208Na5317 Invalidity of Resolution of the Residents' General Meeting

1. ○○ (O○)

Gwangju Mine-gu 000 000-0

2. KimO (00000-0000).

Gwangju Mine District ○○ ○○ ○

3.Glaver○ (O)

Gwangju Mine District ○○○

4. ○○○

Gwangju Mine-gu ○○ ○○○-○

5. Nowon 00 (0000-0000)

Gwangju Mine District ○○○

6. Clerks (0000-0000).

Gwangju Mine-gu ○○○ ○○-○

7.GlaverO

Gwangju Mine District ○○○

8. HanO (00000-0000)

Gwangju Mine-gu ○○ ○○-(○○-)

9.Na○○ (OC000)

Gwangju Mine District ○○○

10.Na00 (0000-0000)

Gwangju Mine-gu ○○○ ○○-○

[Judgment of the court below]

0000 Housing Redevelopment Project Association Establishment Promotion Committee

Gwangju Mine-gu 000 000-0, 1 floor

Representative ○○○○

Attorney Park Young-hee, Counsel for the defendant-appellant

Gwangju District Court Decision 2008Gahap1738 Decided July 31, 2008

October 15, 2008

October 29, 2008

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's general meeting of residents on August 23, 2006 shall include ① extension and reduction of project implementation districts, ② the appointment of OOOOO as a rearrangement project management body, ③ the confirmation of a contract concluded between the defendant and the above company; ③ the city of the architect office as a certified architect, the city of the certified architect office as an architectural office, and the confirmation of the contract concluded between the above company and the defendant; ④ the approval of personnel regulations and remuneration regulations (a) the approval of the contract entered into with the above company; ④ the delegation of the defendant to raise operating expenses from the joint executor (contractor) and to compile and execute the budget within the scope; ⑤ the delegation of the defendant to the joint executor, ⑤ the joint executor, the joint executor, the construction company, the construction company, and the Japanese Construction Corporation, and each resolution on the agenda entrusted to the defendant with the authority to conclude the contract is null and void.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the above part shall be dismissed.

1. Scope of the judgment of this court;

In the first instance court, the plaintiffs sought confirmation of the invalidity of each resolution as to the matters stated in the claims (1) through (5) against the defendant, and the court of the first instance shall be limited to the items (1), (2), (4) among the items under subparagraph (1), (2), (4) the items entrusted by the defendant to raise operating expenses from the joint executor and compile and execute the budget within the scope of the items, and (5) the claims for confirmation of invalidity of each resolution as to the items under subparagraph (3) and (4) the items under subparagraph (1), (2), (4) the items under subparagraph (4), and (5) the items to be delegated by the defendant for the confirmation of invalidity of each resolution as to the items under subparagraph (1), (3) the personnel regulations and the remuneration regulations among the items under subparagraphs (i) and (4), and (4) the items to be tried and executed within the scope of the items under subparagraph (4).

2. Basic facts

A. Under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 7960, May 24, 2006; hereinafter the same shall apply), the Defendant shall obtain the consent of 272 owners of lands, etc. in the above project implementation district and obtain approval from the head of Gwangju Metropolitan City on August 3, 2006 from 272 owners of lands, etc., for the purpose of preparing a housing redevelopment project in which the housing redevelopment project district consisting of 126,755 square meters in Gwangju Mine-gu ○○○○○○○○○○○○○, a project district (hereinafter the promotion committee) and the Plaintiffs are owners of lands, etc. in the above project implementation district.

B. On August 8, 2006, the Defendant announced the owners of land, etc. to hold a residents' general meeting on each agenda stated in the purport of the claim, and held a residents' general meeting at the Mine Culture and Arts Center located in ○○○○○○, Gwangju, Aug. 23, 2006 (hereinafter “the residents' general meeting”). The residents' general meeting of this case was 259 owners of land, etc. (12 persons directly present, 247 persons) who agreed to the composition of the promotion committee and 84 owners of land, etc. who did not consent to the composition of the promotion committee (21 persons directly present, 63 persons who did not submit a written resolution), and 343 persons of land, etc. who did not consent to the composition of the promotion committee (21 persons directly present, and 63 persons who did not submit a written resolution).

D. The result of the meeting of the resident assembly of this case was resolved upon by the resolution of the total participants, including 84 owners of lands, etc. who did not consent to the composition of the committee of promoters present at the meeting of the resident assembly of this case as shown below:

A person shall be appointed.

A person shall be appointed.

(e) Relevant provisions of the Do Government Act, the Enforcement Decree of the same Act (hereinafter referred to as the "Enforcement Decree") and the defendant's operating regulations (hereinafter referred to as the "operating regulations") are as specified in the attached

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 3, Gap evidence 4, Gap evidence 5-1 through 10, Gap evidence 6, Gap evidence 10, Eul evidence 1-1 through 20, Eul evidence 5-1 through 310, and the purport of whole pleadings and arguments

3. The parties' arguments and the issues of this case

A. The plaintiffs' assertion

(1) In calculating the quorum of the meeting of the resident general meeting of this case, the owner of the land, etc. who did not consent to the composition of the committee of the resident general meeting of this case and the person who did not attach a certificate of the seal impression cannot be deemed the person who attended the committee of the resident general meeting of this case, and the defendant calculated them as the person who attended the committee of the resident general meeting of this case. Since the resident general meeting of this case did not meet the requirement of the majority of landowners who

(2) Of the agenda items, (1) items, (2) items, and (4) items to be delegated by the defendant to secure operating expenses from the joint executor and to compile and execute the budget within the scope of the items to be entrusted to him/her constitutes a matter requiring the consent of at least 2/3 of the owners of lands, etc. who have consented to the formation of the promotion committee or of the change in rights and duties, or a matter requiring the consent of at least 2/3 of the owners of lands, etc. who have consented to the formation of the promotion committee. In accordance with Article 28(4) of the Enforcement Decree, the consent of the owners of lands, etc. shall be made by the method of written consent using the certificate of personal seal impression. In this case, in calculating the quorum for each item of agenda items, the defendant included a written resolution of the owners of lands, etc. who have not attached the certificate of personal seal impression, or a written resolution of the promotion committee that has not consented to the composition of the promotion committee or the composition of the promotion committee. Thus, a resolution on each item of agenda item is null and void.

(3) Article 24 of the Do Government Act provides that the selection of a work executor shall go through a resolution of the general meeting of the association, and the resident general meeting held by the promotion committee or the promotion committee does not have any authority to select the work executor, the defendant made a resolution concerning the matters related to the selection of the work executor at the resident general meeting of this case. This is null and void without examining whether the resolution made by an unauthorized person satisfies the quorum.

B. Defendant’s assertion

(1) In calculating the quorum for the meeting of the resident general meeting of this case, a person who submitted a written resolution or a certificate of seal impression submitted by the owner of land, etc. who did not consent to the composition of the committee shall be deemed to have attended the meeting of this case.

(2) Of the agenda items (1), (2), and (4), the resolution on the agenda items to be delegated by the Defendant to raise operating expenses from the joint event and to compile and execute the budget within the scope of the agenda items, the resolution on the agenda items to be delegated by the instant residents’ general meeting shall be deemed to have satisfied the quorum required for the resolution of the entire residents for the following reasons:

(A) Each of the above agenda items is subject to the cost-bearing of the owners of lands, etc., or causes changes in rights and obligations, and thus does not constitute necessary matters for the consent of the owners of lands, etc. who have consented to the composition of the promotion committee. Therefore, in order to resolve each of the above agenda items, it is not necessary to obtain the consent of a majority of the owners of lands, etc. who have consented to the composition of the promotion committee or to obtain the certificate of personal seal impression attached thereto.

(B) Even if each of the above agenda items constitutes a matter requiring the consent of a majority of the owners of lands, etc. who have consented to the formation of the promotion committee because the contents of the project pursuant to Article 14(3) of the Do administration Act and Article 23(1) of the Enforcement Decree are accompanied by the burden of the owners of lands, etc. or cause changes in rights and obligations, and thus, constitutes a matter requiring the consent of a majority of the owners of lands, etc. who have consented to the formation of the promotion committee pursuant to Article 8 of the Operation Rules, the resolution of the resolution of the residents' general meeting pursuant to Article 21 of the Operation Rules is a separate procedure. In calculating the quorum necessary for the resolution of the residents' general meeting, it is not necessary to obtain the consent of a majority of the owners of lands, etc. who have consented to the formation of the promotion committee pursuant to Article 8 of the Operation Rules, or to attach the certificate of seal impression

(3) The agenda items (5) concerning the selection of a contractor, etc. is subject to resolution by the general meeting of residents of the promotion committee on the following grounds.

(A) Under the premise of ratification of the general meeting of the redevelopment association, the selection of a contractor in advance constitutes a preparatory work for obtaining authorization for establishment of the association, preparation of the inaugural general meeting for the establishment of the association, etc.

(B) Article 11 of the former Do Government Act (amended by Act No. 7392, Mar. 18, 2005; hereinafter the same shall apply) provides that all unions shall select a contractor without dividing redevelopment and reconstruction after obtaining authorization for the implementation of a construction project. It is revised to the effect that a contractor must be selected after obtaining authorization for the implementation of a housing reconstruction project only with respect to a housing reconstruction project association under Act No. 7392, Mar. 18, 2005; and again, a contractor must be selected after obtaining authorization for the establishment of a housing redevelopment project association under Act No. 7960, May 24, 2006 (amended by Act No. 7960, Aug. 25, 2006).

(C) A resolution to select a contractor at a residents' general meeting is not aimed at final selection of a contractor, but merely at the selection of a provisional executor or a provisional executor in order to receive advice, funding, etc. on a housing redevelopment improvement project, and the effect of a provisional work executor selection or a provisional contract is limited not only to a provisional effect until a resolution to approve a general meeting of partners is adopted later, but also to a redevelopment association to be established in the future.

C. Key issue of the instant case

Therefore, the key issue of this case is (1) whether the written resolution with the person who submitted a written resolution without attaching a certificate of seal impression in calculating the quorum of the residents' general meeting of this case is the person who submitted the written resolution and the person who did not consent to the composition of the promotion committee, (2) whether the owner of land, etc. is the person who submitted the written resolution or the person who submitted the written resolution, and (3) whether the subject is the person who did not consent to the composition of the promotion committee, (2) whether the subject is the person who submitted the agenda, and (4) whether the subject is a resolution of the promotion committee at the resolution of the residents' general meeting of the residents' general meeting in relation to each of the subject items, which are delegated by the defendant to raise operating expenses from the joint executor and to compile and execute the budget within the scope.

4. Judgment on the issue

A. Whether the quorum of the general meeting of the residents of this case is satisfied

(1) Article 22(1) of the Operating Rules provides that a majority of the owners of land, etc. who supported the composition of the committee shall open with the attendance of a majority, except as otherwise expressly provided for in the Do administration and operating regulations. In calculating the quorum for opening the committee, even if the owners of land, etc. who did not agree with the organization of the committee, submitted a written resolution, they cannot be deemed the participants of the committee, and even if the owners of land, etc. who did not agree with the organization of the committee under Article 13(1)1 of the Operating Rules guarantee the right to attend the committee, right to speak,

(2) Article 22(2) of the Operating Rules only stipulates that the owners of land, etc. can exercise their voting rights through a written or proxy, and does not require the submission of a written resolution to attach a certificate of personal seal impression. Therefore, in calculating a quorum for opening a residents' general meeting, it is reasonable to deem that a person who submits a written resolution without attaching a certificate of personal seal impression is present at the residents' general meeting

(3) As to the instant case, 12 owners of the land, etc., who agreed to the composition of the promotion committee, were present directly at the instant resident general meeting, and 247 owners of the land, etc., who agreed to the composition of the promotion committee, submitted each written resolution. Thus, even if 84 participants of the instant resident general meeting among the owners of the land, etc., who did not agree to the composition of the promotion committee, were excluded, the resident general meeting of this case exceeded 259 persons who agreed to the composition of the promotion committee and met the quorum (i.e., 12 persons +247 persons).

(b) Whether the quorum for the agenda to be delegated to the defendant for the purpose of compiling operating expenses from the joint executor company among the agenda items (1), (2) items, and (4) items has been satisfied within the scope of the item, and compiling and executing the budget.

(1) First, we examine whether each of the above agenda items constitutes a matter requiring the consent of the owner of a plot of land, etc., as it entails the cost bearing of the owner of a plot of land, etc. or causes changes in rights and obligations, under Article 14(3) of the Do administration Act and Article 23(

(A) Article 14(3) of the Do Government Act provides that where the contents of duties performed by the committee of promoters consisting of the cost bearing of the owners of lands, etc. or cause any change in the rights and duties, the consent of the owners of lands, etc. shall be obtained prior to performing such duties. Article 23(1)1 of the Enforcement Decree and Article 8(1)1 of the Operational Rules provide for the matters requiring the consent of a majority of the owners of lands, etc. or of at least 2/3 of the owners of lands, etc. who have consented to the composition of the committee of promoters.

(B) On the other hand, since the agenda items (1) fall under Article 23 (1) 1 (b) of the Enforcement Decree and Article 8 (1) 1 (b) of the Operating Rules, it is necessary to give consent of more than 2/3 of the owners of land, etc. or of the owners of land, etc. who have consented to the composition of the Promotion Committee because the agenda items (2) are "the selection and change of a specialized management businessman of rearrangement projects" under Article 23 (1) 2 (b) of the Enforcement Decree and Article 8 (1) 2 (b) of the Operating Rules, among the agenda items (4) that the defendant raised operating expenses from the joint event (contractor) and compile and execute the budget within the scope of the "the determination and change of the method of raising financial resources" under Article 8 (1) 2 of the Operating Rules, the agenda items to be delegated to the defendant is necessary to obtain consent of more than 1/2 of the owners of land, etc. who have consented

(2) Next, in accordance with Article 14(3) of the Do Government Act, we examine whether the method of written consent using a seal imprint should be attached to the above agenda requiring the consent of owners of land, etc., and the written consent using a seal imprint.

① Article 8(1) of the Operational Rules requires consent from the owners of land, etc.; Article 21 subparag. 1 of the Operation Rules provides that matters requiring consent from the owners of land, etc. shall be determined through a resolution of the residents’ general meeting pursuant to Article 8(1). ② The purport of requiring a written resolution to be attached is to ensure the authenticity of the owners of land, etc. who exercise voting rights through a written submission. If a residents’ general meeting is held to decide matters requiring consent, or it is possible to make a subsequent supplementation, the procedural requirements for ensuring the authenticity of the owners of land, etc.’s intent may be de facto aggravated; ③ If it is deemed that a resolution can be adopted by the residents’ general meeting without consent from the owners of land, etc., as alleged by the Defendant, the resolution of the residents’ general meeting is likely to mislead confusion about reconstruction because it is likely to meet the requirements for consent of the owners of land, etc., the method of attaching a certificate of the owners of land, etc.’s consent should be held with respect to necessary matters under Article 14(3) of the Do Act.

(C) Finally, we examine whether the resolution made by the resident general meeting of this case on each of the above items satisfies the quorum.

As seen earlier, the number of owners of land, etc. who agreed to the composition of the committee is 272 persons, and 310 persons who submitted the written resolution at the general meeting of residents in this case did not attach the above written resolution. As such, ① Resolution on agenda items is without the consent of 263 persons who agreed to the composition of the committee of promoters within the said zone or 182 persons who were the owners of land, etc. who agreed to the composition of the committee of promoters. ② Resolution on agenda items to be delegated by the Defendant to raise operating expenses from the joint executor within the scope of the committee of promoters and to compile and execute the budget within the scope of the committee of promoters. ② Resolution on agenda items to be delegated by the committee of promoters is clearly apparent that the consent of 137 persons who agreed to the composition of the committee of promoters is insufficient to satisfy the quorum for resolution on each agenda item at the general meeting of residents in this case. ② Resolution on the selection of the committee of promoters by the committee of promoters in this case is no more than 1/200 of the Act on the Establishment of Associations.

5. Conclusion

Therefore, from among the items (1), (2), (5) and (4) of this case's residents' general meeting, each resolution on the agenda delegated by the defendant to secure operating expenses from the joint executor and to compile and execute the budget within the scope of the above resolution shall be null and void. If the defendant asserts that each of the above resolutions is valid, it shall be deemed that there is a benefit to seek confirmation from the owner of the land, etc. who is the owner of the land within the project implementation district. Thus, the plaintiffs' claim against each of the above resolutions shall be accepted for the reasonable ground, and the plaintiffs' remaining claims against each of the above resolutions shall be dismissed for the reasonable ground. As such, the judgment of the first instance court that made the above conclusion is justifiable, the defendant's appeal shall be dismissed

The presiding judge, judge and charter

Judges Cho Jae-jin

Judges Lee Jong-soo