Plaintiff 1 and one other (Attorneys Shin Tae-ro et al., Counsel for the plaintiff-appellant)

Gai-dong 22, apartment reconstruction association and 9 others (Law Firm Barun-ro, Attorneys Park Ho-ju et al., Counsel for the plaintiff-appellant)

December 3, 2010

1. Of the plaintiffs' lawsuits against the defendant 4, 10-dong 22 apartment reconstruction association, the part against the defendant 2, 3, 4, 5, 6, 7, 8, 9, and 10 shall be dismissed respectively.

2. The defendant 2, 3, 5, 6, 7, 8, and 9 confirm that they are not directors of the apartment reconstruction association No. 22 of the defendant diving-dong.

3. Of the costs of lawsuit, the part arising between the plaintiff and the defendant sericultural apartment reconstruction association No. 22, the plaintiff and the defendant sericultural apartment reconstruction association, and the part arising between the plaintiff and the defendant 2, 3, 4, 5, 6, 7, 7, 8, 9, 10 shall be borne by the plaintiff.

Defendant 2, 3, 4, 5, 6, 7, 8, 9, and 10 confirm that Defendant 2, 3, 4, 5, 6, 7, 8, 9 and 10 were not directors of the apartment reconstruction association

1. Basic facts

A. In order to remove the apartment and commercial buildings constructed on the 4 lots outside Songpa-gu Seoul Metropolitan Government ( Address omitted), and construct new apartment and commercial buildings on the 19th place, the apartment and commercial building's members are the reconstruction association authorized by the head of Songpa-gu Seoul Metropolitan Government pursuant to the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003), and the defendant 2, 3, 4, 5, 6, 7, 7, 8, 9, 10 was appointed as the director of the defendant association, and registered as the director of the defendant association among the directors of the defendant association, but the defendant 7, 8, 9, and 10 was not registered as the director of the defendant association, and the plaintiffs were not the members of the defendant association.

B. The Plaintiffs, while adopting an independent settlement system in which the president and directors of the Defendant Union are carrying out reconstruction projects by separating the apartment and commercial parts, provided profits to the members of the commercial building, and prepared a general meeting to dismiss the president and directors of the Defendant Union on the grounds that they caused damages to the members of the apartment association. From November 2009, the Plaintiffs received a proposal from the members of the Defendant Union on the dismissal of the president and directors of the Defendant Union. On January 15, 2010, the Plaintiffs, among the members of the Defendant Union, proposed a proposal on the dismissal of the president and directors of the Defendant Union from among the members of the Defendant Union, on the 670 members of the Defendant Union, on January 30, 2010, held an extraordinary general meeting on the dismissal of the president and directors of the Defendant Union (hereinafter “instant extraordinary general meeting”).

C. Accordingly, among the directors of the Defendant Union, Defendant 8 applied for a provisional disposition prohibiting the holding of the instant extraordinary general meeting against the Plaintiffs by Seoul Eastern District Court 2010Kahap206, and the said provisional disposition was accepted on January 29, 2010, and the said provisional disposition was served on the Plaintiffs on the same day.

D. On January 30, 2010, notwithstanding the provisional disposition prohibiting the holding of the above special meeting, the Plaintiffs held the instant special meeting on January 30, 2010, and 2,403 of the total number of the members of the Defendant Union 4,632, among the 4,632 members of the Defendant Union, who were the president of the said special meeting, was present, and among them, 2,354 concurrent votes were resolved to dismiss Defendant 2,3,4,5,5,6, 6, 7, 8, 9, and 10 from the directors of the Defendant Union.

(e) the subsequent process;

1) Process of the instant case involving a provisional measure prohibiting the holding of the said special meeting

A) The Plaintiffs raised an objection to the provisional disposition against the Seoul East Eastern District Court 2010Kahap206 against the provisional disposition prohibiting the holding of the special general meeting. However, on April 30, 2010, the Seoul East Eastern District Court 2010Kahap245 decided to authorize the provisional disposition prohibiting the holding of the special general meeting.

B) On August 19, 2010, Defendant 8 filed an application for the revocation of provisional disposition against Defendant 8 by asserting that the provisional disposition should be revoked as Defendant 8 withdrawn the lawsuit filed against the Plaintiffs regarding the provisional disposition prohibiting the holding of the above special meeting, and that Defendant 8 filed an application for the revocation of provisional disposition as Seoul Eastern District Court Decision 2010Kahap1788 on August 19, 2010, but Defendant 8 filed an appeal and rendered a decision that Defendant 8 dismissed the application for provisional disposition as Seoul High Court 2010Ra1879 on December 15, 2010.

2) The process of litigation seeking confirmation of invalidity of the resolution on the extraordinary general meeting of this case

Defendant 8 filed a lawsuit against the Defendant Union seeking confirmation of invalidity of the resolution of the special general meeting of this case and received the judgment of acceptance on August 20, 2010 by Seoul Eastern District Court 2010Gahap4415, and the above judgment became final and conclusive thereafter.

3) The progress of other non-contentious cases, etc.

A) On May 6, 2010, the Plaintiffs filed a motion to appoint the Plaintiffs and Nonparty 1, 2, 3, and 4 as temporary directors of the Defendant Union, Seoul Eastern District Court No. 2010 non-conforming 10, respectively, and subsequently dismissed the said motion.

B) Nonparty 5 and 6 filed an application for appointment of the Plaintiffs, Nonparty 7, 1, 2, 3, and 4 as temporary directors of the Defendant Union at Seoul Eastern District Court Decision 2010 did not appear to have been dismissed on July 5, 2010, but the appeal was dismissed on November 19, 2010, while the appeal was filed on November 19, 2010.

C) The Plaintiffs filed an application for provisional disposition against Defendant 2, 3, 5, 6, 7, 8, 9, and 10, Seoul Eastern District Court 2010Kahap1938, which requested the said Defendants to perform the duties of directors. However, the said application for provisional disposition was dismissed on December 29, 2010.

(f) Articles of association and relevant statutes of the defendant union;

Articles of Incorporation of Defendant Union

Article 18 (Dismissal, etc. of Executives)

(1) Any executive may be dismissed if he/she causes an unreasonable loss to a cooperative, in violation of relevant Acts and subordinate statutes or the articles of incorporation.

(3) Removal of officers may be made at a general meeting convened by the president of the cooperative (where the president of the cooperative is subject to dismissal, it shall be in the name of the proposing person jointly) with the attendance of a majority of members or more and with the consent of at least

Article 20 (Establishment of General Meeting)

(4) The head of an association shall, if deemed necessary, convene an extraordinary general meeting after the resolution of the board of directors: Provided, That the head of an association shall hold a general meeting within two months from the relevant date in any of the following cases:

1. If at least 1/5 of the members request that the purpose of the general meeting be presented;

(5) Where a request or a request under each subparagraph of paragraph (4) is made and the president of a cooperative fails to convene a general meeting without any justifiable reason within two months, the auditor shall convene the general meeting without delay; where the auditor fails to convene the general meeting, the auditor shall convene it under the joint names of the persons who requested the convocation under each subparagraph

Related statutes

The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Urban Improvement Act").

Article 23 (Disqualifications and Dismissal of Executives of Partnership)

(4) Notwithstanding Article 24, the dismissal of the partnership's officers may be conducted at a general meeting convened at least 1/10 of the partnership members at the proposal of a majority of the union members and with the consent of a majority of the union members present at the general meeting. In such cases, a person selected by the representative of a proposing person shall act

[Ground for Recognition: Facts without dispute, Gap evidence 1 through Gap evidence 6, Eul evidence 7-1 through 674, Eul evidence 1-5, Eul evidence 2-1 through 6, Eul evidence 3-2, Eul evidence 12, Eul evidence 13-1 and 2, and the purport of the whole pleadings]

2. Summary of the parties’ assertion

A. Summary of the plaintiffs' assertion

1) Defendants 2, 3, 4, 5, and 6 are registered directors of the Defendant Union. Defendants 7, 8, 9, and 10 are those who exercise the authority as directors of the Defendant Union, and were dismissed by means of an extraordinary general meeting of January 30, 2010, and thus, the said Defendants lost their status as directors of the Defendant Union. Since the said Defendants continuously asserted the validity of the resolution of dismissal and continue to perform their duties as directors, there is a benefit to confirm that the said Defendants are not directors of the Defendant Union.

2) The legality of a resolution of dismissal

A) In light of the purport of Article 23(4) of the Urban Improvement Act, the provisions of the articles of association of the Defendant Union that require the head of the association to convene a general meeting in advance shall be null and void.

B) In order to hold the instant special general meeting, 670 of the total number of 4,632 members was a valid proposal, and accordingly, 1/10 or more of the members as stipulated in Article 23(4) of the Urban Improvement Act were satisfied.

C) In a case where a general meeting is convened pursuant to Article 23(4) of the Urban Improvement Act, the permission of the court is not required separately.

D) The provisional disposition prohibiting the holding of the special meeting is unlawful on the premise that the permission of the court is required for the convening of the dismissed general meeting as prescribed by Article 23(4) of the Do administration Act. Since a lawsuit instituted by an order to file a lawsuit after the order to file a lawsuit was revoked and the provisional disposition was revoked, the holding of the special meeting of this case is legitimate even after the decision to prohibit the holding of the special meeting

E) Article 23(4) of the Urban Improvement Act does not stipulate specific grounds for dismissal. Therefore, it is not possible to dismiss the Defendants only if the grounds for dismissal exist. However, even if the grounds for dismissal are necessary, the Defendants did not cause unfair losses to the partnership in violation of the relevant laws and regulations or the articles of incorporation, and thus there exists grounds for dismissal.

B. Summary of the defendants' assertion

(1) Grounds for invalidity of a resolution of dismissal

A) The illegality of a direct request for convening an extraordinary general meeting against the articles of incorporation

The Plaintiffs held a general meeting without requiring the head of the association to convene a general meeting in accordance with the articles of association of the Defendant Union. As such, the instant special meeting is invalid as it is called by a person without authority to convene a general meeting

(B) the absence of proposed requirements for convening an extraordinary general meeting;

In order to convene an extraordinary general meeting under Article 23(4) of the Act on the Maintenance and Improvement of Urban Areas, at least 1/10 of its members must be proposed, but the Plaintiffs are unable to prove this. Therefore, the said special general meeting is null and void.

C) The illegality of the meeting held without the permission of the court

In order to hold an extraordinary general meeting under Article 70 of the Civil Act applied mutatis mutandis by Article 27 of the Act on the Maintenance and Improvement of Urban Areas, the instant extraordinary meeting was held without the permission of the court, and thus, the instant extraordinary meeting is null and void in the convocation procedure.

D) the illegality of the meeting held against the determination of a provisional measure prohibiting the holding of the special meeting

Although Defendant 8 filed an application against the Plaintiffs for a provisional measure prohibiting the opening of the special meeting with Seoul Eastern District Court 2010Kahap206, the Plaintiffs held the instant special meeting and thus the instant special meeting is null and void. In addition, even though the said provisional measure was revoked, it is reasonable to withdraw only the part against the Plaintiffs in the lawsuit on the merits of the said provisional disposition, and as such, the part against the Defendant Union still remains maintained, the revocation of the provisional measure is unlawful.

E) Non-existence of dismissal requirement

In making a resolution to dismiss the Defendants, the Defendants do not have any ground for dismissal of an officer provided for in Article 18(1) of the Articles of Incorporation of the Defendant Cooperatives. Therefore, the resolution to dismiss the Defendants at the special general meeting of the instant case is null

F) Final and conclusive judgment on the principal lawsuit

In a lawsuit filed against Defendant 8 on the merits, it has been confirmed that the resolution of the special general meeting of this case was null and void, and the said judgment of nullification also becomes effective against the Plaintiffs or other Defendants.

3. Determination as to the legitimacy of each lawsuit against Defendants 2, 3, 4, 5, 6, 7, 8, 9, and 10 by the plaintiffs

A claim for confirmation of the existence of a representative or partner who belongs to an organization, such as a juristic person or non-juristic person, shall, in principle, be filed against the organization to which such representative or partner belongs, in principle, since it falls under a dispute between a person who has a legitimate interest in contesting the existence of such existence and the organization to which such representative or partner belongs, such as a juristic person or non-juristic person. A lawsuit seeking confirmation of the existence of such status against such representative or partner shall be filed against the organization to which such a member belongs, not an individual. Even if a judgment accepting such claim is rendered, its validity shall not be deemed to extend to such organization. Thus, it shall not be the most effective and appropriate means for resolving the dispute between the parties, and therefore, it shall not be unlawful (see Supreme Court Decision 97Da

In light of the above legal principles, each lawsuit against the plaintiffs against the defendants 2, 3, 4, 5, 6, 7, 8, 9, and 10 is unlawful as there is no benefit of confirmation.

4. Determination as to the legitimacy of the part of the plaintiffs' claims against the defendant 4 and 10 among the plaintiffs' lawsuits against the defendant association

In order to seek confirmation of the existence of a director's abandonment by asserting that a director who had been appointed as a director of a certain organization, such as a juristic person or non-juristic person but has already resigned after resignation had been dismissed by a resolution of the general meeting, it is difficult to confirm the existence of a director's abandonment by seeking confirmation of the previous legal relations or legal relationship (see, e.g., Supreme Court Decision 96Da37206, Dec. 10, 196). If the resigned director in seeking confirmation of the existence of the existence of a director's abandonment by seeking such confirmation is no longer recognized that he/she had resigned, and if it does not dispute the above claim, there is no benefit to confirm that there is no status of the resigned director.

However, according to the overall purport of evidence Nos. 11-1 through 3 of evidence No. 11-3 and No. 12 of evidence No. 12, Defendant 4 resigned from the position of director of the Defendant Union on September 16, 2010 and completed such registration on September 30, 2010, and Defendant 10 acknowledged the resignation of the position of director of the Defendant Union on November 18, 2010, and Defendant 4 did not participate in the instant lawsuit and did not assert that Defendant 10 was the position of director of the Defendant Union. Thus, in light of the above legal principles, the part of the plaintiffs' claims against Defendant 4 and 10 among the plaintiffs' lawsuits against the Defendant Union is unlawful as there is no benefit of confirmation.

5. Determination on the remainder of the plaintiffs' lawsuits against the defendant union

A. As seen in the above facts, it is recognized that the case of dismissal of Defendant 2, 3, 5, 6, 7, 8, and 9 was resolved at the instant special meeting, as seen in the above basic facts. Therefore, it is determined whether the Defendants are in the position of director of the Defendant Union depending on whether the resolution of the instant special meeting was lawful.

B. Whether the head of the cooperative should first demand the convocation of a general meeting

In accordance with the above provisions of the articles of association, the plaintiffs should first demand the president of the association to convene the general meeting when they convene the general meeting. In this case, when at least 1/5 of the union members request the president of the association to convene the general meeting with respect to the general meeting, the president of the association shall convene the general meeting within two months from the pertinent date. If the president of the association does not convene the general meeting without any justifiable reason within two months, the auditor shall convene the general meeting without delay. If the auditor does not convene the general meeting without any justifiable reason, the fact that the auditor convened the general meeting under each subparagraph of paragraph (4) is stated in the above basic facts. However, under Article 23(4) of the Urban Improvement Act, the removal of the union officers can be made with the attendance of a majority of the union members and the consent of a majority of the union members present. In this case, the authority of the proposing representative to convene the general meeting cannot be referred to as removal of the union officers from office or removal of the union officers from office because it is difficult for the president to call the general meeting.

Therefore, in order for the plaintiffs to call the special general meeting of this case, it is not necessary for the president of the association to first demand the convocation of the general meeting, and thus, the assertion of the defendant association is

(c) Whether the requirements for proposing an extraordinary general meeting are satisfied;

In order to convene a general meeting to dismiss an executive officer of the association pursuant to Article 23(4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, at least 1/10 of the whole members of the association are required to convene a general meeting. According to the overall purport of the statements and arguments stated in the evidence No. 2, evidence No. 7-1, and evidence No. 674, it can be recognized that at least 1/10 of the whole members of the defendant association were at least 4,632 members of the whole members of the defendant association, and at least 660 members who are obviously 1/

(d) Whether permission from the court is necessary;

Article 23(4) of the Urban Improvement Act provides that the plaintiffs shall obtain the permission of the court under Article 70 of the Civil Act in convening the special general meeting of this case; ① The dismissal of partnership officers may be made at the general meeting convened at least 1/10 of partnership members and with the consent of a majority of association members present, notwithstanding Article 24. In this case, the general meeting concerning the dismissal of partnership officers may be convened at the general meeting of 1/10 of union members if the representative of the proposing person acts for the head of the association at least 1/10 of the committee members. ② Article 23(4) of the same Act provides that the removal of the representative of the proposing person may be convened at the general meeting of 2/10 of the Act on the 2/1000 or more of the committee members, and the above provision concerning the removal of partnership officers at the general meeting of 3/10 of the Act on the 2/1000 or more of the committee members shall not apply mutatis mutandis to the removal of the representative of the association from office.

E. Whether the prohibition of holding a general meeting is null and void as a general meeting against the provisional disposition

As seen in the above basic facts, although the plaintiffs were notified of the decision prohibiting the holding of the general meeting and were to hold the general meeting of this case, according to Gap evidence 4 and Eul evidence 3's purport of the whole arguments and arguments, defendant 8 applied for a provisional disposition prohibiting the holding of the general meeting of this case against the plaintiffs on January 29, 2010. The above provisional disposition was accepted on January 29, 2010. The plaintiffs filed an objection to the provisional disposition prohibiting the holding of the above general meeting of this case as Seoul East East District Court 2010Kahap245, which was against the above provisional disposition of this case, but the above court did not obtain the permission of the court for holding the general meeting of this case, and it cannot be deemed that the above provisional disposition of this case was valid on April 30, 2010 because it did not actually infringe upon the above general meeting of this case. Thus, the above provisional disposition of prohibiting the holding of the general meeting of this case was not valid on the premise that it is necessary for the defendant 1-2's removal of this case.

F. Whether there is a need to dismiss Defendant 2, 3, 5, 6, 7, 8, or 9

As seen above, Article 18 of the articles of association of a defendant cooperative provides that "any executive may be dismissed if he/she causes an unreasonable loss to the cooperative, in violation of the relevant Acts and subordinate statutes or the articles of association." However, Article 23 (4) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions before the amendment by Act No. 9444 of Feb. 6, 2009 provides that "the dismissal of executive officers of a cooperative may be made at the general meeting convened by at least 1/10 of the union members with attendance of the majority of union members and with consent of the majority of union members present: Provided, That where the articles of association separately provide for dismissal, the proviso is deleted as at the present, and there is no restriction on the grounds for removal. This does not appear to be a reason for removal of the above executive officers of a cooperative, regardless of the absence of trust relationship between the union members and the above executive officers of a limited general meeting by a resolution of the previous articles of association, and thus, the removal of the trust relationship between the defendant and the union members cannot be limited.

G. Whether a final and conclusive judgment that confirms the invalidity of the resolution of the special general meeting of this case affects the Plaintiffs

Defendant 8 filed a lawsuit against the defendant union seeking confirmation of invalidity of the resolution of the special general meeting of this case and received the ruling of acceptance by the Seoul Eastern District Court 2010Gahap4415 on August 20, 2010. Since then, the above judgment became final and conclusive, as seen earlier. However, according to the overall purport of the entries and arguments in Eul evidence 6, it can be recognized that the above lawsuit was declared as a confession under Article 208 (3) 2 of the Civil Procedure Act because the lawsuit was not filed against the defendant 8's claim, and thus, it cannot be deemed that the above judgment's effect extends to the plaintiffs who are not the parties to the above judgment. Accordingly, the above assertion by the defendant union is without merit.

F. Sub-decision

Therefore, as seen above, Defendant 2, 3, 5, 6, 7, 8, and 9 were adopted through legitimate procedures and were dismissed from office as a director by the resolution of dismissal at the general meeting of this case and were no longer a director of the defendant union. In the event that the defendant union contests this issue, it can be recognized that there is a benefit to seek confirmation [Provided, That according to the purport of the evidence No. 2-1, No. 13-1, No. 13-2 and the whole arguments and arguments of the defendant 2, 3, 5, 6, 7, 8, and 9 already expired two years after the expiration of the term of office of the above plaintiffs, it can be recognized that there was a benefit to seek confirmation of removal of directors for whom the term of office has expired, regardless of the expiration of the term of office of the above plaintiffs' interest in the claim of this case, and that there is no need to acknowledge that the term of office of the director has expired 97 years after the expiration of the term of office of the previous 97.

6. Conclusion

Therefore, among the plaintiffs' lawsuits against the defendant union, the part against the defendant 4 and 10 and each lawsuit against the defendant 2, 3, 4, 5, 6, 7, 8, 9, and 10 are dismissed as unlawful. It is so decided as per Disposition by the assent of all participating Justices on the plaintiffs' remaining claims against the defendant union.

Judges So Young-jin (Presiding Judge) Kim Jong-hun