2020 Du204173 Representatives and the Chairman’s Invalidity of the Resolution of Dismissal

Daegu

Attorney ○-○, et al.

OOO) The council of occupants' representatives

Daegu

Representative President OOO

Law Firm ○○, Counsel for the defendant-appellant

Attorney OOO

March 11, 2021

April 1, 2021

1. The instant lawsuit shall be dismissed.

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

The defendant's resolution to dismiss the representative of each Dong on April 27, 2020 against the plaintiff is invalid.

1. Basic facts

A. The apartment of ○○○○ apartment (hereinafter “instant apartment”) is a single building located in Daegu ○○○○ro, and is a commercial building from the second to the third floor underground, and is an apartment building with the fourth to the tenth floor, with the fourth apartment of 181.

B. Article 17 of the Management Rules of the apartment of this case provides that, pursuant to Article 14(1) of the Multi-Family Housing Management Act, a total of five representatives for each Dong (one to five constituency 1); hereinafter referred to as "Dong representatives") shall be appointed in proportion to the number of households for each Dong. The defendant is the representative of the Dong and five representatives.

C. On September 5, 2019, the instant apartment election commission held the Dong representative election (hereinafter referred to as the “instant election”), and publicly announced that the Plaintiff was elected as the Dong representative of the first constituency. Since then, on October 2019, the Plaintiff was elected as the chairman at the council of occupants’ representatives consisting of five police officers in the early 2019.

D. On March 24, 2020, 93 households among the occupants of the apartment of this case submitted a resolution to dismiss the plaintiff from the representative on the grounds of "the occurrence of other employees' complaints by directly ordering the director of the management office to exclude the employees under the direction of the director of the management office" and "the occurrence of other employees' complaints" to the election commission of this case among the occupants of the apartment of this case. The voting was held as to whether the plaintiff was dismissed according to the response of the election commission of the Jung-gu Seoul Metropolitan City Office.

E. On April 27, 2020, at the first election district to which the Plaintiff belongs, voting was held as to whether the Plaintiff’s representative was dismissed, and 28 households, among 37 households, participated in voting, and 26 households, among which they agreed to dismiss the Plaintiff.

[Ground of recognition] A without dispute, Gap evidence Nos. 1, 7 through 13 (including branch numbers for those with branch numbers; hereinafter the same shall apply), Eul evidence Nos. 7 through 10, and 12, testimony by ○○○○ witness, and the purport of the whole pleadings

2. The plaintiff's assertion

The request for the dismissal of the representative shall be made with the reasons for the dismissal and evidence attached pursuant to the "Rules on the Management of Multi-Family Housing in Daegu Metropolitan City". In this case, there is a serious defect in the procedure without accompanying evidentiary materials, and there is no reason to dismiss the plaintiff as provided in the "Rules on the Management of Multi-Family Housing in Daegu Metropolitan City". Therefore, the resolution for the dismissal of the representative is invalid.

3. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

Since the Plaintiff failed to meet the quorum for election required for the election of the representative of the first apartment district in this case, the election to be elected as the representative by each Dong shall be null and void. Therefore, as long as the Plaintiff cannot claim the status of the representative of each Dong, there is no benefit to seek confirmation of the invalidation of the resolution

B. Relevant legal principles

In a lawsuit for confirmation, it shall be deemed that a person who has a legal interest in confirmation or legal interest in the claim has standing to sue. In a lawsuit for confirmation, the benefit of confirmation in the lawsuit for confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment of confirmation in order to eliminate the Plaintiff’s rights or legal status in danger of independency and danger (see, e.g., Supreme Court Decision 2009Da67115, Sept. 8, 201

C. Determination

1) First of all, the part relating to the Housing Management Act and the management rules of the apartment of this case applicable to the apartment of this case at the time the Plaintiff was elected as the Dong representative of the apartment of this case is as follows.

공동주택관리법제14조① 입주자대표회의는 4명 이상으로 구성하되, 동별 세대수에 비례하여 관리규약으로 정한선거구에 따라 선출된 대표자(이하 ‘동별 대표자’라 한다)로 구성한다.③ 동별 대표자는 동별 대표자 선출공고에서 정한 각종 서류 제출 마감일을 기준으로 다음각 호의 요건을 갖춘 입주자 중에서 대통령령으로 정하는 바에 따라 선거구 입주자등의 보통·평등·직접·비밀 선거를 통하여 선출한다.⑤ 동별 대표자가 임기 중에 제3항에 따른 자격요건을 충족하지 아니하게 된 경우나 제4항각 호에 따른 결격사유에 해당하게 된 경우에는 당연히 퇴임한다.⑨ 동별 대표자의 임기나 그 제한에 관한 사항, 동별 대표자 또는 입주자대표회의의 임원의선출이나 해임 방법 등 입주자대표회의의 구성 및 운영에 필요한 사항과 입주자대표회의의의결 방법은 대통령령으로 정한다.제15조(동별 대표자 등의 선거관리)① 입주자등은 동별 대표자나 입주자대표회의의 임원을 선출하거나 해임하기 위하여 선거관리위원회를 구성한다.② 다음 각 호의 어느 하나에 해당하는 사람은 선거관리위원회 위원이 될 수 없으며 그 자격을 상실한다.1. 동별 대표자 또는 그 후보자2. 제1호에 해당하는 사람의 배우자 또는 직계존비속제16조(동별 대표자 후보자 등에 대한 범죄경력 조회 등)① 선거관리위원회 위원장은 동별 대표자 후보자에 대하여 제14조 제3항에 따른 동별 대표자의 자격요건 충족 여부와 결격사유 해당 여부를 확인하여야 하며, … 동별 대표자 후보자의 동의를 받아 범죄경력을 관계 기관의 장에게 확인하여야 한다.제18조① 특별시장·광역시장·특별자치시장·도지사 또는 특별자치도지사는 공동주택의 입주자등을보호하고 주거생활의 질서를 유지하기 위하여 대통령령으로 정하는 바에 따라 공동주택의관리 또는 사용에 관하여 준거가 되는 관리규약의 준칙을 정하여야 한다.② 입주자등은 제1항에 따른 관리규약의 준칙을 참조하여 관리규약을 정한다.공동주택관리법 시행령 제11조① 공동주택관리법 제14조 제3항에 따라 동별 대표자는 선거구별로 1명씩 선출하되 그 선출방법은 다음 각 호의 구분에 따른다.2. 후보자가 1명인 경우 : 해당 선거구 전체 입주자등의 과반수가 투표하고 투표자 과반수의 찬성으로 선출제19조① 법 제18조 제1항에 따른 관리규약의 준칙에는 다음 각 호의 사항이 포함되어야 한다.이 경우 입주자등이 아닌 자의 기본적인 권리를 침해하는 사항이 포함되어서는 안 된다.3. 동별 대표자의 선거구·선출 절차와 해임 사유·절차 등에 관한 사항이 사건 아파트 관리규약제22조② 선거관리위원회는 선출한 동별 대표자의 명단과 임기 등을 즉시 확정·공고하여야 한다.③ 동별 대표자를 선출하지 못하여 공석인 선거구는 30일 이내에 다시 선출공고를 하여야한다. 다만, 입주자대표회의 정원의 3분의 2가 구성된 경우, 2회 이상 선출공고에도 후보자가 없는 경우에는 선출을 하지 아니할 수 있으나 추후에 해당 선거구 입주자 등 10분의 1이상의 선출요구가 있는 경우에는 선출공고를 하여야 한다.

2) The representatives of each Dong under the Multi-Family Housing Management Act and its Enforcement Decree are common by occupants, etc.

Article 11(1) of the Enforcement Decree of the Multi-Family Housing Management Act, which is a provision related to the method of election, shall be construed as compulsory provisions, in light of the following: (a) it is possible to be elected by means of equal, direct, and secret election; (b) it is possible to automatically retire if the qualification requirements for representatives of each building are not met or criminal records are confirmed; and (c) it is also limited to the organization of an election commission for the procedure of election. Furthermore, unlike the fact that several regulations of the Multi-Family Housing Management Act provide for or allow to determine certain matters as a management rules, in particular, the method of election is prescribed by the management rules, and there

3) In addition to the aforementioned evidence and evidence Nos. 3 as seen earlier, all of the electors in the constituency Nos. 1 through 5 were candidates as follows at the time of the instant election. In the case of the constituency Nos. 2 through 4, the voters did not elect the representative due to a vote of which the number of voters does not reach a majority of the entire occupants in the relevant constituency No. 8, 13, and 8 (36). Of the total occupants, the constituency No. 5 was elected by ○○ with the vote of 19 (16) from among the 36 occupants and with the consent of the majority (16). On the contrary, the constituency No. 1 can be acknowledged that the election commission publicly announced that the Plaintiff, a candidate, was elected as the representative, although the number of voters did not reach the majority by 18 of all occupants, 37 households.

The omission of the list.

Further, according to Article 11(1) of the Enforcement Decree of the Multi-Family Housing Management Act, the representative shall vote by the majority of all occupants, etc. in the relevant constituency, and the majority of voters shall be elected, and if there is no elected person, the procedure for public announcement of re-election should be conducted. Thus, where 18 households, which fall short of the majority of the 37 households of the 1st constituency at the time of the election of this case, are voting again, the procedures for public announcement of the election of the representative shall proceed, but the public announcement of the election of the plaintiff as the representative shall not be effective as it infringes on the right to vote of occupants, etc. in violation of the compulsory provisions. Therefore, the lawsuit of this case is first seeking the confirmation of the status of the representative from the beginning, and it cannot be deemed that the plaintiff has any right or legal interest with respect to it

4) As to this, the Plaintiff was notified by the election commission that he was elected as the 1st constituency representative, so long as it did not receive the confirmation of nullity of the decision on the election, the Plaintiff asserts that it does not affect all the qualifications of the 1st constituency representative. However, the public notice by the election commission is in accordance with the duty of immediate public notice as stipulated in Article 22(2) of the apartment management rules, and it is difficult to view that the 2nd constituency representative is a legitimate Dong representative merely by the above public notice. Rather, in light of the purport of Article 14(5) of the Multi-Family Housing Management Act, which provides that the legally elected representative does not meet the qualifications or the grounds for disqualification during his term of office or the legally elected representative shall not be deemed a legitimate representative, regardless of the invalidity confirmation of the decision on the election, a candidate who fails to meet the quorum by public notice by mistake

4. Conclusion

Therefore, the lawsuit of this case is unlawful because it has no interest in standing to sue or confirmation, and it is decided to dismiss it as per Disposition.

The presiding judge, chief judge and chief judge

Judges Lee Ho-soo

Judges Jeong Jeong-hee

1) A constituency (household 25 households on the fourth floor and 516 households on the fifth floor), a second constituency (household 517 through 626 on the fifth floor), a third constituency (household 36 units on the sixth floor 627 through 801 on the sixth floor), a fourth constituency (household 802 to 909 on the eighth floor), a five constituency (household 910 to 1025 on the fourth floor), and a five constituency (household 36 units on the fourth floor 910 to 1025 on the fourth floor);