2019Da286304 Nullity of a resolution of the clan General Meeting

person

1. A;

2. B

[Defendant-Appellee] Defendant 1 et al.

Attorney Cho Jong-young, Counsel for the defendant-appellant

C Text C

Attorney Lee Jae-soo, Counsel for the plaintiff

Daejeon High Court Decision 2019Na13245 Decided October 24, 2019

April 9, 2020

Among the part against the Defendant of the lower judgment, the part of the lower judgment regarding the resolution for the appointment of general secretary for E at the general meeting of clans dated November 3, 2016, the resolution for appointment of S, and the resolution for the appointment of auditors for S, and each claim for nullification of the resolution for the ratification of the sale of a certificate of origin of forest 1,543 meters in Sejong Special Self-Governing City,

All of the plaintiffs' appeals and the defendant's remaining appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. Part of the resolution for appointment of general affairs of E, the resolution for appointment of auditors of S, and the resolution for ratification of sale of P forest land of Sejong Special Self-Governing City

1) Although the members of a clan have requested a legitimate convening authority in accordance with the rules of the clan or the convening authority of the general meeting of the clan for the management or disposition of the clan's properties, if the convening authority fails to comply with the request without justifiable grounds, the convening authority may call the general meeting on behalf of the convening authority (see, e.g., Supreme Court Decisions 94Da53563, Jun. 16, 1995; 2010Da8319, 83205, Feb. 10, 201). In such cases, the convening authority of the next passenger or promoters shall be the authority to exercise for the management or disposition of the clan's properties, which is the authority to convene the general meeting only for the appointment of the clan representative.

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

A) On November 28, 2015, the Defendant: (a) held a special meeting on November 28, 2015; (b) made a resolution to sell a forest of 1,543 square meters (hereinafter “instant land”) to Sejong Special Self-Governing City, which is owned by the Defendant (hereinafter “resolution to sell the instant land”); and (c) Sejong Special Self-Governing City completed the registration of ownership transfer on the ground of consultation on the acquisition of public land on November 28, 2015 with respect to the instant land; (d) the Defendant’s clan members filed an objection on the ground of procedural defect in the resolution to sell the instant land on November 28, 2015; (c) the Defendant held a special meeting to ratification the resolution to sell the instant land on January 13, 2016, but did not obtain such ratification resolution; and (d) at the time the Defendant’s president retired from a position.

C) On November 3, 2016, the Defendant: (a) held a general meeting of the instant case to dismiss R from the president; (b) made a resolution to appoint D as president; (c) E as general secretary; and (d) made a resolution to commission the president and general secretary as managing members according to the amendment of the clan; and (c) respectively, a resolution to confirm the sale of the instant land.

D) On October 18, 2018, the Plaintiffs filed the instant lawsuit against the Defendant seeking confirmation of invalidity on the grounds of procedural defect regarding each of the above resolutions made at the instant ordinary meeting.

E) Around February 20, 2019, D, E, etc. demanded that W, who is the co-resident of the Defendant, convene an extraordinary general meeting for the Defendant’s appointment, etc. Around February 20, 2019, W signed and sealed the power of attorney on the convocation of an extraordinary general meeting through AW, who is his/her agent, and offered D the power of attorney on the convocation of an extraordinary general meeting. However, on March 17, 2019, W rejected the convocation of the extraordinary general meeting without justifiable grounds.

F) On March 26, 2019, D issued a notice of convening an extraordinary general meeting of this case, which includes the following: (i) the Defendant’s clan members of the Defendant’s clan election including a representative; (ii) the enactment (excluding the full-time amendment); (iii) the ratification of the resolution of the instant general meeting of this case (excluding the portion of appointment of executive officers); and (iv) other necessary matters, on November 3, 2016; and (vii) the Defendant issued a notice of convening an extraordinary general meeting of this case on April 14, 2019, which was held on April 14, 2019 as the president; (vii) D as the general manager of the instant general meeting of this case; (iii) the appointment of S as the auditor; and (iv) the resolution re-convening the resolution on the sale of the land of this case.

h) The chairperson and the chief executive officer of the defendant appointed as above may participate in meetings of executive officers related to the preservation, management, disposition, etc. of the clan property or take charge of affairs related thereto, and the auditor shall audit such affairs performed by the executive officer of the clan and report them to the general meeting of the clans.

3) Examining the foregoing facts in light of the legal principles as seen earlier, it may be deemed that: (a) the resolution of the president’s appointment of D at the instant special meeting held on April 14, 2019, which was held on April 14, 2019, was a matter to be convened and held within the scope of the authority to convene the clan general meeting of promoters for the management or disposal of the clan property; and (b) the resolution of the resolution of the appointment of auditors for E, the resolution of appointment of auditors for S, and the re-resolution of the instant resolution on the sale of the land.

Nevertheless, the lower court deemed that the promoters’ authority to convene the general meeting is limited to “the authority to convene the general meeting of this case for the appointment of representatives,” and determined that the remainder of each resolution passed by the promoters D to convene the general meeting of this case held on April 14, 2019 with the exception of “D’s resolution for the appointment of the president” is invalid because it has not been effective since the resolution was made on matters outside the general meeting of promoters’ authority to convene the general meeting of this case. Ultimately, it cannot be said that the resolution passed by the general meeting of this case for the general meeting of this case for the general meeting of this case for the reason that it was lawful to legally approve the portion of “E” from among the resolution passed by the general meeting of this case for the general meeting of this case for the general meeting of this case for the general meeting of this case for the sake of the procedural defect in the resolution of each of the general meeting of this case for the management or disposition of property, and thus, it is legitimate. In so doing, the lower court erred by misapprehending the legal principles on the scope of promoters’s authority to convene the general meeting.

Supreme Court Decision 2009Da26596 Decided December 9, 2010 cited by the court below stated that it is necessary for clan members to select their representative regarding the management or disposition of the clan properties, and thus, although the member of the clan requested the convocation of the general meeting, if the member of the family who is the person entitled to convene the general meeting refuses to convene the general meeting without justifiable grounds, it is merely the purport that the member of the family who is the person entitled to convene the general meeting may convene the meeting, and it is not the case that the scope of the authority to convene the general meeting of the member of the family or the promoters for the selection of the representative among the clans. Therefore

B. The remaining appeal by the defendant

The defendant filed an appeal against the whole part of the judgment below against the defendant, but there is no specific statement in the petition of appeal or the appellate brief about the remainder.

2. Judgment on the plaintiffs' grounds of appeal

A. The resolution on the appointment of the president with respect to D

For the reasons indicated in its holding, the lower court determined that: (a) the resolution to appoint D as the Defendant’s president at the instant ordinary general meeting held on November 3, 2016 was unlawful on the ground that D convened as the promoters, and duly re-enters the same resolution as the above at the instant extraordinary general meeting held on April 14, 2019; (b) the filing of a motion to nullify the part of the resolution to appoint D as the Defendant’s president, among the resolution of the instant general meeting, did not meet the requirements for protection of rights.

Examining the reasoning of the lower judgment in light of the records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the meaning and scope of promoters who have the authority to convene a clan general meeting, the scope of members subject to a notification of convening a clan general meeting and the procedure for convening a notification of convening a clan, or by exceeding the bounds of the principle of free evaluation

B. The remaining appeals by the plaintiffs

Although the plaintiffs filed an appeal against the whole of the judgment below, the remaining parts are not indicated in the petition of appeal or the appellate brief in detail.

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part of each claim for nullification of the resolution of appointment of general secretary for E, the resolution of appointment of auditors for S, and the resolution of ratification of the sale of the land of this case is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeals and the defendant's remaining appeals are dismissed in entirety as they are without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant