2. B

[Defendant-Appellee] Defendant 1 et al.

Attorney Cho Yong-ok

Attorney Lee Jae-soo, Counsel for the plaintiff

2. On November 3, 2016, at a clan general meeting held by the defendant on November 3, 2016, the resolution on appointment of operating members, ② the resolution on appointment of general affairs for E, ③ the resolution on appointment of auditors for S, ④ the resolution on ratification of sale of forest land 1,543 meters in Sejong Special Self-Governing City is invalid.

3. The plaintiffs' remaining appeals are dismissed.

4. Of the total litigation costs, 50% is borne by the Plaintiffs, and the remainder is borne by the Defendant, respectively.

(a) Relationship between the Parties;

1) The defendant is a clan whose members are F 27 years old G as a joint ancestor and whose descendants are members of the clan, and the plaintiffs, D, and E are their clan members.

2) The Defendant appointed R as the president at an extraordinary general meeting held on January 16, 2015.

3) On the other hand, the defendant belongs to KP, LP, M, NP, strike, etc. with 30-year-old descendants of the above G as joint lines and 31-year-old descendants as joint lines.

B. Resolution to sell the land of this case and the general meeting of this case

1) On November 28, 2015, the Defendant held an extraordinary general meeting and made a resolution to sell 1,543 square meters of public land (hereinafter “instant land”) to Sejong Special Self-Governing City, which is owned by the Defendant (hereinafter “resolution to sell the instant land”), to Sejong Special Self-Governing City. The Sejong Special Self-Governing City completed the registration of ownership transfer on the ground of an agreement on the acquisition of public land on December 21, 2015, as Daejeon District Court Sejong Sejong Sejong Special Self-Governing City’s Sejong Special Self-Governing City’s Sejong Special Self-Governing City’s receipt on December 21, 2015.

2) The Defendant’s clan members, including the Plaintiffs, raised an objection on the grounds that the special meeting of November 28, 2015 was held without a convening notice. The Defendant held a special meeting to ratification the resolution on the sale of the instant land on January 13, 2016. However, the resolution on the ratification of the sale of the instant land was not made at the special meeting of January 13, 2016, and the R, which was the Defendant’s president at the time, was responsible for the resolution on the sale of the instant land, and retired from office.

3) On November 3, 2016, the Defendant held a general meeting of shareholders (hereinafter referred to as the “general meeting of shareholders”) and passed a resolution to dismiss R from the president, ② D as president, E as general secretary, and appointment of S as auditor, ③ the resolution to commission the president and general secretary of the subordinate clan as managing members according to the amendments to the clan Regulations, ③ the resolution to commission the president and the general secretary of the subordinate clan as managing members, and (4) the principal resolution as to the sale of the instant land respectively. The instant lawsuit and the ratification resolution for the instant general meeting of shareholders was adopted.

1) On October 18, 2018, the Plaintiffs filed the instant lawsuit against the Defendant, etc. with the Daejeon District Court seeking confirmation of invalidity of the resolution of the instant general meeting ( Daejeon District Court 2018Gahap107347), D, and E, etc. around February 20, 2019, the Plaintiffs demanded W to convene an extraordinary general meeting for the appointment, etc. of the Defendant’s president. The ASEAN, which represented W, signed W’s letter of delegation on the convocation of the extraordinary general meeting that D prepared and signed W, signed W’s name and sealed W’s seal, and delivered it to D.

3) On March 17, 2019, X issued the following notice to D (hereinafter “instant notice”).

According to your explanation at the time of February 20, 2019, the Daejeon District Court 2018Gahap107347 (hereinafter “Seoul District Court”) made an explanation and signed and sealed Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha's Ha

4) On March 26, 2019, D notified 1,083 members of the Defendant’s clan (1,083 members of the Defendant’s clan) that ① the case of election of officers, including the chief of the literature, ② the case of the enactment (2) of the literature, the case of ratification (excluding the portion of appointment of officers) of the resolution of the 3rd general meeting of this case, ④ the special general meeting on which other necessary matters are agenda items, ④ the case of which is an agenda item, is called at a Ztain in Sejong Special Self-Governing City, on April 14, 2019. D’s notice of convening the meeting was written as the notification of convening the ZK in Sejong Special Self-Governing City. D’s notice of convening the meeting was written as the Defendant

5) On April 14, 2019, the Defendant attended 140 members of the clan (22 members of the clan), 118 members of the power of attorney, and 140 members of the special meeting (hereinafter referred to as the “special meeting of this case”) held (hereinafter referred to as the “special meeting of this case”) and resolved on ① the amendment of the Defendant’s rules, ② D as the president, Eul as the general secretary in charge of management, Eul as the general secretary in charge of finance, and Eul as auditors, ③ the re-resolution resolution on the sale of the land of this case among the resolution of the instant general meeting of this case, ④ the resolution on the suspension of qualification of the clan members of the Plaintiff for five years against the Plaintiff.

D. Of the defendant's bylaws applicable at the time of each of the instant ordinary meetings and extraordinary general meetings, the parts relating to the instant case are as follows.

Article 6 (Composition and Term of Office of Officers) The clans shall have one chairperson, one vice-chairperson, and one auditor, each of whom shall be three years.The clans of Article 7 (Types of Meetings) shall have regular meetings and extraordinary meetings.The regular general meetings of Article 8 (Date of Holding Regular General Meetings) shall be December 1 of each year. The extraordinary general meetings of Article 9 (Date of Holding Extraordinary General Meetings) shall be held from time to time at the request of the chairperson or at least 1/4 of the incumbent clans.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8, 10, 14 through 16, 18, 21, Eul evidence 1, 2, 5, 6, 11 and the purport of the whole pleadings and arguments

2. Summary of the parties' arguments

A. The plaintiffs' assertion

1) The instant general meeting was unilaterally held by some members of the clans on the day, not the day of the general meeting set by the defendant's rules, without convening a notice for convening the general meeting of this case, not only was convened by the legitimate convening authority, but also did not hold a notice for convening the general meeting of this case. Thus, each resolution made by the defendant at the instant general meeting

2) The instant resolution on the special general meeting of this case, which was adopted with the intent to ratification the resolution of the instant general meeting under the convening of D, is unlawful as the following procedural defects exist.

A) Since Plaintiff B resigned from the office of the president at the extraordinary general meeting of January 13, 2016 and then appointed as an extraordinary meeting by another clan member participating in the above general meeting, the Defendant’s authority to convene the general meeting is against Plaintiff B, who is the chief of the extraordinary meeting.

B) Even if the Defendant did not have the authority to call the general assembly against the Plaintiff B, W, the co-owner of the Defendant, who was delegated the authority to call the general assembly to D, has withdrawn the delegation of the authority to call the general assembly on March 17, 2019, prior to the notice for convening the general assembly of this case, on the grounds of deception, and therefore, D cannot be deemed a legitimate person to convene the general assembly of this case.

C) D did not give a notice of convening a special meeting of this case to a large number of 1,470 members of the Defendant’s clans whose whereabouts are identified and who can communicate with the Defendant when convening the general meeting of this case.

B. Defendant’s assertion

Since the Defendant held an extraordinary general meeting of this case and legitimately ratified the resolution of the general meeting of this case or made the same resolution as the resolution of the general meeting of this case, the Plaintiffs’ lawsuit against the Defendant is unlawful because it lacks the requirements for protection of rights.

3. Determination of the legality of the plaintiffs' lawsuits against the defendant

A. Existence of interest in confirmation with respect to the resolution to dismiss the R

1) In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of a right, and the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment against the defendant to eliminate the anxiety and risk that exists in the Plaintiff’s rights or legal status (see, e.g., Supreme Court en banc Decision 96Da11747, Oct. 16, 1997).

2) In the special general meeting of January 13, 2016, there is no dispute between the parties as to the fact that R, which was the chairperson of the defendant at the time, retired from the office of the chairperson, and R was appointed as the chairperson of the defendant on January 16, 2015, and the three-year term of office under the Rules of the defendant has already expired, and at present, there seems to be no dispute as to whether R is retired from the office of the president of the defendant. Furthermore, the plaintiffs' assertion also does not require R to retain the defendant's status as the chairperson since D was not lawfully appointed to the defendant's president. Even if the resolution of dismissal of R among the resolution of the general meeting of this case is unlawful, it is difficult to view it as a risk of inbound in the plaintiffs' rights or legal status

3) Therefore, the part of the Plaintiffs’ resolution to dismiss the Plaintiff’s lawsuit against the Defendant is unlawful as there is no benefit of confirmation.

(b) Whether a legitimate ex post facto resolution fails to meet the requirements for protection of rights;

1) The premise for the determination

A) In a case where the previous resolution of the clan which was held after the resolution of the clan general meeting is ratified or re-established at the same clan general meeting, even if the resolution of the original clan general meeting is null and void, seeking confirmation of non-existence or invalidation of the previous resolution of the clan general meeting is merely seeking confirmation of the past legal relationship or legal relationship, unless there are special circumstances, such as where the new resolution of the clan general meeting is deemed null and void due to defects or where such resolution is revoked, and thus, it does not meet the requirements for protection of rights (see, e.g., Supreme Court Decision 2009Da63694, Oct. 28,

B) Therefore, in the event that a resolution was duly ratified at the instant general meeting at the instant general meeting or a resolution was made identical to the resolution at the instant general meeting, there is no requirement for protecting rights to seek confirmation of nullity of the resolution at the instant general meeting. Accordingly, we examine the following matters.

2) Whether a legitimate convening authority has convened the instant special meeting

A) Relevant legal principles

(1) The representative of a clan shall be appointed according to the rules or practices of the clan, and if not, the head of the clan or the head of the clan shall convene and elect his/her clan members, and if not, he/she shall notify the members of the clan of his/her intention to reside in the clan and his/her whereabouts is obvious that they are residing in Korea unless there is any rules or practices regarding the appointment of the head of the clan, and shall convene the clan general meeting and appoint the representative of the clan at the meeting (see, e.g., Supreme Court Decisions 96Da25715, Nov. 14, 1997; 2009Da7182, May 28, 2009). In addition, when a clan member needs to select a representative regarding the management or disposition of the clan's property, and the convening of the clan does not call the general meeting without justifiable reasons, it may be decided by the following persons or promoters who requested the convening of the general meeting (see, e.g., Supreme Court Decision 2009Da96969).

(2) Even though a member of the family who is qualified for the representative of the clan did not directly call the general meeting of the clan, if he consented to the convening of the general meeting of the clan and let the members of the clan call it, it cannot be deemed that the convening of the general meeting of the clan is a person who is not authorized at all (see, e.g., Supreme Court Decisions 2000Da42908, May 14, 2002; 2003Da61689, Jul. 15, 2005).

B) Determination

(1) First, as alleged by the Plaintiffs, whether Plaintiff B was appointed as the head of the Defendant’s extraordinary meeting from January 13, 2016, and Plaintiff B had the authority to convene the general meeting from the time of the instant extraordinary meeting. The evidence No. 6 (written confirmation) states that, at the time of January 13, 2016, Plaintiff B retired from the Defendant’s office as the head of the Defendant’s extraordinary meeting, Plaintiff B was appointed as the Defendant’s head of the Defendant’s temporary meeting and AR as the Defendant’s temporary head of the Defendant’s temporary office. However, the above confirmation document was written around September 13, 2017; it is difficult to believe that Plaintiff B had the authority to convene the extraordinary general meeting from January 13, 2016 to 216, and there is no other evidence to support that Plaintiff B was appointed as the head of the Defendant’s extraordinary meeting from January 16, 2016 to 316.

(2) Next, we examine whether D, which was delegated with the authority to convene the general assembly by W, has the authority to convene the general assembly at the time of the instant special general meeting.

The defendant's rules stipulate that an extraordinary general meeting shall be held from time to time at the request of the chairperson or at least 1/4 of the incumbent clan members (Article 9 of the defendant's rules), but there is no provision about who has the authority to convene the general meeting if there is no representative of the clan who is the person holding the authority to convene the general meeting, and there is no evidence to acknowledge that the defendant has the custom to appoint the representative, and therefore, in accordance with the above legal principles, there is no evidence to prove that the present person has the authority to convene the general meeting for the appointment of the representative if there is no representative of the defendant. The fact that W is the person who has the duty to convene the general meeting of the clan. There is no dispute between the parties, and X representing W delegates the authority to convene the general meeting of the clan around February 20, 2019. The fact that W signed W's name on the power of attorney stating the contents,

As to this, the Plaintiffs asserted that, around March 17, 2019, W, revoked the delegation of the authority to convene a general meeting to D through the instant notice, D lost the authority to convene a general meeting. The fact that W, on behalf of W, would withdraw the delegation of the authority to convene a general meeting on behalf of W on March 17, 2019 is as seen earlier. The delegation of the authority to convene a general meeting by W, is similar to that of the substance of delegation, and W, it is reasonable to deem that W, at any time, can withdraw the delegation of the authority to convene a general meeting (see Article 689 of the Civil Act).

Therefore, as W has withdrawn the delegation of the authority to convene a general meeting on March 17, 2019, D cannot convene a general meeting of the defendant on the grounds of the authority to convene a general meeting delegated by W.

(3) On March 17, 2019, the Defendant asserts that W withdrawn the delegation of the authority to convene the general meeting is refuses to convene the general meeting without justifiable grounds, and D has the authority to convene the instant general meeting in the position of the promoters of the instant general meeting.

W. On or around February 20, 2019, it is judged that D's withdrawal of the authority to convene the general meeting from the position of the defendant's senior citizens to D's 1, but the withdrawal of the authority to convene the general meeting through D's notification on March 17, 2019 is substantially refused. Accordingly, according to the evidence and the whole arguments adopted earlier, X's withdrawal of the authority to convene the general meeting from the position of the defendant's senior citizens. It is reasonable to recognize that D's withdrawal of the authority to convene the general meeting from the position of the defendant's senior citizens to the effect that D's convening the general meeting would not have any legitimate reasons to believe that D's withdrawal of the authority to convene the general meeting from the position of the defendant's senior citizens, and that D's withdrawal of the authority to convene the general meeting from the position of the defendant's senior general meeting would not have any legitimate reasons to believe that D's withdrawal of the authority to convene the general meeting from the above point of view that D's withdrawal of the general meeting would not have been legitimate reasons to resolve.

(4) On the other hand, the plaintiffs asserted that the "Promoters" as stated in the Supreme Court Decision 2009Da26596 Decided December 9, 2010 should be deemed to mean the members of the first clan who participated in the establishment of the clan. However, the clan is a naturally created family organization formed for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship among descendants, and is naturally established at the same time as the death of the ancestor and its descendants, and it does not require any organization for its establishment. Therefore, the promoters of the same meaning as the plaintiffs asserted in the clan such as the defendant cannot exist. Further, the term "Promoters" is widely used as a person who plans the establishment of a corporation under the Commercial Act and prepares its articles of incorporation in addition to the meaning of a person who plans the establishment of a corporation and prepares its articles of incorporation. Accordingly, in this case where the issue of authority to convene the general meeting of this case is at issue, it is reasonable to interpret the plaintiffs' assertion as the person who proposed the general meeting of this case.

C) Sub-determination

D requested W to convene a general meeting, who is the co-resident of the defendant, and W has delegated D with the authority to convene a general meeting and refused to convene a general meeting without good cause. D has the authority to convene a general meeting as a promoter of the special general meeting of this case.

3) Whether the notice was legitimate

A) Relevant legal principles

In the absence of special circumstances, the general meeting of a clan shall provide each person with an opportunity to participate in the meeting, discussion, and resolution by individually informing all the clan members who are clearly residing in the Republic of Korea and who are able to be notified of their whereabouts, after determining the scope of the clan members subject to notification for convening the meeting, unless there are other special circumstances. A resolution of the general meeting of a clan held without a notification for convening the meeting is invalid, but the method of convening the meeting shall not be necessarily required in writing directly, but shall also be done orally or by telephone, and shall be done only by another clan member or by telephone (see, e.g., Supreme Court Decisions 9Da3257, Jun. 29, 2001; 2007Da34982, Sept. 6, 2007).

B) Determination

(1) According to the overall purport of the statements and arguments in the evidence Nos. 1 and 2 (including the branch numbers) of Eul, D shall determine the scope of the clan members subject to a notice of convening a meeting as 1,120, and D shall be deemed to have been held on Apr. 14, 2019 through lawful convening procedures, since it decided the scope of the clan members subject to a notice of convening a meeting on Mar. 14, 2019, by individually sending a letter to 1,083 members of a clan who can be notified because their whereabouts were identified in the Republic of Korea.

(2) The plaintiffs asserted that even 1,470 members of the defendant's clan whose address or contact address was identified among the 1,874 members of the defendant's clan who is subject to D call-up notice, they did not call-up to the 387 members of the clan. The plaintiffs argued that the 1,083 members of the clan did not call-up notice only for 387 members of the clan. The following facts and circumstances recognized by the evidence and the whole purport of the arguments adopted earlier, i.e., the defendant is a clan whose members are 27 years of age or 14 years of age since the members of the clan are currently working for the 12 years of age or 14 years of age since 1,00 members of the clan are considerably larger than 1,00 members of the clan, it is difficult to recognize that the 20 members of the clan were not subject to notice for convening-up notice for convening-up by the defendant's members of the clan, and it is difficult to recognize that 1,000 members of the clan were not subject to have provided other family members of the defendant's.

C) Sub-determination

Therefore, it is legitimate that D's notice of convening an extraordinary general meeting of this case to the clan members of the defendant is legitimate.

4) The scope of the resolution of the instant general meeting lawfully adopted by the resolution of the instant special general meeting

A) At the general meeting of this case, ① the resolution to dismiss R from the president; ② the resolution to appoint D as the president; ② the general secretary; ③ the resolution to appoint the president and the general secretary of the subordinate clan in accordance with the amendment of the clan; ④ the resolution to confirm the sale of the land of this case was adopted respectively; ④ the resolution to confirm the sale of the land of this case was adopted at the general meeting of this case; ② the resolution to revise the rules of the defendant; ② the amendment of the rules of the defendant; ② the resolution to appoint D as the president; ② the operation general secretary; ③ the financial secretary; ③ the resolution to appoint S as the auditor; ③ the resolution to reconject the sale of the land of this case among the resolution of the general meeting of this case; ④ the resolution to suspend the qualification of the members of the clan of this case for the plaintiff A; and

B) Of the resolution of the instant general meeting, the resolution of dismissal of R among the resolution of the instant general meeting, and the resolution of appointment of the president and the chief executive officer as the subordinate members pursuant to the amendment of the clan Regulations was not ratified or adopted at the instant general meeting. Among the resolution of the instant general meeting, each of the above resolutions cannot be deemed to have expired by the resolution of the instant general meeting (Provided, That the part of the resolution of dismissal of R among the plaintiffs' lawsuit did not have interest in confirmation as seen earlier).

C) It is merely a mere fact that a member of the family or promoters has the right to convene a general meeting for the appointment of a representative if he/she is not appointed by the representative of a clan and there is no rules or practice regarding the appointment of a clan (see Supreme Court Decision 2009Da26596, Dec. 9, 2010). It is reasonable to view that the power to convene a general meeting of the promoters who have been authorized to convene a general meeting due to the refusal of the demand for convening a general meeting by his/her father to convene the general meeting is limited to the appointment of a representative. Therefore, in addition to the resolution of appointing D from the general meeting of this case convened by D as a promoter as the chairperson, in addition to the resolution of appointing D as the chairperson who is the representative of the defendant, the amendment of the defendant's rules, ② the resolution of appointing E as the chief executive officer, C as the auditor, and ③ the resolution of renewal of the sale of the land of this case, ④ the resolution of qualification suspension of Plaintiff A as to the general meeting of this case cannot be confirmed or ratified as the same resolution of each of this case.

5) Sub-committee

A) The part of the Plaintiffs’ resolution on the appointment of the president against D among the Plaintiffs’ lawsuits against the Defendant, is unlawful as it lacks the requirements for protection of rights in accordance with the instant special general meeting resolution.

B) However, the part of the plaintiffs' resolution on appointment of operating committee members, the part of the resolution on appointment of general secretary to E, the part of the resolution on appointment of auditors to S, and the part of the ratification resolution on the sale of land of this case cannot be said to have ceased to exist by the resolution on the special general meeting of this case.

Therefore, each part of the plaintiffs' lawsuits against the defendant should be judged on the merits.

4. Judgment on the merits

A. We examine whether the resolution on appointment of operating committee members, the resolution on appointment of general secretary to E, the resolution on appointment of auditors to S, and the resolution on ratification of the sale of the instant land was made lawfully.

B. In a case where the clan members gather regularly at a certain place on a certain day each year in accordance with the rules or practices and are to handle the church affairs of a clan, it is unnecessary to separately convene a clan meeting (see, e.g., Supreme Court Decision 2012Da82602, May 16, 2014). In this case, Article 8 of the Rules of the defendant at the time of the instant general meeting stipulates that the defendant's general meeting shall be held on December 1 of each year, but the above provision does not stipulate that the defendant's general meeting shall be held at a certain place, and there is no evidence to support that the defendant's practice of holding the defendant's general meeting at a certain place has existed in a certain place. Thus, in order for the defendant to hold the general meeting, the defendant must convene a legitimate general meeting (the instant general meeting was convened by a legitimate convening authority under Article 8 of the Rules of the defendant). However, the fact that the general meeting was convened by the legitimate convening authority, and there is no evidence to acknowledge that the general meeting was convened at the court of the first instance (the defendant).

The general meeting of this case is unlawful on the grounds that there is a procedural defect, and thus, there is no assertion or evidence as to the fact that it was convened by a person, or that it was convened by a legitimate procedure.

D. Therefore, among the resolution of the instant general meeting, the resolution on appointment of executive members, ② the resolution on appointment of executive members to E, ③ the resolution on appointment of executive members to S, ④ the ratification resolution on the sale of land of this case is null and void due to procedural defect, and as long as the defendant contests the resolution on the sale of the land of this case on the ground that the above resolution was lawful by post-resolution, there is a legal interest to seek confirmation thereon.

5. Conclusion

Therefore, the part of the resolution of dismissal against R among the lawsuit against the defendant against the defendant, and the part of the resolution of appointment of president against D, shall be dismissed as unlawful, and the remaining claims against the defendant against the defendant shall be accepted for each reason. Since the part of the judgment of the court of first instance concerning the resolution of dismissal against R and the resolution of appointment of president against D are justifiable in that it is consistent with this conclusion, the plaintiffs' appeal against this decision shall be dismissed. However, since the part of the resolution of appointment of operating committee members, the part of the resolution of appointment of general secretary against E, the part of the resolution of appointment of auditors against S, the part of the resolution of appointment of auditors against S, and the resolution of ratification against the resolution of sale of the land in this case is unfair for different conclusion, it shall be accepted by the plaintiffs' appeal, and this case shall be deliberated to the extent that it can be judged on the merits of this case, this court shall decide on the merits itself pursuant to the proviso of Article 418 of the Civil Procedure Act

Correction of Judge

Judges Yang Sung-tae

2) According to Gap evidence No. 18, among the clan members claimed by the defendant that the defendant called a notice of convening a general meeting, AF, AG, AH, AI, and AJ shall constitute the temporary guns of this case.

AK, AL, AM,N, and AO are minors at the time of Congress, and their notifications are excluded from legitimate notices. In addition, AK, AL, AM,N, and AO are written in duplicate

Therefore, the overlapping notification is excluded from legitimate notification. In addition, nine of the members of the clans for which the defendant issued a notice of notification also died.

Although AP and Q are the same person, there is no evidence to acknowledge it, the plaintiff's above assertion is rejected.

3) The Plaintiff B and AB signed their signatures on the list of participants, but left the meeting before the commencement of the special meeting.

4) Of the delegations submitted by the Defendant with 120 persons, the delegations of No. 29,84) and AE (No. 2-30,85) overlaps.

submitted.

5) Even in accordance with any of the existing rules of the defendant (Evidence A No. 8) and the rules of the defendant (Evidence B No. 4), the chairperson of the defendant

The term of office is three years.

6) Although the Plaintiffs stated that it is 1,873 persons, they are deemed to have taken place in the course of making an entry of 184 persons although they identified 185 persons AS wave.

(c)