The standard point of time for determining whether a clan as a non-corporate body has the capacity to be a party (=the time of closing argument in the trial of facts) and whether a clan established naturally due to a specific point of time has an organic organization to the extent that it can obtain rights to real estate, etc. and hold title trust to others, whether the family has the capacity to be a separate party (affirmative)

Article 31 of the Civil Act, Article 52 of the Civil Procedure Act

Supreme Court Decision 2002Da4863 Decided May 10, 2002 (Gong2002Ha, 1371) Supreme Court Decision 2009Da95387 Decided March 25, 2010

Yancheon-gu Co., Ltd. (Law Firm Han field, Attorneys Nam Nam-woon et al., Counsel for the plaintiff-appellant)

Defendant 1 and 12 others (Defendant 1’s Law Firm Aionion, Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2010Na11369 Decided July 6, 2011

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The unique meaning of a clan is a naturally occurring family organization formed by descendants of the common ancestor for the purpose of protecting the graves of the ancestor and promoting friendship between their descendants and descendants, and is established by the death of the ancestor at the same time as the death of the ancestor, even though there has not been any special organization. However, if the non-corporate group has the ability to be a party in a civil lawsuit, it must have a specific organization and be engaged in continuous activities at the same time, and its representative is required (Article 52 of the Civil Procedure Act). Thus, even a clan with a unique meaning naturally formed, its ability to be recognized as a party in a non-corporate group. This is related to the requirements for litigation and shall be determined at the time of closing argument of the fact-finding court (see Supreme Court Decision 2009Da95387, Mar. 25, 2010). In addition, whether a clan formed naturally at a certain time has an organic organization to the extent that it can acquire a right to real estate, etc. and whether it has the ability to belong to the party to the clan.

On the other hand, the descendants of a common ancestor naturally become the members of the clan when they reach majority, and some of them cannot be arbitrarily excluded from their members. Thus, some of the members of the clan residing in a specific area or organizations consisting only of the members of the specific clans, etc. shall be limited to the organizations similar to the clans and shall not become the clans of unique meaning (see Supreme Court Decision 2002Da4863, May 10, 2002, etc.).

2. According to the reasoning of the judgment of the court below, the court below partially citing the reasoning of the judgment of the court of first instance, and judged that the lawsuit of this case filed by the plaintiff on the premise that the plaintiff is an organization newly established as an organization for the first time on February 7, 2009 and its own activities were unlawful, since it is reasonable to deem that the lawsuit of this case filed on the premise that the plaintiff is a clan of unique meaning and its own meaning and its own activities were filed by a person without the ability to be concerned.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles.

First of all, according to the evidence and records adopted by the court of first instance and the court below, the plaintiff consistently asserted that it is a clan with a unique meaning of "a 14 years old clan" as a joint ancestor, and in holding the general assembly on February 7, 2009 and April 10, 2010, the above joint ancestor descendants did not limit the scope of the members to be present due to a specific area or a specific clan member from among the descendants of the above joint ancestor. (However, the general assembly of February 7, 2009 was for only adults, but the general assembly of April 10, 2010 for which the defendant raised a problem and the general assembly of April 10, 2010 for all adults). The plaintiff's clan's articles of incorporation does not limit the scope of members.

In addition, according to the judgment of the court below, even if it is not clearly acknowledged that the plaintiff clan had protected and trial the graves of the common ancestor before February 7, 2009, if the plaintiff had organization to the extent represented by the representative elected in accordance with the above articles of association at the time of the closing of argument of the court below, the plaintiff shall be deemed to have its own meaning as a member of the family, and on the other hand, whether the plaintiff clan had an organic organization before February 7, 2009, not as a member of the family, but as a matter of determining whether the plaintiff clan could be deemed as a title trust of the real estate of this case to the defendant 1, etc. around February 1971.

Therefore, the court below should have judged whether the plaintiff has the organization of the non-corporate group as a clan within its own meaning at the time of the closing of argument in the court below, after further reviewing the records of the plaintiff clan's activities and the contents of its articles of association, and revealed the nature and substance of the plaintiff clan. However, the court below determined that the plaintiff was merely a similar organization of the clan and has no capacity to be a party to a clan because there is insufficient evidence to support that the plaintiff has protected the graves of the non-corporate group since February 7, 2009 and had been dispatched for the trial. Thus, the court below erred by misapprehending the legal principles as to the establishment and capacity of the clan, which affected the conclusion of the judgment. The ground of appeal pointing this out is

3. The judgment of the court below is reversed without examining the remaining grounds of appeal, 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 Kim Chang-suk (Presiding Justice)