[1] The meaning and validity of the customary law, and the requirements for recognizing that "social norms created by repeated practices of the society" have reached the recognition as a legal norm

[2] The case where "social norms created by repeated practices of the society, approved as a customary law, lose their validity as such legal norms

[3] The validity of the past customary law that limits the qualification of clan members only to adult males

[4] Whether descendants who share the same family name and the same family origin of a common vessel naturally become members of a clan when they become majority without distinction of gender (affirmative) and the grounds therefor

[5] Whether the changed opinion of the Supreme Court on the qualification of clan members is applied retroactively to the qualification of clan members before the decision of this case is rendered (negative)

[6] Grounds for retroactively applying the changed opinion of the Supreme Court on the qualifications of clan members, limited to the claim of this case seeking confirmation of the status of clan members

[1] Common law refers to a social norm created by repeated practices of the society, which is approved and enforced as a legal norm through the legal conviction and recognition of the society. Such common law is effective as a law, unless it conflicts with the law and law, and in order to deem that a certain social norm created by repeated practices of the society has reached the recognition as a legal norm, it shall not be in violation of the overall legal order with the highest norm of the Constitution, and it shall be recognized that it is justifiable and reasonable, and such non-social norm shall not be recognized as a common law, even if it is created by repeated practices of the society.

[2] Even if a social norm created by repeated practices of the society has been approved as a customary law, if the members of the community has not satisfied the legal binding force of such practices, or if such customary law does not fit the overall legal order at the time of application due to changes in the basic ideology governing the society or in the social order, such customary law shall be denied its validity as a legal norm.

[3] [Majority Opinion] The legal conviction of the members of our society with respect to the past custom that limits the membership of a clan to adult male, which does not qualify as a member of a clan, has been shaking or weak, and above all, our entire legal order which is the highest norm of the Constitution, shall guarantee individual's dignity and gender equality, shall not discriminate on the basis of gender in terms of substantive rights and duties within the family, shall eliminate discrimination against women in all areas, such as politics, economy, society, culture, etc., and shall be changed in the direction of realizing gender equality. In the future, the principle of gender equality is strengthened. Since a clan is a clan organization formed for the purpose of protecting the graves of a common ancestor and promoting friendship among its members and between their descendants, it is naturally created upon the death of the common ancestor, but it is not reasonable to grant only adult male members among the descendants of a common ancestor, and that it is not possible to become a member of a clan, as it does not fit the legal order as seen above, since it is no longer legitimate to recognize the status of a clan as a member of a clan as a whole and its entire clan.

[Separate Opinion] We agree with the fact that the accident centering on the side of the family must be re-dried and re- combined, considering that the clan is a male, more careful review is required for the scope and limit of the gender equality in the clan, and in particular, since the clan is a unique traditional product in the Republic of Korea that is difficult to find the origin from other countries, our traditional culture is in harmony with the modern legal order in light of Article 9 of the Constitution, and it is necessary to continue to implement the religious services and make efforts to inherit and develop in harmony with the modern legal order. Therefore, in the unique meaning of clans, the most important duties of the clans are to continuously carry out the religious services of the common ancestor, and therefore, it was the main duty of raising and bearing materials required for the religious services, such as the religious services, purchase of seedlingss, mountain and fishing villages, repair, etc., and the majority opinion is not legally compulsory but moral and ethical duty, and therefore, it is difficult to say that the part of the clans, regardless of its existing legal relationship, which is not a matter of the customary law, so it cannot be deemed as a member of the clan.

[4] [Majority Opinion] Since a clan is a naturally created clan group composed of members for the purpose of protecting the graves of a common ancestor, promoting friendship among its members, etc., it is reasonable to view that the descendants sharing the same clan with the common ancestor and the family clan naturally become its members if they become majority without distinction of gender, in light of the purpose and essence of the clan.

[Separate Opinion] Generally, in recognizing the qualification of a member of a private local government, there is no reason to view that a member should be artificially or compulsorily incorporated into a member regardless of the belief or intent of a person being a member, and the freedom of association refers to the individual freedom of association for natural persons and corporations, at the same time guarantee of the establishment and the existence of a association, and at the same time guarantee of the association association's establishment and existence, and the specific contents thereof guarantee the freedom of association enforcement, compulsory and automatic membership, i.e., the freedom of membership and withdrawal, and in particular, the descendants who share the same clan with a common election and the result are more so in a judicial decision that individual freedom of conscience and freedom of religion should be guaranteed, such as in a clan, and in a case where adult females expressed their intention to join a clan without distinction of gender, they should be viewed as a member of the clan by expressing their intention to become a member of the clan unless there is a reasonable ground to believe that adult females is not a member of the clan.

[Supplementary Opinion to the Majority Opinion] The Concurring Opinion criticizes the fact that a clan member becomes a member of the same clan regardless of his/her will by taking into account the freedom of association and the freedom of conscience does not take into account the essence of the clan and the characteristics that the clan is distinguished from ordinary associations or non-corporate groups, and it is difficult to understand why he/she becomes a member of the same clan regardless of his/her will and why he/she becomes a member of the same clan is not a problem, and it is difficult to understand why he/she becomes a member of the clan

[5] The change of the opinion of the Supreme Court on the qualification of clan members is a customary system that changes the foundation of the clan system, which has been governed by the legal relations by the Supreme Court precedents, and the Supreme Court's change of the opinion that "the descendants who share the same clan and the same clan with the clan naturally become a member of the clan when they reach age without distinction of gender" is more consistent with the change of the general perception of clan members in our society and the previous common law that only adult male as a member of the clan due to the change of the overall legal order does not fit the idea of gender equality oriented by our legal order, and if the changed opinion is applied retroactively to the above changed opinion, it is reasonable to apply the changed opinion only to the qualifications of clan members and legal relations that are newly established after the decision of the Supreme Court.

[6] The Supreme Court's change of the previous opinion as to the qualification of a clan member is naturally a member of the Supreme Court when the descendants who share the same group and the same surname are adult without distinction of gender, and the purport of this change is to exclude the validity of the previous customary law and to judge the case in question. If the plaintiffs dispute the validity of the previous customary law and claim that they are eligible for the membership of the defendant clan in order to recover their rights, the changed opinion is inconsistent with the essence of the judicial action aimed at protecting the rights of the parties in specific cases, as well as is clearly contrary to justice, so only if the plaintiffs seek the confirmation of the status of a member of the defendant clans association, the changed opinion should be applied retroactively to this case.

[1] Articles 1 and 106 of the Civil Act / [2] Articles 1 and 106 of the Civil Act / [3] Articles 1 and 31 of the Civil Act, Articles 11(1) and 36(1) of the Constitution / [4] Articles 1, 31, 105 of the Civil Act, Articles 19, 20, and 21(1) of the Constitution / [5] Articles 1 and 31 of the Civil Act / [6] Articles 1 and 31 of the Civil Act

[1] Supreme Court Decision 80Da3231 delivered on June 14, 1983 (Gong1983, 1072) Supreme Court en banc Decision 2001Da48781 Delivered on July 24, 2003 (Gong2003Ha, 1785)

The court below's ruling and two others (Attorney Woo-young et al., Counsel for the defendant-appellant)

Cheong Song-sung (Attorney Lee Jong-ho, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na36097 delivered on January 11, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Summary of the judgment below

The court below rejected the plaintiffs' assertion that the defendant is a natural group of the clans that consists of adult male among the descendants of the 19-year-old Sim of the Sims of the Sims of the Sims of the Sims of the Simsa, and that the plaintiffs are the descendants of the Simsa, and that the plaintiffs are the descendants of the Simsa, and that the plaintiffs are the descendants of the Simsa, and that the plaintiffs are the descendants of the Simsa and are the members of the defendant's clan as the descendants of the Simsa, the court below rejected the plaintiffs' assertion on the grounds that since the defendant cannot become the members of the Simsa, as long as they are the clans of the Simsa, which consist of adult male among the descendants of the Simsa, who are the descendants of the Simsa, for the purpose of protecting the graves of the common ancestor and promoting the friendship between the members, they cannot become the members of the clans.

2. Judgment of the Supreme Court

A. Previous Supreme Court precedents on clans

In the past, the Supreme Court has defined a clan as a customary organization as a natural group of the clan that consists of adult male members among the descendants of the common ancestor for the purpose of protecting the graves of the common ancestor, conducting religious services and promoting friendship among its members, and the clan does not require special organization activities for the establishment of the clan since it is established by his descendants at the time of the death of the common ancestor, and therefore, it does not necessarily require special organization activities for the establishment of the clan. Therefore, a clan member must naturally become a member of the clan regardless of his/her will, and therefore, it seems that it would be contrary to the essence of the clan to revise regulations to the effect that some of the members of the clan are not treated as the members of the clan, or that some of the members of the clan are not treated as the members of the clan, or that it is not possible for a person who is not a blood relative or a woman to become a member of the clan.

B. Requirements for customary law

Common law refers to a social norm created by repeated practices of the society, which is approved and enforced as a legal norm by legal conviction and recognition of the society, and such common law is effective as a rule of law unless it conflicts with the law (see Supreme Court en banc Decision 80Da3231, Jun. 14, 1983). In order to deem that certain social norms created by repeated practices of the society have reached the recognition as a legal norm, it shall not be in violation of the overall legal order with the highest norm, and it shall be recognized that legitimacy and rationality are recognized, and such non-social norms may not be recognized as a common law even if they have been generated through repeated practices of the society (see Supreme Court Decision 2001Da48781, Jul. 24, 2003).

Therefore, even if a social norm created by repeated practices of the society has been approved as a customary law, if the members of the society has not satisfied the legal binding force of such practices, or if such customary law does not fit the overall legal order at the time of application due to changes in the basic ideology governing the society or in the social order, such customary law shall be denied its validity as a legal norm.

C. Validity of the past customary law that limits the qualification of clan members to adult male

(1) Changes in the social perception of clans

A clan is a system based on the idea of ancestor worship, which is the most important idea of religious worship, based on the concept of ancestor worship. It was established with the main purpose of continuously carrying out religious rites, while achieving a close living community among members for the maintenance and succession of a family centering on the male blood relatives, and the traditional practice of members of a clan with only adult male was based on the family register based on these principles of law, family system centered on large family and self-sufficiency based on the agricultural landscape, in principle.

However, in the process of the rapid economic growth and urbanization since the 1970s, traffic and communication have developed in a weak way, the population has concentrated on the city while moving across the nation, the individualism has developed, the participation of public education and women in social activities has been greatly increased, and the awareness of gender equality has been spreading more widely, so there has been a big change in family life, religious culture, etc.

In family life, according to the decline in the rate of childbirth and the decline in the concept of support for both parents and unmarried children based on the living community of nuclear families consisting of parents and unmarried children, the proportion of families with only their children has increased, and there has been no difference in the role of children and unmarried children in support for their parents, and it has become no longer recognized as a special day for women to participate in religious affairs as a result of the rapid change in the past strict institution method due to the spread of nuclear families.

In addition, as cremation spreads due to the formulation of a national land use plan for the efficient utilization of the national land and changes in the cemetery system, the foundation for the existence of a clan, which is one of the main purposes of the funeral, has emerged, and the development of personalism and the development of the concept of worship for the ancestor, has weakened the concept of worship for the ancestor, and some of the phenomenon has appeared in the in-depth situation to the clans. On the other hand, as well as the improvement of the development of traffic and communication and the improvement of economic living conditions, interest in the clans has increased due to the increase of self-realization and the desire for self-verification.

This changed social reality has brought about a significant change in the perception of the people of the members of a clan. In order for a clan to clarify the scope of the members of the clan, there have been cases where only children are recorded in the past in the compilation of the family register that records the whole members of the clan, their spouse, and their personal ability, etc., but today, it has been generalized to record them together with children. Unlike the operation of the family register centering on the family register in the traditional family register based on the traditional family register, many clans that give adult women the status of the members of the clan have emerged, and furthermore, women who are the members of the clan are working as executive officers of the clan have appeared.

Ultimately, due to the foregoing changes in social environment and perception, the legal conviction of the members of our society with respect to the past custom that limits the membership of a clan to adult male and that does not grant membership to women cannot be determined to have been extinguished at present, but a considerable part of it is shaking or weak, and such phenomenon seems to further deepen with the passage of the time.

(2) Changes in our social legal order

At the time of the enactment of July 17, 1948, all citizens of the Republic of Korea declared that they shall be equal in front of the law and shall not be discriminated against in all areas of political, economic and social life by gender. However, in the field of family law governing family life relations, the principle of gender equality declared in the Constitution has not been immediately reflected.

After that, in the Constitution revised on October 27, 1980, the provision that marriage and family life should be established and maintained on the basis of the dignity and gender equality of individuals was newly established. This is the expression of the constitutional intent that because it is difficult to regard the traditional family system of our country, which was governed by the school building, as it is based on human dignity and gender equality, it shall be established and maintained as a family relationship in accordance with the ideology pursued by the Constitution.

On the other hand, since January 26, 1985, the United Nations Convention on the Elimination of Gender Discrimination against Women (CONNOE OEMINAFOF OL OLD DITRAL DITRAL OLOF 'discrimination against women' means any distinction, exclusion or restriction based on gender-based for the purpose of impairing or nullifying human rights and fundamental freedom on the basis of gender, regardless of whether a woman is married in political, economic, social, cultural, citizen or other fields, and the removal of laws, regulations, customs and practices that cause discrimination against women in the Contracting States of the above Convention, and the removal of 199 of the Civil Code from 199 to 191 of the Civil Code, reflecting the concept of discrimination against women and women's roles and the removal of family-based discrimination against relatives and women's relatives, and the removal of 191 of the Civil Code, which is a new legal system and takes place within the scope of 191 of the Civil Code.

In addition, the Framework Act on Women's Development, which was enacted by Act No. 5136 on December 30, 1995 and enacted on July 1, 1996, aims to promote gender equality and to promote women's development in all areas of politics, economy, society and culture. All citizens recognize the importance of the promotion of gender equality and women's development, and endeavor to realize it. The State and local governments are obliged to prepare legal and institutional devices necessary for the promotion of gender equality, the expansion of women's participation in society and the promotion of women's welfare, and to take active measures for the realization of substantial gender equality by promoting women's participation within a reasonable scope.

Furthermore, the Civil Act amended by Act No. 7428 of March 31, 2005 deleted the provisions concerning the head of a family and the provisions concerning the entry, reinstatement, establishment of a family, and establishment of a branch of a family, which are premised on the system of the head of a family, on the grounds that the system of the head of a family, which forms a family centering around the head of a family and succeeds to it through the lineal descendants, does not fit with the constitutional ideology of gender equality and various forms of families following changes in the times, and in principle, the sex and the main surname of the child, but at the time of reporting the marriage, has been stipulated that the mother's surname and the main surname can be followed by the agreement of the parents at

(3) Validity of the past customary law concerning clan members

As seen earlier, the legal conviction of the members of our society with respect to the past custom that limits the membership of a clan to adult male, which does not grant the membership of a clan, has been shakinged or weak, and above all, our overall legal order which is the highest norm of the Constitution, shall guarantee individual's dignity and equality in fostering, shall not discriminate on the basis of gender in terms of substantive rights and duties within the family, shall eliminate discrimination against women in all areas, such as politics, economy, society, culture, etc., and shall be changed in the direction of realizing gender equality, and such principle of gender equality is further strengthened in future. Since a clan is a clan organization formed for the purpose of protecting the graves of a common ancestor and promoting friendship among its members, it is naturally created by its descendants at the same time as the death of the common ancestor, but it is not reasonable to grant only adult male members among the descendants of a common ancestor and to become the members of a clan, and thus, it cannot be justified as it does not fit with the existing customary law, which restricts the qualification of a clan to participate in the activities of a clan, such as the graves, etc.

(d) Qualification of clan members;

Article 1 of the Civil Code provides that civil affairs shall be governed by the customary law unless otherwise provided in the law, and if there is no customary law, it shall be governed by the cooking. Since the past custom on the members of a clan, which has been governed by the customary law, not the sexual law, cannot be legally effective, the qualification of the clan members shall be supplemented by cooking as provided in Article 1 of the Civil Code.

Since a clan is a naturally created clan group composed of members for the purpose of protecting the graves of a common ancestor, promoting religious services, and promoting friendship among its members, it is reasonable to view that descendants who share the same clan with a common ancestor will naturally become its members when they reach majority without distinction of gender, in light of the purpose and essence of the clan.

E. Time of application of new precedents and retroactive application of this case

The change of the opinion of the Supreme Court on the qualifications of clan members is a customary system that changes the foundation of the clan system in which legal relations have been regulated by the Supreme Court precedents. Accordingly, the change of the opinion in this decision is due to the change of the general perception of clan members in our society and the change of the overall legal order, and the previous customary law that only adult male members are members of a clan no longer coincide with the idea of gender equality pursued by our legal order, thereby denying its legal validity. In addition, if the changed opinion is applied retroactively to the above changed opinion, the validity of a lot of legal relations formed by trust in the previous Supreme Court precedents, which have been maintained for over a long period of time until the past, will be judged temporarily, and this is also contrary to the principle of the rule of law that protects the trust of the parties based on the legal stability and the principle of good faith, so it is reasonable that the changed opinion of the Supreme Court should apply only to the qualifications of clan members after the decision was made, and to the legal relationship newly established in relation to them.

However, the Supreme Court's purpose of changing its previous opinion on the qualifications of clan members is to exclude the validity of the past common law and ultimately to judge the case. If the above changed opinion is not applied to this case where the plaintiffs dispute the validity of the past common law and claim that they are eligible to be the members of the defendant clan in order to recover their rights, it is against the essence of the judicial action aimed at the remedy of the parties' rights in a specific case as well as is considerably contrary to the justice, and thus, the changed opinion should be applied retroactively to the claim of this case where the plaintiffs seek confirmation of the status of the members of the defendant clan.

Therefore, the judgment of the court below that recognized the validity as a customary law, which is a legal norm, to limit the qualification of clan members to adult male, and applied this to the plaintiffs who are adult female, did not recognize the qualification of clan members, is erroneous in the misapprehension of legal principles as to the validity of the customary law, which affected the conclusion of

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and the case shall be 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, except for the separate opinions as set forth in the above by the Chief Justice of the Supreme Court, Chief Justice Lee Ki-dam, Justice Zoo, Justice Zwon, Justice Lee Ki-sik, Justice Park Jae-dam, and Justice Kim Yong-dam, and

4. The separate opinions by the Chief Justice of the Supreme Court, Justice Lee Yong-dam, Justice Zon, Justice Zon, Justice Lee Ki-sik, Justice Park Jae- Jae and Justice Kim Yong-dam

A. We agree with the majority opinion that there should be some changes in the previous customary law concerning clans in accordance with the changing of times and the change of legal order in our society.

However, we cannot agree with the majority opinion that it is reasonable to view that the descendants who share the same clan and the same clan as the previous clan naturally become members of the clan for reasons as stated in the majority opinion.

B. (1) It is clear that the past common law on clans approved by the Supreme Court is "a naturally created clan organization consisting of adult male members among the descendants of the common ancestor," and it is the case that the clans with such unique meaning is based on the accident centered on the male blood relatives.

Even though we agree with the fact that the accident centering on the male blood relatives must be re-dried and re-evaluation, it is necessary to review more carefully about the scope and limit of the gender equality in the clans, when considering that the clans or the middle group of the clans are male (it is possible to make the clans or the middle group of the clans, but it is an issue outside the scope of the customary law).

In addition, a clan is a unique system in Korea that is difficult to find the origin from other countries, and is the product of our tradition. However, our constitutional state has the constitutional obligation to endeavor to inherit and develop traditional culture and to promote national culture (Article 9 of the Constitution). Therefore, in evaluating the past common law on clans, our traditional culture should be inherited and developed in harmony with the modern legal order.

(2) While the majority opinion states that the previous customary law does not fit our legal order, it evaluates the customary law of clans only on the basis of the principle of gender equality for the members of a clans.

However, a clan is a religious community and a family community in its principal function, and is in essence a private local government.In addition, the elements to be considered in judging whether it is constitutional or legitimate for the formation of a private local government in light of the "total legal order" are not only the principle of gender equality, but rather the relationship with the freedom of association under Article 21 (1) of the Constitution should be first reviewed.

In addition, with respect to religious rites which are one of the main objectives of the clans, a variety of positions can be taken from the view that religious rites are the basic and good customs that must be succeeded to, from the view that they are passively silents from the view that they are the basic and good customs that should be passive, or from the view that they are regarded as superficials based on religious faith or conscience, and they should be guaranteed individual freedom. Therefore, the relationship between the freedom of conscience (Article 19 of the Constitution) and the freedom of religion (Article 20 of the Constitution) should be considered carefully.

(3) In light of such basic perception, there is no question about the conclusion that the descendants who share a common line with the majority opinion as well as a result will naturally be the members of the society if they reach majority without distinction of gender.

In general, in recognizing the qualification of a member of a private local government, there is no cooking that a person should be incorporated as a member either artificially or compulsorily regardless of the faith or intent of the member.

As well known, the freedom of association is an individual's right to freedom of conscience for natural and legal persons, and at the same time guarantees the establishment and existence of association. In detail, it means the prohibition of forced formation or forced and automatic joining, i.e., the guarantee of the freedom of joining and withdrawal from association, and in particular, it is more in a judicial decision that should guarantee an individual's freedom of conscience and freedom of religion, such as a clan.

(4) Nevertheless, the majority opinion's above conclusion is the balance between the fact that the clan is a "naturally created organization" and that adult male naturally becomes a member of a clan regardless of his/her will.

However, the Supreme Court's decision that the clan is naturally created is the expression of the phenomenon (a phenomenon) that naturally gathered to keep the ancestor and promote friendship without any special convocation authority or convocation procedure, and it is not all a norm that the clan must be naturally created. Therefore, if the logic of the logic that the clan is a natural created organization that all adult females should be members of the clan regardless of their will, if it is a logical structure that the clan is naturally created, it shall be members of the clan regardless of its intention, it is believed that it is confused with facts and norms.

In addition, it is widely known that adult male under the past common law has been judged by the Supreme Court to become a member of a clan regardless of his/her will, and it is our view that there is no problem as to this part. However, in its unique meaning, the most important duties of the members of the clan are to continue to perform their religious services for the common ancestor, and therefore, the members of the clan were to procure and bear materials required for religious services, such as the preparation of religious services, the purchase of religious services, the purchase of religious services, the protection of tombstones, and the repair of religious services. Such bearing of the members of the clans is not legally enforced, but because they are not moral and ethical duties, and they are merely moral and ethical duties, and there is no substantial infringement on their rights. Therefore, it is only because the law does not interfere with.

Therefore, it is too mechanical that the majority opinion intends to accomplish the principle of equality between men and women even on the legal relations newly created without such basis on the grounds that there can be still be some parts of the past customary law due to the power of common law and tradition.

(5) In light of the above, the part at issue among the past common law on the formation of a clan is limited to the part excluded from the clan just because an adult woman who has expressed his/her intention to join a clan is a woman. This is because the right to honor and personal rights through the protection of graves and religious services held by descendants of a common ancestor and the friendship among members of a clan, or the right to use, manage, and dispose of clan property can only be realized through a clan by its nature. In particular, there are some phenomena where the desire of adult women to participate in a clan has increased because the awareness of women's rights and desire to confirm the existence of a new clan has increased, but excluding their participation only on the ground that a woman is a woman cannot be permitted under the Constitution and the current legal order of our country.

In addition, we think that the above problems can be sufficiently resolved within the current legal order. In other words, Article 103 of the Civil Code provides that a juristic act with a content that violates good morals and other social order shall be null and void, and even an organization subject to private autonomy shall not inflict damages on others as an act contrary to good morals and other social order. Thus, in light of these legal principles, if an organization wishes to join a certain organization with a serious or essential interest, it shall not give discriminatory treatment or disadvantage to the individual by refusing to join the organization without reasonable and justifiable grounds.

Therefore, even if the articles of association of the organization stipulate separate membership requirements, such requirements cannot be unlimitedly justified, and they should be deemed to bear the duty to allow membership unless there is legitimacy and rationality. This is because the above legal principle can derive a conclusion in line with the overall legal order even if the customary law which has traditionally verified about the formation of a clan is not ever thiff.

(6) The majority opinion is our thought that there is a problem in terms of the legal practice. The most recent change in the purpose and function of a clan is that the property community character of a clan has become more serious and more important than that of a religious community and a friendship community. In addition, as the value of a clan property has increased along with the national land use plan and a change in the funeral culture, the interest in the participation of a clan has increased, while disputes surrounding the legal relations of a clan have increased and become more serious.

However, first, the problem of the qualification of the clan members and the distribution of the clan properties should be considered to be completely separate issues. Although the clan property exists to achieve the purpose of the clan, such clan property is prohibited in principle from being disposed of under the principle of the preservation of the property and the property and the profits derived from the clan property is mainly required for the religious services of the ancestor and is appropriated for the purpose of supporting the members of the clan or promoting their public interest if there is a remainder.

The Supreme Court has judged that the clan property is collectively owned by the members of the clan, and it is reasonable to view that a kind of relationship similar to the trust exists in this context considering the formation process, purpose, management and disposal of the clan property comprehensively. In other words, it is interpreted that the property of the clan is entrusted to the clan for the conduct of the religious services and the interests of the descendants of the common ancestor, and that the clan should manage and dispose of the clan property in accordance with the trust purpose. Therefore, in disposing of the clan property and for the management of the property to be reverted to individuals, it shall be distributed in accordance with reasonable criteria for all descendants including the adult woman and the minors, and it shall be interpreted that it is not permissible to distribute it only to the members of the clan.

In short, the property owned by a clan is mainly the clans used for the protection of graves, the food required for the religious services and for the raising of expenses incurred in the religious services and the memorial services, and such property is mainly owned by a clan created by the donation of a frighted ancestor or its descendants or by the contribution of its members, and once it is owned by a clan, the person who donated the property to the clan or his/her heir may not claim exclusive rights even if it is owned by the clan, and only it shall be used in conformity with the purpose of the clan, and in disposing of the property of the clans to individuals, it shall be reasonably distributed to the descendants of the clans, and it shall not be permitted to distribute it only to the members of the clans, by analogying the legal principles of trust, and to distribute it only to the members of the clans.

Although the legal relationship of clan properties is as above, it is almost all the dispute over clans is arising from the dispute over the preservation, management, and disposal of clan properties. If the majority opinion states that the phenomenon of being used in or mobilized for litigation according to the convenience of clans is expanded to adult females, it cannot be said that the dispute is more deepened and complicated.

(7) Ultimately, we agree with the majority opinion with the conclusion that this case should be reversed and remanded, but we regard this case to be reversed for the following reasons.

In this case, as long as there is no justifiable reason to refuse joining by the majority female plaintiffs, such as that they are not descendants of the deceased clan, they shall be deemed to have the qualification for the defendant clan by expressing their intention to join the defendant clan. Thus, the court below should have judged the validity of the plaintiffs' claims by examining the above, but it should not reach this point and rejected the plaintiffs' claims for reasons as stated in its reasoning. In this case, there is an error of law by misunderstanding the legal principles on clans, which affected the conclusion of the judgment, and it is obvious that the judgment of the court below should be reversed and remanded for such reason.

C. Therefore, we dissent to the reasoning of the Majority Opinion and express our separate opinion as above.

5. Concurrence with the Majority by Justice Ko Hyun-chul as follows.

A. The Supreme Court has defined a clan as a natural group of the clans that consists of adult male members among the descendants of the common ancestor with the aim of protecting the graves of the common ancestor, promoting the religious service and promoting friendship among its members, and the clans are established by their descendants at the same time as the death of the common ancestor, not requiring special organization activities for the establishment of the clan, and it goes against the essence of the clan to revise regulations to the effect that a member of the clan naturally becomes a member of the clan regardless of his/her own will, and that it is against the essence of the clan to not treat part of the members of the clan as the members of the clan, or to deprive some members of his/her qualification as members of the clan, and that a person who is not a blood relative or a woman cannot be a member of the clan.

Although limited to adult male among the descendants of a common ancestor, the Supreme Court decided that the descendants of a common ancestor naturally become the members of a clan regardless of their own will and that the clan does not lose their status as a member of a clan regardless of their own will, the essence of the clan that is a clan that is a clan organization naturally created by descendants for the purpose of protecting the graves of a common ancestor, conducting religious services, and promoting friendship (it cannot be agreed with the separate opinion that the Supreme Court's precedents deeming that a clan is a naturally created family member organization is a naturally created family member group is a naturally created family member group (it is nothing more than the expression of the phenomenon in which the male blood relatives naturally gather and promote their religious services, but it is not a normative meaning).

In this respect, clans are distinguished from ordinary associations or non-corporate groups that are qualified for membership by the articles of incorporation and are allowed to voluntarily join and withdraw from membership. There is no criticism that these characteristics do not comply with the legal principles of modern association law.

However, as above, the Supreme Court recognizes a clan as a naturally created clan organization as a special organization in its composition and organization, and furthermore, it has a positive role and function in recognizing that it requires a resolution of the general meeting of clans in managing and disposing of the clan properties collectively.

As a matter of course, anyone shall naturally become a member of a clan regardless of the social status, area of residence, and the different property of the clan, and by allowing some descendants to manage or dispose of the clan properties according to the intention of the entire members, thereby preventing the clan properties from being disposed of and lost by some descendants, and thereby doing so, the role and function of the clans to maintain and operate the graves of the common ancestor, to protect the graves of the common ancestor and to promote friendship among their members, not for the benefit of some descendants, but for the benefit of some descendants, and to maintain and operate the clans in accordance with their original purpose.

In addition, as pointed out in the Concurring Opinion, the obligation of a clan member to a clan is of a moral and ethical nature, and even if the descendants of a common ancestor become members of a clan regardless of their will when they reach majority, whether they will participate in the activities of a clan depends on an individual's will, and as such, the organization of a clan is not forced to participate in the activities of a clan or imposed legal obligations, and the separate opinion also states that there is no legal problem as to whether a male naturally becomes a member of a clan regardless of his/her will if he/she becomes adult according to the past common law.

The separate opinion criticizes that it is unfair for the separate opinion to regard the fact that he becomes a member of a clan regardless of his will by taking into account the freedom of association and the freedom of conscience does not consider the essence of a clan and the characteristics that a clan is distinguished from ordinary associations or non-corporate groups, and it is difficult to understand why he becomes a member of a clan regardless of his will and why he becomes a member of a clan is not a problem for an adult male and it is difficult

The majority opinion maintains that the descendants of the common ancestor among the past common laws concerning clan naturally become the members of the clan, and under such premise, it is deemed that granting the membership only to adult male and not granting the qualification to adult female does not fit the idea of gender equality oriented by our legal order.

In addition to the above unique clans, there are many similar clans or similar organizations formed through artificial organizational activities by part of the descendants of the common ancestor in our society, and in fact there is a existence. This organization is not governed by the customary law, but belongs to the area of private autonomy. Therefore, it is natural to deny the validity of the articles of association that force the descendants of the common ancestor to join the descendants excluded from the organizational activities or excludes women who are descendants of the common ancestor from their members by taking the ideology of gender equality.

B. As the majority opinion states in detail that the legal conviction of the members of the community in regard to the past customary law that recognizes the membership of a clan only for adult male has been significantly shaking, and above all, it has become inconsistent with the overall legal order such as the Constitution aiming at the realization of gender equality, any more mentioned above shall be avoided.

The Concurring Opinion also agrees with the majority opinion in that adult women recognize the membership of a clan, but it differs from its theoretical basis, and in particular, the majority opinion recognizes the membership of a clan only for those women who wish to join against the recognition of the membership of a clan for all adult women in terms of the scope and method of recognition.

Even if the theoretical basis is set up, such a view does not fit the essence and characteristics of a clan as a matter of course which is a member of a clan, and it is difficult to say that there is legitimacy and rationality because it treats the qualification of a member of a clan differently by gender when it is intended to become a member of a clan, while it is naturally granted the qualification of a member of a clan to a male but only when it wishes to be a female.

As to this, the separate opinion is the main duty of raising and bearing materials required for the religious system and the protection of graves, and such bearing act is not legally enforced, but is merely a moral and ethical duty and its rights are not practically infringed. Therefore, it is deemed that adult male is void even if he becomes a member of a clan regardless of his will.

However, if the act of bearing as a member of a clan is merely a moral and ethical duty and becomes a member of a clan regardless of his/her will, such act shall be deemed the same in cases where a female becomes a member of a clan.

Concurring Opinion does not point out that granting the membership of a clan to adult female, unlike adult male, is bound to cause another conflicts surrounding the principle of gender equality with regard to the composition of a clan.

C. Article 9 of the Constitution provides that the State shall endeavor to inherit and develop the traditional culture and to promote the national culture. It cannot be denied that the clan system based on the traditional ethics of ancestor worship and friendship among relatives is our unique custom.

However, traditional culture and custom should be consistent with the overall legal order with the present Constitution as the highest norm and the universal value and ideology in today, and shall not be contrary thereto. This principle can also be confirmed even in the case where the Australia system, which has been maintained by tradition for a long time, has been abolished through the amendment of the Civil Act on the grounds that it does not fit the constitutional ideology of gender equality and the family form according to changes in the times.

It cannot be said that it interferes with the succession and development of the clan system by granting the qualification of a female member to a female member. Rather, it is believed that it is in line with the basic ideology of our society to inherit and develop the clan system on the basis that gender equality is achieved by including women in the clan members.

D. It is expected that there are difficulties in the operation of the clans including the defendant clans because the adult females who have not previously become the members of the clan have become the members of the clan, and many clans including the defendant clans have to grasp the location of the adult females who are the descendants of the joint clans, and in holding the clans general meeting, it is anticipated that not only the existing adult females who have become the members of the clan but also the new women who have become the members of the clans should be urged

However, such difficulties are believed to be able to overcome in light of our changed family relations, people's awareness of gender equality, changes in social environment due to the development of traffic and communication, etc. which are no longer treated as runaways.

As a result, I express my concurrence with the Majority Opinion, as long as it is thought that it not only accords with the essence and characteristics of a clan but also accords with the overall legal order of today and the basic ideology and value pursued by our society, if it is right and proper to grant the membership of a clan to adult women and it is necessary to grant the membership of a clan, but also to grant the membership of a clan to all women.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all participating Justices Kim Yong-dam-dam, Justice Kim Yong-dam, Justice Kim Yong-dam.