2018Da212498 Invalidity of Resolution of Extraordinary General Meeting

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

[Judgment of the court below]

Attorney Kim Jong-soo, Kim Jong-soo, and Jinail

J District Housing Redevelopment and Improvement Project Association

Attorney Yoon Tae-won, Counsel for the plaintiff-appellant-appellant

K

Daegu High Court Decision 2017Na22255 Decided January 19, 2018

June 15, 2018

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. In a case where it is recognized that the articles of association of the redevelopment cooperative or the regulations for organization thereof, and other internal regulations on organization structure thereof, are deemed to be a regulation that substantially infringes on the equality of the eligibility for election held by partners when the rights of partners are necessary and the rights of partners are excessively infringed or restricted beyond a reasonable scope (see, e.g., Supreme Court Decision 2010Da106269, Apr. 28, 201). In addition, in a case where some errors were found in the election management procedure regarding the election of officers of the redevelopment cooperative, the invalidation of the election resolution should be determined by taking into account whether such errors interfered with the free decision, thereby seriously infringing on the freedom and fairness, and thereby affecting the result of the election resolution (see, e.g., Supreme Court Decision 2013Da204690, Dec. 11, 2014).

2. On the grounds indicated in its reasoning, the lower court determined that the Defendant’s election management regulations (amended by Act No. 10268, Apr. 15, 2010; hereinafter “instant election management regulations”) Articles 12(1) and 19(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 10268, Sept. 18, 2008; hereinafter “former Urban Improvement Act”), which are redevelopment cooperatives, shall have the right to be elected only as officers and representatives, who consent to the establishment of the association, is difficult to recognize that the Defendant’s election management regulations are invalid because it discriminates against the members who consent to the establishment of the association without reasonable grounds or excessively limits their eligibility for election. However, in light of the fact that the Defendant’s election management regulations were applied to the instant executives and representatives who participated in the establishment of the association (hereinafter “instant election management regulations”), which affected the Defendant’s resolution of appointment of 17 members and representatives who participated in the establishment of the association.

3. However, in light of the aforementioned legal principles and records, the above determination by the court below is not acceptable for the following reasons.

A. The owners of land, etc. within the rearrangement zone under the former Urban Improvement Act and the defendant association’s articles of association acquire all the status of partners when the redevelopment association obtained authorization to establish an association, regardless of whether the consent to establish an association, but the election management regulations of this case, which limit the eligibility of candidates, such as union executives, to the union members who agreed to establish an association, are invalid because they limit the eligibility for election to all union members equally without any reasonable ground.

B. However, the Defendant applied the invalid election management provision of this case to the public notice of the registration of candidates related to the election of officers and representatives of this case, stating that “qualified matters: members who consented to the establishment of the J district Housing Redevelopment Project Association.”

C. Only the defendant union members who actually agreed to establish an association in accordance with the public notice of the above candidate registration, completed the candidate registration as executive officers and representatives, and the defendant union members who did not consent to establish an association could not assert the candidate's qualification as executive officers and representatives, express their will or complete the candidate's registration. Therefore, the defendant union members who did not consent to establish an association in accordance with the defendant's election management procedure unfairly limited the eligibility for election as executive officers

D. Since the number of the defendant union members who did not consent to the establishment of the association is not a large number, the possibility that some of the defendant union members who did not consent to the establishment of the association would have completed the registration of candidates for officers and representatives if they did not consent to the establishment of the association in accordance with the election management regulations in this case and the

E. Although some of the defendant union members, who did not consent to the establishment of the association, attended a general meeting to exercise the right to vote, and even if the consent rate was high at the time of the resolution to appoint the executive officers and representatives of this case, there is no change in the fact that the resolution to appoint the executive officers and representatives of this case was made under the condition that the candidate itself was unfairly restricted.

F. Ultimately, the Defendant unfairly restricted the qualifications of candidates for executives and representatives to the establishment of an association by the invalid election management regulations and the public notice of candidate registration based thereon, and it is reasonable to deem that such error significantly infringed the freedom and fairness of voting, thereby adversely affecting the result of the resolution of election, such as executives. Therefore, the resolution of appointment of executive officers and representatives of this case is null and void.

4. Nevertheless, the lower court determined that the resolution of appointment of executive officers and representatives of this case is valid because it is difficult to recognize that the Defendant’s error of applying the invalid election management provision alone affected the result of the resolution of election of executive officers, etc. In so doing, the lower court erred by misapprehending the legal doctrine on the resolution of election of executive officers of the redevelopment association, thereby adversely affecting the conclusion of the judgment. The ground of appeal

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee

Justices Min Min-young