beta
(영문) 대법원 1994. 6. 14. 선고 93다45015 판결

[소유권이전등기말소][공1994.7.15.(972),1946]

Main Issues

(a) Validity of a resolution of the general meeting of clans held without a notice of convening some of its members, and whether such resolution can be deemed valid where the majority of the members of the clans who can be notified of it is approved;

B. The case holding that the judgment of the court below that the judgment of the previous lawsuit has res judicata effect on the judgment of the previous lawsuit is erroneous

Summary of Judgment

(a) A notification of convening a clan Assembly shall be given to all the members of the clans so notified that each member may participate in the discussions and resolutions of the clan, and the resolution of the clan Assembly held without such notification of convening a clan shall be null and void, and it shall not be deemed that such resolution has obtained the consent of a majority of the members of the clans so notified, unless otherwise stipulated by the regulations or practices of the clans.

B. The court below held that the lawsuit of this case is unlawful on the ground that the lawsuit of this case was instituted by a person without the power of representation, and the lawsuit of this case was brought again without any defects in the resolution of the power of representation in the previous judgment of retirement, and thus, it cannot be dismissed as it goes against the res judicata of the previous final judgment. The judgment of this case also has res judicata effect as to the defects in the requirements of lawsuit which are established in the judgment of this case, but there is no possibility that res judicata effect of the previous final judgment is res judicata effect because the person who brought the lawsuit as the representative of the plaintiff of this case claims the power of representation on the ground that he was newly appointed by the general

[Reference Provisions]

A. Article 31 of the Civil Act: Article 202 of the Civil Procedure Act; Article 205 of the Civil Procedure Act

Reference Cases

A. Supreme Court Decision 91Da9466 delivered on June 25, 1991 (Gong1991, 2008), 91Da43862 delivered on March 10, 1992 (Gong1992, 1294), and 92Da34124 delivered on November 27, 1992 (Gong193, 263)

Plaintiff-Appellant

[Defendant-Appellee] Jink Chang-gu Co., Ltd., Counsel for defendant-appellee-appellee-appellant

Defendant-Appellee

Attorney Lee Young-young, Counsel for the defendant-appellant

Judgment of the lower court

Seoul Civil District Court Decision 91Na26576 delivered on July 21, 1993

Text

The appeal is dismissed. The costs of appeal are assessed against Nonparty 2.

Reasons

The grounds of appeal are examined.

1. A notification of convening a clan general meeting shall be given to all the members of the clans who are notified unless there is the rules or practices of the clan, and each member shall be given an opportunity to participate in the discussions and resolutions of the clans general meeting, and the resolution of the clans general meeting held without such notification of convening a meeting is invalid, and it shall not be deemed that the resolution has been obtained by the majority of the members who can be notified (see, e.g., Supreme Court Decisions 92Da34124, Nov. 27, 1992; 91Da43862, Mar. 10, 192; 91Da94666, Jun. 25, 1991).

The court below found that the plaintiff's non-party 1 was a non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's.

Although there is a somewhat inappropriate part of the judgment of the court below, it seems that this is not a reason to affect the conclusion of the court below. The appeal is without merit.

2. However, while the court below stated that the lawsuit in this case was instituted by a person without the power of representation and it is unlawful, it added to the opinion that the lawsuit in this case would not be dismissed due to the defect in the power of representation as stated in the judgment by the Seoul District Court's 89DaDa19347, which became final and conclusive, because the lawsuit in this case was brought again with the defect in the power of representation as stated in the judgment by the retirement decision by the Seoul District Court's 89Da19347, and thus, the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. The judgment in this case also contains res judicata effect as to the defect in the requirements for the lawsuit which became final and conclusive. However, in this case, the above non-party 2 asserts the power of representation on the ground that he was newly appointed by the general meeting of clan which was called after the final and conclusive judgment of the above case, and there is no room for the res judicata effect of the above final judgment

The court below's dismissal of the plaintiff's claim is erroneous, but even in such a case, since the plaintiff's claim does not have res judicata effect on the merits of the claim in this case, the above erroneous judgment of the court below is not a ground for reversal (see Supreme Court Decision 92Da4857 delivered on July 13, 1993; Supreme Court Decision 91Da29026 delivered on November 24, 1992; Supreme Court Decision 92Da1046 delivered on October 9, 1992, etc.).

3. Therefore, the appeal is dismissed and the costs of appeal are assessed against Nonparty 2. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-ju (Presiding Justice)

따름판례

- 대법원 1995. 6. 9. 선고 94다42389 판결 [공1995.7.15(996),2378]

- 대법원 1996. 10. 15. 선고 95누8119 판결 [공1996.12.1.(23),3447]

- 대법원 1996. 11. 15. 선고 96다31406 판결 [공1997.1.1.(25),14]

- 대법원 1997. 12. 9. 선고 97다25521 판결 [공1998.1.15.(50),220]

- 대법원 2003. 4. 8. 선고 2002다70181 판결 [공2003.5.15.(178),1084]

- 대법원 2009. 2. 26. 선고 2008다8898 판결 공보불게재

- 대법원 2009. 5. 28. 선고 2009다7182 판결 공보불게재

관련문헌

- 이홍렬 자연부락의 재산귀속관계 성균관법학 제25권 제2호 / 성균관대학교 비교법연구소 2013

- 김기정 소송판결에 대한 항소 민사소송 : 한국민사소송법학회지 vol.9-1 / 한국사법행정학회 2005

- 김영학 백지어음 소지인이 어음금청구소송에서 백지부분 미보충을 이유로 패소확정판결을 받은 후 백지부분을 보충하여 다시 동일한 어음금청구를 할 수 있는지 여부 대법원판례해설 77호 (2009.07) / 법원도서관 2009

- 전병서 기판력의 객관적(물적)범위 고시계 42권11호 (97.10) / 국가고시학회 1997

- 최돈호 종중에 관한 고찰 등기의 이론과 실무에 관한 제문제 . Ⅲ lll / 육법사 2004

참조판례

- 대법원 1991.6.25. 선고 91다9466 판결(공1991,2008)

- 1992.3.10. 선고 91다43862 판결(공1992,1294)

- 1992.11.27. 선고 92다34124 판결(공1993상,263)

참조조문

- 민법 제31조

- 민사소송법 제202조 (위헌조문)

- 민사소송법 제205조 (위헌조문)

원심판결

- 서울민사지방법원 1993.7.21. 선고 91나26576 판결