[종중규약무효확인][미간행]
[1] Whether a lawsuit for confirmation can seek confirmation of the validity of a general, abstract statute or statute itself as a lawsuit for confirmation (negative)
[2] In a case where a clan member sought confirmation of invalidity of some of the regulations of the clan, the case holding that since the regulations of the clan are the laws governing the legal relations of the organization, activities, etc. of the non-corporate clans, it cannot be claimed as an independent lawsuit to confirm invalidity of the regulations or some of the regulations
[1] Article 250 of the Civil Code / [2] Article 250 of the Civil Code
[1] Supreme Court Decision 92Da13875, 13882, 13899 delivered on August 18, 1992 (Gong1992, 2752), Supreme Court Decision 93Da61567 delivered on December 22, 1995 (Gong196Sang, 462)
Plaintiff 1 and one other (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)
The Madong-dong Ro-dong clan (Attorneys converted from the Ro-dong et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2010Na99400 decided April 21, 2011
The part of the judgment of the court below concerning the claim for confirmation of invalidity under Articles 7(1) and (3), 19(2), and 21(1) of the Code adopted at the ordinary meeting of the defendant on March 2, 2008 shall be reversed, and the judgment of the court of first instance as to this part shall be revoked, and this part of the lawsuit shall be dismissed. The total costs of the lawsuit as to the dismissal of the lawsuit shall
ex officio deemed.
Since the subject of a lawsuit for confirmation must be against the existence of specific rights or legal relations, it is not possible to seek confirmation of the validity of general, abstract Acts and subordinate statutes or laws themselves as a lawsuit for confirmation (see Supreme Court Decisions 92Da13875, 1382, 13899, Supreme Court Decision 93Da61567, Dec. 22, 1995, etc.).
According to the reasoning of the lower judgment and the record, it can be known that the rules adopted at the ordinary meeting of March 2, 2008 by the Defendant (hereinafter “instant rules”) are regulating the legal relations of the organization, activities, etc. of the Defendant, a non-corporate group. Thus, the instant rules are binding laws with respect to the Defendant’s agencies and members (self-governing laws).
Therefore, it is apparent that the filing of an action to nullify the invalidity of the instant agreement or some of its provisions is a matter of general and abstract law, and it is not subject to the Plaintiffs’ specific rights or legal relations. Thus, the Plaintiffs cannot seek a lawsuit to seek confirmation of the specific rights or legal relations under the premise that Article 7(1) and (3), Article 19(2), and Article 21(1) of the instant agreement (hereinafter “instant provisions”) is null and void, separate from filing a lawsuit to seek confirmation of the specific rights or legal relations.
On the contrary, the lower court erred by misapprehending the legal doctrine on the interest in confirmation, thereby adversely affecting the conclusion of the judgment.
Therefore, the part of the judgment of the court below regarding the claim to nullify the invalidity of the provisions of this case is reversed, and this part of the case is sufficient to be directly tried by the Supreme Court. Accordingly, the judgment of the court of first instance as to this part is revoked, the decision of the court of first instance is dismissed, and the total cost of the lawsuit as to the dismissal of the lawsuit is borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench
Justices Yang Chang-soo (Presiding Justice)