(영문) 광주지방법원 2008.8.22.선고 2008가합3918 판결

1. The resolution made at the residents' general meeting held on June 10, 2006 by the committee of promoters for the establishment of the housing redevelopment partnership in 0-4 Dong area is invalid.

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

Purport of claim

The order is as set forth in the text.

Reasons

1. Basic facts

A. On August 9, 2005, the committee for promotion of the establishment of the Housing Redevelopment Project Association in the Odong Zone IV (hereinafter referred to as the "Defendant Promotion Committee"), a telegraph of the defendant association (hereinafter referred to as the "OO"), was established to promote large scale redevelopment 000 - 000 large scale redevelopment.

B. On April 24, 2006, the Defendant Promotion Committee decided to select a construction project and organized the Selection Management Committee, and posted a notice of the selection of a construction project on May 3, 2000 in the same year, and on the 9th day of the same month, the Defendant Promotion Committee held the site site consultations (at the time, 00 water delivery, 00 construction, 000 development, 000 development, 00 construction, 00 construction, and 00 construction were involved in the tender) and completed the tender on the 23th day of the same month.

C. Then, on June 10, 2006, the defendant promotion committee held a general meeting of residents and proposed "the selection of a joint implementer and the delegation of the conclusion of a contract" on the agenda item 6. The above general meeting of residents selected 000 development as a contractor and made a resolution to delegate the authority to conclude a contract to the defendant promotion committee (hereinafter referred to as "resolution of the residents' general meeting of this case"). Accordingly, the defendant promotion committee held a resolution on August 17, 2006 to delegate the authority to conclude a contract to the defendant promotion committee.

Between 000 and 000, a contract was entered into for housing redevelopment rearrangement project project in 0,000.

D. At the time, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents," hereinafter) and the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the operational regulations of the defendant promotion committee,

E. Meanwhile, the Defendant Union was established on August 29, 2007. In accordance with the articles of incorporation of the Defendant Union, the Defendant Union held a general meeting of the Defendant Union and issued a public notice of holding and convening an extraordinary general meeting of July 18, 2008 to its members in order to obtain the consent of its members. Accordingly, on July 4, 2008, the Plaintiff filed an application against the Defendant Union for a provisional disposition seeking a suspension against this Court against the Defendant Union on July 18, 2008, seeking a suspension of resolution on the “cases of concluding and delegating contracts for construction and delegation,” which are the agenda item (1) at the extraordinary general meeting of July 18, 2008, and this Court received a decision citing the Plaintiff’s application on July 17, 2007, and the above decision was served on the Defendant Union around the morning of the same month, which was the day before the above extraordinary general meeting was held.

F. Nevertheless, the Defendant Union held an extraordinary general meeting as scheduled 00 : 15 days before it held an extraordinary general meeting, and carried out voting as one agenda item on the “case of the approval of the executor and the delegation of the conclusion of the contract,” and as a result of voting, the above agenda item 1 was passed by a majority of the members present at the meeting (508 members among the total 755 members) with the consent of the majority of the members present at the meeting (436, 19, 53 marks of the majority of the members present at the meeting; hereinafter referred to as the “resolution of the instant association”).

[Grounds for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, 12, 13, Eul evidence Nos. 1, 4, 5, Eul evidence Nos. 2 and 6, respectively, and the purport of the whole pleadings

2. Determination:

A. Determination on the cause of the claim

Article 14 of the former Urban Improvement Act and Articles 22 and 23 of the Enforcement Decree of the same Act provide for the duties of the promotion committee, and require the consent of the owners of land, etc. more than a certain ratio with respect to the duties involving the bearing of expenses by the owners of land, etc., and Article 8 of the same Act does not include the duties related to the selection of the contractor. Article 8 of the same Act provides that a housing redevelopment project association may carry out such duties or a partnership may carry out a project jointly with the constructors with the consent of a majority of its members. Article 24 of the same Act provides that the selection of the contractor shall undergo a resolution at the general meeting of its members. Article 5 (4) of the Enforcement Rule of the defendant's Promotion Committee explicitly states that the portion belonging to the duties of the association, such as the selection of the contractor, shall not be included in the scope of the duties of the promotion committee. In light of the relevant provisions such as the former Urban Improvement Act, it is reasonable to deem that the selection of the City is not the authority of

B. As to the claim of the Defendant Union, the Defendant Union should first select the owner of the partnership or the land, etc. before the amendment on March 18, 2005, as the contractor after obtaining authorization for the project implementation, and the owner of the partnership or the land, etc. shall select as the contractor the constructor under Article 9 of the Framework Act on the Construction Industry or the registered business operator deemed as the constructor under Article 12(1) of the Housing Act after obtaining the authorization for the project implementation.

3. Following the amendment by Act No. 7392 of 18, a housing reconstruction project cooperative should select a constructor or a registered business operator after obtaining authorization for the implementation of the project. The housing redevelopment project cooperative becomes not subject to any restriction at the time of the selection of the contractor. The amendment by Act No. 7960 of May 24, 2006 requires the association to select a constructor or a registered business operator after obtaining authorization for the establishment of the housing redevelopment project after obtaining authorization for the establishment of the housing redevelopment project. The housing redevelopment project cooperative is to designate a constructor or a registered business operator after obtaining authorization for the establishment of the housing redevelopment project. The amendment by Act No. 7392 of the Ministry of Land, Transport and Maritime Affairs as of the date three months after obtaining authorization for the establishment of the project ( August 25, 2006) after obtaining authorization for the establishment of the housing redevelopment project. Therefore, it is practically difficult for the committee to select a residents' general meeting at the time of the amendment by Act No. 7960 of March 28, 2005.

However, as seen earlier, the defendant's promotion committee held a general meeting of the residents of this case at the time when the resolution of the general meeting of the residents of this case was passed ( June 10, 2006), although it is recognized that there was no direct restriction provision on the time of the selection of the construction project under the Urban Improvement Act, it does not mean that even if the reason for amendment of the Urban Improvement Act amended by Act No. 7392 of March 18, 2005 intends to revitalize the redevelopment project, it does not mean that the purpose of allowing the association to select the construction contractor from the stage of the promotion committee rather than the partnership, and as seen earlier, it is reasonable to view that the authority to select the construction contractor is the inherent authority of the general meeting of the association. The Busan Metropolitan City and the Ministry of Construction and Transportation to reply to the participation of the construction project at the stage of the promotion committee is difficult to recognize that the resolution of the general meeting of residents of this case at the stage of the promotion committee is justifiable. Therefore, the above argument by the defendant's association is not acceptable.

(2) Next, even if the resolution of the resident general meeting of this case is null and void, the defendant union shall be deemed to be the contractor selected in accordance with the articles of association of the defendant union where the consent of a majority of the union members was obtained at the general meeting with respect to the constructor (joint implementers) selected by the resident general meeting through an open competitive bidding. The defendant union shall hold an extraordinary general meeting on July 18, 2008 and ratified the consent of a majority of the union members as to the selection of 000 development from the resident general meeting of this case as the contractor by the resident general meeting of this case.

However, as recognized earlier, the articles of association of the defendant association provide for the selection of a contractor under Article 20 (1) 15 of the former Act. Article 12 (5) of the articles of association of the defendant association provides that "a contractor (joint implementer) selected by the residents' general meeting through open competitive bidding shall be regarded as the contractor selected by the articles of association if the majority of the union members consent thereto is obtained." Since the articles of association of the defendant association provide that "a majority of the union members shall be approved if the general meeting of the association obtains consent from the majority of the union members, the resolution of selecting the contractor at the stage of the promotion committee may be ratified. Of the 755 members of the association, 508 members of the defendant association present at the special general meeting of July 18, 2008 and the conclusion of delegation of the contract shall not be accepted prior to the above decision of the court's approval of the above 80-party general meeting of this case.

3. Conclusion

Thus, the resolution of the residents' general meeting of this case is eventually null and void, and as long as the defendant asserts that the resolution of this case is valid and contests it, the plaintiff, who is a member of the defendant's association, has a benefit to seek confirmation. Thus, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.