Plaintiff 1 and one other (Law Firm Lee-il et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han, Attorneys Kim Han-soo et al., Counsel for defendant-appellant)

July 21, 2016

1. The plaintiff 1's lawsuit shall be dismissed.

2. The defendant will implement the procedure for registration of cancellation of ownership transfer registration made under No. 10623 on March 3, 2010 with respect to the real estate listed in the attached list to the Seoul Southern Southern District Court District Court 185 District Housing Association.

3. Of the costs of lawsuit, the part arising between the Plaintiff 1 and the Defendant is assessed against the Defendant, and the part arising between the Plaintiff’s Housing Association and the Defendant’s District Housing Association and the Defendant, respectively.

The defendant shall implement the procedure for cancellation registration of transfer of ownership, which was made on March 3, 2010 by the Gangseo-gu Seoul Southern District Court Registry on the real estate on the list in the attached sheet to the plaintiff 1.

1. Basic facts

A. On August 8, 2005, the Defendant established a Hangdong Co., Ltd. (hereinafter “Sulul”), and around that time, managed the project to form a regional housing association for the purpose of constructing the ○○○○ apartment building and its ancillary facilities with one unit of 22 lots outside Gangseo-gu Seoul ( Address omitted) as the business site.

B. At around April 2007, Hangul received from 108 members a partnership membership agreement (Evidence A3), and constituted the Plaintiff association by selecting Nonparty 2 as the president of the partnership. The association rules established and approved the establishment of the association.

C. The rules of association (No. 2) of the Plaintiff 185 District Housing Association (hereinafter “Plaintiff Association”) (hereinafter “Plaintiff Association”) stipulated the following:

(2) An association shall be convened by the president of the association and the president of the association from time to time to time when the president of the association deems it necessary to hold a meeting. (1) An association may hold a meeting of executives from time to time to time when the president of the association deems it necessary. (2) An association may hold a meeting of executives from time to time to time to time before it holds a meeting: Provided, That this shall not apply in cases of urgency. The meeting of executives referred to in Article 28 (Methods of Resolution on Officers) (1) An association shall hold a meeting with the attendance of a majority of the members, and pass a resolution with the consent of a majority of the members present. (2) An association shall prepare and keep the minutes of the general meeting, the number of representatives and auditors present at the meeting, and auditors’ names and seals of the following matters, or by posting them on the association’s website. 1. The date and place of the meeting on March 4, 2019>

D. On April 6, 2007, the Plaintiff Union held a general meeting of its members and decided to enter into a contract with Hyundai Construction Co., Ltd. to select Hyundai Construction Co., Ltd. as a contractor (Bill 1), and to enter into a final sale agreement with respect to the amount or excess of project costs and the amount of project costs, which is a share proposal without additional shares of its members (Bill 2).

E. On April 10, 2007, the Plaintiff Union entered into a project implementation agency service contract with the Ulsan on behalf of others according to the results of the above general assembly; the service cost shall be set at 10 million won per household (excluding additional 10%); however, if the project cost falls short of the project cost and the additional contributions of the association members are incurred, the association shall bear all the contributions; and at the time of dissolution and liquidation of the association, the association shall have surplus.

F. After December 2, 2009, the Plaintiff Union sold real estate listed in the separate sheet (hereinafter “instant commercial building”) on the purchase price of KRW 403,600,000 (land price of KRW 221,000,000 + value-added tax of KRW 166,00,000 on building price + Value-added tax of KRW 166,60,000 on building price) to the Defendant, who is the representative director of Ulsan on the same day (hereinafter “instant sales contract”), and completed the registration of ownership transfer on the grounds of the above sales contract on the same day (hereinafter “instant sales contract”).

G. The base market price of the instant commercial building was equivalent to KRW 943,920,00 at the time of the sales contract ( December 2, 2009) and the present market price (as of June 17, 2015) reaches KRW 1,229,580,000.

[Ground of Recognition: Facts without dispute; Gap evidence 1-6; Gap evidence 2; Gap evidence 4; Gap evidence 5; Gap evidence; the result of the appraisal commission to non-party 3; the witness non-party 2's testimony; the result of the defendant's questioning; the purport of the whole pleadings]

2. Determination on Plaintiff 1’s claim

Although Plaintiff 1 asserts that Plaintiff 1 seeks cancellation of ownership transfer registration against Defendant by subrogation of obligee of Plaintiff Union, Plaintiff 1’s lawsuit of this case is unlawful as there is no need to preserve, as long as Plaintiff 1 directly sought cancellation of ownership transfer registration against Defendant due to the instant lawsuit.

3. Determination on the claim of the Plaintiff Union

A. The part of the building newly built by a housing association as its principal and completed, which belongs to the collective ownership of all union members and belongs to the collective ownership of all union members and is stipulated by the articles of association or regulations of the housing association concerning the management and disposition of collective ownership, and the resolution of the general meeting of union members shall be followed unless the articles of association or regulations of the housing association exist, and the act of failing to go through such procedures shall be null and void (see Supreme Court Decision 2005Da52214, Dec. 13, 2007, etc.).

In the instant case, as seen earlier, Article 45(2) of the Union Regulations provides that the Plaintiff’s association may sell welfare facilities, such as commercial buildings, which are general buyers, voluntarily in accordance with the resolution of the union members’ general meeting or the board of directors’ meeting. Therefore, the issue of the instant case is whether the instant commercial buildings have been disposed of in compliance with the procedures stipulated in the above Union Regulations

On the other hand, while the Plaintiff Union asserts that it was disposed of to the Defendant without the resolution of the general meeting or the board of directors of the Plaintiff Union, the Plaintiff Union convened the board of directors meeting at the association office from 5 p.m. to 7 p.m. on Nov. 19, 2009 on the agenda of the disposition of the instant commercial building, and it is against the Defendant’s disposition of the instant commercial building to the Defendant following the resolution of the board of directors meeting at the time when two executives, such as Nonparty 2 and Nonparty 4, such as the president of the association

B. In full view of the following circumstances, Gap evidence 1-1 to 6, Gap evidence 1-7, Eul evidence 9, Eul evidence 1-1, 2, Eul evidence 5, Eul evidence 1-1-2, Eul evidence 1-5, Eul evidence 18, Eul evidence 21, non-party 2's witness witness's testimony, the defendant party's inquiry result, and the whole purport of oral argument, it seems that the plaintiff union did not hold a general meeting or an officer's meeting with the general sale of the commercial building of this case as an agenda item, or it did not go through legitimate convening procedure at least.

(1) On April 6, 2007, the Plaintiff Union only decided to enter into a service contract with the fixed sale price, which is a share-based method with no risk of additional burden, etc. as to the amount or excess of the project cost incurred later at the second meeting of the members held on April 6, 2007, and further, it did not discuss the disposition of the instant commercial building, which is a general sale price, as an agenda

(2) Article 27(1) of the rules of the Plaintiff Union may be held from time to time when the president of the partnership deems it necessary. Article 27(2) of the same Act provides that the president of the partnership shall give written notice to all executives at least one week prior to the opening of the meeting. Article 30(1) of the same Act provides that the union shall prepare and keep the minutes of the general meeting and the meeting, and Article 30(2) of the same Act provides that the minutes shall include the date and place of the meeting (1), the number of persons present at the meeting (2), the agenda (3), the progress of the meeting and the matters to be resolved (4) so that the president of the partnership and the directors present at the meeting may keep them in the partnership office

(3) The board of directors of the Plaintiff Union consisting of one president and one general director. At the time, Nonparty 2, at the time, registered as a candidate for the president of the Plaintiff Union upon the Defendant’s recommendation by the representative director of Han-gu, and elected as the president of the Plaintiff Union on December 2, 2006, and Nonparty 4 was the part of the said president.

(4) The defendant asserts that the plaintiff union held an executive meeting at the office of the union from 5 p.m. to 7 p.m. on Nov. 19, 2009. The defendant only submitted the confirmation of the non-party 2 and the non-party 4 preparation of the president of the union at the time, and did not submit the notification notice and the minutes of the board of directors on the ground of data division, and there are no materials to deem that the minutes of the board of directors at the time were kept in the office of the union or posted on the Internet homepage of the union (the defendant submitted as evidence in addition to the materials related to the board of directors).

(5) The instant commercial building was disposed of to an individual representative director at a price less than half of the market price at the time of December 2, 2009. If the minutes, etc. of executives containing the relevant contents were disclosed to the partnership office or the Internet homepage, etc. according to the procedures set out in the partnership agreement, it is anticipated that there was a movement to present or demand explanation from among the members of the association. However, the members were unaware of such circumstances, and the number of members did not know of such circumstances, and the number of Plaintiff 1 filed an application for provisional injunction against the instant commercial building on behalf of the Plaintiff association (Seoul Southern District Court Order 2011Ka624, Seoul Southern District Court Order 2011Ka624).

C. As can be seen, inasmuch as the Plaintiff’s association disposes of the instant commercial building to the Defendant without going through the general meeting of the union members or the board of directors, it is reasonable to deem the above sales contract null and void in light of the legal principles as to the disposal of the above union members’ collective ownership property, the above sales contract should also be deemed null and void. Therefore, the Plaintiff’

D. Meanwhile, as can be seen in Article 14(1) of the partnership subscription contract and the contract for the execution of a project by proxy, the Plaintiff’s members waiver of all rights to the instant commercial building and transfer the right to dispose of it to the Plaintiff, instead of using the method of a service contract between Korea and Ulsan as the final and conclusive sale price and equity share system, which does not bear any additional burden on the union members. Thus, the Defendant asserts that the instant commercial building does not belong to the collective ownership of the union members, and that the instant sales contract does not become null and void even if it did not follow the procedures stipulated in the partnership agreement regarding the disposal of general

According to the overall purport of Gap evidence 3, Eul evidence 2, Eul evidence 8, and Eul evidence 8, the member's membership agreement prepared and delivered by the union members upon joining the plaintiff union prior to the establishment of the plaintiff union is printed out in the franchising letter, "the commercial buildings in a complex constructed in parallel with the business shall be sold to Byung en bloc, and Eul shall not claim any rights and interests for the commercial buildings, and Eul shall not claim any rights and interests for the commercial buildings." The fact that the contents of the contract are the same as the project execution agency agreement prepared between the plaintiff union and the defendant as the representative director are also stated in the same purport.

However, with respect to the management and disposition of collective ownership of partners, if any stipulated in the articles of association or regulations of the housing association, it shall be followed, and without the articles of association or regulations, a resolution of the general meeting of partners shall be followed, and such act without going through such procedures shall be null and void. Thus, the validity of the sales contract of the commercial building of this case cannot be asserted on the ground of the above contract for joining the association contrary to the contents of the regulations of the association. The defendant's argument that differs from

4. Conclusion

Thus, the plaintiff 1's lawsuit of this case is dismissed as illegal, and the claim of the plaintiff union is reasonable, and it is decided as per Disposition.

[Attachment]

Judges E.S.