부당이득금
1. The lawsuit of this case is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The plaintiff's ground for the plaintiff's claim is a clan consisting of D 54 years old E descendants residing in the members of the Busan Dong-gu, Busan. The defendants asserted that they received retirement allowances unfairly without the plaintiff's legitimate advisory board resolution and the general meeting resolution, and sought the return of the retirement allowances.
2. Whether the lawsuit of this case is lawful
A. The defendant asserts that the lawsuit of this case was unlawful since it was filed without the resolution of the general meeting.
In this regard, the Plaintiff asserts that the instant lawsuit is not a resolution of the general meeting, but a resolution was ratified by the general meeting held on April 27, 2017.
B. (1) The decision of this case is that the plaintiff, an association which is not a juristic person, exercises his claim for return of unjust enrichment, so it shall be governed by Articles 278, 275 (2) and 276 (1) of the Civil Act, and where a clan files a lawsuit as an act of preserving the property jointly owned by it, it shall undergo a resolution of the clan general meeting,
(see, e.g., Supreme Court Decision 2009Da83650, Feb. 11, 2010). According to the Plaintiff’s evidence No. 1, the Plaintiff did not stipulate matters concerning the act of preserving property in addition to the matters determined by the resolution of the advisory board upon the resolution of the general meeting with respect to the disposal or change of property in its bylaws. Thus, it appears that the resolution of the clan general meeting should be passed pursuant to Article 276(1) of the Civil Act.
However, there is no evidence to deem that the Plaintiff had passed a resolution of the general meeting regarding the filing of the instant lawsuit.
(2) On April 27, 2017, we examine whether there was a legitimate resolution of ratification of the instant lawsuit at the Assembly.
In holding a clan general meeting, each person shall hold a meeting, discuss, and call a notice individually to all the clan members who can be notified individually after determining the scope of the clan members who are subject to notification for convocation by the clan members, except in extenuating circumstances.