[2] Requirements for establishment of a non-corporate association similar to a clan and its timing

[3] The method of determining whether a clan or a similar organization of a clan has the ability to be a party, and in case where a party asserts that it is partly inappropriate for the character and substance of a clan because it has not properly distinguished the nature of a clan from that of a similar organization of a clan, whether it maintains the basic identity of the facts that it is a similar organization of a clan (affirmative with qualification)

1. The unique meaning of a clan is a naturally occurring family organization formed by descendants of the common ancestor for the purpose of protecting the graves of the ancestor and promoting friendship among their descendants, and there is no restriction on the number of its descendants at the same time as the death of the ancestor (see Supreme Court Decision 96Da20567 delivered on August 23, 1996, etc.). In addition, a non-corporate group similar to a clan is established only as an organization only when it has established a unique rules by opening a general meeting, and has established a system of a common sense, but it is not established as an organization only when it has formed a common property and continuously performed social activities centered on a person who leads in the work to achieve the common purpose (see Supreme Court Decision 94Da56401 delivered on March 12, 1996).

On the other hand, matters concerning whether a clan or a similar organization of a clan has the ability to be a party is a matter of ex officio investigation by the court. Thus, the court shall conduct ex officio investigations of facts which are the premise for the determination of the party's ability without being bound by the allegations of the parties, and in determining the party's ability, if the party's ability is judged based on such facts, it shall be judged whether an entity with such elements as the purpose of a clan or organization, organization, and member has lost its ability to be a social entity, and if an organization has lost its meaning, it shall be deemed that it has the ability to be a party in a lawsuit, and if so, the lawsuit shall be dismissed (see Supreme Court Decision 94Da41249 delivered on December 9, 197). Furthermore, even if the party's own meaning was not proper to distinguish the nature of a clan from a similar organization of a clan, and even if some inappropriate arguments about the character and substance of a clan were asserted from the beginning, if the party's ability to stand as a similar organization of a clan, it shall be determined as a court's own identity (see.).

2. A. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the recruitment evidence, and dismissed the lawsuit of this case on the ground that the defendant clan did not fall under the non-corporate group under Article 52 of the Civil Procedure Act, and it did not constitute a non-corporate group under Article 52 of the Civil Procedure Act, and it did not constitute a non-corporate group, and therefore, it was merely a name created by the non-party 1, who is a non-corporate group, to complete the registration of ownership transfer with respect to the land of this case before his birth.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The following facts are acknowledged according to the reasoning of the judgment below and the records.

① The Plaintiff consistently asserted that the Defendant was a clan of Nonparty 1 and that Nonparty 1 established the Defendant before his birth. There was no change in the fact about the substance of the Defendant, including the scope of the members, the purpose of the organization, etc., contrary to the initial assertion.

② The Defendant alleged that the Plaintiff’s clan continued to have contributed to Nonparty 1 and that the instant land was donated to the Defendant’s clan established by Nonparty 1. On April 17, 2009, the Defendant asserted that the Defendant’s clan cannot deny its substance as a similar organization of the clan or its social meaning, even though it is not a clan with its unique meaning.

③ Nonparty 1 organized the Defendant by preparing a statute and taking office as the representative, and completed the registration of ownership transfer in the name of the Defendant regarding the instant land.

④ The purpose of the Defendant’s clan was to promote Nonparty 1’s religious services and the number of graves and the friendship of Nonparty 1’s descendants, and Nonparty 2 cultivated the instant land and the land owned by the Plaintiff clan from around 1982. Since 1982, rice 18 households each year was sent to the Plaintiff clan, and Defendant clan 3 was sent to the Defendant clan’s representative, and Nonparty 1 was well aware of Nonparty 1’s clan.

⑤ Non-party 1’s lineal blood relatives are entering the Non-party 1’s proposal, and the adult male and female whose present location is confirmed among the descendants of Non-party 1 is nine.

(2) In light of the above legal principles, it is clear that the plaintiff's assertion that the non-party 1 established the clan before his birth cannot be viewed as a clan unique to the defendant. Thus, the plaintiff asserted that the defendant was a clan because it was not properly distinguished from the nature of the unique meaning of the clan and a similar organization of the clan, and it can be seen that the plaintiff actually asserted that the non-party 1 was a similar organization of the clan from the beginning. It is reasonable to deem that the non-party 1 formed the common property and continued to engage in social activities centered on himself in order to achieve the common purpose by establishing the clan and taking office as its representative. In addition, it is reasonable to deem that the non-party 1 died after his death, the non-party 1 has a characteristic as a clan unique to the non-party 1.

(3) If so, the court below should have determined whether or not the defendant's ability not only the clan but also the similar clans exists by examining the contents of the rules of the defendant's clans or what activities had been done in relation to the defendant's clans, and clarify the character and substance of the defendant's clans asserted by the plaintiff, and then should have determined whether or not the defendant's ability to stand as a member of the clans, but also the defendant could not be viewed as a clans. The court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on clans or similar organizations of clans, which affected the conclusion of the judgment. The plaintiff's assertion pointing this out has merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)