2012Na68585 Requests, etc. for the Confirmation of Election for the President

A person shall be appointed.

Law Firm ○, Attorneys ○○-○, Counsel for the defendant-appellant

○○○ Seniors Association, an incorporated association ○○ Branch Association

○○○○○

Law Firm ○○, Attorneys ○○-○, Counsel for the defendant-appellant

Seoul Central District Court Decision 201Gahap136866 Decided August 9, 2012

June 26, 2013

August 28, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The plaintiff around November 10, 201, in relation to the defendant's election for the chairperson that was scheduled to be held on November 10, 201

I confirm that the plaintiff is the president of the board of directors. Preliminaryly, the plaintiff is the defendant on November 4, 201.

The candidate registration for an election of the Chairperson shall be confirmed to be valid.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus cites this part in accordance with the main text of Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. The plaintiff;

The Defendant Election Commission rejected the Plaintiff’s above candidate registration application document on the ground that the Plaintiff failed to meet the Defendant’s standing member and candidate on the following grounds in relation to the Plaintiff’s candidate registration in the instant election. However, the Plaintiff joined the instant apartment around September 13, 2007 after moving into the instant apartment around 2007, and entered the instant apartment center around September 13, 2007, and was residing in the instant apartment, which is the resident registration place, and on the other hand, the instant senior citizen center did not receive membership fees from its members, and therefore, the Plaintiff has the Defendant’s standing member and candidate qualification.

Therefore, the above candidate registration of the plaintiff is legitimate, and since the plaintiff was a sole candidate due to the resignation from the chair after the highest seat registered as a candidate with the plaintiff, the defendant should have decided the plaintiff as the elected person without voting pursuant to Article 38(2) of the Operational Rules of ○○○ Senior Citizens Association at all levels under Part 6 of the Management Rules and the Election Management Rules.

Nevertheless, the Defendant voluntarily rejected the Plaintiff’s above application document for candidate registration. Thus, the Defendant sought confirmation as to the Plaintiff’s primary status as the Defendant’s president, and as to the Plaintiff’s preliminary confirmation as to the validity of candidate registration on November 4, 201.

(b) the Defendant;

Since the Defendant is an affiliated organization of the ○○○○ Senior Citizens Association, the Articles of association and the regulations on the operation of the ○○○ Senior Citizens Association are subject to the application of the Articles of association and the regulations on the operation of the ○○○ Senior Citizens Association. Thus, in order to run as a candidate for the Defendant’s president, the Defendant was admitted to the ○○○ Senior Citizens Association as a member for more than one year, residing in the ○○○ Senior Citizens Association, and paid monthly membership fees for more than one year, the Plaintiff constitutes “the 65 years of age or older.” However, since the Plaintiff resided in the instant apartment from March 2, 2010 to February 20, the ○○○○○-dong ○○○○○○○○○ Dong 973-12 ○○○○○○○, and thereafter, the Plaintiff was disqualified as a member of the instant senior citizen center and the Defendant, and the Plaintiff did not pay the membership fees. Moreover, it is not registered in the membership roll. Therefore, it is legitimate to return the Plaintiff’s candidate registration.

3. Determination

A. Whether the Plaintiff’s candidate registration is valid (1) Whether the Plaintiff loses membership

On April 26, 2007, the Plaintiff first moved into the apartment of this case on the resident registration basis and on March 3, 2010.

2. On February 21, 201, the parties who moved into the instant apartment and moved into the ○○○○-dong 973 - 12 ○○○○○, Seoul, but moved into the instant apartment again on February 21, 201, do not have any dispute between them.

However, comprehensively taking account of the above basic facts and evidence No. 16-2, the following facts, i.e., the articles of association of the center for older persons does not require the residence of the apartment, and only withdrawal, death, expulsion, etc., as the ground for disqualification of its members. ② The above provisions of the center for older persons can join the center for older persons (Article 5(2) of the Articles of association of the center for older persons) but the qualified person is a member of the center for older persons and the defendant's regular members at the center for older persons, at the time of filing an application for membership registration in the center for older persons, the office for older persons and the defendant's organization (Article 7-2 of the regulations on the operation of the center for older persons). Thus, it is difficult to view the plaintiff's relocation of the center for older persons to be a member of the center for older persons and the defendant's office for older persons at the time of 2's relocation from the center for older persons and the defendant's office for older persons.

(B) As alleged by the Defendant, even if the Plaintiff resided in ○○○-dong, ○○○○○○○, 973-12 ○○○, which is not the instant apartment as of the date of the instant election announcement, as of the date of the instant election announcement, it is deemed null and void to deem that the Plaintiff’s residency in one of the qualifications as candidate for the following reasons as one of the requirements is null and void. Therefore, the Defendant’s assertion that the Plaintiff’

① According to the evidence No. 10, ○○○ Senior Citizens Association's statement, as one of the candidates' candidates for the head office and the president of its affiliated organization, is for the reason that the representative of the region is required to be elected for at least one year, and for the appointment of a representative among those who have lived in the region and complied with the obligations of good faith of the members. In light of the above purport, requiring the "resident within the region" or "resident within the region" to be "resident within the region beyond the scope of "to have the resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's resident's candidate. However, it does not comply with the above purport.

② As seen in the facts of the foundation, Article 5 subparag. 6 of the Regulations on the Operation of ○○○ Senior Citizens Association’s Operation must be elected from among the members residing in the relevant area, and where a resident registration or his/her place of residence is moved to another area during his/her term of office, executive officers are required to have the resident registration or his/her place of residence within his/her jurisdiction automatically lose his/her qualification, and not to require the executive to have the resident registration or his/her place of residence within his/her jurisdiction. Thus, requiring one executive officer to reside in his/her place of resident registration as a requirement for the registration of the candidate for the chairperson as an executive officer is not limited without reasonable grounds.

③ In full view of the purport of the argument in Gap evidence No. 30, as a whole, the defendant, who was an affiliate organization of the ○○○ Senior Citizens Association at the time of the public announcement of the instant election, was admitted to the membership for more than one year as of the date of the public announcement of election, and the defendant also made a public announcement of the instant election day in accordance with the attached Form No. 30. The above attached Form was used for the election of the chairperson, and it seems that the defendant did not demand the "resident resident resident resident resident resident" to the candidate. Thus, it seems that the defendant, who was an affiliate organization of the ○○○ Senior Citizens Association, cannot limit the plaintiff's eligibility for candidate's election on the ground of "resident resident resident resident resident resident resident" against his public announcement.

④ Under the Public Official Election Act, the term “resident in the Republic of Korea” or “resident in the Republic of Korea” or “resident in the Republic of Korea shall be registered as a resident in the relevant local government, but does not require that the resident shall reside in the registered domicile.” Thus, the term “to reside in the registered domicile of ○○ Senior Citizens Association and its affiliated organization as a candidate for the chairperson of the ○○○ Senior Citizens Association and its affiliated organization should not be too limited to the members’ eligibility for being elected, without reasonable grounds.

⑤ Therefore, in relation to the eligibility for election among the operational regulations of the ○○○ Senior Citizens Association, the part is excessively limited to the members’ eligibility for election, and is in violation of Article 7 of the articles of association of the ○○○ Senior Citizens Association, which is a superior provision stipulating the equal eligibility of members, and its contents are obviously contrary to social order against justice and equity and thus obviously lose validity in light of social concept. Therefore, it cannot be deemed null and void ( even if the above circumstances are not null and void, when considering all the above circumstances, it can be deemed null and void as being interpreted as "B" within the jurisdiction, i.e., the relevant administrative district (referred to as "○○○" in this case), and it is difficult to recognize the validity of the text as it is.

(C) In addition, the Defendant asserts that the proviso of Article 3-2 of the Regulations on the Operation of Local Organizations in Part VII of the Regulations on the Operation of ○○ Senior Citizens Association permits membership in the case of an eligible person in the area adjacent to an apartment building without a senior citizen center, but limits the eligibility for election of the Chairperson. In light of such provisions, the Plaintiff shall not be allowed to be elected

On the other hand, the defendant's above assertion is based on the premise that the plaintiff does not reside in the apartment of this case as of the election announcement date, and even if the plaintiff did not reside in the apartment of this case and resided in another place within the ○○○ area, the qualification of the senior citizen center of this case and the defendant's members does not interfere, and the senior organization other than the senior citizen center of this case does not have any provision restricting eligibility as above, and the defendant's above argument is without merit.

(3) Whether the Plaintiff’s membership roll is registered

According to the overall purport of evidence No. 1-4, evidence No. 5-1 through 4, evidence No. 13-1, evidence No. 14-1, evidence No. 14-7, evidence No. 15-1 through 7, evidence No. 16-1, and evidence No. 2, the defendant did not manage the membership roll separately, and the plaintiff continued to be registered in the membership list of the center of this case since 2007, and the defendant issued a registration certificate that was recorded as the chairperson, etc. of the center of this case to the plaintiff after receiving a report on the above membership list from the center of this case.

According to the above facts, the plaintiff met the requirements for eligibility for election under Article 10 subparagraph 1 of Part 6 of the Operational Rules of the ○○○ Elderly Association, which is "be registered in the membership roll for at least one year as of the election day." Thus, it cannot be deemed that the plaintiff was not a regular member of the defendant or was not qualified as the chairperson of the defendant.

The fact that the ○○○ Senior Citizens Association grants membership fees only to those who have paid membership fees (Article 5(2) of the Articles of Incorporation), and that only those who have paid monthly membership fees for at least 65 years are eligible to be elected (Article 8(2) of the Regulations on Operation) is as set out above, and there is no dispute between the parties concerned as to whether the Plaintiff did not have paid individual membership fees to the Defendant or the instant senior citizen center.

However, the ○○○ Senior Citizens Association provides that membership fees may be autonomously determined according to the circumstances of the region (Article 24(2) of the Operational Rule), and that each senior citizen center shall pay a certain monthly membership fees to the superior branch office (Article 25 of the Operational Rule). In light of the structure and purport of the above provision, as long as each senior senior citizen center has fulfilled its duty to pay membership fees in the name of the senior citizen center, it shall be granted considerable autonomy in collecting membership fees from its members to the senior branch office of the senior citizen center. However, the pertinent senior citizen center of this case provides that matters necessary for the payment method of membership fees and other charges shall be separately determined by its articles of association (Article 5(4)), and does not provide for specific matters such as the amount of membership fees.

Thus, the plaintiff did not pay individual membership fees to the defendant or the senior citizen center of this case, and the plaintiff did not meet the qualification to be a regular member of the defendant or the chairperson of the defendant.

shall not be deemed to be the case.

(5) Sub-decisions

Therefore, the defendant's rejection of the plaintiff's candidate registration application document related to the election of this case is effective as it infringes the plaintiff's eligibility for election without any justifiable reason. Thus, the plaintiff's above candidate registration is valid.

B. Whether the Plaintiff was in the position of the elected president of the Defendant (1) (the Plaintiff and ○○○ was only the Plaintiff and ○○○○, but ○○○ was Nov. 1, 201.

9. The facts that the candidate resigns from the candidate, and Article 38(2) of Part VI of the Regulations on the Operation of the ○○○ Senior Citizens Association provides that the candidate shall be decided as the elected person without voting, if the candidate is registered alone. (2) According to the above facts acknowledged, the plaintiff was a sole candidate upon the resignation of ○○○○○○, so the defendant shall decide the plaintiff as the elected person pursuant to the above operational regulations, and therefore, the plaintiff shall be in the position of the elected person of the defendant in relation to the election of this case. (3) The above provision stipulates that the defendant plans that the procedure for registration of candidates and the general meeting and the election are scheduled to proceed normally. In this case, the defendant asserts that, until the Seoul Central District Court Decision 2011Kahap2768 delivered on November 10, 201, the defendant's resolution to be elected at the extraordinary general meeting is revoked and the above provisional disposition is not applicable to the defendant 2011.

In light of the following circumstances, it cannot be readily concluded that the above provision was scheduled when both the candidate registration procedure and the general meeting and the election procedure were conducted normally. Furthermore, in this case, the Plaintiff’s assertion seeking the exclusion of the application of the above provision merely based on the circumstance that the above provision was not held in full view of the following circumstances: (a) the Plaintiff’s candidate registration was lawful; (b) the Plaintiff’s sole candidate registration was unnecessary; (c) the Defendant did not recognize the Plaintiff’s candidate registration; (d) the Defendant issued the above provisional disposition in the process of disputing the Plaintiff; and accordingly, the Defendant revoked the special general meeting; and (e) the Defendant appears to normally proceed with all the procedures except that the special general meeting was revoked; and (e) deeming the need for a new special meeting would compel the procedure of dance.

4. Conclusion

Therefore, as long as the defendant contests the status of the elected president of the defendant, the plaintiff's primary claim should be accepted for the reason that the plaintiff's primary claim is reasonable. Since the court of first instance is justified with this conclusion, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge Kim Jong-soo

Judges Lee Byung-chul

Judge Han Sung-soo