2015Na2637 Confirmation of the status of instructor

00

11. Characters below 13

○ Dong, 0 OO○ Fisheries Association

11. Characters below 13

Representative Fisheries Sub-O

Attorney Full-time, Counsel for the defendant

Gwangju District Court Decision 2015Gahap312 decided November 5, 2015

July 22, 2016

September 2, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

We confirm that the plaintiff is the defendant's leader.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. In order to promote income for improving the productivity of the members of the community, the Defendant is a fishery cooperative established and organized as a zone of 10-ri-dong, 10-ri-dong, 20-dong, 30-dong, and 10-ri-dong, 40-ri-dong, 10-ri-dong, and 10-ri-dong, 10-ri-dong, 200-ri-dong, and 10-gu branch line for △△△. The Plaintiff was the Defendant’s leader from around 2009 to July 30,

B. On June 24, 2013, the Defendant notified the Plaintiff that he was disqualified and expelled by the Defendant’s Articles of Incorporation (hereinafter “first expulsion”).

C. On February 13, 2015, the Plaintiff, against the Defendant’s primary expulsion, sent to the members, including the Defendant’s representative, who agreed to the Plaintiff’s expulsion a letter containing the contents of the articles of incorporation, which form the basis for the expulsion by mail. On February 13, 2015, the Plaintiff filed the instant lawsuit seeking the confirmation that the Plaintiff is a member of the Defendant’s fraternity.

D. Accordingly, the Defendant: (a) held an extraordinary general meeting on March 11, 2015 and amended the Defendant’s articles of incorporation; and (b) on April 1, 2015, the Defendant passed a resolution to again remove the Plaintiff on the ground that “if the Plaintiff did not use the business of the Plaintiff for at least one year under Article 15(1) of the Articles of incorporation; (c) the member of the fishing village fraternity, as a member of the fishing village fraternity, did not cooperate with the fishing village fraternity or village business; or did not cooperate with the residents, in violation of the statutes, administrative dispositions under the statutes, the articles of incorporation, the articles of incorporation, and other regulations; or (d) intentionally or by gross negligence, caused loss to the said fraternity or damage to reputation or good faith” (hereinafter referred to as “second expulsion”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 5, Eul evidence Nos. 3, 4, 5, and 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Parties’ assertion

A. The plaintiff's assertion

Since the defendant did not comply with the procedures under the articles of incorporation while ordering the plaintiff, and there are no grounds for expulsion to the plaintiff, the defendant's first and second expulsions are null and void due to serious procedural defects.

B. The defendant's argument

원고는 2011. 3. 2. □□시에서 ■■군으로 이사를 가 피고 어업계 구역에 살고 있지 않고 2013. 1.부터 현재까지 영리목적으로 60일 이상 어업에 종사하지 않았으므로 원 고에게는 정관에 정해진 당연 탈퇴사유가 존재하고, 원고는 보상금 신청과 관련하여 스스로 탈퇴의사를 표시하기도 하였다.

In addition, the reason for expulsion lies in the fact that the plaintiff filed a large number of civil resources, such as reporting the illegal fishing activities to the police, thereby causing damage to the members of the defendant's fraternity, and the fact that the plaintiff did not participate in the profit-making activities of the defendant's fishery industry since 2013 and did not participate in the village work.

The defendant, especially at the time of the second expulsion, adopted a resolution of expulsion against the plaintiff according to legitimate procedures, such as providing the plaintiff with an opportunity to express his/her opinion at an extraordinary general meeting, in accordance with the articles of incorporation amended.

Therefore, the Plaintiff lost his qualification as a member of the fraternity because the Plaintiff was forced to withdraw from the Defendant Fisheries Cooperative or was properly expelled.

3. Determination

A. Whether the Plaintiff was forced to withdraw from the Defendant Fisheries Association

1) The Defendant’s amendment to the Articles of Incorporation of the Defendant’s Fisheries Association by holding an extraordinary general meeting on March 11, 2015 is as follows. According to the overall purport of evidence No. 1, No. 1, No. 3, No. 4-1, and No. 2, the Defendant’s articles of incorporation prior to the amendment, “A person who resides in the Dong and Dong for at least two years (at least two months per year) is qualified as a fraternity member (Article 6 subparag. 1), and a person who has lost the eligibility as a fraternity member or has refused to cooperate in the business of the Dong and for at least one year without justifiable grounds (Article 10 subparag. 1, No. 2).” After the amendment of the articles of incorporation, “a fraternity member is residing in the 00 Dongdong and has been working in the relevant waters for at least two years, and a person who has not been employed in the relevant waters for at least two months, and a person who has not been employed in the relevant area for at least 2 months (Article 9(1) and 2).3).

2) Whether there exists a reason for withdrawal under the articles of incorporation before and after the amendment as above to the Plaintiff, and the statement in the Ministry of Health and Welfare Nos. 9, 10, and 6 of the first instance trial as well as the witness in the first instance trial as to whether there is a reason for withdrawal under the articles of incorporation before and after the amendment as above to the Plaintiff.* The testimony alone is insufficient to recognize that the Plaintiff did not reside in the area of the Defendant fishery business, did not cooperate in the business of the fraternity for more than one year without any justifiable reason, or did not cooperate in the Defendant’s joint business at an ordinary general meeting or village 20 times or more (if the Korea Rail Network Authority applied for the payment of compensation in the capacity of the Plaintiff,

3) Rather, if the above evidence and evidence Nos. 7 through 12, and 17 are based on the overall purport of the arguments and arguments, the plaintiff was removed from 10-ri, 10-ri, Ma**--ri, ○○-ri, ○-dong, ○○-ri, ○○-si, ○○-si, ○○-si, ○○-ri, 201, * The moving-in report was filed on March 2, 201, ○-ri, ○-si, ○-si, ○-si, ○-si from 2008 to 2014.

The Plaintiff confirmed that he/she is residing free of charge in the above house from March 201, and the Plaintiff was issued a certificate of registration of agricultural and fishery enterprises from the Minister of Agriculture, Food and Rural Affairs on June 27, 2013 to his/her domicile * B, and the Plaintiff was issued a certificate of certification of registration of agricultural and fishery enterprises from the Minister of Agriculture, Food and Rural Affairs on April 14, 2015 to his/her domicile. The Plaintiff was issued a certificate of certification of the member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a member of a fisheries association with his/her domicile from the former head of the Dong-dong Fisheries Cooperatives on April 14, 2015. The Plaintiff also paid the above ○ Dong-ro* by January 2, 2015 to August 2, 2015.

In addition, the plaintiff asserts that from June 2013, the plaintiff intending to take a crypt extraction work, which is a community fishery business of the defendant fishing village, was removed on June 24, 2013 and that the defendant interfered with the plaintiff's crypting work, as long as the first expulsion of the defendant on June 24, 2013, is deemed null and void as the first expulsion of the defendant on June 24, 2013, even if he participated in the village joint business after 2013 at the original high price, it can be deemed that there is a justifiable reason.

4) Therefore, it cannot be deemed that the Plaintiff fell under the grounds for the inevitable withdrawal of the Defendant’s articles of incorporation or that he left the Defendant’s fishery business by indicating his intention of withdrawal.

B. Whether grounds for expulsion exist for the Plaintiff

1) As to the first expulsion

According to the statement in Gap evidence No. 4, the defendant, on June 24, 2013, sent a letter verifying the content of "I notify the plaintiff that I have been disqualified by the defendant's articles of incorporation." However, there is no evidence as to the fact that the defendant, while recommending the plaintiff, notified the plaintiff of the reason for expulsion in advance or given the plaintiff an opportunity to vindicate it, and that the resolution was made at the defendant's general meeting at the defendant's meeting. Accordingly, the first expulsion against the plaintiff is null and void because the procedural defect does not exist, and there is no significant reason for expulsion.

2) As to the second expulsion

A) The evidence Nos. 4-3, 5, 6, 9, and 10 of the evidence Nos. 4-2, 5, 5, 10 of the evidence Nos. 4-2, 6, and 6 of the first instance trial witness of the court of first instance. ② The Defendant notified the Plaintiff on March 24, 2015 that he/she will attend the extraordinary meeting and present his/her opinion on expulsion. The Defendant held the extraordinary meeting on April 1, 2015, and resolved to name the Plaintiff 13 among the 15 members present at the extraordinary meeting and two opposite members to the Plaintiff on the 10th anniversary of the 15th anniversary of the 15th day of the articles of incorporation; the Plaintiff attended the extraordinary meeting on April 1, 2015 to present the general meeting and present his/her opinion on the 10th day of the 1st day of the 2nd day of the 5th day of the announcement; and the Defendant provided the Plaintiff with an opportunity to present the 2nd 15th day of the list.

The purport of the provision that the grounds for expulsion should be known to the parties before holding a general meeting for resolution for expulsion is that the expulsion causes serious changes in rights, such as deprivation of fundamental status of the fraternity members due to very significant and expulsion, and thus, it is reasonable to deem that the National Assembly members specifically provided the grounds for expulsion in advance in order to provide sufficient opportunity for explanation and guarantee the right of defense. Therefore, even the second expulsion made without notifying the plaintiff of the specific grounds for expulsion, there are procedural defects.

B) Furthermore, the Plaintiff’s act constitutes grounds for expulsion and the Defendant’s resolution of expulsion is justifiable and examined.

In light of all the circumstances, such as the fact that a member of a fishing village fraternity committed an act that constitutes a reason for expulsion under the articles of association and no other method exists to impose sanctions other than the resolution for expulsion, expulsion is recognized only as a final means when it becomes difficult to achieve the purpose of the fishing village fraternity due to the above act or when it is inevitable for the sake of common interests (see, e.g., Supreme Court Decision 2003Da6942, Nov. 12, 2004).

원고의 제명사유에 관하여, 을 제6, 9호증의 각 기재에 의하면 2015. 4. 1.자 임시 총회 의사록에는 원고가 정관 제15조 제1항 제1, 2, 3호의 제명 사유에 해당된다고 기 재되어 있을 뿐 원고의 구체적인 행위에 관하여는 아무런 기재가 없으나, 임시총회 당 시 원고가 피고 마을 주민들의 불법어업활동에 대해 고발을 하여 마을이 손해를 본 점 , 원고가 피고 어업계 명의가 아닌 개인 명의로 보상금을 신청한 점 등이 사유가 되 어 원고와 피고 계원들이 논쟁을 벌인 사실을 인정할 수 있고, 피고는 이 사건에서 원 고의 제명사유로 원고가 2011. 3. 2.경 ■■군으로 이사를 가 1년 이상 피고 어업계의 사업을 이용하지 않았고(제1호 사유), 철도사업으로 인한 보상금을 한국철도시설공단에 개인 명의로 신청하고, 피고 마을 재첩채취작업에 참여하지 않아 마을사업에 협조하지 않았으며(제2호 사유), 원고가 피고의 주민들을 불법어업활동으로 고발하여 피고 어업 계에 손실을 끼치거나 명예를 훼손하였다고(제3호 사유) 주장하고 있다.

However, as seen earlier, the Defendant appears to have resided in the above address on March 2, 2011 after the moving-in report to the housing located at ○○○○, and around April 2015. Even if the Plaintiff reported illegal fishing activities of the Defendant’s residents and applied for compensation in the name of an individual, it is difficult to view that the Plaintiff did not cooperate in the village business solely on this fact. Furthermore, according to the respective entries and arguments in the evidence No. 22, No. 8, the head of the re-entrusted sales center in 2013 as well as the Plaintiff from March 29, 2013, and No. 2, No. 3, and No. 4, and No. 5, the No. 1, the No. 2013 as well as the No. 1, the No. 2013 as well as the No. 5, the Defendant’s non-permanent branch of the Korea Trade Association, which had no effect on the Plaintiff’s pro rata from June 23, 2013, 2013.

C) Therefore, the second expulsion also exists a procedural defect, there is no reason for expulsion, or the disposition is too harsh compared to the Plaintiff’s act.

C. Sub-committee

As above, the Plaintiff cannot be deemed to have withdrawn from or voluntarily withdrawn from the Defendant Fisheries Cooperative, and since both the first and second titles against the Defendant’s Plaintiff are null and void, the Plaintiff still maintains the qualification as a member of the Defendant Fisheries Cooperative, and as long as the Defendant is arguing that the expulsion against the Plaintiff is justifiable, the Plaintiff has a benefit to seek confirmation.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Park Byung-il (Presiding Judge)

Form of pregnancy

Freeboard