[2] Whether a member of a clan bears the duty of care when he/she performs the business of managing and disposing of the clan property (affirmative)

[3] In a case where Gap clan entrusted Eul et al. with all necessary authority to file a lawsuit for the return of the land which was trusted to Eul et al., and Byung brought a lawsuit for the return of the clan on behalf of the clan Byung, which became final and conclusive in favor of the defendant, and the clan decided to donate part of the clan to Byung et al. with the meaning of the auditor's recovery of the clan by contributing funds to the clan for the restoration of the clan and by acting for the litigation affairs, and returning the whole clan to the clan by returning it to the clan in its meaning, the case holding that the above donation resolution was null and void because the contents are remarkably unfair or social validity

[2] The officers of a clan who are in a contractual relationship similar to the clans shall not only follow the rules of the clan nor the resolution of the general meeting of the clans, but also have the duty of care as a good manager in carrying out the affairs of management and disposition of the clan properties.

[3] In a case where the clan Gap delegated all the authority necessary for filing a lawsuit, etc. for the return of the land trusted to Eul et al., and Byung filed a lawsuit for the return of the clan on behalf of the clan Byung, which became final and conclusive in favor of Byung, and the clan decided to donate part of the clan to Byung et al. with the meaning of the auditor's recovery of the clan by contributing to the management of the clan for the restoration of the clan and returning the entire clan to the clan by acting for the litigation affairs, thereby returning the clan in full to the clan, and transferring part of the clan to the auditor's meaning, the case holding that even though Byung has contributed to the restoration of the clan's property, it is nothing more than the fact that the clan naturally performed the duties that should be naturally an executive officer of the clan who is responsible for the care of the clan's property, even if it has contributed to the restoration of the clan's property, and thus, the above resolution of donation

1. A clan is a naturally created clan group composed of the members of the common ancestor for the purpose of protecting the graves of the common ancestor and promoting friendship among the members of the clan, and the clan property is essentially important factor in achieving the purpose of the clan. In light of the purpose and essence of the clan, the nature and importance of the clan property, where the resolution of the clan general meeting on the distribution of the clan property is considerably unfair or its social validity is determined contrary to good morals and other social order (see Supreme Court Decision 2007Da74775, Sept. 30, 2010).

In addition, the executive officers of a clan who are in a contractual relationship similar to the clans have the duty of care as a good manager as well as the rules of the clan or the resolution of the general meeting of the clans in managing and disposing of the property of the clans (see Supreme Court Decision 2007Do6554, Dec. 28, 2007).

2. A. Review of the reasoning of the lower judgment and the record reveals the following.

1) The Plaintiff is a clan of Nonparty 3, Nonparty 2, Nonparty 2’s son of Nonparty 1, Nonparty 2’s son of Nonparty 2, who is the starting point of the Gimnam-gun of the Gimnam-gun of the Republic of Korea. Defendant 2 was the Plaintiff’s president from March 1, 2006 to October 201, and Defendant 3 was the vice-president and the vice-president. Defendant 4 was the vice-president.

2) On March 1, 2006, the Plaintiff: (a) held a general meeting on March 1, 2006, held a title trust to Nonparty 5, etc.; (b) held the registration of ownership transfer under the name of the clan 84,822 square meters, and decided to delegate all necessary powers, such as filing a lawsuit, to Defendant 2. Defendant 2 filed a lawsuit against Nonparty 5 and two other persons on behalf of the Plaintiff, and was sentenced to the dismissal of the lawsuit in the first instance court; (c) won in the appellate court and the appeal was dismissed on February 12, 2009, and thus the judgment of winning the lawsuit became final and conclusive.

3) On November 23, 2009, the Plaintiff held a general meeting of shareholders (hereinafter “instant general meeting”). The Plaintiff decided to donate part of the Plaintiff’s clans to Defendant 2, Defendant 3, and Defendant 4 (hereinafter “Defendant 2, etc.”) to donate part of the Plaintiff’s clans to Defendant 2, Defendant 3, and Defendant 4 (hereinafter “Defendant 2, etc.”) with the following resolution: “To contribute to the Plaintiff’s private expenses to restore the Plaintiff’s clans and to return the entire clans to the clans by acting for the litigation affairs, and to contribute to the auditor’s recovery of the clans.” The Plaintiff made a resolution (hereinafter “instant donation resolution”).

4) Afterwards, Defendant 2, etc. completed the registration of ownership transfer for each land listed in the separate sheet as indicated in the lower judgment, and Defendant 2 sold the land that completed the registration of ownership transfer under that name to Defendant 1 and transferred the ownership.

B. Based on the above factual basis, the lower court rejected the Plaintiff’s assertion that the instant gift resolution was null and void in violation of Article 20 of the clans No. 20 that prohibits the distribution of clan property, on the following grounds

1) Although Article 20 of the Constitution of the Republic of Korea provides that "the plenary session's property shall be operated for the business necessary for the development of the clan and shall not be distributed to individuals of the clan, it does not absolutely prohibit the distribution of the clan property, but rather, Article 21 of the Constitution of the Republic of Korea stipulates that the distribution of the clan property may be rewarded to "a person who has contributed to the development of the plaintiff", and the distribution and reward of the clan property may be performed by the resolution of the general meeting of the clan because it constitutes the disposal of the clan property. Therefore, it is reasonable to deem that the plaintiff may be rewarded for the clan property through the resolution of the general meeting in accordance with

2) Considering that the Plaintiff recovered ownership of several parcels through a lawsuit seeking the return of the clan and that Defendant 2, etc. contributed to a certain portion, the resolution of the instant general meeting cannot be deemed to be cases where the content of the resolution of the instant general meeting is considerably unfair, contrary to good morals and other social order, or where the intrinsic substance of the fundamental rights is infringed upon by the members of the clan. It is difficult to deem that Defendant 2 actually divided the land.

3. A. However, examining the following facts and circumstances known by the reasoning of the lower judgment and the record in light of the legal principles as seen earlier, the lower court’s aforementioned determination is not acceptable.

1) The Plaintiff’s religious constitution provides that “The purpose of the Plaintiff’s religious services is to inspire the ancestor worship and to promote friendship and unity among the members and to permanently cultivate the ice of a fishing boat (Article 4).” In order to achieve this purpose, the Plaintiff’s religious services are to carry out business necessary for the development of a clan, such as ① the heart of a fishing boat, preservation and preservation of a fishing boat, ② the maintenance and repair of a mountain boat, ③ the management of the protection of the species and species of a species (Article 5).

2) In addition, Article 20 of the Plaintiff’s Constitution provides that “In principle, the property of the plenary session shall be operated for the business necessary for the development of the clan and not distributed to individuals of the clan,” it shall be deemed that the full meaning of the clan members, which is essential for the preservation, maintenance, and management of the clan property, is reflected in the achievement of the principal purpose of the clan, which is the protection and religious services of the graves

3) The fact that Defendant 2, etc. brought a lawsuit for the return of the clan and carried out the duties necessary for the restoration of the clan properties is merely the duty of care of a good manager who is borne by the clan as a member of the clan for the achievement and development of the purpose of the clan.

4) Although the Plaintiff’s religious constitution stipulates that “a person who has contributed to the development of the plenary session” can be rewarded for “a person who has contributed to the development of the plenary session” (Article 21), considering the above, it is difficult to view that Defendant 2, etc. merely performing a natural duty to a clan is justified to receive a donation of part of the clan restored solely on the ground that Defendant 2, etc., who recovered the clan property through a lawsuit for returning the clan

5) On March 1, 2007, before the resolution of donation was passed at the general meeting of this case, the Plaintiff: (a) held an extraordinary general meeting on March 1, 2007 and passed a resolution with the consent of 225 members to pay 7% of the winning amount as honorariums for the expenses incurred in the clan return lawsuit with the consent of 217 members; and (b) made a resolution with the consent of 328 members present at the extraordinary general meeting on January 26, 2008 to ratification the above resolution. However, it is difficult to view that Defendant 2, etc., etc., without the consent of 3rd members of the general meeting, etc., submitted the power of attorney to appoint a lawyer who will act as proxy for the filing of the lawsuit from many members of the clans for the return of the clans and delivery fees to the appellate court of the lawsuit to return the clans; and (c) there is no other evidence to verify the same portion of winning the case’s funds from the 25th general meeting of this case’s farmland to the total amount of 17.7%.

B. Ultimately, even if Defendant 2, etc. has contributed to the recovery of the clan properties, it is nothing more than performing the duties to be naturally an executive officer of a clan who bears the duty of care, so the resolution of this case where Defendant 2, etc. distributes to Defendant 2, etc. the considerable portion of the recovered clan properties beyond the scope of compensation or remuneration within reasonable scope, in addition to compensating for actual expenses or paying remuneration, shall be deemed null and void by significantly unfair contents or making a decision on social validity. Nevertheless, the lower court erred by misapprehending the legal doctrine on the distribution of clan properties, which affected the conclusion of

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)