Plaintiff (Attorney Kim Jong-min et al., Counsel for the plaintiff-appellant)

Defendant clan (Attorney Cho Sung-sik, Counsel for the defendant-appellant)

April 11, 2007

Daejeon District Court Decision 2006Gahap1545 Delivered on July 26, 2006

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

It is confirmed that the Plaintiff (appointed parties, hereinafter “Plaintiffs”) and the designated parties (hereinafter “Plaintiffs and designated parties”) are the members of the Defendant’s clan. It is confirmed that the Defendant’s resolution of the special meeting of the clan of December 18, 2005, amended by the special meeting of the clan on November 21, 2005, is all null and void.

2. Purport of appeal

The judgment of the first instance is revoked, and all the claims of the plaintiff (appointed party) are dismissed.

1. Basic facts

A. Defendant clan is a clan that consists of 22 descendants, 22 descendants, and 10 descendants of the Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-Je-

B. On November 21, 2005, the defendant clan amended the Rules of the clan at the extraordinary general meeting. Article 27 of the amended Rules provides that "In principle, the Rules of the clan shall be applied to the spouse of the clan in accordance with the words before transmission of the ancestor under the customary law (the scope of qualification for women and assistant members under the current law): Provided, That in the case of a female member, the post facto spouse shall be an assistant member; in the case of a female member, he/she shall be an assistant member only if his/her spouse wishes to be the assistant member; in the case of a female member, the remaining member shall also be treated as an assistant member only if his/her spouse wants to be the assistant member before his/her death, and even if he/she is unable to perform his/her activities (the long-term overseas stay, etc.), he/she shall be treated as an assistant member

C. The Korea Land Corporation and the Daejeon Urban Development Corporation incorporated the real estate owned by the defendant clan into the Daejeon Seo-nam Rural Development Project District, and paid the defendant clan a total of KRW 5,072,324,500 for the land and obstacles. The defendant clan held an extraordinary general meeting on December 18, 2005 and passed a resolution on the execution of the above compensation. The resolution is made only for the number of 69 persons recognized as members according to the above clan regulations, and the loan period of 1 year (one year interest extension is automatically extended at the time of payment), interest rate of 2% per annum (one year interest rate, eight million won interest rate) and 40 million won per annum,

[Reasons for Recognition] Facts without dispute, Gap's evidence 1 to 4-7, Eul's evidence 1-1 and Eul's evidence 2, the purport of the whole pleadings

2. Both claims;

A. The plaintiff

As a matter of course, the plaintiff et al. has become a member of the defendant clan inasmuch as he/she has attained majority as he/she was the descendants of the above gambling and the virtue. However, the defendant clan held each extraordinary meeting on November 21, 2005 and December 18, 2005 without giving notice to the plaintiff et al., and Article 27 of the Rules of the defendant clan which decided to revise the provisional general meeting on November 21, 2005 did not recognize the plaintiff et al.'s qualification as a member of the clan, and the voting right was not recognized, and the resolution of the provisional general meeting on December 18, 2005 at the temporary general meeting of the plaintiff et al. is null and void as it discriminates against the female members without reasonable grounds.

B. Defendant

Article 27 of the Rules of the defendant clan, considering the possibility of activities in the clans, even though adults are adults, in the case of overseas long-term stayers, the women who left the clan as if they were qualified as assistant clans are not actively participating in the operation of the clans. Therefore, considering this fact, the qualification of assistant clans is limited to granting the qualification of assistant clans, not to treat only the women disadvantageously. In addition, the decision of December 18, 2005 was decided to determine whether to grant a loan in consideration of the possibility of recovery, etc.,

3. The judgment of this Court

A. The Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 ruled that since the previous customary law that limits the qualification of the members of a clan that has been governed by the customary law, not the law of the sex, cannot have any legal effect any longer, the qualification of the members of a clan shall be supplemented by cooking as prescribed by Article 1 of the Civil Code, since the qualification of the members of a clan is a naturally created clan group organized for the purpose of protecting the graves of a common ancestor and promoting friendship among the members of a clan, it is reasonable to view that the descendants who share the same clan with the common ancestor naturally become the members of a clan if they reach majority without distinction of gender. This opinion of the Supreme Court ruled that the qualification of the members of a clan and the legal relationship newly established in relation to the qualification of the members of a clan after the pronouncement of this decision shall apply only to the qualifications of the clan, as provided by Article 1 of the Civil Code.

B. In light of the above legal principles, after July 21, 2005, the plaintiff et al. naturally has the status of the clan member of the defendant clan.

Article 3 of the Rules of the defendant's clan (Article 3 of the Rules of the defendant's clan provides that "if the members of the defendant's clan are the descendants of legal adults or the descendants of the same clan, they shall be present in person or on the recommendation of the descendants of the same clan)" (Article 1 of the Rules of the defendant's clan had already been enforced before the amendment of the Rules of November 25, 2005, unless the defendant's clan is a clan with its own meaning, the above provision cannot take effect any longer from July 21, 2005 against the essence of the clan (see Supreme Court Decision 96Da25715 delivered on November 14, 1997, etc.). Thus, the existence of the above provision does not affect its conclusion).

C. Unless there are special circumstances, the general meeting of a clan shall be held by each of the members of the clan who shall be notified of the scope of the members of the clan by determining the scope of the members of the clan, and by individually convening a notification to all the members of the clan who shall reside in the Republic of Korea, and shall be given an opportunity for each of them to participate in the meeting, discussion, and resolution. A resolution of the general meeting of a clan held without a notification of convening a notification to some of the members of the clan (see Supreme Court Decision 99Da3257, Jun. 29, 2001, etc.). However, the plaintiff, etc. is registered as a member of the family clan of the defendant clan, and it is possible to give notice of the whereabouts clearly after residing in the Republic of Korea, regardless of the fact that each extraordinary general meeting was held on November 21, 2005 and on December 18, 2005 (Article 3-1, 2, 5-1 through 7, 1-1, 1-1, and 1-1 of witnesses).

D. Furthermore, some of the resolutions on each of the above special meetings are deemed null and void in terms of its contents. In other words, Article 27 of the Rules of the defendant clan amended at the special meeting of November 21, 2005, which provides that "if a woman himself wishes to be a member of the clan, he shall be treated as a quasi-member only if he wishes to be a member of the clan, and the remaining member is unable to engage in his activities (foreign long-term stay) and shall also be treated as a quasi-member even if he is unable to engage in his activities. The contents that he has no voting rights at the general meeting of the clan have no voting rights in light of the characteristics and legal nature of the clan as seen earlier, it is invalid as it infringes on the unique contents of the clan members who are the members of the clan and the members of the clan and the basic rights inherent to a certain extent (see Supreme Court Decision 2004Da47024, Dec. 18, 2005).

4. Conclusion

Therefore, the plaintiff's claim for confirmation of the members of the clan and the amendment of the general meeting of the defendant clan dated November 21, 2005, all of the plaintiff's claim for confirmation of invalidity of each resolution of the special general meeting of the defendant clan dated December 18, 2005, and the defendant has a benefit to seek confirmation as long as they dispute this conclusion. The judgment of the court of first instance is justified as it is consistent with this conclusion, and the defendant's appeal is dismissed as it is without merit.

[Attachment List of Appointed]

Judge Lee Jong-soo (Presiding Judge)