Where a director of a partnership files a lawsuit against a partnership on his/her behalf under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether a special representative may be appointed pursuant to Articles 64 and 62 of the Civil Procedure Act on the grounds that there is no head of the partnership or the head of the partnership is unable to exercise his/her power of representation (negative in principle), and whether a special representative has the authority to represent the partnership in a lawsuit filed by a director (negative)

In a case where a director of a cooperative files a lawsuit against the cooperative on his/her behalf under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, an auditor is the representative of the cooperative (Article 22(4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and even if there are no head of the cooperative or the head of the cooperative is unable to exercise his/her power of representation, the cooperative cannot appoint a special representative as provided in Articles 64 and 62 of the Civil Procedure Act, unless there are special circumstances. Furthermore, even if the court of the lawsuit appoints a special representative upon his/her excessive appointment, the special representative is not entitled to represent

Article 22(4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Articles 62 and 64 of the Civil Procedure Act

Plaintiff 1 and eight others

00 Mamaman Housing Reconstruction Project Association

Incheon District Court Decision 2012Na19161 Decided September 25, 2013

Of the part of the judgment below against the defendant, the part against the plaintiff 6 is reversed, and that part of the case is remanded to the Incheon District Court Panel Division. All appeals against the plaintiffs except the plaintiff 6 are dismissed. The costs of appeal against the dismissed appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal against the plaintiff 6

Where a director of a cooperative under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents files a lawsuit against a cooperative on his/her behalf, an auditor is the representative of the cooperative (Article 22(4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents), and even if there are no head of the cooperative or the head of the cooperative is unable to exercise his/her power of representation, the cooperative shall not appoint a special representative because he/she does not fall under “where there is no representative of the corporation or the representative is unable to exercise his/her power of representation” as provided in Articles 64 and 62 of the Civil Procedure Act, barring any special circumstance. Furthermore, even if the court of

According to the reasoning of the judgment below and the records, the defendant's president, non-party 1 was sentenced to a fine or heavier punishment in a criminal case related to his duties on March 2007, and lost the qualification of the president of the partnership in accordance with the defendant's union rules, and the defendant's certificate of the registration of the defendant's legal entity was appointed and held as the defendant's director on September 1, 2001, and the non-party 2 was appointed and held as the defendant's auditor on June 21, 2003. The plaintiff 6 stated in the president "non-party 1" as the defendant's representative, and the court of first instance appointed the non-party 3 who is the defendant's director as the defendant's special representative. The court of first instance and the court of appeal can find the facts that the special representative has the authority to represent the defendant in relation to the plaintiff 6's legal action.

Examining these facts in light of the legal principles as seen earlier, barring any special circumstance, the auditor represents the Defendant with respect to the instant lawsuit between the Plaintiff 6 and the Defendant, and thus, Plaintiff 6’s lawsuit is instituted against the Defendant, a partnership, as the representative without the power of representation, and there is considerable room to deem it unlawful. In such cases, the lower court should have ordered Plaintiff 6 to make correction and have taken measures, such as having the Defendant’s representative indicated in the written complaint corrected the Plaintiff

Nevertheless, the court below did not reach this conclusion and determined the merits on the premise that the special representative had the authority to represent the defendant. The court below erred by misapprehending the legal principles on the appointment of a special representative and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the grounds of appeal against the remaining plaintiffs except the plaintiff 6

A. As to the ground of appeal on the change of party eligibility and claim

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is justifiable for the court below to have deliberated and decided on the conjunctive claim of the plaintiffs in this part on the premise that the plaintiff 1, 7, and 8 was admitted to be the party to the lawsuit in this case and that the addition of the conjunctive claim by the plaintiffs in this part of this case was legitimate, and there is no error in the misapprehension of legal principles as to the standing of the parties, the duty to explain, and the change of

B. As to the ground of appeal on the elements for establishing office management

In full view of the adopted evidence, the lower court acknowledged that the Plaintiffs, including Plaintiffs 1, 7, and 8, remitted each of the money recognized by the lower court to Nonparty 4, the attorney of the Defendant, etc. regarding the third party’s lawsuit against the third party, and that the said money was actually used as a deposit for the suspension of compulsory execution of this case. Then, it is reasonable to view that the Plaintiffs borne the amount of the security money following the decision to suspend compulsory execution of this case, without any obligation, managed the affairs of the Defendant, etc. for the sake of the Defendant, etc., the lower court determined that the Defendant was obligated to

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no violation of the rules of evidence, incomplete deliberation, and misapprehension of the legal principles as to the requirements for establishment of office management,

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal against Plaintiff 6, the part concerning Plaintiff 6 among the part against the Defendant of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All appeals against the Plaintiffs other than Plaintiff 6 are dismissed, and the costs of appeal against the lower court are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)