2014A.8857 A.S. action to nullify the election and to nullify the election

1. ○○

2. Kim○-○

3. Kim Jae-in

4. Objection.

Mangman Korean Apartment Apartment Council

The Nam-gu Incheon Metropolitan Government Frobro 21-gil 23, Man-Korean Apartment Management Office ( Man-dong :

[Korean Apartment]

Attorney Kim Jong-chul, Counsel for the defendant-appellant

May 7, 2015

May 28, 2015

1. On June 24, 2014, the Defendant’s decision on the elected representatives by Dong as to 101 units, 103 units, 104 units, and above 101 units, 103 units, 104 units, and 104 units, among the representatives by Dong for the formation of the 14th council of occupants’ representatives held on June 24, 201, is confirmed to be null and void.

2. Ascertainment that the Defendant’s election of the president and auditor for the formation of the 14th council of occupants’ representatives held on July 7, 2014 is null and void.

3. The plaintiffs' remaining claims are dismissed.

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

The Defendant confirms that the election of representatives by buildings for the formation of the 14th council of occupants' representatives for the Man-Korean apartment No. 14 established on June 24, 2014 (101 Dong, 102 Dong, 103 Dong, 104 Dong, 104 Dong), the decision on the elected representatives by buildings at the above election, and the election of the chairman and the superintendent for the formation of the council of occupants' representatives for Man-Korea apartment No. 14 established on July 7, 2014, are each invalid.

1. Basic facts

A. Status of the Parties

The plaintiffs are the occupants of hydro-Korean apartment (hereinafter referred to as "the apartment of this case") located in Nam-gu Incheon Nam-ro 21-gil23, Nam-gu, Incheon, and the defendant is a non-corporate association composed of representatives from each apartment of this case under the Housing Act and the Enforcement Decree of the Housing Act.

B. On June 24, 2014, the execution of the election of representatives by buildings for the formation of the 14th council of occupants' representatives (hereinafter referred to as the "election of representatives by buildings of this case") and the announcement on the elected persons

1) In order to elect representatives of the instant apartment building from April 30, 2014 to June 11, 2014, the Defendant publicly announced the following election day, registration of candidates, etc. to the occupants of the instant apartment from around April 30, 2014:

The number and term of office of each constituency (Article 17 of the Management Rules of the Apartment of this case)

A person shall be appointed.

○ Term: July 1, 2014 to June 30, 2016 (two years)

○ Method of determining the winner

- If candidates exceed the quota for each Dong (two persons): the election of the winners;

- Where candidates are less than the fixed number for each Dong: They shall be elected with the consent of a majority vote and a majority of voters.

2) On June 18, 2014, the instant apartment election commission determined the representative candidates for each 14th constituency in each of the above constituency; on June 24, 2014, "on the voting day to June 7, 2014, some of the constituency districts with the number of candidates changed from 7:00 p.m. to 7:0 p.m.; and on June 24, 2014, "the method of voting shall be entered in two lawsuits using the balloting aid;" and on June 24, 2014, the election commission announced that "on the voting day to go to 102 constituency registered as the sole candidate as the election day of the instant Dong, and on the other 101 dong, 103 dong, 104 dong, and 104 dong, the election district should be held).

3) At the time of the election of the representative of the Dong of this case, on the ballot papers of 101 dong, 103 dong, 104 dong, and 104 dong 101 dong 101 dong 101 dong 103 dong 103 dong, and 104 dong 104 dong 102 dong 101 dong 102 dong 102 dong 102 dong dong 102 dong dong 102 dong dong dong 102 dong dong dong dong 102 dong dong dong dong 102 dong dong dong 102 dong dong dong on the ballot papers by visits to the residents of the relevant constituency.

4) As a result of the ballot counting of the representatives of each Dong of this case, ○○○, Han○○○, 101 Dong-dong representatives, 102 Dong-dong representatives, ○○○○○○○, 102 Dong-dong representatives, Ga○○○○, Kim ① 103 Dong-dong representatives, 104 Dong-dong representatives, and 101 Dong-dong representatives, hereinafter referred to as ○○○○○, etc., collectively referred to as hereinafter referred to as “the election of representatives of each Dong-dong and 103 Dong-dong representatives”). Detailed voting results are as follows.

5) The instant apartment election commission on June 24, 2014

A person shall be appointed.

The election of the representative of each Dong of this case was publicly announced.

C. On July 7, 2014, the instant apartment is called the president and the auditor election for the formation of the 14th council of occupants' representatives (hereinafter referred to as the "chairperson, etc. of this case"), and the execution of the above election and the election for representatives of each building of this case, and the announcement of the winner.

On June 24, 2014, the chairperson of the apartment election management of this case announced that one chairperson, two auditors, the voting day, July 7, 2014, when the number of candidates exceeds the fixed number of candidates, the chairperson of the apartment election management of this case, who was elected as the winner of this case, was elected as the winner of this case, and announced that ○○○ was elected as the chairperson of the defendant, ○○, ○○○, and ○○○, and ○○○○ was elected respectively through the resident’s voting on July 7, 2014.

D. The management rules and the regulations of the election commission related to each of the instant elections are as follows.

1) Management rules of the instant apartment

Article 17 [Election and Grounds for Disqualification of Representatives by Building] (1) The representatives of each building constituting the council of occupants' representatives shall, pursuant to Article 50 (1) of the Enforcement Decree of the Housing Act, have two persons for each of the following constituency in proportion to the number of households

The total number of eight persons shall be elected and elected.

1. First constituency: two persons (101 Dong);

2. Second constituency: two persons (102 dong); and

3. Third constituency: two persons (103 dong); and

4. Fourth constituency: two persons (104 Dong); and

(2) The representatives of each building shall be elected from among the occupants (referring to the occupants who have resided in the relevant multi-family housing complex for at least six consecutive months after the birth of their resident registration in the relevant multi-family housing complex as of the date of public announcement of the election of the representatives of each building) by means of ordinary, equal, direct, and secret election of the occupants of each constituency according to

1. Where candidates are two or more persons: The one with higher votes shall be elected;

2. Where candidates are one person: A majority of the occupants, etc. of the relevant constituency shall be elected with the consent of a majority of the occupants, etc. who have cast the vote.

(3) Multi-family housing with at least 500 households shall be elected through ordinary, equal employment, direct employment, and confidential election of all occupants, etc. according to the following classification:

1. Where candidates are two or more persons: The one with higher votes shall be elected;

Article 19 [Composition of Executives] (1) The council of occupants' representatives shall have the following executives pursuant to Article 50 (5) of the Enforcement Decree of the Housing Act:

1. One chairman;

5. Two auditors.

(2) Pursuant to Article 21 (2) of the Rules, the term of office of the executives of the council of occupants' representatives shall be the period of office of the representative for each building, and when the representative becomes disqualified, the qualification

Article 27 (Resolution of Council of Residents' Representatives) Pursuant to Article 51 (1) of the Enforcement Decree of the Housing Act, the council of occupants' representatives shall adopt a resolution with the consent of a majority of its members (referring to the prescribed number of members by management rules pursuant to the main sentence of Article 50 (5) of the Enforcement Decree of the Housing Act, and referring to the number of elected members when two-thirds or more of the members of the relevant council of occupants' representatives are elected)

2) Provisions of the instant apartment election commission

Article 3 (Affairs for Election Management) (1) Election affairs shall be managed by the Election Commission in accordance with this provision, the Enforcement Decree of the Housing Act, and the Management Rules for Apartment Buildings in this case, but, unless otherwise prescribed, the Election Commission may determine necessary matters in accordance with the Public Official Election Act or the Public Association Chairperson Election Act or in the same manner as commissioned election by the head of a public association.

Article 25 (Method of Voting) (2) The number of votes shall be one person by direct voting.

Article 31 (Procedures for Voting) (2) An elector shall enter a balloting booth after receiving a ballot paper, select one candidate, put a mark in the corresponding column of the ballot paper, and then put the ballot paper on the spot so that no other person can see the details of the mark in the ballot box.

Article 32 (Visits Voting) (1) The term "Visits voting" means voting for supporting and opposing votes through door-to-house visits if there is only one candidate in the election of the representative of each Dong.

Article 37 (Invalidity Voting) (1) A vote falling under any of the following subparagraphs shall be null and void:

2.2 or more marks are put;

제44조 ( 당선인 결정 ) ① 공동주택 선거관리위원회는 후보자 중 유효투표의 다수를 얻은 자 ( 감 사선거의 경우에 있어서는 유효투표의 다수를 얻은 자 순으로 감사정수에 이르는 자를 말한 다 ) 를 당선인으로 결정하고 최고득표자 2인 이상인 경우에는 연장자를 당선인으로 결정한다 .

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 through 9, 17, 19, 31, Eul evidence Nos. 1, 4, 7, 8, 10, 11, 12, 14, 19 through 23, 32, and 33 (including each number), and the purport of the whole pleadings

2. Determination of the parties’ assertion

A. The parties’ assertion

1) The plaintiffs

A) According to the instant management rules and the regulations on the election management of the apartment, the voting shall be one person, and the voting in two or more columns shall be null and void, and the person who has obtained a majority of the valid votes shall be decided as the elected person. However, at the time of the election of the representative of each Dong of this case, the Defendant recognized the list in two columns among the voting papers in Chapter 1 as the valid vote, and decided on the elected representative of each Dong of this case.

B) Accordingly, as a result of recognizing the representative election of the instant building and accordingly, the entry in two columns among the ballot papers in the above Chapter 1 as valid mark, and making the instant apartment building name ○○, etc. decided as the elected person (hereinafter “decision on the elected person”) as the representative of each apartment building of this case, the decision on the elected person is invalid in violation of the above voting method and the management rules of the instant apartment building and the regulations of the election commission on the decision on the elected person.

C) In addition, with respect to the decision on the election of the representative or elected person for each Dong of this case, some of the plaintiffs raised an objection against the valid disposition of the votes cast in two columns among the above ballot papers to the election commission of this case. However, the above election commission unilaterally dismissed the above application in violation of the regulations of the election commission of this case. Therefore, the decision on the election of the representative or elected person for each Dong of this case is invalid in that of the above important procedural defects.

D) According to the management rules of the apartment of this case, the representative of each Dong constituting the defendant is required to elect the total number of eight persons and make a resolution with the consent of a majority of its members. Therefore, for the 14th defendant organization, the number of representatives of each Dong can meet the quorum to be at least five persons, but the representative elected according to the number of valid votes through the election of representatives of the Dong of this case among the total number of eight representatives of the apartment of this case among the total number of eight representatives of the Dong of this case is only four, and the election of the chairperson of this company and other representatives of this company are invalid in violation of the above management rules as to the elements of

2) Defendant:

A) The Enforcement Decree of the Housing Act and the Ministry of Land, Infrastructure and Transport guidelines stipulate the voting procedure, method, decision on elected persons, etc. on the premise that one representative is elected by each constituency. However, the apartment management rules of this case require two representatives by each constituency to be elected. Therefore, the fact that two representatives by each constituency of this case were put in two pages from the election of representatives by each Dong of this case where two representatives are involved cannot be deemed to have violated the management rules, etc. of the apartment of this case.

B) Meanwhile, the instant management rules stipulate that the candidates for representatives of each Dong should be elected if there are more than two persons, but it is difficult to view that the selection method of multi-party one is premised on the one-person one-person one-person one-person one-person one-person one-person one-person one-person one-person two-party one-person one-person one-person one-person one-person one-person one-person one may be interpreted to be the elected person. In addition, the method of one-person one-person one-person one-person one-person one-person one-person two-person one-person one-person one-person two-person one-person one-person one-person one-person one-person one-person one-person one-person one-person one-person one-person one-person two-party one-person one-person one-person one-person two-party one-party two-party one-party one may not be deemed to have violated the rules of the instant apartment management and the regulations of the election commission.

C) The plaintiff's claim on the premise that the representative election and the decision on the elected person by each Dong of this case are unlawful and invalid is unfair.

B. Determination as to the invalidity of a single election held on June 24, 2014

According to the above facts of recognition, 102 of the election of the representative of each Dong of this case is the apartment of this case.

The candidate provided for by the management rules and the Election Commission shall be held in accordance with the selection method in the case of one person, and the procedural defect cannot be deemed to exist, and further, the decision to select ○○ as the representative of 102 shall not be deemed to have any defect. Thus, the plaintiff's allegation in this part shall not be justified.

C. Determination as to the invalidity of an election, such as the Chairperson, etc., conducted on June 24, 2014, 101 Dong, 103 Dong, 104 Dong election, and 104 Dong election, and July 7, 2014

1) Where there is a reason in contravention of the Acts and subordinate statutes in the election procedure, the relevant election does not become null and void merely due to the reason in contravention of such 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 considerably infringed and that the result of the election has influenced by the reason in contravention of such Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2003Da11837, Dec. 26, 2003; 2009Da10258, Jul. 15, 2010; hereinafter referred to as "where it is deemed that the result of the election had influenced by the result of the election, i.e., the result of the election, which would have been realized by the candidate, if there was no violation of the provisions on the election, it means the case where it is deemed that the result of the election would have influenced by the candidate, i.e., the result of the election.

2) Examining the following circumstances, which are recognized in full view of the evidence and the purport of the entire pleadings as seen above, in light of the legal principles as seen earlier, it is reasonable to view that the above facts were affected by the result of the election by not properly reflecting the intentions of the occupants in violation of the apartment management regulations of this case and the election commission regulations of the election commission, and thereby significantly impairing the fairness of the election, and thus, it is null and void. As such, among the decision on the elected persons of this case, the above 101 Dong, 103 Dong, and 104 Dong Dong were composed of the elected persons, and the chairman, etc. of this case as members of the elected persons elected pursuant to the above invalid decision and the election by the elected persons, and as long as the defendant disputes the above decision on the elected persons, the election is invalid.

A) Under the Enforcement Decree of the Housing Act and the Housing Act, the management entity of the collective housing prescribed by the Presidential Decree may be managed through the composition of the council of occupants' representatives (Article 43 of the Housing Act), and the council of occupants' representatives shall be comprised of at least four persons, and the representatives of each building elected in accordance with the election district prescribed by the rules on the management of the collective housing in proportion to the number of households of each building (Article 50(1) of the Enforcement Decree of the Housing Act), and the representatives of each building shall be the representatives of each building (Article 50(1) of the Enforcement Decree of the Housing Act), according to the following classification, from among the occupants who reside in the collective housing complex for at least six consecutive months after the completion of resident registration in the collective housing area as of the announcement date of the election of each building, in accordance with the election of the representatives of each building (where there are at least two candidates: election of the winners; one candidate: the majority of the occupants; election of the voters; election of the voters; and election by the

In light of the language and contents of the above provisions, the Housing Act and the Enforcement Decree of the Housing Act provide that the method of election of representatives by each building to the occupants shall be elected by means of ordinary, equal, direct, and secret election of occupants, etc. for the formation of a council of occupants' representatives, regardless of the number of representatives by each building elected by the relevant constituency. Furthermore, according to the above provisions of the Housing Act and the Enforcement Decree of the Housing Act, the instant apartment management rules and the regulations of the Election Commission shall also be in proportion to the number of households by each building, and the regulations of the Housing Act and the election commission shall provide that two representatives by each constituency shall be elected by the general, equal, direct, and secret election of occupants of the relevant constituency in cases where there are more than two persons by the relevant constituency through the ordinary, equal, direct, and secret election of occupants by the relevant constituency, and by the majority of voters in cases where there is only one candidate, it is difficult to view that the organization and method of election of representatives by each building of the apartment houses as prescribed by the Housing Act and the Enforcement Decree of the Housing Act mean the method of election by one person by each election

B) In a democratic election, in the case of a method in which multiple voters are selected as candidates for two or more candidates through a common, equal, direct or secret election, the adoption of one vote per elector in order to reflect the will of the voters in the election in the most direct and clear manner, which is the same as in the case where the number of voters to be elected through the relevant election is more than two. Thus, the same shall apply in the case where the number of voters to be elected is more than two. Thus, in theory, whether it is possible to ship a multi-party 2 vote as the elected person, regardless of whether it is possible to ship it, it is necessary to have a clear legal basis for the election of one-person 2 tickets to valid.

The rules of the apartment election commission provide that the voting method of the representative of each building consisting of the defendant and the officer election shall be one person by direct voting, and the voting shall be invalidated in two or more columns among one ballot paper. The majority of the valid votes shall be decided on the elected person. In the case of the election for the auditor, it is only prescribed that the person who has obtained a majority of the valid votes shall be decided as the elected person in the order of the person who has obtained a majority of the valid votes, and there is no other evidence to acknowledge that the apartment election commission of this case decided to revise the voting method of the above one-person one-person one vote as stipulated by the regulations of the apartment election commission of this case as the elected person at the time of the election for the representative of each building of this case.

C) In addition, in adopting the one-person two voting methods, even if the elector vote only for one candidate, if the vote affects the result of the election, it would go against the purpose of the election to reflect the intention of the occupants of the relevant constituency, which is the elector, in accordance with the one-person two voting tickets to elect according to the number of voters for each Dong, so it would be contrary to the intention of the election to reflect the intention of the occupants of the relevant constituency, which is the elector. In order to clearly reflect the intent of the occupants, there is room for the problem of disregarding the intention of only one candidate among the candidates.

Therefore, in the election of representatives and executive officers of each Dong consisting of the defendant, there are not less than two candidates stipulated in the Housing Act, the Enforcement Decree of the Housing Act, and the Management Rules of the apartment of this case, it is reasonable to interpret that the voting method in which multiple winners are elected means one person who is the most compatible with the intent of the election of representatives and executive officers of each Dong through a secret election by directly reflecting the intention of the occupants of the relevant constituency in accordance with the above provisions.

3. Conclusion

The plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining Cheong-gu is dismissed as it is without merit. It is so decided as per Disposition.

Judge Park Jae-young

Judges Manyang-si

Judges Kim Jong-tae