[1] The legal nature of the council of occupants' representatives of multi-family housing (=non-corporate association) and in a case where the procedures for election of representatives by buildings after lawful composition of the council of occupants' representatives are not effective due to illegality, the person who holds the status of members of

[2] Whether a director of a non-corporate association whose term of office or resignation has expired can continue to perform his/her duties until the appointment of a new director (affirmative with qualification)

[3] The case holding that, in case where the election of the former president following the expiration of the term of office of the chairman of the council of occupants' representatives becomes null and void, the former president may continue to perform the duties of the representative within a certain scope and the ability of the council of occupants' representatives to terminate the legal capacity of the council of occupants

[1] The council of occupants' representatives of multi-family housing is an unincorporated association consisting of representatives of each Dong elected in proportion to the number of households of each Dong. The representatives of each Dong are selected legally by the representatives of each Dong, and thereafter the council of occupants' representatives legally constituted. Since the selection of representatives of each Dong is merely a change of members merely because the council of occupants' representatives continues to exist as it remains without losing identity as a non-corporate group and its members are changed merely because the procedures for the selection of representatives of each Dong are not effective because they are illegal, the representatives of each Dong cannot obtain the status as members of the council of occupants' representatives, and the former representatives of each Dong still hold the status as members of the council of occupants' representatives, and each change is made by the representatives of each Dong or the chairperson of the council of occupants' representatives, etc., the former and the new non-corporate group shall not be deemed to be constituted and established, and as long as the council of occupants

[2] The relationship between a corporation and a director, who is an institution under the Civil Act, is the same as the legal relationship between the delegating and the delegated person, and when the term of office of the director expires, the delegated relation should be terminated once, but if there is no director until the appointment of the succeeding director, the corporation is bound to act by the institution, which is placed in a situation where the normal activity of the party cannot be discontinued. This can be seen as being when there is an urgent circumstance under Article 691 of the Civil Act. Thus, even if the director is terminated or resigned, unless there are special circumstances to deem it inappropriate to perform his/her duties, he/she may continue to perform his/her duties to the extent necessary to resolve the imminent situation, and such legal principle also applies to an

[3] In a case where the election of the former president following the expiration of the term of office of the chairman of the council of occupants' representatives becomes null and void due to the illegal expiration of the term, the case holding that the former president may continue to perform the duties of the representative within a certain scope and that the ability of the council of occupants' representatives to be

[1] Article 31 of the Civil Act, Article 38 (7) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see current Article 43 (3) of the Housing Act), Article 10 of the former Decree on Management of Multi-Family Housing ( repealed by Presidential Decree No. 18146 of Nov. 29, 2003) (see current Article 50 of the Enforcement Decree of the Housing Act), Article 52 of the Civil Procedure Act / [2] Articles 31, 57, 58, and 691 of the Civil Act / [3] Articles 31, 57, 58, and 691 of the Civil Act, Article 38 (7) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003), Article 38 (7) of the former Enforcement Decree of the Housing Act (refer to the current Enforcement Decree No. 130140 of the Housing Act)

[1] Supreme Court Decision 91Da4478 delivered on April 23, 1991 (Gong1991, 1475) / [2] Supreme Court Decision 81Da614 delivered on March 9, 1982 (Gong1982, 428) Supreme Court Decision 95Da5686 delivered on October 25, 1996 (Gong196Ha, 3409), Supreme Court Decision 96Da37206 delivered on December 10, 1996 (Gong197Sang, 323) (Gong202Da74817 delivered on July 8, 2003)

Plaintiff’s representative council (Attorney Lee Young-young, Counsel for plaintiff-appellant)

Kim Dong-dong et al. (Attorney Cho Jong-sik et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2005Na8551 Decided December 28, 2006

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below determined that the amended management rules which the plaintiff reported to the competent authority on December 31, 2004 with the consent of the occupant on July 21, 2004, the council of occupants' representatives consisting of 68 representatives by Dong elected in proportion to the number of households of each Dong, and that the representative of each Dong is elected through the election management of the election commission. The council of occupants' representatives cannot concurrently hold the office of members of the election commission. The council of occupants' representatives' representatives may not hold the office of members of the election commission if the chairperson deems it necessary or the special meeting of the council of occupants' representatives is requested by the management body to convene the meeting on the ground of the denial of the management body's request. However, the non-party 1 made the representative of each Dong to elect the representative of each Dong on December 26, 2004, the council of occupants' representatives consisting of non-party 2, the representative of each Dong, who is one member of the representatives of each Dong, and the resolution of the council of occupants' representatives was not valid and invalid.

Furthermore, the court below held a meeting on October 27, 2004 and elected the representative for each Dong by a resolution of the board of directors called up at the meeting of the board of directors composed of a separate election commission and called up on October 27, 2004. The representative for each Dong elected the officers on December 4, 2004 and elected the defendant 21 as the plaintiff's next chairman. However, since the convocation procedure of the board of directors is not illegal and invalid, the 10th council of occupants' representatives continues to have ordinary authority concerning the affairs and the non-party 1 can perform their duties as the previous representative until the 10th council of occupants' representatives is duly constituted, the period is limited to a considerable period. Although both parties agreed to commence the procedure for organizing the 10th council of occupants' representatives in accordance with the management rules amended at the fourth date of the court below on July 5, 2006, the plaintiff still did not have authority to commence the formation procedure of the 10th council of occupants' representatives, and the plaintiff did not perform his duties as the non-party 1 corporation and the apartment repair company.

2. However, the lower court’s determination is difficult to accept.

A. First, pursuant to Article 38 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003), Article 10 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 18146 of Nov. 29, 2003), Article 43 of the former Housing Act (amended by Act No. 8239 of Jan. 11, 2007), and Article 50 of the Enforcement Decree of the same Act, the council of occupants' representatives of multi-family housing consisting of members of a non-corporate association that is elected in proportion to the number of households of each Dong (refer to Supreme Court Decision 91Da478 of Apr. 23, 191), since representatives of each Dong are selected by occupants of each building, the council of occupants' representatives' representatives cannot be deemed to have changed the term of existence of the previous non-corporate representatives' representatives' representatives without being elected as members of the council of occupants' representatives.

Therefore, as recognized by the court below in this case, as long as the 9th council of occupants' representatives of the apartment (name omitted) was legally constituted, if the selection procedure of the new representative of each Dong is unlawful and invalid, the council of occupants' representatives composed of the former representative of each Dong shall be deemed to have the ability to sue as a legitimate council of occupants' representatives of (name omitted) apartment

B. Meanwhile, the relationship between a corporation and its director under the Civil Act is the same as the legal relationship between the delegating and the delegated person, and when the term of office of the director expires, the delegation relationship should be terminated in principle. However, if there is no director until the appointment of the succeeding director, the corporation is placed in a situation where the normal activity of the current director cannot be discontinued. This can be seen as being the case when there is an urgent circumstance under Article 691 of the Civil Act. Thus, even if the director is terminated or resigned, the corporation can continue to perform its duties until the new director is appointed within the necessary scope (see Supreme Court Decision 81Da614 delivered on March 9, 1982, etc.). This legal principle also applies to an unincorporated association (see, e.g., Supreme Court Decision 2002Da74817 delivered on July 8, 2003).

In light of the above legal principles, in this case where the council of occupants' representatives of the apartment (name omitted) is legally constituted and the non-party 1 was legally elected and operated as the chairperson, if the election of the successor chairperson following the expiration of the term of office of the chairperson is illegal and invalid, barring special circumstances, it shall be deemed that the non-party 1 may continue to perform the duties of the plaintiff's chairperson, i.e., the representative, within a certain scope until the next chairperson is legally elected.

Therefore, just because the term of office of the non-party 1 of the council of occupants' representatives expires and the non-party 1 was not elected for a considerable period, the right to perform his duties cannot be deemed naturally extinguished.

C. Furthermore, inasmuch as the legal principles on the council of occupants' representatives and its representatives are as above, even if the council of occupants' representatives committed an act in violation of the good faith principle or the representative performed a duty not belonging to ordinary business, such act alone cannot be deemed as extinguishing or denying the ability of the council of occupants' representatives, which is a non-corporate group, and the representative's representative's power cannot be deemed as naturally extinguished or

D. Nevertheless, the court below rejected the plaintiff's ability to join the council of occupants' representatives and the non-party 1's power to represent the council of occupants' representatives. Thus, the court below erred by misapprehending the legal principles on the council of occupants' representatives, which is a non-corporate body, which affected the conclusion of the judgment. The ground of appeal alleg

3. 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 Park Si-hwan (Presiding Justice)