[2] In a case where the existence of the power of representation of a non-corporate association representative is doubtful, whether the court shall conduct an ex officio investigation (affirmative)

[3] In a case where the issue is whether the representative Gap of the non-corporate association has legitimate power of representation, the case holding that the court below erred in the misapprehension of legal principles as to the power of representation and ex officio investigation of the non-corporate association, and found Gap as the representative of the non-corporate association after recognizing Gap as the representative of the non-corporate association

[4] Whether a non-corporate company's lawsuit brought by the non-corporate company without a resolution of the general meeting of members is legitimate

[5] In a case where a non-corporate group brought a lawsuit under its name without going through a general meeting of members, the case holding that the court below erred by misapprehending the legal principles as to the requirements for the lawsuit, without any examination as to whether the lawsuit is legitimate

[2] In a case where a non-corporate company is a party, whether a representative has legitimate power of representation is related to the requirements of the lawsuit and is subject to ex officio investigation by the court. Thus, even if the court did not have any duty to detect facts and evidence, which are basic data of judgment in the court, ex officio, if circumstances that are doubtful about the legality of the power of representation due to the already submitted data are observed, the court

[3] In a case where the issue is whether the representative of the non-corporate association Gap has legitimate power of representation, and if there is a dispute as to whether the representative of the non-corporate association was the authority to represent the Gap who applied for the correction of the party's indication, the court below acknowledged Gap as the representative, and decided on the merits further, the case holding that the court below erred by misapprehending the legal principles as to the matters of representative and ex officio investigation of the non-corporate association, thereby affecting the conclusion of the judgment.

[4] Unless otherwise stipulated in the articles of incorporation, a non-corporate association shall obtain a resolution of a general meeting of members when filing a lawsuit concerning property jointly owned by it. Thus, a lawsuit filed by a non-corporate association in its name without such a resolution of general meeting of members is unlawful as it lacks the requirements for the lawsuit.

[5] In a case where a non-corporate group brought a lawsuit under its name without going through a resolution of a general meeting of members, the case holding that the court below erred by misapprehending the legal principles as to the requirements for the lawsuit and thereby affecting the conclusion of the judgment, although it should have discovered the legitimacy of the lawsuit by examining and investigating whether the lawsuit was brought ex officio.

The parties shall reasonably interpret and confirm the whole purport of the complaint, such as the contents and cause of the complaint, and if it is within the extent that it is recognized as identical to the party finalized, correction of the correct party's indication is allowed (see, e.g., Supreme Court Decisions 96Da3852, Oct. 11, 1996; 98Da19950, Nov. 26, 1999).

According to the records, the complaint of this case reveals the following facts: (a) the Korean Federation of Disabled Persons (hereinafter “Federation”) was written as the plaintiff; (b) the first instance court confirmed that the Korean Association of Disabled Persons and Disabled Persons (hereinafter “the Association of Disabled Persons”) has the articles of association at the first preparatory date for pleading; and (c) exercised the right to ask the plaintiff’s agent; (d) the plaintiff’s application for the correction of a party indication to correct the Federation; (e) the plaintiff’s application for the correction of the previous North Korean circuit was defective; and (e) the first instance court held the pleading as lawful from the third preparatory date for pleading; and (e) the plaintiff was written in the judgment

However, the evidence duly adopted by the court below and the first instance court and the following circumstances revealed through the records, i.e., ① the indication of the Federation as the plaintiff at the time of the submission of the complaint was due to the lack of certainty as to whether the former branch was a party to the dispute. ② Although the plaintiff stated in the complaint of this case as the National Federation, the plaintiff stated the "competent jurisdiction" in the plaintiff's indication as the "Korean Federation of Disabled Persons with Disabilities" together with the "Korean Federation of Jeollabuk-do," and stated that the actual litigation party to the lawsuit is the former branch. ③ In the grounds for the claim in the complaint, the defendants asserted that the Defendants suffered damages by the former branch due to illegal acts committed against the former branch, and calculated the amount of damages stated in the claim based on the deposit of asset rent of the former branch, and ④ the evidence attached to the complaint that "the former branch" is written as the complainant, it is reasonable to deem that the plaintiff in this case was finalized as the former branch despite the statement in the complaint of this case.

In the same purport, permitting the correction of the party indication by the first instance court is legitimate, and there is no error in the misapprehension of legal principles as to the correction of party indication as otherwise alleged in the ground of appeal.

2. We examine ex officio prior to determining the remaining grounds of appeal.

A. In a case where a non-corporate company is a party, whether the representative has legitimate power of representation is related to the requirements for the lawsuit and thus the court is ex officio investigation. Thus, even if the court does not have the duty to detect the facts and evidence, which are the basic data for the judgment, ex officio, if there are circumstances that are doubtful about the legality of the power of representation based on the already submitted materials, the court is obligated to conduct an examination and investigation thereof (see Supreme Court Decision 2006Da60908, Jan. 30, 2009).

According to the evidence and records duly adopted by the court below and the court of first instance, the defendants asserted that the non-party who requested correction of a party indication was the representative of the plaintiff on April 22, 2010 as the plaintiff's statement, and that the plaintiff was not entitled to represent the plaintiff. The plaintiff asserted that "the non-party was elected as the branch chairperson of the board of directors on October 8, 2010." However, according to the articles of incorporation (Evidence 3-2) of the plaintiff himself/herself, the plaintiff shall be appointed at the general meeting (Article 13 (1) of the plenary session), and the general meeting shall be composed of the members whose membership is not unpaid for not less than two years (Article 23), and the general meeting shall be composed of persons who submitted the application for membership to the general meeting, and the general meeting shall be held as members with the consent of a majority of members present at the general meeting and with the consent of a majority of members (Article 29), and the meeting shall be held as members with the authority of the non-party's voting rights (Article 58134.16).

On the other hand, the court below should have determined whether the non-party was a legitimate representative of the plaintiff by examining and investigating whether it is legitimate to elect the president of the sub-committee as alleged by the plaintiff, if legitimate, and whether it is legitimate to elect the non-party as the president of the sub-committee at the meeting of November 11, 2005. Nevertheless, the court below acknowledged the non-party as the representative of the plaintiff and determined the merits further. Thus, the court below erred by misapprehending the legal principles on the power of representation and ex officio investigation of the non-corporate association, which affected the conclusion of the judgment.

B. In filing a lawsuit concerning property jointly owned by a non-corporate company, it shall undergo a resolution of a general members' meeting, except as otherwise provided in the articles of incorporation. Thus, a lawsuit filed by a non-corporate company in its name without a resolution of the general members' meeting is unlawful as it lacks the requirements for the lawsuit (see Supreme Court Decisions 94Da28437, Oct. 25, 1994; 2006Da64573, Jul. 26, 2007, etc.).

According to the records, although the Defendants filed a lawsuit in this case without the resolution of the general meeting on April 22, 2010, and asserted that it is unlawful, the Plaintiff was aware of the fact that the Plaintiff did not have any assertion as to it and did not submit all the data on the resolution of the general meeting. If such circumstances are the same, the lower court should ex officio examine and investigate whether the lawsuit in this case was legitimate by examining and investigating whether the lawsuit in this case was brought by the general meeting on its own initiative. Nevertheless, the lower court, without any deliberation thereon, made a decision on the merits. Accordingly, the lower court erred by misapprehending the legal doctrine on the requirements of lawsuit, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, 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 In-bok (Presiding Justice)