[Defendant-Appellant] Hak-gun (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Defendant 1 and 3 others (Law Firm Hydam et al., Counsel for the defendant-appellant)

September 8, 2016

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Plaintiff

1. With respect to co-ownership of 18.9/71 of the shares of 1 real estate listed in the separate sheet, with respect to 4 real estate listed in the separate sheet, 1/2 of the shares of 5 real estate listed in the separate sheet:

A. Defendant 1: (a) the transfer registration of ownership completed on January 4, 2013 by the District Court No. 1083;

B. Defendant 2: (a) the transfer of ownership that was completed on July 8, 2010 by the District Court No. 59872;

2. Defendant 3: (a) the transfer of ownership, which was completed under the receipt of No. 7747, Sept. 9, 2010, with respect to the 2 real estate listed in the separate sheet, by the District Court of the Speaker

3. As to co-ownership shares of 18.9/71 of shares of 1 real estate listed in the separate sheet, Defendant 4, with respect to 3 real estate listed in the separate sheet, shall register transfer of ownership as to 1/2 of shares of 5 real estate listed in the separate sheet, which was completed on July 8, 2010 in receipt No. 59873.

Each procedure for cancellation registration shall be implemented.

1. Presumed factual basis

A. The plaintiff is a clan in which the non-party 3, who is the non-party 1's 5th son of the non-party 2's second son of the non-party 3, the second son of the non-party 4 of the son-gun, which is the timelights of the Yim

B. Defendant 2 was the president of the Plaintiff’s clan from March 1, 2006 to October 2015. Defendant 3 was the president of the Plaintiff’s general affairs and the vice president of Defendant 4.

C. Defendant 2, as the president of the Plaintiff clan, held a general meeting of 2009 (hereinafter “general meeting of 2009”) on Nov. 23, 2009 (No. 7, 2009) (hereinafter “the general meeting of 2009”). At the general meeting of 209, 22 persons directly participated, 13 persons who submitted proxy, and 35 persons were present.

D. At the ordinary general meeting in 2009, Defendant 2, Defendant 3, and Defendant 4 (hereinafter “the instant donation resolution”) made a resolution that donated part of the Plaintiff’s clan to Defendant 2, Defendant 3, and Defendant 4 with the consent of all members present at the meeting (hereinafter “the instant donation resolution”). As stated below, the resolution that donated part of the Plaintiff’s clan to Defendant 2, Defendant 3, and Defendant 4 was adopted with the consent of all members present at the meeting (hereinafter “instant donation resolution”).

- Defendant 2: 3,915 square meters out of forest land in Yangju-si ( Address 1 omitted), and 18.9 square meters out of forest land ( Address 2 omitted)

- Defendant 4: 5,496 square meters out of forest land in Yangju-si ( Address 1 omitted), and 18.9 square meters out of forest land ( Address 2 omitted)

- Defendant 3: Yangju-si ( Address 1 omitted), 5,049 square meters out of forest land

E. On May 26, 2010, forest land of 84,822 square meters in Yangju-si ( Address 1 omitted) was divided into 60,364 square meters in forest land of 60,364 square meters in Yangju-si ( Address 1 omitted), forest land of 5,049 square meters in forest land of 5,049 (attached Table 2), ( Address 4 omitted), (attached Table 3), 3,775 square meters in forest land of 5,358 square meters (attached Table 4 omitted), (attached Table 4 omitted), ( Address 6 omitted), and (attached Table 5) 276 square meters in forest land of 276 square meters in forest land (attached Table 5 omitted).

F. Defendants 2, 3, and 4 completed the registration of ownership transfer with respect to each land listed in the separate sheet as listed below. Defendant 2 sold the land that completed the registration of ownership transfer to Defendant 1 and completed the registration of ownership transfer on January 4, 2013.

In the description of the Defendants’ real estate contained in the main text (name 2 omitted), among Defendant 2 ( Address 2 omitted), Defendant 1/2 of the shares of June 30, 2010, among the shares of 18.9 shares of June 30, 2010 ( Address 5 omitted) Defendant 1 ( Address 6 omitted), Defendant 1/71 of the shares of 18.9 shares of November 28, 2012, among the shares of 18.9 shares of Defendant 1 ( Address 2 omitted), Defendant 3 ( Address 5 omitted), Defendant 6 omitted on September 1, 2010, among the shares of 18.2 shares of June 74, 2017, Defendant 2087 (No. 5 omitted) No. 1083 (No. 6 omitted) of receipt on November 4, 2013.

G. The parts of the Plaintiff’s clan rules pertaining to this case are as follows.

Article 3 (Membership's Qualifications) clan members included in the text of this Decree shall be adults among the descendants of the Young-gun (Non-Party 4): Provided, That a person who does not know at all his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his members are not recognized as a member immediately after confirmation. The clan meeting shall be divided into an ordinary general meeting, an extraordinary general meeting, the board of directors and the meeting of the board of directors. 1. The regular meeting shall be held on the date of the first day of the meeting of Article 12 (Quorum). The resolution of each level of meeting of Article 13 (Quorum) shall be held with the consent of a majority of the members present. The resolution of the second day of the meeting of Article 14 (Resolution) shall be decided on January 2, 197, which falls under the basic direction of the plenary session for the enactment of the Constitution of Korea and the amendment of the Constitution and the following matters concerning its operation and development:

[Ground of recognition] Unsatisfy, Gap evidence 2, 3, 4, Eul evidence 1 (including provisional number), the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The Defendants asserted that, since Nonparty 16 is not a member of the Plaintiff, the instant lawsuit is unlawful as it was filed by Nonparty 16 who has no legitimate power of representation.

B. In full view of the overall purport of the arguments in evidence Nos. 44 through 46, Nonparty 16’s 16’s 16’s 17, Nonparty 17, Nonparty 18, Nonparty 19, and Nonparty 16, and Nonparty 16’s 16’s 16’s 16’s 16’s 18, Nonparty 19, and Nonparty 16’s 16’s 16’s 16’s 18, Nonparty 19, and Nonparty 16’s 16’s 1898 18 19, Nonparty 19, and Nonparty 16’s 16’s 195 195 1 and 2015 2015 200.)

3. Judgment on the merits

A. The plaintiff's assertion

1) The instant gift resolution is null and void as follows: (a) the defect in the convening procedure and the defect in the method of resolution is serious.

Since Defendant 2 was not a member of the plaintiff's clan, he convened an ordinary general meeting in 2009 even though he was not a member of the plaintiff's clan, there is a significant defect in the convocation procedure in the ordinary general meeting in 2009.

○ The instant gift resolution was made by attending and passing a resolution by Defendant 2, Defendant 3, and Defendant 4, who are the donee. Of 22 persons directly attending the resolution, there are significant defects in the method of resolution, including 12 persons, who are not members of the Plaintiff, such as Defendant 2’s fourth degree of birth, etc.

2) The instant donation resolution was null and void since it violated Article 20 of the instant regulations prohibiting the distribution of clan property.

3) Since the Defendants acquired land stated in the purport of the claim without any legal ground, they are obligated to cancel the registration of ownership transfer of each of the above land to the Plaintiff in accordance with the unjust enrichment return doctrine.

B. Determination

1) Defect in the convocation procedure

If the members of a clan regularly gather at a certain place on a certain day each year in accordance with the rules or practices of the clan and are to deal with the religious affairs of the clan, it is not necessary to separately convene a clan meeting (see Supreme Court Decision 2005Da36298, Dec. 8, 2005).

The plaintiff's general meeting under Article 10 (1) of the Rules of the plaintiff's clan provides that the plaintiff's general meeting shall be held on the off-gun Si/Gun, and that the resolution of the general meeting of the plaintiff in 2009 was made on October 7, 2009 (which November 23, 2009 of the Yangwon-gun), which is the date for the off-gun Si/Gun, as seen earlier, the separate convocation procedure is unnecessary in the opening of the general meeting of the plaintiff in 2009.

Therefore, it cannot be said that there is a defect in the convocation procedure in the ordinary meeting in 2009, which was conducted by the gift resolution of this case. Thus, this part of the argument is without merit without further review.

2) Defect in the method of resolution

A) As to the resolution of the general meeting of clans, the clan rules do not provide for the attendance of a majority of the members and the affirmative vote of a majority of the members present, and provide that the provisions of the clan rules shall not be null and void (see Supreme Court Decision 91Da44902 delivered on January 26, 1993).

B) According to Articles 12 and 13 of the Rules of the Plaintiff’s clans, the Plaintiff’s clans shall open the resolution of the Plaintiff’s clan as a member of the clan and shall be subject to the consent of a majority of the number of present members, and all 22 members present directly at the general meeting of the Plaintiff in 209 shall agree to the resolution of the instant donation.

Even if 12 persons, among 22 persons directly present as alleged by the Plaintiff, are not members of the Plaintiff or interested parties, such as donee, and there is no voting right because Defendant 2 was not a member of the Plaintiff, and the said 25 persons are excluded from the above 25 persons, since Defendant 2 was not a member of the Plaintiff, the remaining 10 persons present and passed a resolution on the gift of this case with the consent of all the majority members, the donation resolution of this case is valid after meeting the quorum requirements stipulated by the Rules of the Plaintiff.

C) Therefore, Defendant 2, etc.’s finality does not affect the validity of the gift resolution of this case. Therefore, the Plaintiff’s assertion on a different premise is without merit without further review.

3) Violations of the clan regulations

A) The compensation for accommodation of a non-corporate clan's land belongs to the collective ownership of its members, and the distribution of compensation for accommodation constitutes a disposition of collective property. Unless otherwise stipulated in the articles of association or other regulations, the compensation for accommodation may be distributed by a resolution of the general meeting of a clan, and the ratio, method, and contents of its distribution may also be decided autonomously by a resolution. However, in light of the nature of a clan, where the descendants who share the common ancestor with the common ancestor and the family clan naturally become adult regardless of their will when they become its members when they become its members when they become adult regardless of their intention, the resolution shall be null and void in cases where the resolution of the general meeting of a clan regarding the distribution of a clan property is considerably unfair or contrary to good morals or other social order, or the distribution of compensation for accommodation constitutes a disposition of collective property. Whether the contents of the resolution of the general meeting of a clan significantly unfair shall be determined by a resolution of the general meeting of a clan, including the developments leading up to the creation of the clan's property, the maintenance and management of the clan property, degree of contribution to the clan property and its distribution 70.

B) The fact that Article 20 of the Rules of the Plaintiff’s clan provides that “in principle, the property during the plenary session is operated for the business necessary for the development of the clan and is not distributed to the individual of the clan members under the title of “the prohibition of the distribution of the property” is as seen earlier.

However, the above provision does not absolutely prohibit the distribution of the clan property, and it appears that the "persons, etc. who have contributed to the development of the plaintiff" can be rewarded under the title of "compensation" in Article 21 of the Rules of the plaintiff's clan, and in certain cases, it appears that the distribution of the clan property is scheduled. In light of the fact that the distribution of the clan property constitutes the disposal of the clan property and can be done by the resolution of the general meeting of the clan, it is insufficient to recognize that the resolution of the donation of this case contravenes Article 20 of the Rules of the plaintiff'

C) In addition, even if the resolution of donation of this case is contrary to Article 20 of the clan Regulations, there is no proof as to the fact that the resolution of donation of this case is considerably unfair, contrary to good morals and other social order, or it infringes on the essential contents of the rights unique and fundamental to the members of the clan (the land subject to the resolution of donation of this case seems to have contributed to a certain portion in returning to the clan property through litigation, etc.). Thus, the resolution of donation of this case cannot be deemed null and

D) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-young (Presiding Judge)