○○○ Head of the Seongbuk-gu Gongmong (Law Firm Love, Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

Defendant (Attorney Han-han et al., Counsel for the defendant-appellant)

July 25, 2013

Daejeon District Court Decision 2012Ra8291 Decided January 8, 2013

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. The total cost of the lawsuit is borne by Nonparty 4, the representative of the Plaintiff.

1. Purport of claim

On September 14, 2012, the Defendant shall implement the procedure for the registration of ownership transfer based on the termination of title trust with respect to the share of each real estate listed in the attached list to the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on the defense prior to the merits

(a) Defense

The defendant asserts that the plaintiff did not have the substance of a clan, ② The representative non-party 4 did not go through a legitimate clan general meeting in filing the lawsuit of this case, and the special general meeting of the representative non-party 4 on July 14, 2013 alleged that the plaintiff ratified the litigation of this case is invalid because the notification of convening special meeting of the representative non-party 4 is also illegal and invalid. Thus, the lawsuit of

B. Whether the plaintiff's clan is recognized as the substance of the clan

1) In filing the instant lawsuit, the Plaintiff’s clan claimed that: (a) Nonparty 11 was the Si’s group; (b) Nonparty 12, the 18-year-old Nonparty 12, who was the 18-year-old Nonparty 12, was the subject of the lawsuit that was set up in the branch of the Chungcheongnam-do budget, and brought his descendants to a late-year-old group; and (c) Nonparty 1, who was the 26-year-old Nonparty 1, who was the 26-year-old grandchildren from the preparatory document dated December 18, 2012 to the 26-year-old grandchildren, was the 27-old grandchildren, the 28-year-old grandchildren, the 29-year-old grandchildren, and the 26-year-old grandchildren who were the 29-year-old grandchildren, were both the 29-year-old grandchildren and the 29-year-old grandchildren, and the Plaintiff was the 29-year-old grandchildren as the joint damages.

2) The specific clans of the clans and the clans are provided according to who is the common ancestor of the clans and the scope of the clan members can be determined based on who is the common ancestor members, and therefore a clans different from the common ancestor has a separate entity different from its members (see Supreme Court Decision 2001Da58870, Aug. 23, 2002). It is not allowed to change the common ancestor of the clan asserted by the plaintiff as the result of the change of the parties, and it is not allowed to change the common ancestor of the clan claimed by the plaintiff. As the plaintiff initially asserted, it is examined whether the plaintiff is a co-defendant of the 26-year old clans.

3) A clan is a naturally created family organization formed for the purpose of protecting the graves of a common ancestor and promoting friendship among descendants and is naturally established by its descendants at the same time as the death of the ancestor. Therefore, a clan consisting solely of residents in a specific area or persons within a specific scope among descendants cannot be formed (see Supreme Court Decision 92Da34193 delivered on May 27, 1993). In light of the purpose of the common ancestor worship and the common system of the old customs, a person who goes to another family shall not become a member of a clan naturally formed for the purpose of promoting friendly friendship among descendants (see Supreme Court Decision 91Da28566 delivered on April 14, 1992).

According to the statement in Gap evidence No. 2, it is acknowledged that the 28-year-old grandchildren 5 [the 25-year-old grandchildren 13] and the 28-year-old grandchildren 28-year-old grandchildren 3 [the 25-year-old grandchildren 14-year-old grandchildren] were adopted, and that the 28-year-old grandchildren 3 [the 25-year-old grandchildren 14] were adopted, and according to the plaintiff's assertion, the plaintiff's clan is 27 years-old grandchildren 18, the 28-year-old grandchildren 28 years-old grandchildren 5, and the 29-year-old grandchildren 28 years-old grandchildren 3 among the 5-year-old descendants, were composed of their members, so this clan cannot be viewed as the original meaning naturally established. Accordingly, the lawsuit in this case is unlawful.

C. Whether the extraordinary general meeting of July 14, 2013 is lawful

1) Since a clan is a naturally created clan group composed of members for the purpose of protecting the graves of the common ancestor and promoting friendship among the members of the clan, it is reasonable to view that descendants who share the same clan with the common ancestor and the clan naturally become its members if they reach majority without distinction of gender (see Supreme Court Decision 2002Da1178, Jul. 21, 2005, etc.). Meanwhile, the representative of a clan shall be appointed according to its bylaws or practice, and if not, he/she shall be elected by convening a meeting of 4 or more adult members and by convening a meeting of 94 or more by the majority of the members present at the clan, and unless there is no rules or custom regarding appointment of the head of the clan, it shall be deemed that 200 or more members of the clan were convened lawfully and without convening a meeting of 97 or more members of the general meeting (see Supreme Court Decision 90Da7182, May 28, 2009).

2) Comprehensively considering the purport of each statement in Gap's evidence No. 23-1, No. 24, 25, and 26 (including a serial number), the plaintiff proposed to hold an extraordinary general meeting with the delegation of non-party 15 who is his/her father/he/she, and 286 of the family register members who are 20 years old or older and 89 members of the non-party 2, who are excluding the family register members who are 316 members of the non-party 2, whose total number of family members were 89 members of the non-party 1 and whose addresses were identified in Korea, and who were individually identified as the subject to convening an extraordinary general meeting on July 2, 2013, the plaintiff sent the above non-party 1's statement to the above non-party 2, excluding the above non-party 26-3, and Eul's remaining address address and the non-party 1's non-party 2, who is his/her non-party 2, by mail.

Therefore, the instant lawsuit is unlawful as it was filed without a resolution of the legitimate clan general meeting.

2. Conclusion

Therefore, the lawsuit of this case is unlawful, and thus, the judgment of the court of first instance is unfair, and it is so decided as per Disposition by the decision of the court of first instance to dismiss the lawsuit of this case.

[Attachment]

Judges Jindo (Presiding Judge)