[1] The case holding that the act of a candidate, who was decided as the elected person of the branch office by making the highest number of votes in the election for the head of the branch office of an incorporated association, provided meals to the elector members during the election period, constitutes a reason for invalidation of election

[2] The case holding that even if a resolution of impeachment prosecution against the above elected person was rejected at the general meeting of the representatives held as a result of the problem that a candidate decided as the elected person of the branch office by making the highest number of votes in the election of the head of the branch office of an incorporated association provided meals to voters during the election period, the defect of invalidation of election does not

[1] Where a candidate who provided meals to voters during the election period during the election period of a head of an incorporated association decided as the elected person for the head of a branch, the case holding that the act of offering the above meals constitutes a reason for invalidation of election, since not only violates the above regulations on the election management of the incorporated association, but also goes against good morals and other social order, and furthermore, it affected the result of the election by interfering with a free decision.

[2] The case holding that even if a resolution of impeachment prosecution against the above elected person was rejected at the general meeting of the representatives held as a result of the problem that a candidate decided as the elected person of the branch office by making the highest number of votes in the election of the head of the branch office of an incorporated association provided meals to voters during the election period, the defect of invalidation of election does not

[1] Article 103 of the Civil Code / [2] Article 103 of the Civil Code

[1] Supreme Court Decision 95Da50196 decided Jun. 25, 1996 (Gong1996Ha, 2302)

Plaintiff (Attorney Lee Dong-sung, Counsel for the plaintiff-appellant)

(name omitted)Federation's branch offices

February 22, 2007

1. At the election of the head of the branch office held by the defendant on March 25, 2006, the decision that the non-party 1 was the elected person of the branch office is invalid.

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

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in each entry of Gap evidence 1 through 4, Gap evidence 6-1 through 8, Eul evidence 4 through 6, 12, and 13:

A. The defendant is an incorporated association (title omitted) federation (hereinafter referred to as the "Federation") established for the purpose of promoting the welfare of the visually impaired and protecting their rights and interests, and is an organization whose resident in Busan is a person who has completed the registration of disabled under the Act on Welfare of Persons with Disabilities (hereinafter referred to as the "defendant's branch") and the plaintiff is a member of the defendant's branch.

B. The defendant branch office decided to hold the 9th unit election (hereinafter “instant election”) by the direct election method of its members, and held the election on March 25, 2006, when Nonparty 2, 3, and 1, the chief of the 8th unit branch office, obtained the candidate registration and registered as the candidate for the branch office, and the election was held on March 25, 2006 by Nonparty 2, the chief of the 8th unit office, who was the 8th unit head of the 242, Nonparty 3, and Nonparty 1, the 366th unit election (effective mark), the election commission of the defendant branch office decided Nonparty 1, the largest number of voters, as the elected person of the branch office, and announced the election as the elected person.

C. However, on March 21, 2006, Nonparty 1 provided approximately 985,00 won meals to approximately 103 members who are electors in each region, such as modified Dong, return Dong, and Moradong, for approximately 315,00 won to approximately 57 electors on March 22, 206, for approximately 315,00 won following the following day, for approximately 64 electors on March 23, 200, for approximately 323,000 won to approximately 64 electors on March 24, 200, for approximately 928,000 won meals to approximately 928,00 won to electors, at the same time as on March 24, 206, for approximately 90,000 won to approximately 928,00 won to electors who are electors, and for approximately 30,000 won to approximately 10,000 won to electors who are members in the same association.

D. (1) Contents of various provisions of the Federation and Defendant Branch that apply to the instant election are as follows.

○ Articles of Incorporation of Federation

Article 18 (Establishment of Branches)

2. Each branch shall establish operating regulations in accordance with the articles of incorporation and obtain approval from the board of directors, so as to meet the actual conditions of the branch;

Article 27 (Election Management)

1. An election commission shall be established for the fair management of various elections prescribed by the articles of association;

3. The board of directors may establish necessary regulations concerning various elections as prescribed by the articles of incorporation.

○ Election Management Regulations of the Federation

Article 4 (Election Campaign)

4. No candidate or election campaign worker shall spread money, goods, or offer entertainment for obtaining votes to the elector;

Article 18 (Duties of Line Officers) The Line Officers shall perform the duties of the following subparagraphs:

5. Public announcement of election;

6. Public announcement of invalidation of election.

Article 22 (Public Notice)

1. The winner shall be publicly announced within 24 hours after the ballot counting is finished;

2. Where a person is found to have been elected unlawfully in violation of this provision even though he/she is elected, a public announcement of invalidation of the election shall be made. In such cases, the public announcement of invalidation shall be made within 72 hours after the public announcement of the election;

Article 39 (Election of Heads of Branches)

2. The winning winner shall be the winner, and the single candidate shall be the winner, regardless of Article 26 of the Articles of incorporation, with respect to the election of head of a chapter by direct election of members;

○ Operational Rules of the Defendant Branch

Article 10 (Representatives) The representatives of this Section shall be those falling under any of the following subparagraphs:

1. Executives of this branch office and the head of a franchise organization;

2. One representative may be additionally elected in cases where the number of members exceeds 50 persons by direct vote, secret or secret vote of the members per 100 persons; and

3 and below omitted

Article 13 (Executives of this Sub-chapter) The officers of this Sub-chapter shall be as follows:

1. One head of the branch office;

2. One chief of a site;

3. One director (Provided, That a number of representatives elected in office shall be included in the directors); and

4. Three auditors.

Article 20 (Election of Officers of this Section) The following shall be elected, and detailed matters shall be determined by the Election Management Regulations:

1.The head of the branch office shall be elected by the highest number of votes by the direct, secret, and bearer voting of the members of the learning machine, and shall be elected by the extension of the number of votes if the votes obtained are equal;

2.The auditors shall be elected at the Assembly in order of the largest number of votes cast.

3. The number of directors shall be 11 persons approved at a general meeting of delegates on the recommendation of the head of a chapter; and

4. Standing directors shall be those who have obtained approval of the board of directors on the recommendation of the president;

Article 28 (Types of Meetings) These meetings shall be classified into general meetings and board of directors, and the general meetings shall be classified into general meetings and special meetings.

§ 29 (Composition) (1) General Assembly shall consist of representatives.

Article 32 (Matters to be Resolved) (1) The general meeting shall resolve the following matters:

3. Matters concerning the dispatch and approval of officers, and impeachment and prosecution;

Article 33 (Formation and Resolution of Meeting)

(2) The following matters shall be resolved with the attendance of at least 2/3 of registered representatives and with the consent of at least 2/3 of the representatives present:

2. Matters concerning impeachment;

Sub-laws

3. Matters not prescribed by this operational regulations shall be administered in accordance with the articles of association of the Federation, and other matters shall be governed by general practices.

○ Rules on the Election Management of Defendant Branch Offices

Article 1 (Purpose) The purpose of these regulations is to prescribe matters necessary for the basis of Articles 10(2) and 20 of the Operational Rules of the Defendant Branch and for efficient and fair election management.

Article 10 (Qualifications of Branch Offices) The qualifications of the Branch Offices shall be those referred to in the following subparagraphs:

5. A person who won the election at the head of a branch by spraying money, drinking, entertainment, offering a vehicle, etc. shall become null and void, if any evidence is found;

(2) In addition, the Defendant’s District Election Commission, which managed the instant election, decided on March 24, 2006 that “the candidates shall not lend a large restaurant and have a meal substitute.” The evidence should be invalidated if it is proven.

2. Determination:

A. As seen above, the election management regulations of the federation and the election management regulations of the defendant branch are prohibited from spreading money and goods and offering entertainment for obtaining votes to the elector, and the candidate who won the head of the branch by spraying money and goods, offering entertainment, etc. shall be invalidated if there is evidence confirmed by the winner. In addition, the act of the candidate who participates in the election to offer money and goods or entertainment to the elector for the purpose of election constitutes an act contrary to good customs and other social order (see Supreme Court Decision 95Da50196, Jun. 25, 1996). Thus, Nonparty 1, a candidate, like the above recognition, committed an act of providing meals to the elector, constitutes grounds for invalidation of election if it affected the result of the election.

B. Furthermore, as seen above, the difference between the number of votes obtained by Nonparty 1 and Nonparty 2 in the total voting number of 686 marks 366 marks 124 marks. However, considering the fact that the number of members who provided meals is able to overlap with some of the members, it seems that the number of members who provided meals exceeds the above number of votes in light of the period during which the meals were provided, frequency, area, and total number of members, the difference in the number of members who provided the meals seems to be much higher than that of the above number of the above number of votes) In full view of the fact that the above act of providing meals by Nonparty 1 considerably infringed the freedom of election, which is the basic ideology of election, by interfering with free decision, and thereby affected the result of election, it is reasonable to view that the above act of providing meals by Nonparty 1 considerably infringed on the freedom and fairness of election, which is the basic ideology of election, and that it did not affect the result of election (the above act of offering meals by Nonparty 1 did not affect the result of election since establishment of the above election campaign.)

C. Therefore, there is a reason to invalidate the election against the non-party 1, but the defendant branch decided the non-party 1 as the 9th head of the non-party branch, which is null and void.

3. The defendant's assertion and judgment as to it

A. The defendant presented the reasons why the representatives including the plaintiff et al. violated the above regulations on the election management by providing the above meals to the non-party 1, and requested to convene an extraordinary general meeting for the resolution of impeachment against the non-party 1 and held the extraordinary general meeting accordingly, but the general meeting was held. However, the resolution of impeachment against the non-party 1 was rejected at the general meeting, and the representatives were decided to accept the resolution in the process of the resolution, and the resolution was first given priority to the above regulations on the election management established by the board of directors consisting of the officers of the defendant branch, so the resolution is the highest resolution body, so the defect of the above decision is cured.

According to the statement of evidence Nos. 1 through 4, the representatives including the plaintiff, etc. elected as representatives after going to the fifth representative election, which was held on the same day as the election in this case, on Nov. 6, 2006, including the plaintiff, etc. who was elected as representatives on Nov. 6, 2006, upon Non-party 1's drinking, offering cars, etc. in violation of Article 10 subparagraph 5 of the above regulations for the election management, the election was invalidated in accordance with the above regulations for the election management, and the non-party 1 demanded the convocation of the extraordinary general meeting on Nov. 15, 206. Accordingly, the general meeting was held on Nov. 15, 2006. However, with the consent of 170,000 representatives present at the general meeting, the resolution of impeachment prosecution was rejected pursuant to Article 33 (2) of the regulations for the operation of the defendant branch, and the general meeting as to the defendant branch's appointment and the matters related to impeachment can be constituted as mentioned above.

However, as long as impeachment (nuclear) is based on the premise that the election is valid, it cannot be deemed that the proposal for impeachment prosecution was rejected and the invalid election is ratified. Moreover, compared with Article 32 of the Regulations on the Management of Defendant Branch's Office's Election Management and Article 39 of the Election Management Regulations and Article 20 of the Regulations on the Management of Defendant Branch's Management, it cannot be deemed that the defect of the invalidation of the election against Nonparty 1 was cured on the ground that the resolution for impeachment prosecution was rejected at the extraordinary general meeting of representatives which made the resolution for impeachment against Nonparty 1 as an agenda for the resolution for impeachment prosecution, in view of the fact that Article 32 of the Regulations on the Management of the Federation's Election Management and Article 20 of the Regulations on the Management of the Defendant Branch's Office's Election Management and approval for the withdrawal and approval of officers who become the authority of the general meeting of representatives is not included. This part of the Defendant's assertion is without merit.

B. In addition, the defendant asserts that the time limit to make a public announcement of invalidation of election does not exceed 72 hours after the public announcement of election is made, and that the lawsuit in this case was instituted after the passage of the public announcement of invalidation of election, and that it is illegal or unjust.

On the other hand, Article 22 (2) of the Election Management Regulations of the above Federation is merely a provision that the election commission in charge of election to avoid confusion over the decision of the elected party immediately after the election, and it cannot be deemed to limit the right to seek nullification of the election as a subsequent lawsuit (if there is no separate provision in the law in the case of grounds for invalidation in the decision of the elected party of the defendant branch, the interested party may at any time assert the invalidity of the decision, and therefore, it cannot be deemed that the period under the above provision falls under the period for filing a lawsuit, or that the objection of the member against the public notice of the elected party falls under the requirements for filing a lawsuit).

C. The defendant suggested that the above meal service act was proposed and led by the plaintiff who had worked as the last election campaign worker of the non-party 1 at the same time as the 5th representative candidate, and that it was against the good faith principle to file the lawsuit in this case at the time when seven months have passed since the plaintiff was refused to demand the non-party 1 for unjust demand, such as demanding that the non-party 1 helps him win the election. As the plaintiff was rejected, the non-party 1 was openly supposed and supposed to non-party 1 as the head of the non-party 1's branch, and even if he was submitted three times a non-Confidence proposal against the non-party 1, but did not become a sexual will, it was in possession of sales slips, etc. related to the above meal service, and it was against the good faith principle.

In comparison with the degree of anti-sociality and illegality of Non-Party 1’s act of providing meals, the facts acknowledged by each statement of evidence Nos. 1, 9, 10, and 11 cannot be deemed as contrary to the good faith principle, and the plaintiff’s filing of the lawsuit in this case cannot be viewed as going against the good faith principle. Thus, the defendant’s assertion on this part is without merit.

4. Conclusion

Thus, the decision that the defendant made Nonparty 1 as the winner of the branch office in the election of this case is null and void, and as long as the defendant contests this issue, there is a benefit to seek confirmation from the plaintiff. Therefore, since the plaintiff's claim of this case is justified, it is so decided as per Disposition.

Judge Hong Sung-ju (Presiding Judge)