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

The defendant shall pay to the plaintiff KRW 130,192,920 and KRW 22,659,840 from March 21, 2004; KRW 25,340,580 from March 21, 2005; KRW 26,453,340 from March 21, 2006; KRW 27,363,780 from March 21, 2007; KRW 28,375,380 from March 21, 2008 to the delivery date of a copy of the written application for purport of claim and claim; KRW 5% per annum from March 21, 2008 to the delivery date of a copy of the written application for claim; and KRW 20% per annum from March 21, 2008 to the completion date of payment to the completion date of payment; and KRW 36,31,400 per annum from March 21, 2008 to the completion date.

Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to this part shall be dismissed.

A. The reasons stated in this part are as follows, with the corresponding part of the reasoning of the first instance judgment (the main sentence of Article 420 of the Civil Procedure Act).

B. The defendant argues that the rules of the plaintiff's clan, which stipulated "all acts concerning litigation and litigation costs" as the resolution of the board of directors, were amended by the general meeting of the plaintiff's clan on February 29, 2004, and the contents of the amended rules are contrary to the essence of the clan, since the above general meeting is not lawfully held, the above rules of the plaintiff's clan are null and void, and the lawsuit of this case brought without the resolution of the general meeting

There is no evidence to prove that the extraordinary meeting of the plaintiff clan on February 29, 2004 was not lawfully held, and the amended rules, which make all the acts concerning the procedural acts and litigation costs of the board of directors, cannot be deemed as contrary to the essence of the clan, and the defendant's defense cannot be justified.

2. Judgment on the merits

(a) Basic facts;

(1) The plaintiff is a clan consisting of descendants who are 15 years old, non-party 1's 15 years old, non-party 2 as a joint ancestor. The defendant is a clan consisting of descendants who are 12 years old, non-party 1's 12 years old, a joint ancestor of the same clan.

(2) On March 21, 2003, the Defendant newly constructed a building on March 21, 2003 on the land listed in the attached list 1 (hereinafter “instant land”) owned by the Plaintiff (hereinafter “instant building”), and occupied and used the instant building until now.

(3) The rent of the instant land after March 21, 2003 that the Defendant commenced possession is as follows.

본문내 포함된 표 년도 면적(㎡) 토지단가 (원/㎡) 기초가격 기대이율 기간계산 기간임료 비고 2003 1,686 448,000 755,328,000 3% 365/365 22,659,840 2003. 3. 21~2004. 3. 20. 2004 1,686 510,000 844,686,000 3% 365/365 25,340,580 2004 3. 21~2005 3. 20. 2005 1,686 523,000 881,778,000 3% 365/365 26,453,340 2005 3. 21~2006 3. 20. 2006 1,686 541,000 912,126,000 3% 365/365 27,363,780 2006 3. 21~2007 3. 20. 2007 1,686 561,000 945,846,000 3% 365/365 28,375,380 2007. 3. 21~2008. 3. 20. 2008 1,686 580,000 977,880,000 3% 120/365 9,644,840 2008. 3. 21~2008. 7. 18. 합계 ？ ？ ？ ？ ？ 139,837,760 ？

[Grounds for recognition] Unsatisfy, the appraisal result by Nonparty 4, and the purport of the whole pleadings

B. Determination on the Plaintiff’s claim for a lease agreement

The plaintiff, while constructing the building of this case on March 21, 2003, agreed to pay the plaintiff the fee corresponding thereto on the face of the consent of the use of the building of this case. As such, as of March 21, 2003, the plaintiff and the defendant entered into a lease agreement with the plaintiff on March 21, 2003 to pay the rent equivalent to the reasonable rent. Thus, the defendant is obligated to pay the rent from March 21, 2003, which began to occupy the land of this case under the above lease agreement until the return of the land of this case.

The plaintiff's assertion that the lease contract was concluded as of March 21, 2003 between the plaintiff and the defendant, as alleged by the plaintiff, is insufficient to recognize only with the descriptions of evidence Nos. 6, 8, and 12-1 and 2, and there is no other evidence to recognize otherwise. Thus, the plaintiff's above assertion cannot be accepted without the need for further examination.

C. Determination on the Plaintiff’s claim for return of unjust enrichment

(1) The parties' assertion

The plaintiff asserts that the defendant is obligated to pay unjust enrichment equivalent to the rent from March 21, 2003, which began to occupy the land of this case, because the defendant uses and benefits from the land of this case without any title.

As to this, the defendant, as of April 22, 199 and September 22, 199, the plaintiff used the land of this case owned by the plaintiff without compensation for the re-building of the defendant, and decided by the board of directors to delegate specific contents to the plaintiff chairperson at the time. Accordingly, the non-party 5 of the plaintiff chairperson at the time approved the use of the land of this case. The defendant asserts that he has the right to occupy and use the land of this case without compensation.

(2) Facts of recognition

In April 21, 1999, the Defendant promoted the re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building and re-building of the Plaintiff’s land (sub-building and re-building and re-building and re-building and re-building and re-building and re-building of the Plaintiff’s land (sub-building and re-building and re-building and re-building and re-building of the Plaintiff’s land) by changing the status of the Plaintiff’s above land owned by the Plaintiff on April 22, 199 (sub-building and re-building and re-building of the Plaintiff’s land) to the Plaintiff’s representative.

Thus, the non-party 5 approved the use of the site from the land of this case (number 4 omitted on August 8, 2001) to the land of this case (the land of this case is converted into the land of this case on the same day) divided from the land of this case (number 3 omitted), and the defendant newly constructed the building of this case and obtained approval for use on March 21, 2003, and the plaintiff and the defendant's clan were present at the re-place of the building of this case.

However, at the ordinary general meeting of February 26, 2008, the non-party 6 was elected from the non-party 5, who was the non-party 5, who had discharged the president until now. The non-party 7, etc. of the defendant clans filed an application for a provisional disposition of suspending the performance of duties against the non-party 6 on February 29, 2008, and filed a lawsuit against the defendant, etc. to confirm the invalidity of the resolution of appointing the president on February 26, 2008, and eventually filed a lawsuit against the defendant for the confirmation of invalidity of the resolution of appointing the president on February 26, 2008, and the above decision becomes null and void. Thereafter, from the defendant's extraordinary general meeting of June 26, 2009, the non-party 8 was elected as the defendant's new president.

Meanwhile, the articles of incorporation enacted on May 18, 1973 and amended on October 16, 1983, and June 2, 1996 provided that only those who reside in the Jung-gu Seoul Metropolitan Government (hereinafter omitted) ○○○○ among the descendants of the members of the membership shall be granted voting rights to the members of the general meeting. However, in the related lawsuit against the plaintiff (Seoul District Court Branch Branch 2003Gahap1469), the decision that the above articles of incorporation is null and void in violation of the essence of the clan was rendered, the plaintiff held an extraordinary general meeting on February 29, 2004, changed the name of the clan to "all of the members of the members of the members of the same clan," and the principal office of the defendant was changed to "any of the members of the Jung-gu Seoul Metropolitan Government Ro-dong Ro-dong 1, 205 (Seoul Metropolitan City Ro-dong 5 omitted)," and the board of directors changed to "No. 5 (1) of the Republic of Korea's Dong 1, 5 (5)".

Meanwhile, the articles of incorporation amended by the Plaintiff on June 2, 1996 stipulate that the acquisition and disposal of fixed assets shall be subject to the resolution of the general meeting (Article 22 Subparag. 6), the collection of usage fees of fixed assets (Article 28 Subparag. 9), or matters referred by the Chairperson (Article 28 Subparag. 7) shall be subject to the resolution of the board of directors.

[Ground for Recognition: Facts without dispute; Gap's testimonys 1 through 5, 9 through 11, 13 through 16, 18, 19, 21, Eul's evidences 1 through 7 (including each number), Eul's evidence 8-1, 2, 3, Eul's evidence 9-1, 2, 3, Eul's evidence 11-1, 2, 3, 12-1, 12-2, non-party 5, non-party 9, and non-party 9's testimonys, inquiry results, and the whole purport of the pleadings]

(3) The nature of the act of accepting the free use of the instant land

As seen above, it is reasonable to view that the act of constructing the instant building on the instant land owned by the Plaintiff and consenting to the continued use of the instant land without any consideration, goes beyond the collection of usage fees or simple preservation of the Plaintiff’s clan property, which constitutes a disposal act of the Plaintiff’s clan property.

(4) The property of a clan shall be jointly owned by the members of the clan and its management and disposition shall, in principle, follow the rules of the clan and, if the rules of the clan do not provide for such rules, follow the resolution of the clan general

The defendant asserts that the disposition of the clan property is stipulated as a resolution of the board of directors according to the plaintiff's clan (No. 5) amended on February 29, 2004. The plaintiff's board of directors held that the disposition of the clan property was included in the resolution of the board of directors when the plaintiff decided to grant the free use of the land of this case at the meeting of September 1999, and that the articles of incorporation (No. 9) that stipulates the disposition of the clan property as a general meeting resolution (No. 9) that is stipulated as a disposition of the clan property as the name of the clan

As seen earlier, it is reasonable to view the articles of association No. 9 as the articles of association of the plaintiff clan No. 9 before the amendment of February 29, 2004, when examining the background of holding the general meeting of the plaintiff on February 29, 2004, the contents of the resolution, the amendment of the rules of the plaintiff clan, etc. The disposal of the plaintiff clan properties under Article 22 of the above articles of association is stipulated as stated in the resolution of the general meeting. However, the articles of association No. 9 was invalidated against the essence of the clan, such as restricting the plaintiff's members, even if it is assumed that Article 22 of the above articles of association, which provides for the acquisition and disposal of the clan properties as the resolution of the general meeting, becomes null and void, as argued by the defendant, merely because there is a provision that the disposal of the clan properties shall follow the resolution of the board of directors at the time of September 199, it cannot be inferred that there is no evidence to acknowledge otherwise regarding the disposal of the plaintiff's properties without compensation in this case.

Therefore, the defendant's above assertion that the land of this case has a right to use it without compensation cannot be seen as a mother or accepted.

(5) Sub-decisions

Therefore, since the defendant newly constructed the building of this case from March 21, 2003 to March 20, 208, the defendant has a duty to claim 130,192,920 won (22,659,840 won + 25,340 won + 26,453,340 won + 27,363,780 won + 28,375,380 won + 20.3% of the total amount of damages for delay from August 29, 208 to 208, the defendant had a duty to claim 30% of the total amount of damages for delay from June 26, 2009 to 30.3% of the total amount of damages for delay calculated by the plaintiff from June 20, 2009.

D. Determination as to the defendant's good faith, criticism, and abuse of rights

(1) The defendant, according to the legitimate resolution of the plaintiff's board of directors, did not raise any objection on the land of this case for not less than five years after the defendant used and profit-making the building of this case, and when the defendant was elected by the defendant in other fraternity than the plaintiff's clan, the defendant filed a claim against the defendant for the use fee of the building of this case, which is used as a supporting room for the plaintiff's Jung-si City as a supporting room for the formation of the plaintiff's family council. This claim that this is against the public order and good morals, or is against the principle of good faith or against the principle of good faith and is against the abuse of rights.

(2) On the other hand, the principle of trust and good faith refers to an abstract norm that a party to a legal relationship should not exercise a right or perform a duty by any content or method that violates equity or trust in consideration of the other party's interest. In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, it should be given to the other party or objectively viewed that the other party has a good faith, and the other party's exercise of the right against such other party's trust should reach an unreasonable level in light of the concept of justice (see Supreme Court Decision 2005Da4291, May 10, 2007, etc.).

However, the mere fact that the building of this case is being used as a correction of the supporting family members of the plaintiff's Jung-si, or that the plaintiff was a defendant's clan and the plaintiff did not claim the fees for the use of the land of this case to the defendant for a considerable period of time cannot be deemed to have reached an irrecoverable state in light of the concept of justice to the extent that it is unreasonable for the plaintiff to provide the defendant with good faith, or to view objectively, or to exercise the defendant's rights against the other party's faith.

In addition, as seen earlier, the board of directors, under the initiative of Nonparty 5 at the time, decided to grant free use of the land of this case by the Plaintiff’s president, has no effect on the Plaintiff, and it is difficult to view that the Plaintiff’s filing of the lawsuit of this case for the exercise of its right late later is contrary to good morals and other social order (the Plaintiff’s new president on February 26, 2008, held on October 29, 2007, before Nonparty 6 was elected as the Defendant’s new president). The Plaintiff’s board of directors held on October 29, 2007, which had already already received the usage fee of the land of this case (Evidence 6). As to the building of this case, the Plaintiff’s use of the evidence of the Plaintiff’s Jung-si as a re-place for the re-place of view of justice, not seeking removal and delivery of the building of this case on the ground that it is the owner

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. As the judgment of the court of first instance is justifiable, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Mansung (Presiding Judge)