2016A. 3752 Invalidity, etc. of Extraordinary General Meeting

A

1. B

2. C District Housing Association:

o October 13, 2017

October 27, 2017

1. The instant lawsuit shall be dismissed.

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

On November 12, 2016, the resolution (hereinafter referred to as the "resolution of this case") adopted by the Defendant C Regional Housing Association (hereinafter referred to as the "Defendant C") in the extraordinary general meeting of the members of the 15th association (hereinafter referred to as the "special meeting of this case") on November 12, 2016 is confirmed to be null and void.

1. Basic facts

A. The Defendant Union was established to carry out the business of newly building and selling apartment units on the land of Yeongdeungpo-gu Seoul Metropolitan Government E, a regional housing association method, but did not obtain authorization for establishment. Defendant B was a non-corporate group that did not hold the office of auditor of the Defendant Union until December 31, 2016. The Plaintiff was a member’s representative on August 6, 2016, who was elected as the head of the Defendant Union as a member’s representative at the 14th general meeting of the Defendant Union’s members at the 14th general meeting of the members.

B. On November 12, 2016, the Defendant Cooperative held the instant extraordinary general meeting, and passed a resolution of this case with respect to the approval of cash payers, extension of the period of settlement committee for the liquidation of partnership, financial reports on the operation of partnership, audit reports, and election of the president of the D Partnership.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, Eul evidence No. 6, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The resolution of this case made by the Defendant Union at the special meeting of this case is null and void inasmuch as the resolution of this case was made in violation of Article 11 of the Rules of the Defendant Union, which provides that ① the head of the association did not go through legitimate procedures, such as unfairly denying the authority of the Plaintiff, who is the president of the association, and ② failed to meet the quorum set by the rules of the Defendant association, and ③ in particular, the resolution selected D as the head of the association was made in a way of public disclosure in violation

3. Determination on the legality of the instant lawsuit

A. Determination as to the defendants' defense prior to the merits - Action against the defendant union

1) The assertion

The Plaintiff is not a member of the Defendant, and is currently not in the position of the president of the partnership, and thus is not in the position to seek confirmation of invalidity of the Defendant’s joint adoption resolution. In particular, Defendant D was in the position of the president of the partnership on January 10, 2017, and Defendant D elected H as a new president of the partnership. As such, the part of the instant resolution seeking confirmation of invalidity of the resolution that the Defendant D appointed as the president of the partnership is unlawful.

2) Determination

A) A confirmation lawsuit is permissible only where it is legally effective and appropriate to obtain a confirmation judgment in order to eliminate risks or apprehensions regarding the Plaintiff’s rights or legal status (see, e.g., Supreme Court Decisions 90Da14058, Jun. 25, 1991; 90Da14058, Apr. 29, 2005; 2005Da9463, Apr. 29, 2005; 2008Da53430, May 27, 2010).

B) Comprehensively taking account of the overall purport of evidence No. 1, No. 1, No. 2, and evidence No. 4, the defendant's association's list provides that "a list of union members" is a document stating each member's qualifications, shares, rights, etc., such as personal information, principal information such as the selection of representatives, amount of investment, activities, and major matters of each member's investment in the association, and shall be kept and managed in the office of the association." Article 6 (1) provides that "the member of the association shall sign and seal the membership agreement and pay the down payment by June 6, 2007, which is the date of the first general meeting of union members." Article 11 (3) provides that "where it is necessary for the operation of the association, the board of directors may appoint members or external experts as advisory members, director's treatment, etc." Article 15 (1) provides that "the director of the association may determine his/her remuneration, etc., and the head of the association shall confirm its validity through oral or written confirmation.

The auditor's resignation shall take effect immediately after the resolution of the board of directors or the general meeting. The fact that the plaintiff was not registered as a member in the defendant's association register; the plaintiff was expressed his/her intention of resignation around October 2016 while performing the head of the defendant association from August 6, 2016; the board of directors of the defendant association maintained the plaintiff's status of the head of the association before the special meeting of this case; and it is recognized that the plaintiff resolved to elect a new head of the association at the special meeting of this case.

C) According to the above facts, the Plaintiff, an agent of Defendant F’s association member, was elected as the president of the association for the operation of the association separately from the officer elected by the association rules, and performed his duties for the operation of the association. Since the completion of delegation relation after the completion of the instant special meeting, the Plaintiff is not in the position of the president of the association, and the Defendant Union, as a non-corporate association, is in accordance with the articles of association or other regulations of the association regarding collective ownership of the non-corporate association, according to the provisions of Articles 275 and 276 of the Civil Act. Thus, the Plaintiff, whose membership status is not recognized under Article 6(1) of the rules of the Defendant Union, is not recognized as having the status to participate in the general meeting of the association members falling under the resolution of the general meeting of the general meeting of members for the management and disposition of collective ownership. Therefore, it cannot be deemed that there exist existing concerns or risks

D) In addition, comprehensively taking account of the overall purport of the statements and arguments in the evidence Nos. 7 and 8 of this case, D, elected as the president of the Defendant Partnership by the instant resolution, resigned from the office of the head of the Defendant Partnership on January 10, 2017, and the fact that the Defendant Union, on January 21, 2017, selected H from the 16th general meeting of the members of the Defendant Partnership, was the head of the new association. As such, the part on which the Plaintiff seeks confirmation of the invalidation of the resolution that selected D as the head of the association against the Defendant Union, appears to be either ambiguous or unlawful.

(b) ex officio determination - Action against Defendant B

1) In a case where there is a dispute over the validity of a resolution at a general meeting, and there is a dispute over various legal relations derived from the resolution, the effect of the resolution itself becomes the most effective and appropriate means for the principal settlement of the dispute (see, e.g., Supreme Court Decision 2008Da53430, May 27, 2010). However, it is sufficient that only the partnership is a party to seek confirmation, and there is no legal interest to seek confirmation against an individual (see, e.g., Supreme Court Decision 96Da6295, Apr. 12, 196).

2) In light of the above legal principles, the Plaintiff ought to dispute the validity of the instant resolution against the Defendant Union, and even if the instant resolution against the Defendant B is confirmed to be null and void, its validity does not extend to the Defendant Union. Therefore, the Plaintiff’s seeking confirmation of invalidity of the instant resolution against the Defendant B cannot be deemed an effective and appropriate means to eliminate risks or apprehensions relating to the Plaintiff’s rights or legal status, and thus, there is no benefit in its confirmation.

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.

The presiding judge shall have jurisdiction over the judges;

Judge 100 Hun-Ba

Judges Lee Jae-young

1) The plaintiff stated in the complaint that the "the resolution that the defendant union elected D as the principal of the association at the special meeting of this case" was invalid. However, this is merely a part of the resolution of the special meeting of this case for which the plaintiff seeks confirmation of invalidation with the main claim of this case, and it is not based on the factual basis that only the same claim is inconsistent with the same factual basis. Thus, only the portion which constitutes the main claim should be stated in the purport of the claim.