Plaintiff (Attorney Kim Jung-ok, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Private Passenger Transport Business Association (Attorney Cho Nam-nam, Counsel for defendant-appellant)

April 1, 2011

Seoul Eastern District Court Decision 2009Kahap22790 Decided May 28, 2010

1. Revocation of a judgment of the first instance;

2. On November 3, 2009, the council of delegates confirms that the resolution of non-Confidence or dismissal against the plaintiff is null and void.

3. The primary claim added in the trial shall be dismissed.

4. One-half of the total costs of the lawsuit shall be borne by the defendant, and the remainder shall be borne by the plaintiff.

1. Purport of claim

On November 3, 2009, the defendant confirmed that there is no non-Confidence or dismissal resolution against the plaintiff at the board of representatives on November 3, 2009 (the primary claim of the plaintiff is the same as above).

Preliminaryly, it is stated in the Disposition No. 2 (the plaintiff added the above claim at the first instance court, and at the same time maintained the above claim as the preliminary claim).

2. Purport of appeal

The judgment of the first instance shall be revoked. This provision shall also apply to the text of paragraph (2).

1. Basic facts

A. The Defendant Union is a corporation established with the purpose of promoting public welfare and friendship among its members by cooperating with the State’s policies on passenger taxi transport business in Seoul Special Metropolitan City and demonstrating the public interest of taxi transport business.

B. In the election of the chief of the 16th association and representative of the Defendant Union, which was implemented on December 3, 2007, Nonparty 2 was elected as the chief of the association, and the Plaintiff as one of the 45 representatives, respectively. Nonparty 2 appointed the Plaintiff as the representative on January 11, 2008.

C. Nonparty 2, the president of the Defendant Union and Nonparty 2 called the second interim council (hereinafter referred to as the “second council of delegates”) as of November 3, 2009. Nonparty 2 notified the representatives of the fact that the said council will deliberate on the following agenda items on October 2009.

① Net assets investment, transfer of a business entity, succession of liabilities, ② Investment and lending to a welfare corporation, ③ a petition for cancellation of ownership transfer registration in the 2nd charging station, ④ a case of modification of the articles of incorporation of the Seoul Special Self-Governing taxi Welfare Association, Seoul Special Self-Governing taxi Welfare Association, and a case of appointment of executive officers.

D. On the other hand, on November 2, 2009, the 13th board of directors of the Defendant Union was held in the presence of 12 members, including the Plaintiff, among the members of the 13th board of directors (hereinafter referred to as the 13th board of directors). The said board of directors was convened to deliberate on the agenda “the case of a lawsuit seeking the invalidation of an election against the Defendant Union or a disciplinary action against the union members, executives, etc. who participated in the said lawsuit.” The board of directors at the above board of directors presented the opinion that “the Plaintiff provided the opposing parties who have asserted the invalidation of an election against the Defendant Union, provided the data, and carried out an unfair act by taking advantage of the status as a director of the Defendant Union, and ③ the 12th board of directors of the Defendant Union, made a statement that the disciplinary action against the Plaintiff is necessary, after hearing the Plaintiff’s vindication, and then, decided to present the agenda for disciplinary action against the

E. As scheduled on November 3, 2009, the second interim board of representatives was convened. Of the 45 incumbent representatives, 43 representatives, including the Plaintiff, were present at the above board of representatives. At the above board of representatives, Nonparty 3, 4, and 5, etc.: “The Plaintiff provided materials to the opposing parties claiming the invalidity of election in a lawsuit seeking the invalidation of election against the Defendant Union; urged the Plaintiff to collect support funds; distributed related printed materials to the Defendant Union and its members; cause damages to the Defendant Union and its members; ② the head of Yangcheon-gu Office, etc.; ③ the 12th board of directors proposed that the Defendant Union’s reputation was respected; and ③ the 34 representatives present at the meeting, proposed to urgently reconcilate the “written disciplinary action against the Plaintiff” or “non-Confidence-Confidence proposal against the Plaintiff,” and resolved with the consent of 34 representatives present at the meeting, which led to the resolution of this case’s resolution as to the Plaintiff (hereinafter referred to as the “instant resolution”).

F. The main parts of the articles of incorporation of the defendant union relating to this case are as shown in the attached Form.

G. The Defendant’s provision on the service and disciplinary action of a member of the Defendant Union provides necessary matters concerning the service and disciplinary action of a member of the Defendant Union and a member of the said association. The disciplinary action process under the above provision is replaced by the procedures such as investigating a person to be disciplined and granting a sufficient opportunity to make a statement, and it is conducted in the manner of executing it by the chief director. The chief director may file a request for reexamination of a disciplinary decision, and the period of prescription of the grounds for disciplinary action is one year. The Defendant’s provision on personnel and service is a provision that sets forth matters concerning the appointment and dismissal, service, punishment, and other personnel management of the Defendant’s employees, which is similar to the above

[Reasons for Recognition] Facts without dispute, Gap evidence 1-3, Gap evidence 9, 11, 33, Eul evidence 5 and 11, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The plaintiff's assertion

Since the resolution of this case has the following defects, the said resolution is nonexistent or null and void. The plaintiff primarily seeks confirmation of the absence of the resolution of this case and confirmation of the invalidity of the above resolution.

(1) Regarding procedural defects

(A) The resolution of the instant case is unlawful since it was convened and resolved in violation of the procedures stipulated in Articles 71 and 72 of the Civil Act.

(B) The instant resolution constitutes a substantive disciplinary action, which was presented as a disciplinary action according to the 13th meeting of the board of directors, and was adopted. Nevertheless, the instant resolution was made without properly undergoing the disciplinary procedure prescribed by the articles of association, the service and the disciplinary regulations of the Defendant Union. Therefore, it is unlawful.

(C) Even if the instant resolution constitutes a non-Confidence resolution, the non-Confidence proposal against the Plaintiff was not submitted to the board of representatives with the consent of more than a majority of the representatives specifying its purpose and reason, and was not included in the second board of representatives notified. Accordingly, the Plaintiff was deprived of the opportunity for the Plaintiff to state facts favorable to the Plaintiff or submit evidence. The instant resolution is unlawful as it violates Articles 23 and 49 of the articles of incorporation.

(D) The instant resolution was adopted in the presence of Nonparty 2, the first half of the interest, and thus, is unlawful against Article 23(2) of the Defendant’s Articles of Incorporation.

(2) As to substantive defects

(A) Each fact that the defendant union incurred as a reason of non-Confidence for the plaintiff is not true, and there is no reason of non-Confidence as stipulated in the articles of association for the plaintiff.

(B) Even if not, in light of the Plaintiff’s contribution to the Defendant Union, a non-Confidence resolution against the Plaintiff is too harsh and unlawful.

(b) Markets:

(1) Provisions, etc. on non-Confidence in the articles of association of the defendant association

The articles of incorporation of a defendant association provides for the non-Confidence by disciplinary action (Article 47) and two "non-Confidence by resolution" (Article 49) made by a resolution of the board of representatives in accordance with the disciplinary procedure prescribed by the articles of incorporation, etc. In principle, the non-Confidence by resolution shall first be stated in the purpose and reason, and a resolution of non-Confidence with the majority of representatives shall be submitted to the board of representatives (Article 49 of the articles of incorporation). However, if there are two-thirds or more of the representatives present at the board of representatives, a resolution of non-Confidence by resolution may be presented to the board of representatives even without the submission of the preceding resolution (Article 20 subparagraph 11 of the articles of incorporation and the proviso to Article 23).

(2) As to the main claim

The fact that Nonparty 2, the president of the defendant association, convened the second board of representatives on November 3, 2009, the fact that 43 of the registered representatives, including the plaintiff, were present at the above board of representatives, the disciplinary action or non-Confidence proposal against the plaintiff was proposed together with the non-Confidence theory, the resolution was passed with the consent of at least 2/3 of the present representatives, and the resolution was passed with the consent of at least 2/34 of the incumbent representatives, and the resolution was passed with the consent of at least 2/3 of the incumbent representatives.

Examining the above facts of recognition, the overall process of proceedings at the second council of delegates, the articles of association of the defendant association, etc., which appear before the above facts of recognition, the resolution of non-Confidence in this case shall be deemed to exist as one of the procedures of non-Confidence by resolution.

Although the 13th meeting of the board of directors passed a resolution on the disciplinary action against the plaintiff, and some members of the 2nd meeting of the 13th meeting used the term "the disciplinary action", it is difficult to view that the 13th meeting of the board of directors could present a non-Confidence proposal without the resolution of the board of directors because it is not necessary to pass a resolution of the non-Confidence resolution, representatives are using the term "the non-Confidence proposal by disciplinary action" on the premise of "non-Confidence by disciplinary action" and "the disciplinary action" separately, and the resolution of this case satisfies the procedure "non-Confidence by resolution" as stipulated in Article 49, Article 20 subparagraph 11, and the proviso to Article 23 of the Articles of Incorporation. Such circumstance alone alone is only the meaning of the resolution concerning disciplinary action, and it is difficult to see that the resolution of this case does not have the meaning as a non-Confidence procedure by the resolution. In addition, the grounds asserted by the plaintiff as grounds for non-existence of the resolution of this case does not constitute grounds for denial of the resolution itself.

The plaintiff's above part of the argument is without merit.

(3) As to the conjunctive claim

(A) First, I examine whether there is a substantive defect that can invalidate the resolution of this case.

(B) The articles of incorporation of the defendant association provides that "a director shall inflict significant damage on the union and its members due to a violation of Article 47 (2) during his/her term of office," and Article 47 (2) provides that "an act of impairing the reputation of the defendant association, embezzlement or misappropriation of the property of the defendant association, interfering with an illegal election or election, or violating the legitimate business instructions or orders of the defendant association" or "an act of failing to perform the obligations of the union members, such as complying with the Articles of association and resolution bodies, answers to inquiries or questions by the defendant association, completion of education, payment of union fees, business situation, submission of various statistical data, etc." Thus, in order for the resolution of this case to be valid, the reasons for non-Confidence in the above articles of association should be the reasons for non-Confidence in the above articles of association, and if not, the above resolution shall be deemed null and void on the grounds of substantive defect.

The Defendant asserts to the effect that “Article 49 of the Articles of Incorporation on the grounds of non-Confidence resolution is nothing more than a fundamental provision, and the relationship between executives including directors and the defendant partnership is focused on delegation under the Civil Act, and thus, if many representatives desire to obtain the non-Confidence of the current officers at the board of representatives substituting the general meeting of the union members, it may do so without relation to the reasons.” However, since the directors have the authority to deliberate and decide on the matters of deliberation and resolution at the board of directors although they are the members of the executive organ, there is a need to obtain a certain degree of independent status, and there is a need to receive a considerable amount of guarantee of status, and this is the same, even if they are designated directors, it is difficult to conclude that Article 49 of the Articles of Incorporation of the Defendant Union explicitly prescribes the reasons of non-Confidence of the members such as directors, and rather, it is difficult to conclude that this is nothing more than a fundamental provision, considering the fact that there is room to be evaluated as abuse of rights if the board of representatives can do so without relation to directors.

(C) Since Nonparty 3, 4, and 5, etc. proposed a disciplinary measure against the plaintiff at the second meeting of representatives, they discussed the reasons stated in paragraph (e) of the above Article for that reason, the reasons underlying the resolution of this case are the reasons stated in paragraph (e) of the above Article.

6. Nonparty 1: (a) the Plaintiff filed an appeal against Nonparty 2 with the Seoul High Court for the closure of 7: (b) the Plaintiff’s appeal against Nonparty 1, 2, 14, 19; (c) Nonparty 2, 3-1, 4-2, 6, 8, 11, and 12; and (d) the entire testimony and arguments of Nonparty 6; (b) the Plaintiff had different opinions on the method of election of the head of the branch office, etc. during 7: (c) Nonparty 1 and Nonparty 2 were released from the Seoul High Court for the closure of 10-7; (d) Nonparty 1 and Nonparty 2 were released from the Seoul High Court for the closure of 8-2; and (e) Nonparty 1 and Nonparty 2 were released from the 15-year District Court for the first time for the first time for the closure of 7-year election; and (e) the Plaintiff was released from the 15-year District Court for the first time for the first time for the election of the president.

The plaintiff either issued a lower court judgment or proposed to raise support payments to Nonparty 1, etc. for Nonparty 1, etc., and distributed related printed materials, and the board of directors takes a bath to Nonparty 2, and filed a civil petition on the abolition of the visual premium, or conducted a one-person demonstration. However, it is insufficient to recognize that the above act constitutes “an act causing significant damage to a cooperative or its members due to a violation of Article 47(2) of the Articles of Incorporation,” and there is no other evidence to prove otherwise.

(D) Therefore, since the resolution of this case is made even though the grounds of non-Confidence prescribed by the articles of incorporation are not clear, it shall be deemed null and void without examining the remaining arguments, such as the assertion of substantive defects. The plaintiff's assertion in this part is with merit.

3. Conclusion

Therefore, the plaintiff's conjunctive claim is accepted on the ground of its reasoning, and the judgment of the court of first instance is unfair on the ground of its conclusion, so it is confirmed that the resolution of this case is null and void. The plaintiff's primary claim added in the court of first instance is dismissed on the ground that it is without merit

Judges Kim Jong-tae (Presiding Justice)