2019Na26589 Damage

A Housing Association

Daegu

Representative Association President B

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

1. C

Daegu Seo-gu

2. D;

Daegu Western-gu

3. E.

Daegu Western-gu

[Defendant-Appellant] Plaintiff 1 and 1 other

[Defendant-Appellant]

Busan District Court Decision 2018Gahap5300 Decided November 14, 2019

November 18, 2020

December 23, 2020

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The Defendants jointly and severally pay to the Plaintiff 160,545,441 won as well as 5% interest per annum from April 21, 2020 to December 23, 2020, and 12% interest per annum from the next day to the date of full payment.

2. All remaining appeals by the Plaintiff are dismissed.

3. 30% out of the total costs of litigation shall be borne by the Plaintiff, and 70% shall be borne by the Defendants.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to the Plaintiff 423,741,070 won with 15% interest per annum from the date of the final delivery of the copy of the instant complaint to the date of full payment.

1. Basic facts

The reasoning for this part of this Court is the same as that of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the defendants' defense prior to the merits

The reasoning for this part of this Court is the same as that of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. The plaintiff's assertion

The Defendants promoted a separate special meeting contrary to the purport of the court’s decision to permit the convening of the special meeting, and had the Plaintiff hold the special meeting on August 24, 2018 in violation of the provisional disposition order, and caused the Plaintiff to incur unnecessary expenditures in an amount equivalent to the total of KRW 423,741,070. The Defendants’ act constitutes a tort against the Plaintiff as a breach of trust against the Plaintiff and constitutes nonperformance of fiduciary duty, and thus, the Defendants are jointly and severally liable to compensate the Plaintiff for damages equivalent to the above amount of expenditure.

4. Part concerning a claim for damages due to a tort;

Even if there was an act in violation of provisional disposition, liability for damages arising from a tort cannot be held liable unless there is an infringement on the right to preserve the victim’s property (see, e.g., Supreme Court Decision 66Da586, May 17, 1966).

According to the statements in Gap evidence Nos. 1 through 19, the defendants held a separate special meeting contrary to the purport of the court's decision to permit the convening of the special meeting, and held the special meeting on August 24, 2018 against the provisional disposition order even when the provisional disposition order of this case was issued, which prohibits this, and thereby, the plaintiff incurred expenses to hold the said special meeting.

However, the evidence Nos. 3 and 31 is recognized by the purport of each of the statements and the whole pleadings, and (1) and (2) in light of the circumstances, the above facts alone cannot be viewed as constituting a tort beyond the nonperformance of obligation. Thus, the plaintiff's above assertion based on the premise is without merit.

① The right to be preserved in the instant provisional disposition is the Plaintiff’s right to hold an extraordinary general meeting on August 25, 2018 in accordance with the court’s ruling of permission to convene an extraordinary general meeting. Notwithstanding the Defendants’ holding an extraordinary general meeting on August 24, 2018, the Plaintiff passed a resolution on August 25, 2018 regarding the instant provisional disposition that the Defendants should not normally hold an extraordinary general meeting, and thus, cannot be deemed to have infringed on the right to be preserved in the instant provisional disposition.

② The Plaintiff filed a complaint against the Defendants for the crime of occupational breach of trust on the grounds that the Defendants held an extraordinary general meeting on August 24, 2018 and inflicted damages on the Plaintiff. However, on October 17, 2019, the prosecutor issued a non-prosecution disposition against the Defendants (guilty without suspicion).

5. Part on the claim for damages due to non-performance (Partial citement)

A. Occurrence of damages liability

Although a housing association established under the Housing Act establishes rules that have the characteristic of an association with a unique purpose only by using the name of an association, it has an organization, such as a general meeting which is a decision-making institution, an operating committee, and an executive organ, etc. based on this, and its resolution or execution method is carried out in accordance with the principle of majority majority, and the important matters of an association as an organization, such as the existence of the association itself, etc. without relation to the membership or withdrawal of the association members, it constitutes a non-corporate group, notwithstanding its name, and it shall be applied mutatis mutandis to a non-corporate group except where it assumes legal personality in the Civil Act provisions concerning a non-corporate group (see, e.g., Supreme Court Decisions 96Da39721, Jan. 24, 1997).

The directors of an incorporated association shall perform their duties with the care of good managers (Article 61 of the Civil Act), and if the directors have neglected their duties, they shall be jointly and severally liable for damages to the corporation (Article 65 of the Civil Act).

In full view of the following circumstances: (a) evidence Nos. 1 through 4 and 30 and the purport of the entire pleadings, the Defendants neglected to perform the Plaintiff’s duties with due care as a good manager, thereby holding an extraordinary general meeting contrary to the court’s decision; and (b) thereby causing damage to the Plaintiff by having the Plaintiff bear the relevant expenses. Therefore, the Defendants are jointly and severally liable to compensate the Plaintiff for damages equivalent to the expenses incurred in holding the said extraordinary meeting, barring any special circumstances.

① The Plaintiff is a regional housing association established under the Housing Act, and the Defendants are the heads of the Plaintiff’s associations or directors.

② The Defendants held the board of directors on July 25, 2018 and publicly announced the aforementioned special meeting on August 24, 2018 and most of the agenda items were the same, and publicly announced after the Plaintiff resolved to reimburse the expenses incurred therein.

③ The major intent of holding an extraordinary general meeting of August 24, 2018 is, rather than for the Plaintiff, rather than for the Plaintiff, to defend the Defendants against the risk of being dismissed in the position of president or director at the extraordinary general meeting of August 25, 2018.

④ On August 23, 2018, the court: (a) around August 23, 2018, the court: (b) stated that “Inasmuch as the Plaintiff’s union members already convened the extraordinary general meeting with the permission of the court; (c) Defendant C, the president of the partnership, has no authority to convene the said extraordinary general meeting for the resolution of the same agenda item; (d) there is concern that the confusion of union members may be increased if the general meeting is demoted on August 24, 2018; and (e) given the characteristics of the housing association where many interests are complicatedly connected, if the resolution is adopted after the extraordinary general meeting was held on August 24, 2018, the decision of provisional disposition of this case prohibiting the general meeting was invalidated due to the defect in the convocation procedure in the main judgment, and accordingly, the execution officer attached the notice to prohibit the above extraordinary general meeting at the place where the execution officer held the said general meeting. However, the Defendants had the aforementioned provisional disposition and attached the expense to the Plaintiff on August 28, 2018.

(b) Scope of damages;

1) Expenses incurred in holding an extraordinary general meeting of August 24, 2018

According to the contents of Gap evidence Nos. 5 through 19, 31 and the purport of the whole pleadings, the defendants' statements are as follows.

It is recognized that the Plaintiff spent KRW 229,350,630 in total due to the holding of the special general meeting on August 24, 2018 (the Plaintiff asserted that KRW 5,808,00 in the outdoor advertising expenses listed in the table 2 below, and KRW 38,582,440 in addition to the advertising expenses listed in the sequence 7. However, in light of the descriptions stated in the evidence No. 31, it is insufficient to acknowledge the same only by the descriptions described in the evidence No. 32 and 33, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit).

A person shall be appointed.

The Plaintiff’s assertion is that the Defendants purchased gift certificates worth KRW 150,00,000 in order to induce its members to attend an extraordinary general meeting on August 24, 2018, and the purchase price for the said gift certificates should also be included in the expenses for holding the said extraordinary meeting.

According to Gap evidence No. 25, the defendants purchased merchandises worth KRW 150,000 at the plaintiff's expense around August 2018.

However, in light of the following circumstances: (i) the statement of No. 20 and the purport of the entire pleadings, and (ii) the above facts and the statement of No. 18 are insufficient to recognize that the Defendants purchased the gift certificates to induce members to attend the special general meeting on August 24, 2018; and (iii) there is no other evidence to acknowledge this differently, the Plaintiff’s above assertion is without merit.

① The Defendants provided the said gift certificates to the members who participated in an event to encourage the members of the association necessary for the land remainder loans.

② The period during which the Defendants offered the gift certificates was from August 17, 2018 to August 21, 2018, before the special meeting was held.

2) Limitation on liability

The Defendants’ assertion is that the Defendants’ responsibilities should be significantly restricted in light of the process of holding an extraordinary general meeting on August 24, 2018 and the degree of contribution to the Plaintiff of the Pyeongtaek Defendants.

In cases where a director is liable for compensating the company for damages by committing an act in violation of Acts and subordinate statutes or the articles of incorporation or neglecting his/her duties, the scope of compensation for such damages may be limited in light of the ideology of the fair compensation system, taking into account all the circumstances such as the content and nature of the pertinent business, the background leading up to the pertinent director’s breach of duties and the manner of the pertinent director’s breach of duties, the occurrence and expansion of the company’s damages, the objective circumstance or degree involved in the ordinary director’s occurrence and expansion of damages, the pertinent director’s contribution to the company, the pertinent director’s benefits accrued from the relevant violation, the existence of a company’s organizational failure or establishment of a risk management system, etc. (see, e.g.

The above legal principles and evidence No. 31 are acknowledged by the purport of the whole statement and pleading, and considering all the circumstances revealed in the arguments of this case including ① or ③ circumstances, it is reasonable to limit the defendants' liability for damages to 70% of the above amount of damages in light of the principle of fair apportionment of damages. Thus, the defendants' assertion is justified within the scope of the above recognition, and the remainder is without merit.

① The money disbursed by the Plaintiff due to the holding of an extraordinary general meeting on August 24, 2018 was used as the expense for holding the said extraordinary meeting, and the Defendants appears not to have acquired personal benefits in relation to the disbursement of the said expense.

② Notwithstanding the Defendants’ holding of an extraordinary general meeting on August 24, 2018, the Plaintiff, on August 25, 2018, adopted a resolution on the agenda by holding an extraordinary general meeting.

③ The Defendants seem to have worked or worked on behalf of the Plaintiff during the period of their employment as an officer of the Plaintiff.

C. Sub-decision

Therefore, the defendants jointly and severally claim 160,545,441 won for the above damages against the plaintiff (229,350,630 won x 0.7) and damages for delay from April 21, 2020 (the plaintiff claimed payment from the last delivery date of the copy of the complaint of this case, but the damages liability due to default is an obligation without a fixed deadline. Under Article 387 (2) of the Civil Act, the obligor is placed in delay only when he received the peremptory notice of performance from the creditor. The plaintiff sought damages due to default from the legal brief dated April 20, 2020. The facts that the above legal brief was delivered to the defendants on April 20, 2020 are clearly stated in the record, so it is reasonable that the defendants are liable to pay 20% of the damages for delay calculated on April 20, 2020 as per annum of the judgment of the court below for 20% per annum 20% per annum.

6. Conclusion

The plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Since the part against the plaintiff corresponding to the above recognition amount in the judgment of the court of first instance is unfair with different conclusions, it shall be revoked, and the plaintiff's appeal shall be partially accepted, and the payment of the above money shall be ordered against the defendants, and the remaining part in the judgment of the court of first instance is justified with this conclusion, and the remaining part in the judgment of the court of first instance shall be dismissed

Judges of the presiding judge;

Judges Hong Sung-chul

Judge Wedh Jin