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(영문) 대법원 2009. 12. 24. 선고 2009다26367 판결

[종중정기총회결의무효확인청구][미간행]

Main Issues

[1] Whether a clan may make a disposition that infringes on the essential contents of the unique and basic rights of the clan members (negative)

[2] The validity of a resolution of the general meeting of a clan held without convening a notice to some clan members (=negative)

[Reference Provisions]

[1] Article 31 of the Civil Act / [2] Article 31 of the Civil Act

Reference Cases

[1] Supreme Court Decision 2004Da47024 decided Oct. 26, 2006 (Gong2006Ha, 1966) / [2] Supreme Court Decision 2007Da34982 decided Sept. 6, 2007 (Gong2007Ha, 1544)

Plaintiff-Appellee

[Judgment of the court below]

Defendant-Appellant

Jeonju-Jak-gun ○○, Inc. (Law Firm Ho, Attorneys Yoon Young-shan et al., Counsel for the plaintiff-appellant-appellant)

Judgment of the lower court

Seoul High Court Decision 2008Na85705 decided March 18, 2009

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

A clan is a natural and customary group of clans established for the purpose of protecting the graves of a common ancestor, conducting religious services, promoting friendship among its members, etc., and the descendants of the common ancestor naturally become its members if they reach majority regardless of their will, and if they are equipped with and continuously performing activities to the extent they represent by the representative elected in accordance with the rules or customs of the clan, the organization of a non-corporate association shall be recognized. In light of the nature and legal nature of the clan, it is not allowed to take a disposition that infringes on their unique and basic rights with respect to its members (see Supreme Court Decision 2004Da47024 delivered on October 26, 2006, etc.).

On the other hand, if members of a clan regularly gather at a certain place on a certain day each year in accordance with the rules or practices of the clan and manage the church affairs of the clan, it is not necessary to convene the general meeting, but in convening the general meeting of the clan separately except for the above cases, each member shall be given an opportunity to participate in meetings, discussions, and resolutions by individually convening a convocation notice to all the members of the notified clan unless there is a special rules or practice of the clan, and there is no resolution of the general meeting of the clan held without a notice for convening a convocation to some members of the clan (see Supreme Court Decision 2007Da34982, Sept. 6, 2007).

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and found that the defendant clan did not have the regulations for the convening of the general meeting after amending the articles of incorporation at least on December 19, 2001, and since the defendant clan does not have the custom that does not notify the members of the date of the general meeting in holding the general meeting, the defendant clan shall not be deemed to have formed such custom. In such case, the defendant clan shall set the scope of the members subject to notification by the clan and give all members who can be notified of the convening of the general meeting an opportunity to participate in the discussion and resolution of the general meeting, and without any special circumstance, it is defective in the convening procedure because the defendant clan did not at all decide the scope of the members subject to notification for convening the general meeting of this case without determining the scope of the members subject to notification for convening the general meeting of this case, and on the other hand, the defendant clan shall not have the position specified in the organization regulations or the position of offset during that period, and it shall not be deemed that the plaintiff's basic right to vote and voting right of this case shall not be affected the resolution of this case.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds of appeal.

2. As to the third ground for appeal

The fact-finding that there is no benefit in the lawsuit is determined in principle at the time of the closure of pleadings at the fact-finding court (see, e.g., Supreme Court Decision 63Nu115, Sept. 12, 1963). Thus, the argument that the defendant clan held a new extraordinary meeting after the pronouncement of the judgment below and made a resolution identical with the resolution of this case cannot be a legitimate ground for appeal since it asserts a new fact-finding on the ground of the circumstances after the closure of pleadings at the fact-finding court. The Supreme Court precedents cited in the grounds for appeal are related to the case where the defendant adopted a resolution to confirm the previous invalid resolution of this case at the fact-finding court

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)