2017Na22255 Invalidity of a resolution of an extraordinary general meeting

1. A;

Daegu

2. B

Daegu

3. C.

Daegu

4. D. D.

Daegu

5. E.

Daegu

6. F;

Daegu

7. G.

Daegu

8. H;

Daegu

19. I

Daegu

[Defendant-Appellant] Plaintiff 1 and 2 others

Plaintiff 1 and 2 Law Firm Daegu, Attorney Lee Won-won, Counsel for the plaintiff-appellant

J District Housing Redevelopment and Improvement Project Association

Daegu

Representative of the Association K

Attorney Park Young-chul, Counsel for the plaintiff-appellant-appellant

Daegu

Daegu Place of Service

Daegu District Court Decision 2016Gahap205803 Decided April 20, 2017

December 8, 2017

January 19, 2018

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiffs.

The judgment of the first instance court shall be revoked. The defendant confirms that each resolution listed in the separate sheet in the separate sheet at an extraordinary general meeting on November 3, 2015 is null and void.

1. Basic facts

A. On September 22, 2008, the Daegu Metropolitan City Mayor: (a) on September 2, 2008, set up a topographical map as a "J Housing Redevelopment Improvement Zone" and publicly announced the topographical map (Seoul Metropolitan City Notice No. 2008-147).

B. On November 8, 2008, the J Housing Redevelopment Project Promotion Committee (hereinafter referred to as the "Establishment Promotion Committee of the Defendant Association") held an inaugural general meeting to establish the Defendant Association. On December 12, 2008, the Minister of Land, Infrastructure, and Transport submitted supplementary documents, such as a list of union members and a general list of union members on February 23, 2009, to the head of the Nam-gu Seoul Metropolitan City (hereinafter referred to as the "FF") on the following grounds: (a) on the basis of Article 16 of the "Gu Urban and Residential Environment Improvement Act" (amended by Act No. 10268, Apr. 15, 2010; hereinafter referred to as the "Gu Urban Improvement Act"); (b) on February 27, 2009, 51 of the owners of land, etc., excluding the unknown whereabouts among the Defendant Association members on February 562, 209, the Plaintiffs approved the establishment of the partnership on February 29, 2019

C. On September 30, 2015, the Defendant requested 146 members of the Defendant association to hold an extraordinary general meeting for the purpose of appointing officers (the head of the association, the auditor, the head of the company), and the representatives (hereinafter referred to as “executive officers, etc.”) from among 562 members. The Defendant appointed L, M, and the N and constituted a chairman of the Election Management Committee (L). On September 30, 2015, the Defendant limited the candidate’s qualification as a member who consented to the establishment of the Defendant’s association, while making a publication of the registration of candidates to elect executive officers, etc. (the “instant publication” No. 5, hereinafter) as indicated below.

J 주택재개발정비사업조합 제2015 - 06호조합 임원 ( 조합장 , 감사 , 이사 ) · 대의원 후보자 등록 공고J 주택재개발정비사업조합에서는 조합 정관 제14조 , 제16조 , 제20조 , 제23조 및 선거관리규정 등에 의거하여 아래와 같이 J 주택재개발정비사업조합의 임원 ( 조합장 , 감사 , 이사 ) ·대의원 선임을 하고자 후보자 등록을 공고하니 조합원 여러분들의 많은 참여를 부탁드립니다- 아래◆ 모집인원 : 조합장 1인 , 감사 2인 , 이사 8인 , 대의원 29인 이내◆ 모집기한 : 2015 . 10 . 1 . ( 목 ) ~ 2015 . 10 . 14 . ( 수 ) , 14일간( 접수시간 , 접수장소 , 문의안내 등 생략 )◆ 자격사항1 ) J 주택재개발정비사업조합 설립에 동의한 조합원2 ) 조합 정관 제16조 ( 임원의 결격사유 및 자격상실 등 ) 에 해당하지 아니하는 자3 ) 조합장 , 이사 , 감사 입후보자 추천방법① 조합장 후보자 : 조합장 30인 이상 추천 ( 중복 추천 불가 )② 감사 이사 후보자 : 조합원 10인 이상의 추천 ( 중복 추천 가능 )③ 대의원 후보자 : 대의원 5인 이상의 추천 ( 중복 추천가능 )4 ) 기타 조합정관 , 선거관리규정 및 선거관리위원회에서 정한 자격에 한함( 제출서류 등 생략 )2015년 9월 30일J 주택재개발정비사업조합 선거관리위원회

According to Article 12(1)3 of the J Regulations on the Election of Housing Redevelopment Improvement Project (amended by the Presidential Decree No. 208, Sept. 18, 2008; hereinafter referred to as the "Election Management Regulations in this case"). A person who intends to become a candidate for a representative shall submit a written consent for the establishment of two or more cooperatives, including the candidate himself/herself (Article 12(1)3); a person who intends to become a candidate for a director or auditor shall submit a written consent for the establishment of five or more cooperatives, including the candidate himself/herself (Article 12(1)4); a person who intends to become a candidate for the head of a partnership shall submit a written consent for the establishment of a partnership, including 30 or more members, and a person who intends to become a candidate for the head of a partnership shall submit a written consent for the establishment of a partnership, including the candidate himself/herself, and a person who is recommended by the candidate for the head of a partnership shall not make multiple recommendations (Article 19(1)

D. On November 3, 2015, the Defendant held an extraordinary general meeting (hereinafter “instant general meeting”) in order to elect executives, etc. according to the instant public notice. At the instant general meeting, 317 of the total number of 562 members (i.e., 29 members + 18 members directly present) were present at the meeting of the instant general meeting, and there was a resolution to appoint executives, etc. (hereinafter “instant resolution”) by selecting the Defendant’s Intervenor (hereinafter “Supplementary Intervenor”) as the head of the association, etc., as indicated in the attached list of the resolution, including the consent of 270 members among them.

E. On June 1, 2017, the redevelopment project plan formulated by the Defendant was subject to the deliberation of urban planning for the improvement plan, and was determined and publicly announced on July 20, 2017, and passed through the construction trial on September 28, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 15, Eul evidence 11, 12-3, 19-1 through 15, 20, 48-1, 2, 74, Eul evidence 1 and 3, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

(a) Whether there is a benefit in confirmation (esteem);

1) The argument of the defendant and the assistant intervenor

The plaintiffs already consented to the establishment of the defendant's association before the general assembly of this case, and therefore, they are qualified to run as executives at the general assembly of this case. Thus, there is no apprehension or risk that the plaintiffs' rights or legal status exists due to the resolution of this case. Thus, there is no benefit to confirm the lawsuit of this case.

2) Determination

In a lawsuit for confirmation, there is a dispute between the parties regarding the legal relationship subject to confirmation, and thereby, it is recognized that the determination of the Plaintiff’s legal status as a confirmation judgment is the most effective and appropriate means to eliminate the anxiety and risk when the Plaintiff’s legal status is unstable and dangerous (see, e.g., Supreme Court Decision 2009Da93299, Feb. 25, 2010).

However, even if the plaintiffs agreed to establish the defendant association before the general assembly of this case and obtained the qualification as candidate, the plaintiffs can exercise their right to vote against the candidates who did not consent to the establishment of the association in the case of winning in the lawsuit seeking confirmation of invalidity of the resolution of this case, since they can directly run for the newly implemented executives, etc. or exercise their right to vote against the candidates who did not consent to the establishment of the association, the plaintiffs have the interest to seek confirmation of invalidity of the resolution of this case.

B. Whether the power of action is abused (unlawful)

1) The argument of the defendant and the assistant intervenor

The Plaintiffs filed the instant lawsuit solely for the purpose of causing damage to the Defendant, even though they did not have any question about the instant regulations on the election management prior to the filing of the instant lawsuit, and thus, the instant lawsuit is not allowed as it constitutes an abuse of the right of lawsuit.

2) Determination

The principle of good faith is understood as a source that regulates all legal relations, not limited to the territory of the non-exclusive contract law, and thus, it is not permitted to exercise the right of action against the principle of good faith (see, e.g., Supreme Court Decision 82Meu1919, May 24, 1983). As long as the right to trial belongs to the basic right guaranteed by the Constitution, it should be careful in determining the abuse of the right of action against the good faith in order to realize the right of action (see, e.g., Supreme Court Decision 2004Meu405, Jun. 24, 2004).

In light of the fact that the right to a trial is the fundamental right guaranteed by the Constitution, it cannot be deemed that the plaintiffs' filing of a lawsuit has abused the right to file a lawsuit, on the sole basis of the fact that there is no question about the plaintiffs' election management regulations of this case. Thus, the defendant and the supplementary intervenor's assertion is without merit.

3. Whether the Election Management Regulations in this case apply (self-esteem)

A. The parties' assertion

1) The plaintiffs' assertion

The election management rules of this case only apply to the inaugural general meeting of the defendant association in light of the purpose of the enactment, etc., and cannot be applied to the general meeting of the defendant association held after the inaugural general meeting. The defendant adopted the resolution of this case at the general meeting of this case by applying the election management regulations of this case. Therefore, the resolution of this case is invalid as it was

2) The assertion by the Defendant and the Intervenor

Since the instant election management regulations apply to the instant general meeting, the Plaintiffs’ assertion is without merit.

B. Determination

According to Article 15 (4) of the former Act, an association establishment promotion committee shall report the affairs performed by the committee for the establishment promotion of the association at the general meeting of the associations, and the rights and obligations related to the affairs performed by the association establishment promotion committee shall be comprehensively succeeded

In light of the facts without dispute, Gap evidence Nos. 7, 19, Eul evidence Nos. 12-1 through 4, 20, and Nos. 44-1, 45, 46, and 47, and the overall purport of the pleadings, it is reasonable to view that the election management rules of this case apply to the general meeting of this case according to the articles of incorporation and the resolution of the general meeting of the defendant association. Thus, the plaintiffs' assertion is without merit.

① On September 18, 2008, the Defendant Association Establishment Promotion Committee held a meeting of the promotion committee and deliberated and resolved on the instant election management regulations (No. B. 12-3). The instant election management regulations were established to elect executives, etc. at the inaugural general meeting of the Defendant Union (Article 1 of the instant election management regulations).

② According to the articles of association of a cooperative established on November 8, 2008 (No. 7; hereinafter referred to as “the articles of association of this case”). ① The defendant cooperative may establish election management regulations, etc. if deemed necessary for executing its affairs (Article 15(7)), and ④ the act performed by the defendant cooperative promotion committee in relation to the establishment of a cooperative and the implementation of a project thereof prior to the authorization date of the establishment thereof shall be succeeded by the defendant cooperative (Article 67).

③ Before holding a general meeting as of May 10, 2014 and the general meeting as of July 26, 2014, the Defendant Union attached the full text of the instant election management regulations to the members of the association, and attached the full text of the instant election management regulations. The responsible person stated that he/she conducted a candidate recruitment announcement in accordance with the procedures stipulated in the instant election management regulations. The Defendant Union notified the members of the meeting that he/she will proceed with the election procedures in accordance with the instant election management regulations by presenting the general meeting as of May 10, 2014, the general meeting as of July 26, 2014, the general meeting as of July 3, 2015, and the general meeting as of November 3, 2015, and the general meeting as of November 3, 2015. In relation thereto, there was no objection from the Defendant Union members.

④ The general meeting of this case was presented to approve the amendment bill for the provisions on the interest of the election commission of this case as the agenda item No. 1 and the amendment bill for the provisions on the interest of the election commission of this case, and passed a resolution as the original bill. The cases within No. 1 (No. 12-4) include the cases of ratification of the affairs already performed by the election commission according to the provisions on the election management of this case.

4. Whether some of the election management regulations in this case are invalid (esteem)

A. The parties' assertion

1) The plaintiffs' assertion

Articles 12 and 19 of the Election Management Regulations limit the eligibility of the candidates for officers, etc. to the members who agreed to the establishment of the Defendant Union. This provision is null and void because it deprives the members of their eligibility for election unfairly.

2) The assertion by the Defendant and the Intervenor

In a case where the members who do not consent to the establishment of the defendant association are elected as the officers of the defendant association, the redevelopment project does not proceed smoothly, or even if the redevelopment project itself is infinite, it may lead to the result that the redevelopment project is infinite. The restriction of the members who consent to the establishment of the association under Articles 12 and 19 of the Election Management Regulations is a reasonable restriction based on the autonomy of the defendant association.

B. Relevant statutes and legal principles

According to the former Urban Improvement Act, "housing redevelopment project" among rearrangement projects is a project implemented to improve residential environments in an area where infrastructure for rearrangement is inferior, wornout and inferior buildings are concentrated (Article 2 subparagraph 2 (b). "owners of land, etc." in a housing redevelopment project is the owners or superficies of small land or buildings in a rearrangement zone (Article 2 subparagraph 9 (a)), and where a person, other than the head of a Si/Gun or a housing construction project, intends to implement a rearrangement project, an association consisting of owners of land, etc. shall be established (main sentence of Article 13 (1)). In order to establish an association, a committee for promotion of a housing redevelopment project shall obtain approval from the owners of land, etc. and the owners of land, etc. with the consent of the articles of association and the documents determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs (the main sentence of Article 16 (1)). The association shall be a corporation and shall use the characters of a housing reconstruction project as its members within 30 days after obtaining the establishment authorization, regardless of the name of a housing redevelopment project (Article 18).

An administrative agency’s approval disposition on an application for authorization to establish a redevelopment partnership is not merely a supplementary act against a private person’s act of establishing a partnership, but also a kind of disposition that grants the status of an administrative entity to a public corporation (see, e.g., Supreme Court Decision 2009Du4845, Jan. 28, 2010). According to Article 18 of the former Act on the Maintenance of Urban and Residential Environments (Amended by Act No. 11293, Feb. 1, 2012) (amended by Act No. 11293, Feb. 1, 2012), a cooperative composed of the owners of land, etc. and intends to implement a rearrangement project is established after being registered after being granted authorization for the establishment of the partnership, and the status as an administrative entity that implements the rearrangement project within the rearrangement zone under the supervision of the competent administrative agency (see, e.g., Supreme Court en banc Decision 2012Do7190, May 22, 2014).

In a case where a provision inside an organization, such as the articles of association or a provision for the formation of an organization thereof, is deemed to have been effective in a case where the right of a union member is necessary and is excessively infringed or restricted beyond a reasonable scope, and thus, the said provision is deemed to have been effective in a case where the said provision is deemed to have been significantly infringed on the equality of union members’ eligibility for election (see, e.g., Supreme Court Decision 2010Da106269, Apr.

C. Determination

According to Articles 12(1) and 19(1) of the Election Management Regulations (hereinafter collectively referred to as the "Election Management Regulations"), only the defendant union members who agreed to establish the defendant association shall be eligible to be elected as executive officers, etc. of the defendant union.

In full view of the following facts, the candidate qualification rules of this case, based on the following facts, such as Gap evidence 1, 5, and 7, Gap evidence 11, Eul evidence 11, Eul evidence 12-3 and 48-2, and the purport of the whole pleadings, etc., the candidate qualification rules of this case discriminates against the members who agreed to establish the association at the establishment of the association without reasonable grounds compared to those of the members who agreed to establish the association. (B) The (c) essentially infringes upon the freedom of conscience of the members who agreed to establish the association, and (d) it excessively limits the rights to be elected of the members who agreed to establish the association beyond the reasonable scope.

① According to Article 9(1) of the instant articles of association, the owners or persons with superficies of land or buildings within the project implementation district of the Defendant Union are members of the Defendant Union as a matter of course with the consent to establish the Defendant Union and without common knowledge. According to the instant candidate qualification regulations, if a partner has consented to the establishment of the association before the establishment of the Defendant Union, he/she shall not be qualified as a candidate unless he/she expresses his/her consent to the establishment of the association at the time

② On February 27, 2009, the Defendant Cooperative obtained authorization for establishment under Article 16 of the former Urban Improvement Act from the head of the Gu in Daegu Metropolitan City, and completed the registration of establishment of the Housing Redevelopment Project Association on March 17, 2009. The Defendant Cooperative is obligated to comply with the relevant Acts and subordinate statutes, such as the Constitution and the Urban Improvement Act, since it is an administrative entity implementing a housing redevelopment project in J, which is a housing redevelopment improvement zone (name 2 Dong 2, 2017-2, 80,986 square meters), which is a housing redevelopment project.

(3) All citizens shall be equal before the law and shall not be discriminated against in all areas of political, economic, social or cultural life on the basis of gender, religion or social status (Article 11(1) of the Constitution of the Republic of Korea). All citizens shall enjoy the freedom of conscience (Article 19 of the Constitution of the Republic of Korea), all freedom and rights of the people may be restricted by law only where it is necessary for national security or maintenance of order and public welfare, and even where such restriction is made, the essential contents of freedom and rights shall not be infringed (Article 37(2)

④ According to Article 2 Subparag. 9 (a) and Article 19 (1) of the former Act, either the owner of a parcel of land or building located in an improvement zone or the person with superficies thereof shall naturally become a member of the Housing Redevelopment Association even if they give consent to a housing redevelopment project. According to the former Act, housing redevelopment association shall have the head of the association, the director and the auditor as its officers (Article 21 (1)), the matters concerning the change and dismissal of the rights, the method of appointing and dismissing of the officers, and the number of representatives, the method of resolution, the method of appointment, and the procedure for appointment of executive officers (Article 20 (1) 6 and 7), and the general meeting’s appointment must be made through a resolution (Article 24 (3) 8).

5. The instant candidate qualification regulations require that only the members who have agreed to establish the association before the establishment of the Defendant’s association give consent to the establishment of the association, such as executives, shall give consent to the establishment of the association in order to obtain the qualification of candidates for election such as executives.

Even after the establishment of the Housing Redevelopment Partnership, the former Act does not impose an obligation on the Housing Redevelopment Partnership to express its intent to consent to the redevelopment of housing, and such circumstance is also the instant articles of association, which is the basis for the instant election management regulations. Therefore, the instant provisions on the qualification of candidates, without obtaining any delegation from the former Act on the Maintenance of Urban Areas and Dwelling Conditions or the instant articles of association, compel the association members to express internal deliberation in order to obtain the qualification of candidates, such as executives, etc.

5. Whether the resolution of this case is invalid (unlawful)

A. The parties' assertion

1) The plaintiffs' assertion

Inasmuch as the provision on the qualification of a candidate in this case which was null and void, the members could not run for the establishment of an association, which had a significant impact on the resolution in this case, the resolution in this case is null and void.

2) The assertion by the Defendant and the Intervenor

As the instant provision did not affect the instant resolution, the instant resolution is valid. In light of the fact that the Plaintiffs actively participated in the election procedure during the holding of the instant general meeting and claimed the application of the instant provision, it is not permissible for the Plaintiff to assert the invalidity of the instant resolution as it goes against the good faith principle.

B. Legal principles

In a case where some errors were found in the election management procedures for the election of executives of a reconstruction and redevelopment cooperative, whether such errors interfere with free decision-making, thereby seriously impairing the freedom and fairness, and thereby affecting the result of the resolution of election should be considered (see, e.g., Supreme Court Decision 2010Da102533, Oct. 25, 2012).

C. Determination

In light of the following facts, the above facts, the facts without dispute, Gap evidence 5, Eul evidence 12-3, 20, and 55 of evidence Nos. 12-3, 20, and Eul evidence Nos. 12-5, and the purport of the whole pleadings, etc., the following facts are not sufficient to recognize that the candidate qualification rules of this case had influenced the resolution of this case as follows: Gap evidence Nos. 16-1 through 11, 21, 22, 26-1 through 35 of evidence Nos. 16-1, 26-1 through 35 of the evidence Nos. 16, 0 of the party trial, the testimony of 0 of the party trial, and the result of the plaintiff's personal examination of the plaintiff of this case against the plaintiff of this case, and

① In applying the instant candidate qualification provision to the Defendant Union, the Defendant Union stated the “qualified matters” among the instant public notice as “members who agreed to establish the J Housing Redevelopment and Improvement Project Association (hereinafter “the instant public notice of candidate qualification”).

② From among the members with the power of consenting to the establishment of the association, there was no person who, either orally or in writing, expresses his intention of candidate for the establishment of the association directly to the defendant union after the public notice of candidate qualification and before the resolution of the instant case. The members, who agreed to establish the association of the defendant, participated directly or in writing in the general meeting of the instant case and exercised their right to vote.

③ The instant resolution leads to the affirmative ratio of 85.17% ( = 270/317 x 100) on the ground that 317 members among the 562 members attend the written resolution (including those who have submitted written resolution) and 270 members among the 562 members (including those who have submitted written resolution) consent.

6. Conclusion

The plaintiffs' claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is justified with the conclusion of the judgment, the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Article 5 (Presiding Judge)

Jinaba

Gender Standards

Attached List of Resolution

1. A resolution to appoint executives (the president of an association, an auditor, or a director) of the defendant association;

A person shall be appointed.

2. Resolution of appointment of a substitute for the representative of the Defendant Union

A person shall be appointed.

A person shall be appointed.

Finally.