2017A. 16351 Nullification of a disposition of expulsion of a partner

A

B Regional Housing Association

March 16, 2018

March 30, 2018

1. On June 2, 2017 and January 14, 2018, the Defendant confirmed that a resolution by the board of representatives and the general meeting of shareholders expulsion of the Plaintiff from the Plaintiff’s member is null and void respectively.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The Defendant is a housing association that has obtained authorization to establish an association to implement a multi-family housing construction project as stipulated by the Housing Act (hereinafter referred to as the “instant project”) in the old and American Housing Act.

B. On October 17, 2013, the Plaintiff became a member of the Defendant and was dismissed on December 27, 2013, while the Plaintiff was appointed as the Defendant director on December 27, 2013.

C. On June 2, 2017, the Defendant: (a) held a board of representatives on June 2, 2017 (hereinafter “the instant board of representatives”); (b) decided to dismiss the Plaintiff from the association members; and (c) sent a written notification of expulsion to the Plaintiff on July 3, 2017.

D. On January 14, 2018, after the filing of the instant lawsuit, the Defendant held a general meeting of shareholders (hereinafter “the instant regular meeting”) and again resolved to dismiss the Plaintiff from its members.

E. The relevant provisions of the Defendant’s rules are as follows (attached Form) (the bottom part shall be added and amended by the Defendant at an extraordinary general meeting on August 16, 2015).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, 4, 5, and 10, and the purport of the whole pleadings

2. Whether a resolution of expulsion of plaintiff made by the board of representatives of this case is valid;

A. Whether the board of representatives of this case has been duly organized

1) Facts of recognition

The following facts may be recognized in full view of the purport of the whole theory, which is either the dispute between the parties or the statement in the evidence Nos. 3, 4, and 5.

A) Of 886, 446 of the Defendant Union members filed an application with this court for permission to convene an extraordinary general meeting (2015 Gohap3). On July 7, 2015, this court permitted the applicants to convene an extraordinary general meeting for the following purposes:

The agenda referred to in subparagraph 1: The agenda referred to in subparagraph 3 for the modification of a business plan: All kinds of service enterprises (service providers, design offices, accounting audit services, construction supervising enterprises, etc.) and the agenda referred to in subparagraph 4 for the cancellation of a contract and new selection: The agenda referred to in subparagraph 5 for the adjustment of construction expenses following the modification of a business plan: The agenda referred to in subparagraph 6 for the modification of the business plan and for the adjustment of construction expenses following the termination of a contract and construction expenses of various service enterprises: the case subject to the modification of the business regulations;

B) On August 16, 2015, the Defendant held an extraordinary meeting (hereinafter referred to as “instant extraordinary meeting”) according to the foregoing permission. The Defendant presented the agenda items for low H, and decided to dismiss all the Defendant’s officers including the Plaintiff, and appoint five new executives (the president D, directors E, F, auditors and H), and proposed the agenda item 6 to add and modify the part of the Defendant’s bylaws [attached Form].

C) D, as the president of the instant special meeting, appointed as the president of the instant special meeting, proposed the agenda for the appointment of 15 increased directors and 15 representatives, who were appointed as the president of the instant special meeting. Socialist I explained to the members of the instant association that “it has any part of the attorney-at-law’s heavy advice but it is possible to speak in the litigation or litigation relationship,” and some of the members of the instant association raised an objection to the appointment of 2 directors.

In the event that the members present at the instant special meeting recommended the candidates for directors and representatives, three of the candidates for representatives did not attend or leave the said special meeting, and withdrawn the recommendation, and recommended again the candidates for representatives from among the members present at the meeting. A majority of the members present at the instant special meeting, with the approval of the majority of the members present at the instant special meeting, the J, K, M, N, P, P, Q, Q, S, T, U, M, X, X, Y, and Z recommended as above (hereinafter “the instant appointment resolution”).

D) Representatives present at the meeting of the board of representatives of this case shall be the president D, directors E, J, F, L, representatives L, M;

P, Q, S, T, U, W, X,Y, all of 15 persons (the head and directors of the cooperative are ex officio representatives pursuant to Article 29(3) of the Defendant’s Code).

2) Determination

A) In the special meeting of a cooperative held according to the permission to convene a court, only the meeting purpose stated in the notice of permission to convene a court and matters related thereto may be resolved (see, e.g., Supreme Court Decision 92Da50799, Oct. 12, 1993). According to the foregoing recognized facts, “the agenda to be selected by the increased directors and representatives” is not included in the meeting purpose. It is difficult to see that “the agenda to be selected by the increased directors and representatives” is naturally included in the agenda No. 6 (amended by the Regulations of the Association) and it does not relate to the agenda of the meeting purpose. Accordingly, the instant resolution on appointment was adopted not for the purpose of the meeting, but for matters not for the purpose of the meeting indicated in the court’s decision on permission to convene a general meeting.

Furthermore, Article 30(2) of the defendant's Code provides that "the representatives shall be elected at the general meeting from among the candidates recommended by the members (including the board of directors and voluntary trends)." According to the above facts of recognition, only the members present at the general meeting of this case recommended candidates, but did not give all the members an opportunity to recommend candidates, and did not give an opportunity to elect representatives on the written recommendation.Therefore, the decision of this case violated the right to elect representatives and right to elect elected representatives as provided by Article 10(1)3 of the defendant's Code.

As above, the instant decision on appointment is null and void, barring special circumstances, since there are serious defects in the convocation procedure and the procedures for recommending representatives.

B) After the decision on the appointment of this case, the defendant decided that the board of representatives for a more than two years

Since there was no objection as to the normal operation of an institution, and there was no objection, at the ordinary general meeting of January 31, 2016 and at the ordinary meeting of March 5, 2017, various resolutions were made by the board of representatives as well as the general meeting of March 5, 2017, the instant resolution was ratified ex post facto. However, in order to acknowledge implied ratification, there is a circumstance to see that the instant resolution was ratified by the principal to sufficiently understand the legal status faced by the act and to recognize the outcome of the act to belong to himself/herself (see, e.g., Supreme Court Decision 2009Da37831, Sept. 24, 2009). Accordingly, there is no evidence to deem that the Defendant’s resolution of appointment was invalid due to procedural defect. Accordingly, the Defendant’s assertion is without merit.

In addition, the defendant asserts that the above procedural defect was cured since the resolution of appointment of this case was ratified at the general meeting of shareholders in this case. According to the evidence No. 10 No. 10, the defendant held a general meeting of shareholders in this case and resolved to ratification the resolution of appointment of this case. However, since Article 139 of the Civil Act provides that "any juristic act which is null and void shall not take effect even if ratification is ratified," it shall be deemed a new juristic act if the parties knew that it is null and void." Thus, even if the defendant's members knew that the appointment of this case is null and void at the above general meeting of shareholders, the appointment of this case shall not take effect retroactively.

C) Ultimately, the instant decision on appointment is null and void, and the 15 members of the J, K and the 15 representatives appointed thereby are not qualified as representatives. Therefore, the 11 members of the J and the 11 members of the J are defective in its composition.

B. Sub-committee

The plaintiff's expulsion resolution made at the board of representatives present at the meeting of this case is null and void without any further consideration as to whether there is any more substantive defect (the defendant asserts that since the above expulsion resolution was ratified at the general meeting of this case, procedural defect has been cured. However, even if the defendant's members knew that the above expulsion was null and void, the above expulsion resolution cannot be retroactively effective, and the defendant's assertion is not reasonable).

Furthermore, since the above expulsion resolution is arguing valid, the plaintiff has a benefit to seek confirmation of invalidity.

3. Whether a resolution of expulsion of plaintiff made at the general meeting of this case remains valid;

A. The party's assertion

1) The plaintiff asserts that the resolution of expulsion at the general meeting of this case is null and void because there is no reason for expulsion to the plaintiff.

2) The defendant asserts that the plaintiff, while holding office as the defendant director, unfairly increased the service cost for the promotion of the business to be paid to Scaria Co., Ltd. (hereinafter referred to as "Scaria"), ② the president of the whole union did not raise an objection despite entering into a double design service contract, ③ the president did not raise an objection, ③ did not spread false facts to the union members who raised the above issue, ④ the board of directors did an act in violation of the purpose of the association, such as mutual consent of all important items directly related to the rights and interests of the union members, thereby causing enormous damage to the promotion of the business of the association, and thus, the plaintiff was dismissed through a resolution of the general meeting of this case.

B. Determination

1) Relevant legal principles

The expulsion disposition of a member, who is a member of an organization, is to deprive him/her of his/her status against the will of the member. Thus, in extenuating circumstances for the benefit of the association, it shall be recognized only as the final means. In cases where the association disposes of the expulsion of a member, the court may examine the validity of expulsion disposition by taking into account the existence of the reason for expulsion and the details of resolution (see, e.g., Supreme Court Decision 93Da21750, May 10, 1994). In such cases,

2) As to the increase in the business performance cost

A) Facts of recognition

The following facts may be recognized in full view of the purport of the entire pleadings in each entry in the evidence No. 14-19, and No. 25, in which there is no dispute between the parties or between the parties.

(1) In around 2013, the Defendant Promotion Committee (AA at the time the Promotion Committee Chairperson) and Scardididi (hereinafter “Initial Service Contract”) entered into a contract with the Defendant to perform the following duties: (a) purchase of the instant project site; (b) human and licensing (including modification); (c) construction and operation of model hybrids; and (d) support and management of the recruitment of union members; and (c) the Defendant to receive the service cost (hereinafter “Initial Service Contract”).

Article 5 [Payment of Price] ① The project cost of this project shall be financed with the contributions of members and shall be paid to Scaria on the basis of the number of households (the number of households to be changed at the time of approval for change) that have obtained approval for the project (the value-added tax shall be appropriated for and paid separately from the project cost).

(2) The amount per household (exclusive size) 59 m23168,000,0074 m25109,000,008 m23110,0084 m23110,000,000

(2) On March 2014, the Defendant and Scari Lieni Lieni whose initial service contract was amended as follows:

The contract(hereinafter referred to as the "first revised contract") was concluded.

§ 5. [Payment of Consideration]

(1) The number of households of 59С and 316С per 189 households, 74С and 510 households—417 households, 85С and 311 households—333 households, 112С and 40 households, including value-added tax.

(7) Paragraph (Supplement) (Supplement) shall be deducted from the total amount of services performed on the basis of paragraph (1) by the Defendant’s total amount of KRW 1,964,479,00,00 in the amount calculated by adding to KRW 1,850,00,000 due to an increase in the purchase and sale amount of land for which the Defendant agreed to purchase and sell the land with Scaria, and increased to KRW 114,479,00 in the amount, such as duties

(8) The business outline of paragraph (1) (additional) shall be deducted from the total amount of services performed based on paragraph (1) to be deducted from the total amount of services performed based on paragraph (1) as agreed between Scardi and the defendant.

(3) Around January 2015, the Defendant and Scardi, Inc., Ltd., the contractor of the instant project (hereinafter referred to as “Shee Construction”), drafted a written agreement (hereinafter referred to as “the instant agreement”) as follows, and Scardi Construction drafted a letter of commitment that “I will not request the Defendant’s members to pay additional contributions even if the construction cost is increased due to the increase of the total floor area of apartment houses to be constructed as the instant project due to the change of ecological area, etc.

3. It confirms that the total amount of the service cost for performing the duties of Scardi under the contract (including a modified contract) for performing the duties entered into with the Defendant is KRW 5,500,000,000, among the service cost for performing the said duties.

3,50,000,000 won shall be met with the financial resources of the construction cost when there occurs a shortage of construction cost for scars construction. To this end, 3,500,000 won shall be reserved until the completion of payment of the construction cost.

4. In order to obtain the approval of the business plan of this case from the time of the submission of the ‘Conditional Declaration of Approval' attached to the approval of the business plan of this case, the defendant and Scardi shall jointly and severally cover KRW 6,500,000,000, including the service cost for performing the business of Paragraph 3, as well as KRW 3,500,000 among the service cost for performing the business of Paragraph 3, as well as KRW 3,50,000,000, as the service cost of Paragraph 3.

(4) The Defendant submitted the above commitment to the viewing of the Gu and obtained approval of the business plan on February 2015, and the scale of the business was reduced to 937 households.

(5) On March 24, 2015, the Defendant, following a resolution of the board of directors, entered into a contract to amend the initial service contract and the first amendment contract with Scardi as follows (hereinafter referred to as “the second amendment contract”). The Plaintiff attended the said board of directors and agreed on the agenda of the said contract.

Article 5 [Payment of Price] The defendant shall pay Pestia the service cost for business promotion at the time of payment as follows:

(1) Service costs for promoting business affairs (excluding value-added tax)

The amount per household unit (exclusive size) 59 m21898,000,0074 m24139,000,000,0084 m233510,000,000

(7) Where any ground for increase in the defendant's cooperative members' charges arises due to an increase in business expenses, etc. excluding the taxes imposed on the business entity (the defendant or the defendant's cooperative members) and the additional charges determined at the inaugural general meeting of the cooperative (the settlement of the sales area) to be paid by the business entity (the land, building, registration tax, school site charges, etc.), such amount shall be adjusted by deducting the service expenses incurred in performing

(6) On October 23, 2015, Hoeni filed a lawsuit against the Defendant for reimbursement of service costs (Seoul District Court Decision 2015Gahap15637, Daegu District Court Decision 2015Gahap15637) under the second modified contract, and was sentenced to a full favorable judgment on October 23, 2015, and the Defendant appealed (Seoul High Court 2015Na24585, Daegu High Court 2016), but was sentenced to dismissal of the appeal on October 19, 2016.

(7) On November 22, 2016, the Defendant agreed to the service cost of KRW 6,550,000,000 (including value-added tax) that the Defendant shall pay to Shee on November 22, 2016.

B) Determination

According to the above facts, the service cost borne by the defendant in Scardi was modified as follows, and service cost has increased significantly according to the second modified contract.

O initial service contract: 11,250,80,00 won [=(8,00,000 wonx x 316 households + 9,000,000 + 10,000 won + 311 households) + 5,030,521,00 won + 189 households + 417 households + 10,0000 + 33333 households + 10,000 won + 40,0000 won + 40,0000,000 won + 410,000,000 won + 33333 households + 10,00,000,000 won + 40,000,000 won + 1964,70,000,000 won per each of the instant contracts

However, in light of the following circumstances, which can be recognized by comprehensively integrating the above recognition facts and the purport of the evidence Nos. 2 and 10 as well as the entire arguments, the Plaintiff’s consent to the conclusion of the second amendment contract and the Defendant’s increase in the service cost borne by Scari in accordance with the said amendment contract cannot be deemed to have caused enormous damage to the Plaintiff’s implementation of the partnership’s business by committing an act contrary to the purpose of the association.

① According to the agreement on joining the Defendant Mutual Aid Association members, the Defendant Mutual Aid Association members’ contributions are divided into the amount of contributions due to the area supplied to each household and the cost of performing the duties thereof, and are separately determined in a certain amount and implemented and managed (Article 7(1) and (3). Contributions can be settled according to the change in the area of sale (Article 7(10). The amount of contributions shall not be refunded when a member is disqualified or withdrawn without undergoing the settlement procedure (Article 5(2)10).

(2) Under the above service contract (including a modified contract) the service cost to be borne by the Defendant’s members per household is the same amount as the cost of performing the duties under the contract to join the said association members.

(3) According to Article 5(2) of the defendant subscription contract and the first service contract, the defendant shall use the contributions paid by its members as the project cost and the promotion cost for its business as the service cost. However, this shall not apply

As the purchase cost of the project site of this case increases and the project cost of this case increases more than the original plan, the defendant entered into the first modified contract to reduce the amount of the increased project cost to cover the increased project cost as the promotion cost of the work.

④ Since then, it was anticipated that the construction cost will increase due to the alteration of ecological area, etc., and that it would not request the Defendant to pay additional contributions even if the construction cost would have been increased due to the increase of total floor area of underground floor. The Defendant and Scartoi written agreement to reserve the payment of KRW 3,500,000,000, out of the service cost.

⑤ The instant project was approved on a reduced scale than the initial plan, and accordingly, the Defendant and Scardi entered into the secondary modified contract. As such, the total amount of service costs per household, such as the initial service contract, shall be determined as the total amount of service costs, and, if the Defendant’s members need to increase the amount of the charge to be paid due to an increase in the project costs, the relevant amount shall be deducted from the total amount of service costs. Therefore, even under the secondary modified contract, if the project cost is increased as described in the foregoing paragraph (3), it shall be appropriated for the amount calculated by subtracting the service cost to be paid to Scardi instead

④ On November 22, 2016, the Defendant agreed with Shee to KRW 6,50,000 reduced by KRW 2,886,90,000 compared to the amount stipulated in the second modified contract, which appears to have been settled by deducting the increased project cost from the service cost.

7) There is no assertion or proof as to the increase in the charges to be paid by the Defendant members (the general meeting of the instant case where members decided to pay the additional charges for each household at the general meeting of the instant case, which would have been required for the additional construction cost).

3) As to double design service contracts

According to the evidence Eul evidence Nos. 11 and 12, although the defendant promotion committee concluded a design service contract for the business of this case with the office of the cooperative comprehensive construction company and the office of this case as the chairperson of the defendant promotion committee, A entered into a double design service contract with the Dong Sea, a construction company, and AA entered into a double design service contract with the defendant's members in December 2013 as the chairperson of the defendant promotion committee and embezzled KRW 864,943,750 in total as of March 30, 2015 in order to deduct the defendant's members' contributions from the service charges, and embezzled KRW 864,943,750 in total as of March 30, 2015 as the service charges. The defendant promotion committee was sentenced to imprisonment with prison labor for more than two years on July 19, 2016 (Seoul High Court Decision 2016No470, Jul. 24, 2017).

However, as seen earlier based on the facts, the Plaintiff was appointed as the Defendant director from December 27, 2013, and thus, it cannot be deemed that the Plaintiff participated in double design service contracts concluded previously.

In addition, according to the evidence No. 24, the Plaintiff’s consent to the agenda item to adjust the timing of payment of service costs under a double design service contract on March 24, 2015 may be acknowledged by the Defendant’s board of directors. However, unless there is any evidence that the Plaintiff knew or could have known that the Plaintiff embezzled the Defendant’s funds based on double design service contract at the time, such recognition alone cannot be deemed as having committed an act contrary to the purpose of the Plaintiff’s association.

4) As to resolution of expulsion, such as members D

In full view of the purport of the entire arguments in the statement Nos. 20-23, the Defendant held a board of directors on May 4, 2015 and demands that D deny the system of the Defendant’s board of directors, and the members of the association are required to replace the head of the association and the officer, and the Defendant’s false information was entered in the vicinity of the Defendant’s office.

."Placards was posted for reasons such as holding a resolution to dismiss D from its members; Defendant held a board of directors on May 8, 2015 to make a resolution to dismiss E, F, J, and G from its members for the same reason; Plaintiff may attend each of the above meetings of the board of directors to recognize the consent of the proposal items.

However, it is difficult to recognize that the above fact alone caused damage to the defendant to the extent that it is inevitable to pass a resolution of expulsion as a final means by the Plaintiff’s act contrary to the purpose of the partnership.

5) Regarding resolution of board of directors

According to the evidence No. 24, the Plaintiff may attend the promotion committee or the board of directors held by the Defendant on January 10, 2014 to May 8, 2015 to recognize the fact that the Plaintiff agreed on the agenda. However, this fact alone is insufficient to recognize that the Plaintiff consented to all important items related to the rights and interests of the members without sufficient examination. There is no other evidence to acknowledge this.

C. Sub-committee

Therefore, since there is no reason to dismiss the plaintiff at the general meeting of this case, the resolution by the defendant to dismiss the plaintiff at the general meeting of this case is null and void, and since the defendant is arguing that the above resolution is valid, the plaintiff has a benefit to seek confirmation of invalidity.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is decided as per Disposition by admitting it.

Judges anti-competence

Judges Salary Index

Judge Lee Jae-seok

1) Since there is no provision on the amount per household of 112 square meters of exclusive use area, the exclusive use area of 84 square meters shall apply to each household.