The case holding that in case where Gap association established as its member with the main office in Daegu Metropolitan City among individual cargo transport service providers permitted to transport cargo using one truck under the Trucking Transport Business Act holds a board of directors meeting, and Gap association established as its member with the main office in the Daegu Metropolitan City among the cargo transport service providers, and the type of cargo transport service is changed from general cargo, individual cargo, and/or personal cargo to general cargo and personal cargo due to the amendment of the Trucking Transport Business Act, it is necessary for the establishment registration of the private cargo association in combination with the same regional cargo association within two years from the enforcement date of the amended Act, and the resolution was adopted to postpone the election of executives and representatives of the next three months from the enforcement date of the amended Act, which begins three months prior to the expiration of the term of office of Eul, while Eul, who is the chairperson of the Association, continues to perform its duties even after the expiration of the term of office, the above resolution of the board of directors was filed against Eul, and sought confirmation of invalidity and absence of the president's status, and the above resolution of the board of directors is significant and apparent.

In accordance with the Trucking Transport Business Act, Gap association, which is a corporation established with its principal office in Daegu Metropolitan City as its member among individual trucking transport business operators permitted to transport cargo using one trucking transport business under the Trucking Transport Business Act, shall hold a board of directors and change the type of trucking transport business from general cargo, individual cargo, and/or personal cargo to general cargo and personal cargo. The revision of the Trucking Transport Business Act requires the establishment registration of the personal cargo association within two years from the enforcement date of the amended Act, in combination with the same regional cargo association within two years from the enforcement date of the amended Act. For this purpose, a resolution to postpone the election of executives and representatives of the next three months from the enforcement date of the amended Act, which begins three months prior to the expiration of the term of office, shall continue to perform their duties even after the expiration of the term of office of Eul, who is the president of the Gap association, filed an application for the suspension of the performance of duties against Eul, who is a member of the Eul association, and then

In light of the provisions of Article 48 of the Trucking Transport Business Act, which is a provision for the establishment of the Association, the articles of association of the Association, as well as the establishment of the Association, seems to have a speed equivalent to the laws and regulations, and also have a speed equivalent to the provisions of the Trucking Transport Business Act. According to the articles of association, the articles of association, the articles of association, and the election regulations for officers and representatives of the Association A Association, the board of directors of the Association must take procedures necessary for election, such as appointment of election committee members for the next-term officer and representatives before the expiration of the term of office, and the articles of association of the Association stipulate three years as three years, and continuing to perform internal and external duties of the Association A association because it results in extension of scheduled elections and extension of the term of office of the former officer, etc., and it is in violation of the provisions of the articles of association, and it is judged that the above board of directors did not have a significant and obvious defect, and therefore, it is not proper to appoint the president and the representative of the Association.

Article 3(1) and Article 48 of the Trucking Transport Business Act, Article 9 of the Addenda ( April 17, 2018) of the Trucking Transport Business Act, Articles 40, 58(2), and 105 of the Civil Act

Plaintiff (Attorney Hwang Young-young, Counsel for the plaintiff-appellant)

Daegu Metropolitan City Individual Freight Trucking Association (Law Firm Jungwon, Attorneys Han-ju, Counsel for defendant-appellant)

June 4, 2020

1. On February 8, 2019, the board of directors held by the Defendant, which held on February 8, 2019, confirms that the resolution to postpone the election of the 10th executive or representative under the plan to start the term of office is null and void.

2. The non-party is confirmed to have no status as the chief director or director of the defendant.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. The defendant is a legal entity established with the Daegu Metropolitan City as its principal office among the trucking transport business operators permitted to transport cargo using one trucking transport business under the Trucking Transport Business Act, and the plaintiff is the defendant's member.

B. On February 8, 2019, the Defendant held a board of directors, and the following matters are included in the resolution (hereinafter “instant resolution by the board of directors”).

1. The revised Trucking Transport Business Act (Act No. 15602, Jul. 1, 2019) provides that an individual cargo transport business owner shall file an application for suspension of his/her business for the establishment of the Association under subparagraph 2; 1. The new personal cargo transport business owner shall be allowed to register the establishment of the Association within 0 years from July 1, 2019 and within 2 years from the date of entry into force of the Act; 2. The new personal cargo transport business owner to whom the new personal cargo business owner shall file an application for suspension of his/her business pursuant to the articles of association; 3. The new personal cargo business owner shall be required to establish the Association in accordance with the articles of association; 1. The new personal cargo business owner shall be deemed to have obtained permission for the new personal cargo business; 2. The new personal cargo business owner shall be subject to dissolution and dissolution of the Association under the articles of association and the new articles of association for the purpose of the new articles of association for the purpose of the new articles of association.

Note 1) Enforcement

C. Articles of incorporation, executives, and representatives of the Defendant related to the instant case

1. Article 8 (Rights of Members). 1. The articles of incorporation, the vice-chairperson, the non-permanent directors and the representatives shall be comprised of officers and representatives; 2. The general meeting shall be convened in February every year and the special general meeting shall be convened when the chairperson deems it necessary: Provided, That the general meeting may be convened in the year in which an election is held at the expiration of the term of office of the executives; 1. The general meeting shall be concluded with the attendance of a majority of the members of the general meeting and the resolution may be made in writing with the consent of the majority of the incumbent; 4. The election commission shall be elected from 17 (Matters subject to resolution); 1. The term of office of the chairperson and the vice-chairperson shall be restricted to 22 (Election of Officers and Representatives) before the expiration of the term of office of the board of directors; 3. The term of office of the chairperson and the vice-chairperson shall be restricted to 14. Other matters subject to the election management; 4. The term of office of the chairperson, the vice-chairperson and the representatives shall be restricted to 14.

D. The term of office of the Nonparty, who was the president of the Defendant at the time of the resolution by the board of directors of this case, is three years from April 1, 2016 to March 31, 2019. However, after the election by the board of directors of this case was postponed by the resolution by the board of directors of this case, the Nonparty demanded that the Defendant members take procedures for the election of executive officers several times by performing the duties of the president pursuant to Article 23 subparag. 5 of the Defendant’s Articles

E. On April 16, 2019, the Plaintiff filed an application against the Nonparty for a provisional disposition suspending the performance of duties, and on July 19, 2019, a provisional disposition order was issued to suspend the performance of duties until the judgment on the merits of the instant case became final and conclusive ( Daegu District Court 2019Kahap10162).

[Reasons for Recognition] A without dispute, Gap evidence Nos. 1 through 6 (including branch numbers in case of additional number), Eul evidence Nos. 1 through 3, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In light of the fact that the postponement of the election through the resolution of the board of directors of this case would result in the extension of the term of office of the executive officers and would violate the articles of association that stipulate the term of office, and there is no ground to deem it possible to postpone the above election with the approval of the general meeting resolution or the majority of all the members, the resolution of the board of directors of this case is null and void,

B. Defendant’s assertion

The resolution by the board of directors of this case, which postponed the election of officers, was inevitable to establish a personal cargo association, and it also conforms to the purpose of the defendant's articles of association. In addition, the above agenda was presented to the general meeting for resolution, and the whole members of the association were consulted by the vote of 71.53% of the members present at the voting among 3,495 members, and were justifiable upon the consent of 789 members present at the voting system. Therefore, the resolution by the board of directors of this case

3. Judgment on the claim for nullification of resolution by board of directors

In full view of the following circumstances revealed in light of the aforementioned facts and the purport of the entire pleadings, the resolution by the board of directors of this case, which postponed the election of officers and representatives, is null and void due to significant and apparent defects in its contents, and there is a benefit to seek confirmation so long as the Defendant is disputing the validity of the resolution by the postponement of election.

① The Defendant is an organization established based on Article 48 Section 2 of the Trucking Transport Business Act. Article 48 of the same Act provides for qualification of members, the number and method of election of executives, and other matters necessary for the operation of the Association. To amend the articles of association, the Association shall obtain authorization from the Minister of Land, Infrastructure and Transport, and matters necessary for the matters to be stated in the articles of association and the supervision of the Association shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. In light of this, not only the establishment of the Defendant but also the establishment

② According to Articles 22 and 23 of the Articles of Incorporation of the Defendant, and Articles 6 through 9 of the Regulations on the Election of Officers and Representatives, the Defendant’s board of directors shall conduct procedures necessary for election, such as appointing members of the election commission for the election of the 10th executive officers and delegates before March 31, 2019, when the term of office of the former executive officers and delegates expires.

③ Article 23 of the Defendant’s Articles of incorporation provides that the term of office for officers and delegates shall be three years. The postponement of intended elections to be held in accordance with the articles of incorporation and the continuation of performance by the former executives, etc. of their duties inside and outside the Republic of Korea may result in the extension of the term of office for the former executives, etc. Therefore, the said Articles of incorporation violates the said provisions, which provide that the term of office for executives

(4) The Defendant’s articles of incorporation made with authorization from the Minister of Land, Infrastructure and Transport under the Trucking Transport Business Act is limited to the provisions concerning the procedures for election of executives at the expiration of the term of office of executives and the expiration of the term of office, and there are no other parts to deem that the said election may be postponed with an affirmative vote by a resolution of executives and representatives who are members of the general meeting or by a majority of mobile voting among the entire members. Although the

⑤ The Defendant asserts to the effect that, upon the amendment of the Trucking Transport Business Act, the election was postponed in order to establish a personal trucking transport business association in a timely manner. However, Article 9 of the Addenda to the said amended Trucking Transport Business Act provides that the period of grace shall be the registration of establishment after obtaining authorization from the Minister of Land, Infrastructure and Transport until June 30, 2021, which is within two years from the enforcement date of this Act. The period of grace seems to be sufficiently sufficient when the executives and representatives scheduled to start the term of office obtained authorization and completed the registration of establishment on April 1, 2019. Therefore, it is difficult to deem that the Defendant’s assertion violates the provisions of the articles of association authorized under the Trucking Transport Business

4. Judgment on the claim for confirmation of absence of a standing of president

A. Determination on the main defense of this case

The defendant asserts that this part of the claim is unlawful because the non-party's non-party's non-party's standing is not the defendant, since the non-party is not the defendant.

In a lawsuit seeking confirmation of the absence of a resolution of appointment of chief director of the cooperative, it is sufficient to seek confirmation of the dispute that occurred in the resolution of appointment of chief director within the cooperative, with only the parties to the cooperative, and it is not necessary to seek confirmation separately from other appointed chief directors (see Supreme Court Decision 96Da6295 delivered on April 12, 196). In light of the above precedents, in order to ultimately resolve the dispute that occurred in the status of the non-party chief director, the defendant must be the party to the lawsuit and seek confirmation thereof, so the defendant's defense is without merit.

B. Determination on the merits

As seen earlier, as long as the resolution of the board of directors of this case is null and void, the term of office of the non-party president as the chairperson of the non-party shall expire on March 31, 2019, and the fact that Article 23 subparagraph 5 of the defendant's articles of incorporation provides that the officers shall perform their duties until their successors take office even after the expiration of the term of office shall be as seen earlier. On the expiration of the term of office of the director, in principle, the delegation relationship shall terminate once the term expires, but if there is no director until the appointment of the successor, a corporation which is bound to perform an act by the agency shall be placed in a situation where the normal activities cannot be discontinued. This can be seen as the time when there are urgent circumstances prescribed in Article 691 of the Civil Act. Thus, even if the term of office expires or resigns, a director may continue to perform his duties until he is appointed (see Supreme Court Decision 95Da40915, Jan. 26, 196).

However, according to the above facts, the non-party is responsible for the resolution by the board of directors of this case where the election of the chairman and the vice-chairman is postponed at the time of the defendant's appointment as the chief director and the director. Since the above resolution is invalid, the term of office of the non-party chief director and the director has already been expired. In addition, since the defendant representative was appointed to act as the representative of the defendant, the non-party is not in an urgent situation to perform his duties as the chief director, but rather, it seems inappropriate to perform his duties.

Therefore, it is reasonable to deem that the non-party is not in the position of director or chief director of the defendant, and there is a benefit to seek confirmation as long as the defendant contests it.

5. Conclusion

The plaintiff's claim is justified, and all of them are accepted, and it is so decided as per Disposition.

Judges Cho Byung-dae (Presiding Judge)

1) A person who intends to run a trucking transport business under Article 3 (1) of the Trucking Transport Business Act (amended by Act No. 15743, Aug. 14, 2018) shall obtain permission from the Minister of Land, Infrastructure and Transport according to the following classification: 1. A trucking transport business: A business that transports cargo using at least the number of trucks prescribed by Presidential Decree within at least 20 units of trucks; 2. A personal trucking transport business: A business that transports cargo using one unit of trucks and prescribed by Presidential Decree (Act No. 15602, Apr. 17, 2018) Article 1 of the Addenda to the business prescribed by Presidential Decree (Enforcement Date) shall be effective from July 1, 2019. Article 9 (Transition Measures against Associations, etc.)

(1) In order to promote the sound development of trucking transport services and the common interests of trucking transport business operators, trucking transport business operators may establish an association by type of trucking transport business, freight forwarding business and franchise trucking 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.