[1] The method of appointing the representative of a clan and the person who can convene a clan meeting if the person who has the right to convene a clan refuses to convene the clan meeting without justifiable grounds

[2] The method of determining whether a person who has the right to call a clan meeting held to appoint a representative has the right to call a clan meeting

[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 door shall convene and elect persons of full age among the members of the clan, and if not, the head of the clan shall not be appointed by the head of the clan or the head of the door, and shall notify the members of the existing family and the members of the clan who are clearly residing in the Republic of Korea because they are the head of the clan or the head of the door and shall convene the general meeting and appoint the representative of the clan at the meeting, unless there is no rules or practices regarding the appointment, and it is common practice to appoint the members of the clan at the meeting, and it is necessary for the members of the clan to select their representative regarding the management or disposition of the clan's property, but the convening authority fails to convene the general meeting without justifiable reasons,

[2] Since there is no reason to exclude women in determining whether a person has the right to call a clan general meeting held to appoint a representative, it is sufficient to specify a person who has a duty to call a clan general meeting within the extent possible to communicate by identifying whether a person is a member of a clan general meeting by understanding whether he/she is a member of the clan or his/her contact with him/her, who is the highest and lowest among all members of the clans including women. However, since such a person is formally and objectively determined by data, such as a member of the clans, but his/her life and body is unknown or does not contact with him/her, it is sufficient to specify a person who has a duty to call a clan general meeting within the extent possible.

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

[1] Supreme Court Decision 92Da54180 delivered on August 24, 1993 (Gong1993Ha, 2586) Supreme Court Decision 93Da51454 delivered on May 10, 1994 (Gong1994Sang, 1654) Supreme Court Decision 96Da25715 delivered on November 14, 1997 (Gong1997Ha, 3799) Supreme Court Decision 2009Da7182 delivered on May 28, 2009

Plaintiff clan (Attorney Hong-boo et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Kang-gu et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2007Na9789 Decided February 12, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the argument that the plaintiff clan failed to satisfy the party ability

A clan is a naturally created family organization formed by descendants of a common ancestor for the purpose of protecting the graves of the common ancestor and promoting friendship between descendants and the descendants of the common ancestor, and is established by their descendants at the same time as the death of the same clan, and if the clan has been engaged in continuous activities with its organization to the extent represented by the representative elected in accordance with the rules or customs of the clan, the organization as a non-corporate group is recognized, and the issue of whether the clan has the capacity to stand as a non-corporate group is related to the litigation requirements, and it shall be determined at the time of the closing of argument in the fact-finding court (see, e.g., Supreme Court Decisions 91Da3161, Nov. 26, 191; 2009Da95387, Mar. 25, 2010).

According to the reasoning of the judgment of the court below, the plaintiff clan was composed of the descendants of the non-party 1, who is 21 years old, who died in 1695, as the joint ancestor, and was composed of the descendants of the non-party 1 and the non-party 1's wife, and the non-party 1's wife, the non-party 2's wife. The plaintiff clan was provided with funds from the clan members for the protection of the graves of the joint ancestor, religious affairs, and friendship between the clan members, and was provided with funeral services and answers, and managed the clan properties of the clans of the clans, the clans of the clans of the non-party 1, the non-party 2, the non-party 3, the non-party 4, and the non-party 2, the non-party 4, the non-party 5, the general meeting of the non-party 1, the non-party 2, the non-party 5, who was called for the above 5th general meeting, for the purpose of this case.

Examining these facts in light of the above legal principles, it is deemed that the Plaintiff’s clan had the substance as a non-corporate group at the time of December 11, 2008, which was the date of closing argument in the court below. The judgment of the court below that recognized the Plaintiff’s clan’s capacity as a party is somewhat inappropriate at the time of establishing its reasoning, but it is just, and there is no error in the misapprehension of legal principles as to the capacity of party of the clan.

2. As to the allegation that Nonparty 3 has no power of representation

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 door shall convene and elect persons of age or older among its members, and if not, the head of the clan or the head of the door shall not appoint the head of the clan, and if there is no rules or practices regarding the appointment of the head of the clan, the current head of the family or the head of the door shall notify the members of the clan who are clearly residing in Korea and have been living therein and shall convene the general meeting of the clan and appoint the representative of the clan at the meeting (see, e.g., Supreme Court Decisions 96Da25715, Nov. 14, 1997; 2009Da7182, May 28, 2009; see, e.g., Supreme Court Decisions 9Da485, Apr. 15, 1994; 195Da854, Apr. 195, 1995>

Meanwhile, our overall legal order with the highest norm of the Constitution guarantees an individual's dignity and gender equality, does not discriminate on the basis of gender in terms of substantive rights and duties within the family, eliminate discrimination against women in all areas, such as politics, economy, society, culture, etc., and changes in the direction of realizing gender equality in the future. Such principle of gender equality will be strengthened in the future, and the descendants who share the same with the common ancestor and the same surname after the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 naturally become a member of a clan when they come of age without distinction of gender, and since there is no rules or practice regarding the appointment of a clan, it is merely a fact that there is the right to call a clan general meeting for the appointment of a representative, and even if a woman is no longer a member of the clan, there is no special reason to believe that there is sufficient reason to exclude the members of the general meeting of women who have the highest right to contact after July 21, 2005, which is the above en banc Decision.

According to the reasoning of the judgment below and the records, the following circumstances are revealed. In convening the general meeting of the deceased clan on March 18, 2007, the non-party 5 was deemed to be a member of the deceased clan, and the non-party 1 was demanded to convene the meeting first. However, according to the family clan of the plaintiff clan (No. 1-1), the non-party 6, non-party 7, and non-party 8 (n), whose age is higher than that of the plaintiff clan although the non-party 5 and the non-party 1 were the same, the non-party 6 did not state the fact of the family's death, but it seems that the non-party 7 was deceased. However, the non-party 9, the father of the non-party 1 and the non-party 1 was the non-party 1's lineal descendant at the time of his adoption and the non-party 1 was the non-party 1's non-party 1's lineal descendant at the time of his adoption, and the non-party 1 and the non-party 1 was the deceased 16.

Examining these circumstances in light of the above legal principles, the non-party 5 can identify the non-party 4 who has the right to call a clan general meeting for the selection of a representative, and therefore, the non-party 4, the non-party 4, the non-party 5, who has the right to call a clan general meeting for the selection of a representative, shall be deemed to be the non-party 5, who requested the non-party 5 to call a clan general meeting, but did not comply with it, and the non-party 4, the non-party's non-party 4, who was the non-party 5,

In addition, in light of the record, Nonparty 4 notified the convening of the clan general meeting on March 18, 2007 and notified all the members of the clans recognized by the clans, who can communicate by registered mail or ordinary mail, etc., it cannot be said that Nonparty 4 omitted the convening notice to some of the members.

In the same purport, the court below is just in holding that the general meeting of the plaintiff clan on March 18, 2007 was legitimately convened, and the non-party 3 appointed by the resolution of the general meeting was a legitimate representative of the plaintiff clan, and there is no error in the misapprehension of legal principles as to the legality of the resolution of the general meeting of the clan or the representative of the clan, or in incomplete deliberation.

3. As to the assertion that the forest land of this case did not constitute title trust property

In order to recognize that a piece of land is owned by a clan and was trusted to another clan at the time of the situation, it can be recognized only when there are many indirect materials that can only be proved in the course or content of a clan which had an organic organization at the time of the situation, or that there is a lot of situation in which the land has been owned by a clan prior to the situation, or that there is no choice but to recognize it as owned by a clan from before the situation, and it should not be recognized if there are such materials sufficiently proved and there are materials for facts against which they are opposed, and it should not be recognized if there are several indirect materials. It is a circumstance that can be used as such indirect materials, the relationship between the situation and the clan, if there are several persons, the relationship between the situation and the family, if there are several persons, the relation between the situation and the registry, the size of the land, the status of the installation of graves, the management of the land, profits or expenses for the land, the payment of the registration or compensation, and all other circumstances (see, e.g., Supreme Court Decision 2007Do170.

According to the reasoning of the judgment below, the court below held that the plaintiff 1 was composed of the descendants of the non-party 1 and the non-party 1 was set up in the forest owned by the upper clan No. 1, and the descendants of the non-party 1 were described as to the non-party 1, along with the description of the old clan No. 1, while the non-party 1's wife and the non-party 2's wife No. 1 were installed in the forest of this case, and the non-party 1's descendants were set up in the forest of this case, and the non-party 1's wife No. 12 and 13 were set up in the non-party 2's name for 0 years, and the non-party 1 and the non-party 11 were not set up in the non-party 1's body and the non-party 2's name before the circumstance of this case, and the non-party 1's forest of this case was not set up in the non-party 1's name title trust.

In light of the above legal principles and the above facts, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the title trust of clan property, the existence of clans, and the presumption of registration, or in violation of the rules of experience or rules of evidence.

4. As to the assertion that it is against the Act on the Registration of Real Estate under Actual Titleholder’s Name

The defendants' ground of appeal in this part is premised on the premise that the plaintiff's clan is not a unique clan but a similar organization of a clan, and since the plaintiff's clan is a clan of its unique meaning, the plaintiff's ground of appeal in the different premise is without merit.

5. As to the assertion that deeming a clan as a naturally created organization violates the freedom of association and the principle of private autonomy

The Supreme Court's decision that a clan naturally becomes a member of the clan regardless of his/her own will, is that the clan naturally established by descendants for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship. As a result, anyone who is the descendants of the common ancestor naturally becomes a member of the clan regardless of his/her social status, living area, and property, and by allowing them to manage or dispose of the clan property according to the intention of the whole members, thereby preventing some descendants from disposing of and losing the clan property, and thereby preventing the clan from becoming a member of the common ancestor from being disposed of by his/her descendants, and thereby, the role and function of the clan to maintain and operate in accordance with the original purpose of protecting the graves of the common ancestor, conducting religious services, conducting religious services, and promoting friendship among members. Since the duty of the members of the common ancestor is strong moral and ethical nature, even if the descendants of the common ancestor become a member of the clan regardless of their own will, it cannot be viewed that it goes against the principle of private autonomy of the clan, and thus, it cannot be viewed that it goes against the legal order of individual's.

6. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Min Il-young (Presiding Justice)