(영문) 서울고등법원 2011.11.3.선고 2011나39962 판결

The judgment of the first instance is revoked. A resolution made by the defendant at an ordinary general meeting on March 5, 2009 at an ordinary meeting of shareholders shall be disqualified from among the

There is a serious defect in the quorum by attending and making a resolution by a qualified representative, etc.

shall confirm his term of office.

Reasons

1. A resolution at a general meeting of the defendant

The defendant is a juristic person established by the Act on the Establishment of Associations by Persons, etc. of Distinguished Services to the State, and the plaintiff was registered as a member of the ○○○ Branch under the defendant.

As the term of office of the defendant's president, etc. expires as of March 31, 2009, the defendant held a general meeting (hereinafter referred to as "general meeting of this case") among 128 members, such as representatives, etc. on March 5, 2009 and passed a resolution to elect directors as the president and directors.

On the other hand, the defendant's articles of incorporation in relation to the instant case are as follows.

Article 10 (Organization) (1) The headquarters, branches and sub-branches shall be established in this Council.

Article 15 (Executives) (1) The headquarters shall have the following officers:

1. One chairman;

2. Two vice-chairpersons;

3. Ten or less directors; and

4. Two auditors.

5. One Secretary General;

(2) The term of officers on the spot shall be four years, and the term of officers on the spot shall be the remaining term of his predecessor.

Provided, That the term of office of the Secretary-General shall be the period of appointment by the Chairperson.

Article 18 (Appointment of Officers) (1) The president, vice presidents, directors and auditors shall be elected at a general meeting, and the president shall obtain approval from the Minister.

(2) The secretary general shall be appointed by the chairperson from among the directors and approved by the board of directors.

Article 19 (Non-Confidence of Officers) (1) An officer of the plenary session may be present at least 2/3 of the members of the general meeting and a non-Confidence resolution may be passed with the consent of at least 2/3 of the members present.

(3) Any executive who has received a resolution of non-Confidence under paragraph (1) shall be naturally dismissed.

Article 25 (General Meetings) (1) The Supreme Court shall have a general meeting as the highest deliberative organ.

(2) A general meeting shall consist of the chairperson, vice-chairpersons, directors, secretary general, heads of chapters, and representatives.

Article 28 (Representatives) (1) The number of representatives of each branch office shall be less than 500 members for those branches with less than 500 members, and one person for each 300 persons if there are not less than 500 members.

(2) The representatives referred to in paragraph (1) shall be elected at the local council meetings concerned. In such cases, persons who intend to be representatives shall be registered with the branch offices in accordance with the recommendation of members of the affiliated branch offices (50 persons in the Special Metropolitan City, 50 persons in Metropolitan Cities, and 30 persons in the case of Sis/Guns) by not later

Unless otherwise provided in the articles of incorporation, a resolution at this general meeting shall be adopted by the attendance of a majority of incumbent members and with an affirmative vote of a majority of the number of present members, and by the Speaker, when the votes of approval and

Article 51 (Disciplinary Action) (1) The president or the head of a branch office may request members falling under any of the following subparagraphs to take disciplinary action with the consent of two-thirds or more of the incumbent members at the board of directors or the branch offices:

2. Persons who commit acts detrimental to the honor and dignity of persons who have rendered distinguished services to the State;

3. A person who has caused other harmful matters to the central council.

[Ground of recognition] Unsatisfy, Gap 7, 8, 10, 26 evidence, and the purport of the whole pleadings

With respect to the Plaintiff’s lawsuit seeking confirmation of non-existence of a resolution at the meeting of the Assembly of this case, the Defendant asserted that the Plaintiff did not have the standing to file a lawsuit for confirmation of this case, since the Plaintiff was expelled from the Defendant and lost membership.

Article 51(1)2 and 3 of the Constitution of the Republic of Korea provides that "where the defendant has committed an act detrimental to the honor and dignity of a person who has rendered distinguished services to the State," "where the defendant's articles of association causes harm to the reputation and dignity of a member of the State," and "where the head of ○○○○○○○ Disciplinary Committee provides that "(Article 51(1)2 and 3) as a type of disciplinary action, (Article 51(2)." The above provision provides that "(Article 51(2))" provides that "where the defendant's articles of association provides that "where the person has rendered distinguished services to the State, he/she shall be subject to disciplinary action, he/she shall be released from his/her membership under the name of 41, 42, and 51 (including number)." The defendant's provision provides that "the head of ○○○ Branch issued the defendant's disciplinary action against the plaintiff, who did not cause harm to the plaintiff's member's status and 10.

However, since expulsion is deprived of the member status against the will of the member, it shall be recognized only as the final means in inevitable cases for the defendant's interest, and even if the grounds for expulsion are stipulated in the defendant's articles of incorporation, it should be strictly interpreted from the above point of view. The filing of the lawsuit, etc. in this case was the opportunity for the expulsion against the plaintiff. In light of the above, there may be room for denying the validity of the above expulsion in accordance with the validity of the resolution made at the general assembly of this case, i.e., the validity of the claim in this case. Thus, the plaintiff has a legal interest to seek confirmation on the validity of the resolution made at the general assembly of this case, notwithstanding the above expulsion portion. Thus, in the lawsuit for confirmation, the plaintiff has standing to sue, and therefore, the defendant's main defense to

3. Judgment on the merits

A. Summary of the plaintiff's assertion

The plaintiff, according to Article 15 of the defendant's articles of incorporation, 13 or less directors of the general meeting of this case were present and exercise voting rights. Among them, △△△△, 7 No. 2007, the defendant's 99 representatives who exercised voting rights in the resolution of the general meeting of this case are not elected at the branch meeting of this case but appointed by △△, △△, No. 700, and △△, and the defendant's △△, which are not the defendant's directors. Thus, the plaintiff is seeking confirmation of the non-existence of the resolution of the general meeting of this case by asserting that the resolution of this case, which appointed △ City chairman

B. Determination

In full view of the purport of the argument in Eul's statement in Eul evidence 1, the plaintiff at the general meeting of this case was defective in the selection rules which serve as the basis for the resolution of this case, and there is a defect in the convocation procedure such as convening a general meeting of this case prior to the opening period of the general meeting under the election regulations, which is an unentitled person, and there is a defect in the voting procedure such as attending the general meeting and failing to meet the quorum by sealing the minutes of the general meeting. Thus, the resolution of this case which appointed the chairman as the chairman of the general meeting of this case was invalid, and the Seoul Western District Court 2009Gahap10904 decided April 21, 2010 filed a lawsuit seeking confirmation of invalidity of the resolution of the general meeting of this case. The above court dismissed the plaintiff's appeal by the Seoul High Court on October 1, 2010, but the above judgment dismissed the plaintiff's appeal on October 1, 2010.

In the case of a corporation among private law organizations, the Commercial Act recognizes the revocation of a resolution, the lawsuit for the confirmation of invalidity of a resolution, and the lawsuit for the confirmation of existence of a resolution as a way of disputing the validity of a resolution of a general meeting of shareholders (see Articles 376, 380, and 381 of the Commercial Act). However, as to other organizations, there are no such provisions in the Civil Act or the Commercial Act, it is interpreted that only a claim for the confirmation of invalidity is recognized as a way of disputing the validity of a resolution of a general meeting of the organizations. Even if a claim for the confirmation of invalidity and the non-existence of a resolution are recognized as a way of disputing the validity of a resolution of a general meeting of the organizations other than the stock company, it is identical in that both the claim for the confirmation of invalidity and the claim for confirmation of absence of a resolution of a general meeting of shareholders are to be confirmed as having the effect of a legally effective resolution, and thus, it is identical in that both the claim for the confirmation of invalidity and non-existence of a resolution of a general meeting of which are different in the form.

In the cause of a claim for confirmation, each claim that is likely to be filed due to the invalidation or non-existence of the claim is merely an attack and defense, and it does not change the subject matter of the lawsuit. Thus, even if the plaintiff stated the claim in this case as the plaintiff's claim for confirmation of non-existence, the subject matter of the claim in this case is identical to that of the plaintiff's claim for confirmation of invalidity

However, due to res judicata of the final and conclusive judgment, the parties concerned cannot assert the method of attack and defense that did not submit until the time of the closing of argument in the court of fact-finding. Thus, the parties concerned cannot assert the same subject matter of lawsuit again (see Supreme Court Decision 91Nu6108, Feb. 25, 1992, etc.). Thus, the plaintiff's assertion that the resolution of the general assembly of this case is invalid or non-existent on the ground that three directors and 9 representatives who had exercised voting rights in the resolution of the general assembly of this case filed by the plaintiff and 9 representatives are not qualified as directors or representatives in the general assembly of this case is contrary to res judicata effect

Therefore, the plaintiff's claim of this case is in conflict with res judicata of the final and conclusive judgment, and it is not reasonable to further determine the merits.

Even if the res judicata effect of a final and conclusive judgment on the claim for nullification of the above domestic affairs does not extend to this case, Article 15 (1) of the defendant's articles of association provides that the principal office shall have not more than one president, two vice presidents, and not more than 10 directors as executive officers of the headquarters of this case, thereby separately stating the number of president, vice presidents, and directors. Articles 18 and 25 of the articles of association are divided into president, vice presidents, and directors. In light of this, the defendant can elect not more than 10 ordinary directors other than president, vice presidents, and vice presidents. Thus, the plaintiff's assertion that the resolution of the general meeting of this case is null and void is without merit.

In addition, according to the evidence No. 8 and No. 26 of this case, since the No. 4 of this case was the defendant's Vice-Chairperson, △△△△△△△△△△△△△△△△△△△△ at the time of the resolution of the general meeting of this case, although the lawsuit was recognized as not having been registered as an executive in the defendant's corporate register, the defendant's 47 evidence and No. 13 and No. 18 of this case were held on February 28, 2007, and the defendant's 207 general meeting of this case did not have any other evidence that the defendant's △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ was not a new △△△△△△△△△△△△△△△△ whose appointment of the executive officers was not approved by the defendant's 209 general meeting of 119 members, and the defendant's 207.

In addition, each statement of Gap evidence Nos. 1 through 6, 12 through 21, 29 through 38, 40, 43, and 44 (including numbers) is not sufficient to recognize that 9 representatives participating in the resolution of the general assembly of this case were appointed not by the branch meeting of this case but by the Doz., since the above 9 persons exercised their voting rights, the plaintiff's assertion that the resolution of the general assembly of this case is null and void is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it appears to be a mother or there is no ground. The judgment of the court of first instance is consistent with this conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.