Plaintiff 1 and one other (Attorneys Shin Tae-ro et al., Counsel for the plaintiff-appellant)

Gai-dong 22 Apartment Reconstruction Association (Law Firm Barun Law Firm Barun, Attorneys Park Ho-ju et al., Counsel for the plaintiff-appellant)

November 8, 2011

Seoul Eastern District Court Decision 2010Gahap11017 Decided January 28, 2011

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Claim: it is confirmed that the co-defendant 2, 3, 5, 6, 7, 8, and 9 of the first instance trial (hereinafter “Co-defendant 2, et al.”) is not a director of the defendant.

2. Purport of appeal: It shall be stated in the text of appeal;

1. Basic facts

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, and thus, citing this in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiffs' assertion

Co-defendant 2, 3, 5, and 6 in the first instance trial are the defendant's registration directors, and co-defendant 7, 8, and 9 in the first instance trial are those who exercise the defendant's authority as the defendant's director, and they lose their status as the defendant's director by the resolution of dismissal by the special general meeting of this case. Since co-defendant 2 and 6 in the first instance trial continue to dispute the validity of the resolution of dismissal, there is a benefit to seek confirmation that the co-defendant 2 and 6 in the first instance trial are the defendant's directors.

3. Determination

As seen earlier, it is determined whether the co-defendant 2 and 6 of the first instance court were in the position of the defendant, depending on whether the resolution of the special meeting of this case was lawful, and whether the resolution of the special meeting of this case was made. As such, the following is examined.

A. The legality of the instant special meeting, including a vote to appoint a new executive officer

The following facts may be acknowledged in light of the overall purport of the arguments in Gap evidence 2, 3, Eul evidence 1-1 to 4, Eul evidence 15, and Eul evidence 15.

① The holding and public announcement of the instant special meeting indicated as the “regular agenda” and indicated as “a case of dismissal of the president of the association and the president of the association, and the president of the association,” and “other matters,” respectively, that “in the event that a case of dismissal of the president of the association and the president of the association is resolved, the case of appointment of the president of the association and the appointment of the president of the association, under the joint name of the association members pursuant to the provisions of Article 18(2), will be resolved separately on the day on which the special meeting

② Even in the data collection of the special general meeting distributed by the Plaintiffs to the members, the term “the appointment of the head of the association and the executives of the association” is indicated as item 2 of the agenda for deliberation. The items of the agenda for deliberation include “the election of the head of the association and the promise with the members, the commitment with the head of the association, the statement of performance

③ The title "No additional contributions shall be made to the independence settlement system, the refund of union members, and the settlement of past corruption related to the union," under the title of the pledge of the head of the fourth cooperative (the term "the head of the cooperative to be appointed at the general meeting after dismissal of 2 and 6 other co-defendants of the first instance court)" is written in the face where the past records of the head of the special meeting data center were entered, and the title of the pledge of the pledge of the promise with union members, "this date will be resolved by the candidates of this case," and the problem of the separate settlement system of commercial buildings will be resolved, and the causes of additional contributions will be thoroughly prevented, and the additional contributions will be refunded again."

④ In fact, in the instant special meeting, there was a vote for the appointment of new executives, such as the president of the association, and according to the Plaintiffs’ assertion, it was announced in the form of a meeting, but the result was also announced.

However, according to Article 23 (4) of the Urban Improvement Act, a resolution that can be adopted at a general meeting convened by a person selected by the representative of the proposing person on behalf of the president of the association without going through the convocation of the president of the association at least 1/10 of the members of the association shall be limited to the dismissal of the partnership officers.

In the case of the special general meeting of this case, as well as the fact that the appointment of new officers was included not only in the form of agenda, but also in the appointment of new officers, it is acknowledged as above. In addition to the fact that the general meeting of this case does not include only in the form of agenda, but also criticism for past executives including Defendant 2 and six, and the pledge of new executives, the rate of members' attendance at the general meeting of this case is increased, and that it seems to have had substantial influence on the decision-making of the members on the resolution of dismissal for two and six others of the first instance co-Defendant 2 and the first instance court (the first instance co-defendant 2 and the second and the second non-party 6 of the first instance court at the time of the completion of the occupancy, the first instance court's resolution of dismissal for the newly appointed officers cannot be ruled to have been unconstitutional, not only because it was found that the resolution of appointment of new officers was not made at the general meeting of this case, but also that it did not go beyond the authority of the court for the removal of the newly appointed officers under the Act.

(b) Requirements for direct attendance under the proviso to Article 24 (5) of the Urban Improvement Act;

(1) According to the proviso of Article 24(5) of the Act, when a resolution is made at a general meeting of partners, at least 10/100 of its members shall be present at the general meeting or board of directors. The minutes shall be prepared, and the minutes shall contain the proceedings, guidelines, results, etc., and shall be proved only by the minutes, barring special circumstances, such as whether or not the minutes were not prepared or not, and how and how and how the same intent was passed and the result thereof were lost (see Supreme Court Decision 83Meu1565, May 15, 198, etc.).

B. According to the reasoning of the judgment below, the court below erred by misapprehending the legal principles as to the Plaintiff’s assertion that the Plaintiff’s number of members present at the special general meeting of this case is 2,114, among the 4,632 registered members as of January 14, 2010 and 42, and the Plaintiff’s number of members present at the general meeting of this case is 2,363, and the Plaintiff’s number of members present at the general meeting of this case is 2,403, including the written resolution at 16:16:0,000, and the Plaintiff’s number of members present at the general meeting of this case is 249, or 403 (the number of members present at the general meeting of this case is 2,403 - 2,114). Thus, the Plaintiff’s assertion that the Plaintiff’s number of members present at the general meeting of this case is below 10/100 of the Plaintiff’s number of members present at the general meeting of this case is not acceptable.

Article 23(4) of the Urban Improvement Act explicitly excludes the application of Article 24 of the same Act. Accordingly, the plaintiffs asserts that the proviso of Article 24(5), which is the provision on the resolution method of the general meeting, shall also be excluded from the application.

However, Article 23(4) of the Act on the Maintenance and Improvement of Urban Areas, which provides for the authority and requirements to convene a general meeting, is reasonable to see the special provisions of Article 24(2) of the same Act. Since the proviso of Article 24(5) was newly enacted by Act No. 9729 on May 27, 2009 and was enforced on November 28 of the same year, it is evident that Article 23(4) of the same Act does not have any provision under Article 23(4) of the same Act, which was amended by Act No. 9444 on February 6, 2009 and enforced on the same day, the proviso of Article 24(5) of the same Act shall also apply to a general meeting convened pursuant to Article 23(4) of the same Act. Thus, the above plaintiffs' assertion is

C. Sub-committee

Therefore, the resolution of dismissal of co-defendant 2 and 6 of the first instance court at the special meeting of this case is unlawful and invalid. Thus, the plaintiffs' assertion seeking confirmation that non-indicted 2 and 6 of the first instance court were not the defendant's directors is without merit, on the premise that the resolution of dismissal was lawful.

3. Conclusion

Therefore, the plaintiffs' claims in this case shall be dismissed for all reasons, and the judgment of the court of first instance which has different conclusions is unfair, and all of the plaintiffs' claims are dismissed.

Judges Cho Sung-won (Presiding Judge)