Federation of Individual Trucking Transport Services (Law Firm Western, Attorneys Kim Sejong-jin et al., Counsel for the defendant-appellant)

Gyeonggi-do Individual Freight Trucking Association (Law Firm Dasan, Attorneys Kim Young-min et al., Counsel for the defendant-appellant)

July 24, 2014

Suwon District Court Decision 2013Gahap15152 Decided January 23, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant does not have the right to withdraw from the plaintiff, and the defendant confirms that he is a member of the plaintiff.

1. Whether basic facts and benefits from confirmation are recognized

Pursuant to the main sentence of Article 420 of the Civil Procedure Act, the relevant part of the judgment of the first instance shall be quoted.

2. Summary of the parties' arguments

A. The plaintiff's assertion

1) In light of the legislative intent and literal meaning and contents of Article 50(1) of the Trucking Transport Business Act (hereinafter “instant provision”), it is naturally a provision that City/Do associations force the Plaintiff to join as a member of the Federation. Therefore, the Defendant Association does not have the right to withdraw from the Plaintiff Federation and is still a member of the Plaintiff Federation despite the withdrawal of the instant case.

2) Even if the Defendant Association may withdraw from the Plaintiff Federation, the withdrawal of the instant case is accompanied by changes in the rights and obligations of the members of the Defendant Association, and thus, constitutes an amendment of the articles of incorporation, and subject to the procedures prescribed in Article 42 of the Civil Act. The Defendant Association did not obtain the consent of 2/3 or more of the total members (members) at the general meeting of the members, and as such, the Defendant Association did not obtain the permission from the competent authorities, the resolution of February 13, 2013 of the Defendant Association on the withdrawal

3) On February 29, 2009 and January 27, 2011, the former president of the Defendant Association directly prepared and submitted a letter of commitment that Nonparty 1 and himself/herself would not engage in any act, such as withdrawal from the Plaintiff Federation to Nonparty 2 of the election management committee of the Plaintiff Federation. Each of the above forms is written by Nonparty 1 as the representative of the Defendant Association (president). Accordingly, the Defendant Association cannot withdraw from the Plaintiff Federation against the above letter of commitment, and in this respect, the withdrawal of this case is null and void.

B. Defendant’s assertion

1) In light of the freedom of association under Article 21(1) of the Constitution of the Republic of Korea (hereinafter “Constitution”) and the literal meaning of the instant provision, it is difficult to deem the instant provision to be a provision prohibiting the participation of a federation qualified as a member or withdrawal from the federation. Rather, the said provision ought to be deemed a confirmative provision that only an association of an individual, such as a trucking service provider, may become a member of the federation.

2) Since the withdrawal of this case is not accompanied by an amendment of the articles of incorporation, a resolution on this issue is valid even if it did not have a quorum necessary for an amendment of the articles of incorporation and permission from the competent

3) Nonparty 1, the former president of the Defendant Association, cannot be deemed to have extended to the Defendant Association the validity of a letter of good faith written individually by Nonparty 1.

3. Relevant regulations and legal principles

A. Relevant provisions

Trucking Transport Business Act

Article 48 (Establishment of Associations)

(1) Trucking service providers may establish an association by type of trucking transport business or by Special Metropolitan City, Metropolitan City, Special Self-Governing City, Do, or Special Self-Governing Province with authorization from the Minister of Land, Infrastructure and Transport to promote the sound development

(5) Trucking service providers may join the Association as stipulated by the articles of association.

Article 50 (Federations)

(1) An association comprised of trucking business operators, an association comprised of freight forwarders, and an association comprised of trucking business franchisors may establish a federation respectively, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, in order to achieve their common objectives. In such cases, the association comprised of trucking business operators, an association comprised of freight forwarders, and an association comprised of trucking

(2) Articles 48 and 49 shall apply mutatis mutandis to the establishment and business activities of the Federation.

B. Relevant legal principles

The term “the freedom of association” under Article 21 of the Constitution refers to the freedom that a large number of natural or juristic persons can form an organization for the common purpose, and includes the freedom to withdraw from the existing organization passively, and the freedom not to join the association. Here, the term “contributing” refers to an organization that can be combined and organized by a free will for the common purpose for a considerable period of time by a large number of natural or juristic persons, and is not included in the formation of public law (see, e.g., Constitutional Court en banc Decision 2006Hun-Ma666, Jul. 31, 2008). As such, the freedom of association guaranteed by the Constitution as a fundamental right constitutes the content of the fundamental right of freedom, its restriction is limited to the minimum necessary, and its essential contents cannot be infringed, and the interpretation and operation of law should be based on the same principle.

In addition, the purpose of legal interpretation ought to be to find a concrete propriety within the extent that does not undermine legal stability. To achieve that, in principle, the interpretation ought to be faithfully interpreted within the ordinary meaning of the language and text used in the law as far as possible, a reasonable interpretation must be made in compliance with the request for legal interpretation as above by additionally using a systematic and logical interpretation method that takes into account the legislative intent and purpose, history of the enactment and amendment, harmony with the entire legal order, relations with other Acts and subordinate statutes, etc. (see, e.g., Supreme Court en banc Decision 2011Da83431, Jan. 17, 2013). Furthermore, when the concept of a certain law is diverse and it is possible to interpret within the framework of its language, it is necessary to choose an interpretation consistent with the spirit of the Constitution in order to form a unified legal order with the Constitution, i.e., constitutional interpretation, and if the interpretation that will result in unconstitutional as a result is excluded from the interpretation, it should be unconstitutional and positive if it is unconstitutional and unconstitutional (see Supreme Court Decision 192Do.131.

4. Determination

A. Whether the defendant association can withdraw from the plaintiff federation

1) Status of the Plaintiff Federation and the Defendant and its member associations

According to Article 48(1), (5), and the main text of Article 50(1) of the aforementioned Act, the member associations of the Plaintiff Federation, including the Defendant Association, shall be free to decide whether or not to join the Defendant Association as an organization established voluntarily by individual freight trucking business operators to promote the sound development of trucking transport business and to promote the common interest of trucking business operators, or to achieve common objectives. The Plaintiff Association is also established voluntarily by individual freight trucking business operators, such as the Defendant Association. Specific matters such as the business and operation of the Defendant Association or the Plaintiff Federation are stipulated in the articles of association, which are the basis of self-help organization. The Plaintiff Association, as well as the Plaintiff Association, may be dissolved by the resolution of the general meeting, i.e., the members of the Plaintiff Association, and the Plaintiff Association, as well as the Plaintiff Association, should be decided by the Plaintiff Association or the private law association, in light of the fact that the provisions of the above Act concerning private law are applied mutatis mutandis.

In light of the relevant legal principles as seen earlier, the Defendant Association, which is a private legal entity, may withdraw from the Plaintiff Federation, which is a private legal association, unless there is a limitation by law or by legitimate articles of association.

2) Whether the instant provision limits withdrawals or not

In light of the relevant legal principles as seen earlier, considering the following circumstances acknowledged by comprehensively taking into account the following circumstances, the existence of the need to restrict fundamental rights against the Defendant Association, the literal meaning and legislative purpose of the provision of this case, and the relationship with other statutes, it is difficult to deem that the provision of this case limits the freedom guaranteed in the principle of private corporation, thereby compelling the joining of the Federation or prohibiting the withdrawal from the Federation, and it is difficult to view that the Defendant Association established the Plaintiff Federation as the center of the Plaintiff Association. On the other premise, the Plaintiff’s assertion that the Defendant was not entitled to withdraw from the Plaintiff Association is difficult to accept.

① Considering the literal meaning of the part that “an association becomes a member of a federation,” as alleged by the Defendant, the phrase “a member of a federation may be interpreted as a confirmative provision, and thus, it cannot be readily concluded as an automatic compulsory subscription provision as alleged by the Plaintiff, and should be interpreted by comprehensively taking into account the relationship with other provisions or the legislative intent and purpose, etc.

② As alleged by the Plaintiff, Article 48(5) of the former Automobile Transport Business Act (amended by Act No. 65-3(1)) provides that “A trucking business operator shall be a member of the association when the association is established” (Article 65-3(1)) of the former Automobile Transport Business Act (amended by Act No. 65-3(1)) provides that “A trucking business operator shall be a member of the association if the association is established.” However, as the Act on the instant case, Articles 48 and 49 of the former Automobile Transport Business Act (amended by Act No. 50(2) provide that Article 50(2) of the former Trucking Transport Business Act shall apply mutatis mutandis to the association with respect to the establishment and business of the association, and Article 48(5) provides that an individual transport business operator may be a member of the association. If the provisions of the instant case are interpreted as the automatic subscription provision, it conflicts with the provisions of Article 48

③ Rather, the latter part of the instant provision is consistent with the preamble of the instant provision providing that, in a case where only an association is deemed a juristic person, other than an individual, such as a trucking business operator, freight forwarder, and trucking franchisor, and the association can become a member of the federation, the association can be in harmony with the provisions of Article 48(5) of the Trucking Transport Business Act that recognizes the freedom to join and the association composed of trucking business operators may establish

④ The Passenger Transport Service Act, which is most similar to the Trucking Transport Business Act, provides that “a federation shall be established as a member of the association” under Article 96(1) of the Enforcement Rule thereof, and separate provisions confirming that a member of the federation is a juristic person, not an individual. This case’s provision can be interpreted to the same purport, and thus cannot be deemed as an unqualified provision.

⑤ Meanwhile, all the provisions on membership-related provisions such as the Credit Unions Act and the former Livestock Industry Cooperatives Act are construed as a compulsory subscription provision. This is not only because of the legal text that “all members become members,” but also because the meaning of the entire text of the law and the systematic relationship with other provisions are interpreted as a relatively clearly automatic subscription provision, unlike the provisions in this case. For instance, the Credit Unions Act provides that “all cooperatives shall become members of the National Federation (Article 61)” (Article 61(1)) and also provides that “the National Federation shall be established as members of the National Federation” (Article 61(1)), and at the same time, the National Federation shall be obligated to establish the National Federation, and the National Federation’s members shall be members of the National Federation. Article 109 of the former Livestock Industry Cooperatives Act provides that “The National Federation shall be members of a local union, a trade union, and a trade union that is a corporation” (Article 107(1)). Article 109 of the Passenger Transport Business Act does not provide for separate provisions concerning dissolution or withdrawal from the National Federation.

(6) In addition, Article 51(1) of the Enforcement Decree of the Trucking Transport Business Act provides that “the Federation may conduct business of guaranteeing liability for damages caused by an automobile accident of a trucking service provider with permission, etc. from the Minister of Land, Infrastructure and Transport, and provide that “the Federation shall entrust the Federation with the authority to provide guidance and enlightenment for safe transportation among the management guidance for trucking service providers pursuant to Article 41 of the Act, and recommendations on disposition of violations of Acts and subordinate statutes, etc.” In addition, Article 15(5) of the Enforcement Decree of the said Act and Articles 15(2), 19, 39-2(2), and 42 of the Enforcement Rule of the said Act provide for matters concerning the authority and duties of the Federation. However, since the Association can withdraw from the Federation, it cannot be deemed that all of the above provisions are unreasonable, and passenger transport service providers who have no automatic provision for joining the Federation shall not be entrusted with the authority of the Minister of Land, Infrastructure and Transport pursuant to Article 76(1) of the Enforcement Decree of the said Act.”

7) Article 51(1) of the Trucking Transport Business Act provides that only the Federation shall conduct the business of guaranteeing liability for damages caused by car accidents of trucking service providers and the business of compensating for loaded goods, etc. on July 1997, the Construction and Transportation Commission of the National Assembly enacted the Trucking Transport Service Act to ensure the protection of people from traffic accidents and the rationalization of their management by sharing the legal losses of members due to traffic accidents in the deliberation report on the bill of the Trucking Transport Business Act (A25) on July 197, 197, since existing cargo mutual aid business is not equipped with professional management and the organization of compensation is insufficient, and there is no prompt and fair compensation such as the participation of the business operators. However, granting voluntary withdrawal from the Association cannot be seen as the purpose of the enactment of the Act to improve this problem. As long as the purpose of the Act is stipulated as the matter of choice itself to join the mutual aid association of trucking service providers (Article 51-2(4) of the same Act), it is difficult to view voluntary withdrawal from the Association on the ground that the Plaintiff Federation is not operated.

The Licensed Real Estate Agents Act explicitly provides for the broker's liability for damages in preparation for the necessity of compensation for damages arising from the course of real estate transactions, and requires the broker to join or deposit the guarantee insurance or the mutual aid association before the commencement of business (Article 30 of the above Act). The above Act provides for only the Licensed Real Estate Agents Association to operate the mutual aid business (Article 42 (1) of the Licensed Real Estate Agents Association), but there is no provision that the Personal Real Estate Agents Association may not mandatory join or withdraw voluntarily.

8) The articles of association (A) of the current Plaintiff Federation (A30) appears to have been deleted. However, Article 10 of the articles of association (A2) of the previous Plaintiff Federation (A2) provides that when members of the Federation have not paid membership fees for not less than three months as prescribed in Article 9(2) and have been suspended on not less than three occasions, expulsion may be taken. This provision appears to be premised on the fact that all associations that can be members of the Plaintiff Federation are not always members of the Plaintiff Federation, and that the above provision of the articles of association regarding expulsion contains the purport that the Defendant et al. association cannot escape from the status of members of the Plaintiff Federation by voluntary withdrawal, not by expulsion.

9) The circumstance asserted by the Plaintiff alone is insufficient to deem that there is a need to restrict the right to self-determination and the freedom of passive association enjoyed by the Defendant Association as a judicial person for public welfare, and no other circumstance exists to recognize it.

(10) The Ministry of Land, Transport and Maritime Affairs, which is the competent authority at the time of around 2005, respondeds that the Association shall not withdraw from the members of the Federation, but the Ministry of Land, Transport and Maritime Affairs, which is the competent authority at the time of around 2012, replys that the Association may withdraw from the Plaintiff Association on the ground that the Ministry of Land, Transport and Maritime Affairs, which is the Ministry of Land, Transport and Maritime Affairs,

B. Whether the Defendant Association is a member of the Plaintiff Federation

1) Withdrawal of the Defendant Association

Defendant Association decided to withdraw from the Plaintiff Federation at the regular meeting of representatives of the Plaintiff Association on February 13, 2013, and on the following day, expressed the intent to withdraw from the Plaintiff Federation. As seen earlier, the Defendant Association is entitled to withdraw from the Plaintiff Federation on the grounds that there are no provisions on the procedures for joining and withdrawing from the Association’s articles of association of the Defendant Association or the Plaintiff Federation, barring any special circumstance, barring any special circumstance.

2) Whether the instant withdrawal resolution is lawful

Since the resolution of withdrawal of this case is about the amendment of articles of incorporation, the Plaintiff’s federation asserts that the procedure stipulated in Article 42 of the Civil Act is followed and that the withdrawal of this case is null and void without obtaining permission from the competent authority. However, among the articles of incorporation (A10) of the Defendant’s Association, it appears that there is no part that the content of the withdrawal of the Defendant Association can be changed because the withdrawal of the Plaintiff Association from the Plaintiff Federation, and that the withdrawal would not result in a substantial change in the articles of incorporation of the Defendant’s Association. Therefore, the Plaintiff’s above assertion cannot be accepted without further review.

3) Whether each letter is valid or not

In full view of the statements and the purport of the whole arguments in Gap 6 and 7, it is recognized that non-party 1 prepared a letter of commitment that he/she would comply with the regulations, etc. when he/she and his/her support persons run for the sixth and seventh presidential elections of the plaintiff federation on February 29, 2008 and January 27, 201, and he/she would not withdraw from the plaintiff federation, and even in the case of abortion, he/she would not withdraw from the plaintiff federation, and if he/she withdraws from the federation, he/she would be held liable for civil and criminal liability.

However, in light of the fact that Nonparty 1 only stated in the name column of candidate, “Nonindicted 1”, “Defendant Association”, and “chief director” in the affiliated column, and there is no indication that Nonparty 1 prepared on behalf of the Defendant Association, and the content and contents of the above letter, each of the above forms is merely a document prepared in person by Nonparty 1 as a candidate for the election of the chairperson of the Plaintiff Association. Therefore, it cannot be deemed that it extends to the Defendant Association, and there is no other circumstance to see otherwise. The Plaintiff’s assertion on this is rejected.

4) Sub-determination

Therefore, as seen earlier, the Defendant Association shall decide to withdraw from the Plaintiff Federation, and accordingly, shall be held out of the membership of the Plaintiff Federation by expressing the intent to withdraw from the Plaintiff Federation. Therefore, the Plaintiff’s claim seeking confirmation of membership of the Defendant Association on the premise that the Defendant Association still is a member of the Plaintiff Federation is without merit.

5. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.

Judge Lee Gyeong-sck (Presiding Judge)