following agenda items, such as the election schedule of representatives by the 10th building and the election day of officers by the 10th building.

○ Election Publication Date: December 1, 2004

○ The candidate registration place: Seo-gu, Gwangju (Seong-gu omitted) 202

○ The candidate registration date: December 9, 2004 - December 15, 2004 17:0

○ Concurrent Voting Day: December 19, 2004 07:00 - 12:00

○ The publication date of election: December 20, 2004

○ Period for receiving candidates for officers: December 20, 2004 - December 23, 2004 - December 15, 2004

○ Date of election of officers: December 26, 2004 15:00

(4) At around 12:00 on December 26, 2004, Nonparty 1’s 38 remaining excluding those disqualified as document failure expenses among the representatives of each building, were determined as the full number of representatives of each 10 building. At around 15:00 on the same day, at the council of occupants’ representatives held at around 15:00, 37 representatives of each building (at the meeting of 11 members and 26 members present in writing) attended, Nonparty 1 as the chairperson, Nonparty 1 as the chairperson, Nonparty 1 as the director, and two auditors as the auditor, thereby constituting the council of occupants’ representatives, which is the 10th council of occupants’ representatives.

B. Composition of the council of occupants' representatives representing the defendant 21

(1) However, on October 27, 2004, four directors, including Nonparty 4, 5, 6, and 7, of the 9th council of occupants' representatives, requested the head of the management office to convene a temporary board meeting. On the same day, the head of the management office notified Nonparty 1 and Nonparty 8 of the temporary board meeting on the same day, but Nonparty 1 and Nonparty 8 did not attend the meeting.

○ Date and time of meeting: October 27, 2004 (number) 20:00

○ conference place: Residential Council room

○ Agenda: ① a violation of the collective agreement, ② a case of retirement age for employees, ③ a case of abolition of a short-term retirement allowance system, ④ a case of restructuring employees, ⑤ a case of entrusted management, ⑤ an election commission for the election of the 10th representation, and 7 other pending issues.

(2) On October 27, 2004, the temporary board of directors opened with only four directors, including Nonparty 4, etc., (1) through (5) shall withhold the agenda, and (6) appoint five occupants of Nonparty 14, 15, 16, 17 and 46 501 as election management members to elect representatives of the 10th building, and the election commission (hereinafter “Defendant 21’s election management commission”).

(3) On October 28, 2004, Defendant 21, which was composed of Nonparty 14 and three election management members due to the refusal to commission the occupant No. 46-dong 501, did not hold a meeting on October 28, 2004, elected Nonparty 14 as the chairperson, and decided on the following agenda items, such as the schedule of election of representatives by the 10-dong building and the date of election of officers.

The period of public notice for the registration of candidates for representatives by Dong: October 30, 2004; November 4, 2004

The registration period of the representative of each Dong: November 5, 2004 09:00 on November 5, 2004 - November 18, 2004

(4) On October 30, 2004, the chairman of the Labor Relations Commission of Defendant 21 announced the election of the representative of the Dong 10 on October 30, 2004, and notified the decision of election of the representative of the Dong 39 on November 12, 2004 on November 30, 2004. Next, among the Dongs vacant on November 30, 2004, he notified the decision of election to the 12 representatives of Dong 12 buildings, and received the registration of the officer candidate by December 14, 2004, and notified that the council of occupants' representatives will hold the officer candidate candidate registration by December 14, 2004.

(5) Accordingly, at the council of occupants' representatives held on December 4, 2004, 44 consisting of the 10th council of occupants' representatives (hereinafter the defendant 21 council of occupants' representatives) separately from the non-party 1 by selecting 44 representatives from among 51 representatives for each Dong, Defendant 21, the 8 directors, non-party 4, and two auditors, respectively.

(c) Changes in management methods and selection of housing management operators;

On the other hand, on October 204, the council of occupants' representatives of the 9th council decided to change the management method from the end to the entrusted management method to the entrusted management method. After obtaining the consent of 459 households, the council of occupants' representatives decided to change the method of management by obtaining the consent of 1,653 households (5.62% = 1,653 households/2,972 households) from the beginning of November 2004. Further, on November 13, 2004, the council of occupants' representatives selected the non-party 3 Co., Ltd. (hereinafter the non-party 3 Co.), as the entrusted management company on November 26, 2004, the employees agreed to individually manage the management method by 1,512 households (limited to the non-party 1,50.87% = 1,512/2,972 households) with the consent of 1,653 households from the beginning of December 2004 to the entrusted management office.

(d) The current status of management of apartments (name omitted);

(1) On December 20, 2004 and December 23, 2004, Nonparty 1 urged the management office employees of the management office, the remaining Defendants except Defendant 21 to conclude an employment contract with Nonparty 3, or notified Nonparty 3 of all books and inventories necessary for the management of accounting books, etc. and all kinds of deposit passbooks to Nonparty 3 until December 31, 2004 without such intent. The above Defendants rejected Nonparty 3’s request for transfer of the account books by asserting that the autonomous management is continued.

(2) On January 3, 2005, Defendant 21, as the president of the council of occupants' representatives, changed the representative of the ( apartment name omitted) apartment management office's identification number in his name, and changed the revenue account of the financial institution's management expenses such as Gwangju Bank (branch name omitted) branch on January 6, 2005. In addition, Defendant 21 notified Nonparty 3 of the cancellation of the entrusted management contract on January 7, 2005.

E. (Real Name omitted) In accordance with Article 44(2) of the Housing Act and Article 57(1) of the Enforcement Decree of the Housing Act, occupants of apartment houses, etc. agreed to amend the management rules (the consent of 1,519 households among the total 2,972 households) by obtaining consent from a majority from July 8, 2004 to July 13, 2004 (the consent of 1,519 households) in accordance with the Standards for Multi-Family Housing Management Act, and reported to the competent authorities on July 21, 2004, the main contents are as follows:

Article 10 (Exercise of Voting Rights) (1) In case of a house of one household, one person shall have one voting right.

(3) Residents, etc. may exercise their voting rights in writing or by proxy.

Article 11 (Total Requirements for Residents, etc.) (1) In addition to matters prescribed by housing-related Acts and subordinate statutes, occupants, etc. shall determine the following matters with the written consent of a majority of all occupants, etc. (in cases falling under subparagraph

1. Election of representatives for each Dong and non-Confidence in the relevant consent;

(2) The management entity shall keep the documents prepared by resolution of occupants, etc. in accordance with housing statutes and these regulations.

Article 13 (Prohibition of Interference with Business) Residents, etc. shall not form other organizations to interfere with the affairs of the council of occupants' representatives and the management body to achieve the objectives under Article 1.

Article 16 (Election of Representatives by Building) (1) The fixed number of representatives by building constituting a council of occupants' representatives shall be 68 persons in total, and the representatives by buildings elected in proportion to the number of households by building pursuant to Article 50 (1) of the Enforcement Decree of the Housing Act shall be as follows:

1. One to seventy-seven units (excluding eight rental apartments of the Public Officials Pension Service); 68 units;

Article 17 (Composition of Council of Residents' Representatives) (1) The council of occupants' representatives shall consist of the fixed number of the representatives by buildings elected under Article 16 (1).

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

1. One chairman;

2. Eight directors; and

3. Two auditors.

(3) The chairperson shall be elected from among representatives for each building.

Article 18 (Disqualifications, etc. for Representatives by Building) (1) The qualification of representatives by Building shall be the occupant who has resided in the relevant apartment complex for not less than 6 months after the completion of resident registration in the relevant apartment complex as of the date of public announcement of the election of representatives by Building pursuant to Article 50 (3) of the Enforcement Decree of the Housing Act, and even if the occupant is the occupant, any person

10. A member of the election commission under Article 30 (1);

Article 19 (Term of Office of Representatives and Officers by Building) (1) The term of office of representatives by buildings shall be two years, and they may be reappointed.

(4) If a representative of each building loses his/her qualification, such qualification shall be lost.

Article 20 (Public Notice, etc. of Election of Representatives by Building) (1) The public announcement for the election of representatives by building shall include the following matters, and shall be publicly announced one month before the expiration of the term of office:

1. The number and term of office of the elected person;

2. Election period;

3. The period of candidate registration;

4. Place of registration of candidates;

5. Documents for registration of candidates;

(a) An application for candidate registration;

(b) Full payment confirmation of management expenses;

(c) A certified copy;

(d) Copy of resident registration;

(e) At least 1/10 of the number of households in the relevant Dong;

(2) The council of occupants' representatives shall have operational regulations of the Election Commission for election of representatives by buildings.

(3) An election commission shall publicly announce the list, term of office, etc. of the representatives of buildings elected without delay.

Article 21 (Holding of Meetings)

(3) Extraordinary meetings shall be held in any of the following cases in addition to the matters under subparagraphs of Article 51 (2) of the Enforcement Decree of the Housing Act:

1. Where the chairman deems it necessary;

2. When an auditor requests the convocation of a meeting, clearly stating the reasons why the audit results or the council of occupants' representatives deems illegal, and materials for convocation.

3. Where the management entity requests to convene a meeting, specifying the grounds for convening the meeting;

Article 21-2 (Meetings of Officers)

(5) A meeting of executives shall be convened and resolved by the attendance and consent of the majority members.

Article 22 (Procedure for Convocation of Meetings) (1) When the Chairperson intends to call a meeting, he/she shall notify the representative of each Dong of the date, time, place, and proposal no later than five days prior to the opening of the meeting, and shall publicly announce it on the bulletin board, website (limited to the case of establishment in the complex;

(2) Notwithstanding the provisions of paragraph (1), where a meeting is re-called for the same purpose or urgent measures are taken, the notice thereof may be given by the

(3) The managing body shall convene the first conference for the composition of the council of occupants' representatives elected by the representatives by buildings, and such persons shall be extended from among the elected representatives.

Article 24 (Methods of Resolution) (1) The members of the council of occupants' representatives shall consent by a majority of the members stipulated in Article 17 (1) of the Enforcement Decree of the Housing Act pursuant to Article 51 (1) of the Housing Act.

(2) The representative of each building shall not act on behalf of the chairperson: Provided, That in cases where there are unavoidable circumstances in which he/she is unable to attend the meeting notified under Article 22, he/she may submit his/her opinion on the agenda in writing to the chairperson.

(3) Where the representative of each Dong elected falls short of a majority of the members prescribed in Article 17 (1), the council of occupants' representatives shall not resolve on the matters referred to in the subparagraphs of Article 51 (1) of the Enforcement Decree of the Housing Act.

Article 27 (Prohibition of Concurrent Offices)

(2) The representative of each building shall not concurrently hold the positions of the head of a Tong/Ban, the head of a self-employed organization, members of an election commission, etc., which are subordinate organizations of a local government.

Article 30 (Election Commission) (1) An election commission organized to elect representatives by buildings shall be organized as follows ten days before the date of public announcement of the election of representatives by buildings. In such cases, no person dismissed from office as the representative of the buildings by buildings shall become a member:

1. The chairperson shall be elected from among its members with the consent of a majority of its members;

2. Members shall be comprised of not more than five council of occupants' representatives, and the head of a Tong (in cases of Myeon) which is a subordinate organization of a local government, the head of a Ban and the head of a female who is an independent organization, the chairperson of an elderly person,

3. When there is no council of occupants' representatives (referring to the first time and dissolution, etc.), the head of the management office shall organize election management members.

(4) The head of the management office may convene a residents' meeting including the head of a Tong, Ban and girls' meeting, etc. so that the Committee may be organized, and where the Committee is organized, he/she shall support administrative affairs necessary for election.

(7) Where the election of the representative of a building is completed, the election commission shall be dissolved.

Article 34 (Selection of Housing Management Operator) (1) Where occupants, etc. decide to manage by entrustment a management method, they shall select a housing management operator pursuant to Article 52 (State 1) of the Enforcement Decree of the Housing Act.

(2) The chairperson of the council of occupants' representatives shall conclude a contract on consignment and management with the selected housing management operator on behalf of occupants, etc.

(4) The selection of housing management service providers shall be by open competitive bidding.

Article 77 (Revision to Regulations)

(2) The method of amending the management rules shall be determined by the written consent of a majority of occupants, etc. by proposing the council of occupants' representatives or at least 1/10 of occupants, etc. in accordance with the rules of the management rules pursuant to the latter part of Article 57 (2)

(1) The chairperson of the council of occupants' representatives shall, without delay, notify the occupants, etc. of the results of written consent to the proposal for the enactment or amendment of the management rules under Article 77, and when it has been passed, promulgate it: Provided, That when the chairperson fails to promulgate it by the lapse of one month, the head of the management office shall promulgate it.

(2) Where a majority of occupants, etc. is determined with written consent by proposal of at least 1/10 of occupants, etc. pursuant to Article 57 (2) of the Enforcement Decree of the Housing Act, the date on which the management rules and written consent are received from the management entity shall be the date of receipt

(3) The management rules shall enter into force on the date of promulgation, unless otherwise expressly provided for in the Addenda.

Addenda

Article 4 (Term of Office)

The term of office of the representative and executive officers of each Dong as at the time this Code enters into force shall be until December 31, 2004.

F. Meanwhile, the main contents of the management rules that were applied to apartments (name omitted) and the operating rules of the board of directors are as follows before the new management rules are applied (name omitted).

(1) The old management rules;

Article 10 (Resolution) (1) The following matters shall require the consent of a majority of occupants, etc.:

2. Enactment or amendment of the management rules;

3. Determination and change of management methods, and consent to the selection of a housing management operator;

Article 16 (Representatives of Each Building)

(6) The term of office of the representative of occupants shall be three years and may be renewed consecutively.

(8) The election of representatives of occupants of each building at the end of 30 days before the expiration of the term of office shall be elected after the public announcement of the election of representatives of occupants by buildings of the managing body and ten days before the expiration of the term of office

Article 17 (Election Commission) (1) In order to fairly elect representatives by buildings, an election commission organized pursuant to one of the following subparagraphs shall be established:

2. The fixed number of the election management members shall be five and shall be commissioned by the board of directors; and

§ 18. Election of representatives by Dong

(3) Anyone who intends to become the representative of a building shall register with the election commission after preparing the following documents:

1. An application for candidate registration;

2. A copy of resident registration;

3. A certified copy of the register or a certificate of registered right shall be verifiable.

(1) The following matters shall be resolved by a resolution of the council of occupants' representatives, and the resolution shall require the consent of a majority of the members of the council of occupants' representatives:

11. Determination of management methods and proposal for the selection of a housing management operator;

(3) The council of occupants' representatives shall decide (including any change) methods for managing collective housing (including the selection of housing management operators) with the consent of at least 2/3 of its members.

(4) When the council of occupants' representatives intends to decide or alter management methods of collective housing (including the selection of a housing management operator) under paragraph (3), it shall obtain prior written consent of a majority of occupants, etc.

Article 21 (Meetings)

(3) A special meeting shall be convened by the chairperson in the following cases:

2. When one half or more of the members of the board of directors except the chairman request it.

5. Where the management entity presents the objective of the meeting and requests to convene a meeting.

(4) When the chairman intends to call a meeting, he shall notify or disclose the purpose, date, time, and place of the meeting to the occupants, etc. five days prior to the call: Provided, That if it is deemed necessary to convene a meeting urgently due to any inevitable reason, the period may be shortened.

(7) Meetings shall be opened with the attendance of a majority of members representing occupants.

(8) Where any person prescribed in paragraph (3) 2 through 3 requests to convene a meeting, the chairperson shall comply with such request, except in extenuating circumstances, and where the chairperson fails to hold a meeting, he/she may hold a temporary meeting of occupants' representatives with the consent of at least 1/2 of the occupants' representative members. In such cases, the chairperson's duties shall be in the order of

Article 23 (Board of Directors and Board of Directors) (1) The board of directors shall consist of the chairperson and directors. The chairperson of the council of occupants' representatives shall preside over the board of directors and board

(3) The board of directors shall hold a monthly meeting and an executive meeting once a quarter, and Article 21 shall apply mutatis mutandis to the meetings.

(4) The board of directors shall open with attendance of a majority of partners.

(5) Resolutions of the board of directors shall require the concurrent vote of a majority of partners.

(6) A meeting of executives shall have an auditor attend the board of directors and report the quarterly audit results.

(2) Board operating rules

Article 2 (Composition) (1) The board of directors shall be convened by the chairman when the chairman deems it necessary or at the request of a majority of the incumbent members.

(3) The chairman shall convene a public notice by the order of senior among the directors, and act for the chairman.

Article 3 (Method of Resolution) (1) The board of directors shall attend a majority of all incumbent members and pass resolutions with concurrent votes.

(2) Where the numbers of votes of approval and disapproval are votes, the chairperson shall have a vote.

[Reasons for Recognition] The facts without dispute, Gap's evidence 1, 7 through 9, 14, 15, 27, 42, 44, 45, 46, evidence 1, 47, 48, 50, Eul's evidence 1, 3, 4-1 through 3, 5, 6-1, 7, 8 through 10, respectively, 1, 2, 11, 12-1 through 3, 13, 14-1, 14-1 through 21, and the purport of the whole pleadings, and the purport of the whole pleadings

2. The allegations by the parties and the determination thereof

A. The parties' assertion

(1) Plaintiff

The council of occupants' representatives of the plaintiff was duly constituted in accordance with the procedures stipulated in the new management rules. Accordingly, the plaintiff and the defendants who interfere with the entry of the management office of the non-party 3 company or the transfer and takeover of apartment management shall leave the management office, and they shall not interfere with the management office's possession to the management office and the management of apartment (name omitted of apartment) apartment.

(2) The Defendants

(A) The time when the 9th council of occupants' representatives forms the 10th council of occupants' representatives for the election of representatives by buildings for the formation of the 10th council of occupants' representatives is around November 13, 2004. Since the new management rules have not been promulgated until the time, and thus have not been effective, the 10th council of occupants' representatives should organize the 10th council of occupants' representatives by selecting representatives by selecting the 10th council of occupants' representatives. Nevertheless, the 10th council of occupants' representatives held on November 13, 2004 elected election management members based on the new management rules, and the 10th council of occupants' representatives elected through elections constituted the 10th council of occupants' representatives represented by Nonparty 1, thereby violating the former management rules.

Even in accordance with the new management rules, the council of occupants' representatives of the plaintiff has the following important defects in its composition process. In other words, the meeting place of each council of occupants' representatives of November 13, 2004 and December 26, 2004 is not recorded, and the legitimate notification of convocation was not made by individually notifying the representative of each building of the fact of holding the council of occupants' representatives or by publicly notifying on the bulletin board, etc. The above meeting minutes are not properly attached, and it is doubtful that the written resolution, etc. submitted during the argument of this case was corrected ex post. The authority to call the council of occupants' representatives for the 10th council of occupants' representatives to call the 10th council of occupants' representatives was issued by the management authority, but the non-party 2, the representative of the council of occupants' representatives, was commissioned as the election management committee of the non-party 1 and the chairperson of the 9th council of occupants' representatives.

Therefore, the plaintiff's council of occupants' representatives, the chairperson of the non-party 1, cannot be deemed a legitimate (name omitted) apartment, and the non-party 1 is merely the representative of the plaintiff's council of occupants' representatives, which is merely an illegal constituted, and thus, the plaintiff's council of occupants' representatives cannot be deemed a legitimate (name omitted) apartment, and thus, the

(B) Nonparty 1, the representative of the 9th council of occupants’ representatives, did not undergo a deliberation or resolution by the board of directors while entering into an entrusted management contract with Nonparty 3; did not verify the personal information of the management office, which is contrary to the technology, human resources, equipment, etc. owned by the housing management operator; and violated due process in the process of concluding the contract, such as where essential documents are not requisitioned.

Although Nonparty 1 received a written consent to the alteration of the management method without notifying the occupants, etc. of the fractional points of the entrusted management of the deteriorated apartment, rather than the entrusted management in the case of the aged apartment that requires reconstruction, such as (the name omitted of apartment) apartment, it is more economical and safe. However, Nonparty 1 received a written consent to the alteration of the management method without notifying the occupants, etc. of the fractional points of the entrusted management of the deteriorated apartment. The Defendants determined the management method by comparing the management method with the head and the short points of the entrusted management and the autonomous management at a public hearing held around March 2005 with the consent of 1,665 households (56.2%) from among the 2,972 households, and decided to maintain the autonomous management until the time when the management method is determined. Furthermore, as a result of the confirmation by the Defendants, even though there was no consent of 213 households among the written consent holders, the consent rate of consent to the alteration of management method

Therefore, even if the council of occupants' representatives of the plaintiff was duly constituted as the council of occupants' representatives of the 10th apartment, and the non-party 1 has the authority to act as the representative, since the above entrusted management contract is null and void, and the above entrusted management contract continues to take effect, it is reasonable to perform duties, such as the possession of the management office by the defendant 1 to 20 on the attached list of the defendants

B. Determination

(1) Effective date of the new management rules

In relation to whether the council of occupants' representatives of the plaintiff is legally constituted as the council of occupants' representatives of the 10th apartment and whether the non-party 1 has the authority to act as the representative, first, whether the new management rules have been effective at the time of constituting the council of occupants' representatives of the plaintiff

(A) The 9th council of occupants' representatives has amended the former management rules with the consent of a majority (1,519 households among 2,972 households) from July 8, 2004 to July 13, 2004 in accordance with the standards under the Multi-Family Housing Management Act, and on July 21, 2004 and Article 78 of the New Management Rules, the report of the new management rules to the competent authority on July 21, 2004 and the result of the written consent of occupants, etc. on the proposal for the enactment or amendment of the management rules shall be notified to the occupants, etc. without delay. If the chairman fails to promulgate by one month, he shall promulgate it from the date of promulgation by the head of the management office, and if the chairman fails to promulgate by one month, the fact that the head of the management office shall enter into force from the date of promulgation by the 2004 Evidence No. 2-1, the president of the management office may recognize the fact that Nonparty 11 did not promulgate the new apartment management rules on the bulletin.

(나) 그러나 앞에서 인정한 사실과 갑 제50호증, 제57호증의 2, 4, 5 내지 7, 을 제6호증의 2, 제7호증, 제8호증의 1, 2의 각 기재 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 신 관리규약에는 법령 등의 공포와 달리 관리규약의 공포방식에 관하여 특별히 제한·규정하고 있지 아니한 점, ② 신 관리규약은 2003. 11. 30.부터 시행된 주택법 시행령 부칙 제10조(관리규약의 준칙 등에 대한 경과조치)의 규정(입주자 등은 이 영 시행일부터 6월 이내에 종전의 관리규약을 제1항의 규정에 의하여 개정된 관리규약의 준칙에 적합하도록 하여야 한다)에 따라 개정된 것으로서, 제9대 입주자대표회의는 위 6월의 개정기한을 약간 지나 건설교통부 공동주택 관리법령의 표준안에 의거하여 신 관리규약을 마련하고 그에 대하여 과반수 동의를 얻어 개정하였는데, 신 관리규약에 대한 입주자 등의 과반수 동의를 얻는 과정에서 표준안에 근거한 신 관리규약의 주요내용이 입주자대표회의 또는 관리사무소를 통하여 입주자 등에게 널리 알려졌을 것으로 추단되는 점, ③ 회장인 소외 1이 49명의 동별대표자 중 33명이 출석한 2004. 9. 11.자 입주자대표회의에서 동별대표자에게 관리규약의 개정과정과 신 관리규약의 중요 내용을 요약하여 설명한 점, ④ 관리소장인 소외 11이 소외 1에게 보낸 ‘2004. 10. 28.자 긴급 이사회의(2004. 10. 27.) 결과통보문’에 그 개최 근거규정으로 신 관리규약 제21조 제3항 제3호를, ‘2004. 11. 4.자 통지서’에 위 긴급 이사회의 소집근거로 신 관리규약 제30조 제4항을, ‘2004. 12. 14.자 위탁에 관한 관계서류 일체 관리사무소에 비치요구문’에 신 관리규약 제26조, 제36조 제2항 등을, ‘2004. 12. 21.자 제10대 입주자대표회의 구성통보문’에 신 관리규약 제13조의 업무방해금지 조문을 각 적시하고 있는 점, ⑤ 피고 21측 선관위 위원장이 ‘2004. 10. 30.자 동별대표자 선출공고문’에 동별대표자 등록서류와 관련하여 ‘신 관리규약 제20조 제1항 제5호 참조’의 문구를 부기하였고, 2004. 11. 9.자 회의에서는 신 관리규약에 근거하여 동별대표자 후보등록신청을 반려하거나 임원자격 결격을 심사하였으며, ‘2004. 11. 12.자 동별대표자 확정공고문’에서 신 관리규약 제19조 제1항에 따른 동별대표자의 임기(2005. 1. 1. - 2006. 12. 31.까지 ; 구 관리규약 제16조 제6항에 따르면 동별대표자의 임기는 3년임)를 적시한 점, ⑥ 소외 18 외 (아파트명 생략)아파트 입주민 10명( 소외 4, 5, 6, 7, 19, 20, 21, 22, 23, 24)의 명의로 2004. 12. 13. 소외 1에게 보낸 ‘위탁관리 계약서 및 일체서류 복사요청문’에 그 요청의 근거규정으로 신 관리규약 제36조 제2항을 적시하고 있는 점, ⑦ (아파트명 생략)아파트 입주자 등 과반수는 2004. 10. 말경의 관리방법변경 제안동의로부터 2004. 11. 초순경의 관리방법변경 서면동의 및 2004. 12. 초순경의 위탁관리사 선정동의에 이르는 일련의 과정에서, 구 관리규약에서 정하고 있는 ‘관리방법의 결정 및 주택관리업자의 선정에 대한 제안에 관한 입주자대표회의의 의결(제20조 제1항 제11호) → 입주자 등의 과반수 서면결의(제20조 제4항) → 입주자대표회의 구성원 3분의 2 이상의 찬성(제20조 제3항)’의 절차를 거치지 않고, 신 관리규약 제34조 제1항에서 규정하고 있는 ‘ 주택법 시행령 제52조 의 규정에 따른 절차’를 거쳐 (아파트명 생략)아파트 관리방법의 변경 및 위탁관리사 선정에 이른 것으로 보이는 점 등에 비추어 비록 신 관리규약의 공포의 시기 및 경위에 관하여 다소 불분명한 점이 있다고 하더라도, 적어도 입주자 과반수가 신 관리규약으로 개정하는 데 동의하였고, 입주자대표회의에서 동별대표자에게 관리규약의 개정과정과 신 관리규약의 중요 내용에 대한 설명이 이루어졌으며, 입주자 등이 주택법 시행령에 근거하여 개정된 신 관리규약에서 정한 절차에 따라 주택관리방법의 변경 및 주택관리업자의 선정에까지 나아간 이상, 이때에는 이미 입주자 등으로 하여금 널리 신 관리규약을 알게 하는 절차가 마쳐졌다고 판단된다. 여기에 소외 1측 선관위와 관리사무소 및 피고 21측 선관위 등이 모두 제10대 입주자대표회의의 구성을 위한 절차를 공동주택 관리법령의 표준안에 근거한 신 관리규약에서 정한 절차에 따라 진행하였던 점까지 고려하면, 신 관리규약은 늦어도 입주자 등이 관리방법의 변경에 관한 제안에 나서고, 피고 21측 선관위가 관리사무소장의 임시 이사회 소집통보를 통하여 피고 21측 입주자대표회의의 구성절차에 나아갔던 2004. 10. 말경에는 이미 관리사무소에 비치되거나 관리주체에 접수되고 입주자대표회의 구성원 및 입주자 등에게 널리 알려져 관리규약으로서 (아파트명 생략)아파트 내에서 규범력을 갖추고 있었다고 봄이 상당하다.

(2) Whether the plaintiff council of occupants' representatives is legitimate

Next, according to the new management rules, the plaintiff's council of occupants' representatives has been duly organized as the 10th council of occupants' representatives of the apartment (name omitted), and whether the non-party 1 has the authority as the representative.

(A) When the chairman intends to call a council of occupants' representatives, he/she shall notify the representatives of each Dong of the date, time, place, and agenda at least five days prior to the opening of the council of occupants' representatives, and notify the representatives of each Dong on bulletin board, etc. without delay so that the occupants, etc. can be known, and the management entity shall convene the first conference for the formation of the council of occupants' representatives by selecting the representatives of each Dong buildings (Article 22(1) and (3) (Article 22(1) and (3). However, the descriptions of the evidence Nos. 15, 64, 65-1, 29-1 through 18, 30-1, and 26 of the evidence Nos. 29 and the testimony of non-party No. 2 of the first instance court to elect the representatives of each Dong in order to constitute the council of occupants' representatives, there is no unavoidable reason to acknowledge that the council of occupants' representatives had convened the above procedures.

In addition, the majority of the members of the council of occupants' representatives shall consent, and the representative of each Dong shall not act on behalf of them, and in extenuating circumstances, he/she may submit his/her opinion in writing to the chairperson of the council and in that case, he/she shall be deemed to attend the meeting (Article 24(1) and (2)). However, there is no evidence to acknowledge that there is an inevitable circumstance in which the representative of each Dong who submitted his/her opinion in writing at the council of occupants' representatives on November 13, 2004 and December 26, 2004 could not attend the meeting (Article 27(2)). In addition, the representative of each Dong may not concurrently hold the office of a member of the election commission (Article 27(2). Nevertheless, as seen in the above facts, Nonparty 2, the representative of each Dong, was commissioned as a member in the organization of the first executive officer of Nonparty 1, who was elected

(나) 위 인정사실에서 나타난 바와 같이 부득이한 사유가 없었음에도 입주자대표회의 소집에 있어서 일시·장소·의안의 통보나 공시 등 기본적인 절차조차 거치지 않았던 것으로 보이는 점, 회의에 참석할 수 없는 불가피한 사정이 보이지 않은 상태에서 동별대표자의 상당수가 서면으로 의견을 제출할 것으로 되어 있어 안건에 대한 의결에 있어서도 과반수의 찬성이 있었는지 의심되는 점, 선거관리위원으로서 자격이 없는 소외 2가 위원으로 위촉되고 위원장까지 맡아 원고 입주자대표회의를 구성하는 데 주도적으로 관여한 점 등에 비추어 2004. 11. 13.자와 2004. 12. 26.자 입주자대표회의는 신 관리규약에 따른 적법한 절차를 거치지 않은 것으로써 위 각 입주자대표회의에서 이루어진 결의는 그 효력이 없다고 봄이 상당하다. 따라서 무효인 결의에 따라 구성된 원고 입주자대표회의는 적법한 (아파트명 생략)아파트 제10대 입주자대표회의라 할 수 없고, 소외 1은 그 대표자로서 자격이 없다{제9대 입주자대표회의의 임기가 2004. 12. 31. 만료되었는데, 2005. 1. 1.부터 임기가 시작되는 제10대 입주자대표회의의 구성을 두고 소외 1측과 피고 21측이 상대방 입주자대표회의 구성의 적법성을 두고 극렬하게 대립하고 있는 상황에서 피고 21측 입주자대표회의 역시 적법하게 구성되지 못하였으므로(앞에서 인정한 바와 같이, 피고 21측 선관위 구성을 위한 2004. 10. 27.자 임시 이사회는 소집권한 없는 자가 소집하면서 일부 이사에게 통지도 하지 않았고, 선거관리위원회를 구성할 권한이 없음에도 이를 구성하였다. 그에 따라 제10대 입주자대표회의의 구성을 위한 적법한 선거관리위원회가 갖추어졌다고 볼 수 없어 거기에서 동별대표자 후보등록을 공고하고, 후보접수를 받아 동별대표자를 확정하였다고 하더라도 그 효력이 없다. 따라서 피고 21측 입주자대표회의는 적법한 (아파트명 생략)아파트 제10대 입주자대표회의라고 할 수 없다. 또한 임시 이사회의 소집요구와 의사 및 의결정족수와 관련된 구 관리규약의 규정에 의하더라도, 제9대 입주자대표회의의 회장을 제외한 이사 구성원 7명 중 2분의 1 이상인 4명의 이사가 임시 이사회의 소집을 회장 소외 1에게 요구할 수는 있으나, 그 경우에도 임시 이사회 소집기일 5일 전에 회의의 목적, 일시 및 장소를 이사들에게 개별통지하거나 공시하여야 하고, 부득이한 사유가 있어 긴급히 회의를 소집할 필요가 있다고 인정되는 경우에만 그 기간을 단축할 수 있다. 그에 따라 회장인 소외 1이 회의 소집요구에 응하지 않는 경우에는 회장 소외 1과 이사 7명으로 구성된 이사회의 구성원 1/2 이상의 찬성으로 임시 이사회를 개최하고, 과반수의 출석으로 개의하며 과반수의 찬성으로 의결할 수 있다. 그런데 을 제4호증의 1 내지 3의 각 기재와 제1심 증인 소외 6의 증언에 의하면, 2004. 10. 27.자 임시 이사회 개최 당일 관리소장이 소집을 통보하였고, 이사회의 구성원 8명 중 4명의 이사들만이 위 임시 이사회에 출석하여 피고 21측 선관위 구성을 결의한 사실을 인정할 수 있을 뿐이므로, 위 임시 이사회 결의는 구 관리규약에 의하여도 부적법하다), 제9대 입주자대표회의는 적법한 제10대 입주자대표회의가 구성될 때까지 (아파트명 생략)아파트의 관리업무의 공백을 막고 정상적인 유지·관리를 위하여 통상적인 업무에 관한 권한을 계속 가지며, 소외 1 역시 종전의 대표자로서의 직무를 수행할 수 있다고 볼 수도 있다. 다만 그렇게 보더라도 업무범위는 통상적인 유지·관리업무에 한하고, 그 기간은 적법한 제10대 입주자대표회의가 구성될 때까지 신의칙상 그에 필요한 상당한 기간에 한정된다고 보아야 한다. 그런데 갑 제67호증, 제68호증의 1의 각 기재와 변론 전체의 취지에 의하면, 쌍방 당사자는 2006. 7. 5. 당심 제4차 변론준비기일에서 소외 3 회사가 관리주체로서 신 관리규약에 따라 제10대 입주자대표회의의 구성을 위한 절차에 착수하기로 합의하였던 사실, 하지만 원고 입주자대표회의는 위 합의에 위배하여 이 사건 등 관련 사건에 대한 판결이 확정될 때까지 자신이 대표성을 가지고 그 후에야 새로운 입주자대표회의를 구성하기로 결의하였으며, 관리주체인 소외 3 회사는 이에 동조하여 제10대 입주자대표회의의 구성을 위한 절차에 착수하지 않고 있는 사실, 뿐만 아니라 원고 입주자대표회의는 (아파트명 생략)아파트의 유지·관리를 위한 통상적인 업무의 수행에 그치지 않고, KTF광중계기 시설공사와 상가 보수공사 등을 실시하거나 소외 3 회사와 위·수탁관리계약을 다시 체결하기로 결의한 사실을 인정할 수 있다. 위 인정사실에서 나타난 바와 같이, 원고 입주자대표회의는 통상적인 범위를 벗어나 업무를 수행하고 있으며, 신 관리규약에 따라 제10대 입주자대표회의의 구성하기로 합의하였음에도 불구하고 특별한 이유 없이 이를 이행하지 않음으로써 관련 사건에 대한 판결이 확정될 때까지 입주자대표회의로서의 권한을 계속 행사하려는 의도를 가지고 있다고 볼 수밖에 없다. 따라서 원고 입주자대표회의는 비록 적법한 제10대 입주자대표회의의 구성되었는지 여부와 관련된 소송이 계속되고 있다는 사정을 감안하더라도, 신의칙상 적법한 제10대 입주자대표회의가 구성하는 데 필요한 상당한 기간을 이미 경과하여 더 이상 제9대 입주자대표회의의 지위에서 아파트 유지·관리업무에 관한 권한을 계속 가진다고 할 수 없고 소외 1 역시 대표자로서의 직무를 수행할 권한이 없다고 보아야 한다}.

(3) Ultimately, the council of occupants' representatives composed of the plaintiff's representatives following a null and void resolution cannot be deemed as a legitimate council of occupants' representatives of (name omitted) apartment 10, and the lawsuit in this case is unlawful without any need to further examine the case, since it is not qualified as a representative

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is unfair to dismiss it, and the judgment of the court of first instance with different conclusions is so revoked and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment List]

Judges Maximum Full-time (Presiding Judge)

(1) Article 52 (Determination, etc. of Management Methods) (1) of the Enforcement Decree of the Housing Act (where a management method by a housing management operator is selected, including the selection of a housing management operator; hereafter in this Article the same shall apply) shall be decided by the method of management of collective housing under Article 43 (3) of the Act.