2013 Gohap 17776 Nullification of an expulsion

1. A;

2. B

3. C

D natives Association

May 1, 2014

May 15, 2014

1. The Defendant’s expulsion disposition against Plaintiff A on January 14, 2013 and expulsion disposition against Plaintiff B and C on September 20, 2012 confirms that each expulsion disposition against Plaintiff B and C is null and void.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Facts of recognition;

A. The defendant is a friendship group comprised of private taxi drivers residing in Busan Seo-gu, and the plaintiffs were the defendant's members, and among them, the plaintiff A was in charge of audit.

B. On January 14, 2013, the Defendant, on the ground that Plaintiff A caused incompetence and internal divisions against the Defendant, and caused social controversy among its members, such as dualation, and that this constitutes Article 12(1) and (2) of the Regulations, the Defendant expelled the said Plaintiff.

C. On the other hand, on September 20, 2013, the Defendant ordered the Plaintiff on the ground that Plaintiff B made a false statement about the Chairperson, talked about a six-year period of time, brought about a social question, and caused the division between the Defendant and its members, and that this constitutes Article 12(1) and (2) of the Regulations.

D. In addition, on September 20, 2012, the Defendant: (a) divided the Plaintiff C into organization without justifiable grounds; (b) removed Plaintiff C from the monthly conference without justifiable grounds; and (c) failed to pay membership fees three times; and (c) ordered the Plaintiff on the ground that it constitutes Article 12(2) and (3) of the Regulations.

E. Relevant provisions of the Defendant’s bylaws are as follows. Article 12(9) of the Regulations was newly established on August 12, 2012 at the time of the special general meeting.

(1) (1) This session may be convened at the time of the request of the president or at least a majority of its members. (b) This session shall have the following officers: (f) Three (3) The election of officers shall be made: (c) the Vice-Chairperson, the General-Chairperson, and the head of other division (hereinafter referred to as "the Vice-Chairperson") shall hold office concurrently for the operation of the session and the position of the Discipline. (3) The two-time session shall take effect on the 10th session (the 2nd session), the 2nd session shall take effect on the 1st session; (f) the 2nd session shall take effect on the 3rd session; (f) the 1st session shall take effect on the 3rd session without any justifiable reason; (f) the 2nd session shall take effect on the 3rd session; (f) the 3rd session shall take effect on the 1st session; (f) the 3rd session shall take effect on the 3rd session; (f) the 3rd session shall take effect on the 4th session without any justifiable reason.

2. The plaintiff's assertion

Article 12 (9) of the Regulations was newly established at the time of special meeting on August 12, 2012. Article 14 (6) provides that Article 14 (6) shall apply retroactively from May 13, 2012 not only for the expulsion of Plaintiffs B and C, but also for the expulsion of the Plaintiffs without giving any opportunity for explanation to the Plaintiffs is a serious defect in the process. Thus, the expulsion of the Plaintiffs is entirely null and void.

3. Determination

A. The Plaintiff A’s ground for expulsion

The defendant asserts that, although the plaintiff A could convene an extraordinary general meeting at the request of the president or a majority of its members, on January 13, 2013, he/she independently notified the members of the meeting of the general general meeting, this constitutes grounds for expulsion under Article 12(1) and (2) of the Rules.

As seen earlier, Article 12(1) and (2) of the Regulations provides that a member may be subject to disciplinary action when he/she fails to fulfill the obligation of the plenary session or causes social harm, or when he/she divides the organization without good cause. However, it is difficult to view that the act constitutes a ground for disciplinary action, i.e., being subject to the disposition of expulsion, regardless of the motive, circumstance, result, etc., solely on the ground that the Plaintiff A, as an auditor, independently tried to call an extraordinary general meeting without following the procedures prescribed by the rules.

2) Plaintiff B

On June 2012, the Defendant asserted that Plaintiff B’s act of slandered E, a competitor, following the presidential election of the president, and that E demanded a disclosure company with respect to the act of slandered by the president on September 5, 2012 but continued to comply with the request, and that this constitutes a ground for expulsion under Article 12(1) and (2) of the Assembly Rule.

The facts that Plaintiff B, upon the election of the president, embezzled KRW 200,000 as at the time of the establishment of Defendant B in 2006, and that the president slandered the competition candidate that he would use membership fees upon the election of the president do not conflict between the parties. However, even though E requested the disclosure company regarding the act of slandering the Plaintiff B after he was elected as the president, there is no evidence to acknowledge the fact that the Plaintiff B’s campaign against the above contents of the competition during the election process, it is difficult to view it as a reason for expulsion solely on the ground that Plaintiff B slandered the above contents of the competition candidate.

3) Plaintiffs C. and C.

The Defendant asserts that Plaintiff C would withdraw from the election of E during the election period of the chairperson in 2012, and that E would lose from the election of the chairperson, and that E would lose the defendant and make a lifelong chairperson a life, and that E would not participate in the monthly meeting from July 2012 to September 2012 when E was elected as the chairperson, and that it constitutes a ground for expulsion under Article 12(2) and (3) of the Rule.

As seen earlier, it is difficult to view that Plaintiff C’s assertion made during the election period alone does not constitute a ground to be subject to a disposition of expulsion as an act of dividing organization without any justifiable reason as prescribed by Article 12(2) of the Assembly Rule, and on the other hand, Article 12(3) of the Assembly Rule provides that Plaintiff C is deprived of membership in the event of three times of unpaid membership fees and three times of unpaid membership fees without any justifiable reason. In addition, there is no data on examining the grounds for non-compliance of Plaintiff C before the disposition of expulsion. The fact that Plaintiff C was not present three times in the monthly election, solely based on the fact that Plaintiff C was not present three times in the monthly election period, it cannot be subject to a disposition of expulsion pursuant to Article 12(3) of the Assembly Rule.

B. Whether procedural defects are procedural defects

1) The issue of retroactive application

As seen earlier, Article 12(6) of the Assembly Regulations provides for the first warning and the second compulsory withdrawal as a type of disciplinary action, but the enactment of Article 12(9) upon the amendment of the Act on August 12, 2012, thereby allowing the immediate expulsion from office without warning as to all grounds for disciplinary action. In addition, even though there was no provision on the retroactive effect during the amendment of the Defendant’s bylaws, Article 12(9) newly established at the time of the special election on August 12, 2012, Article 12(9) was allowed for the first time by prescribing that the provision on the retroactive effect becomes effective from May 13, 2012, and there was no special reason for this.

In full view of the purport of the arguments in Gap evidence 1-1, 2, 3, and Eul evidence 1-1, 2-1, 2-2, and 3-1, 2-2 of Eul evidence 1-2, and Eul evidence 1-3, the defendant submitted a document to three operating members on January 14, 2013 to the effect that the plaintiff will be referred to disciplinary proceedings pursuant to Article 12 (1) and (2) of the Rules, and received the signature of the operating committee members on the same day, and notified the plaintiff of his expulsion. However, the specific reason for expulsion is not written, and the plaintiff also submitted the disciplinary proceedings pursuant to Article 12 (1) and (2) of the Rules, signed by the operating committee members on September 13, 2012, and "the third operating committee members on all unlawful matters of the Rules" are not clearly stated that "the reason for expulsion is not clearly stated, and the defendant is not specifically stated in Article 21-2 (3) of the Rules.

According to the above facts, it can be seen that not only the specific grounds for disciplinary action against the plaintiffs were not specified, but also the plaintiffs were not given the opportunity to vindicate. As seen earlier, even if the defendant is a friendship group, the expulsion member should take economic disadvantage that does not receive a refund of contributions and membership fees. Thus, this is a significant procedural defect.

C. Sub-decision

Therefore, since the defendant's disposition of expulsion against the plaintiffs was made without any reasonable reason for expulsion, and there is a serious procedural defect such as not giving an opportunity for vindication, it is invalid. As long as the defendant asserts that it is invalid, the plaintiffs have the benefit to seek confirmation.

4. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted for all reasons, and it is so decided as per Disposition.

Judges Park Hun-young

Judges Gindu

Judgment of the Supreme Court