Whether a member of an unincorporated association can file a lawsuit for preservation of collective ownership property (negative)

Article 276 (1) of the Civil Act provides that "the management and disposition of a general meeting shall be made by a resolution of a general meeting of members." Paragraph (2) of the same Article does not provide that "each member may use or make a profit from collective ownership in accordance with the articles of incorporation or any other rules." It does not include the same provision as the proviso of Article 265 or the proviso of Article 272 of the Civil Act that the preservation act, like in the case of joint ownership or joint ownership, may be done by each member. This is naturally attributable to the fact that the collective ownership, which is the form of an association that is not a juristic person, is more collective ownership than that of the joint ownership or joint ownership, and that the collective ownership of the members is not recognized. Thus, a lawsuit concerning collective property may be filed in the form of an essential co-litigation in its name or by an association that is not a juristic person, even if it is a representative of the association or a member of the association, even if it was a resolution of the general meeting of members, it cannot be a party to the lawsuit.

Article 52 of the Civil Procedure Act, Article 276 of the Civil Act

Supreme Court Decision 4292Da191 Decided May 5, 1960 (No. 8, 53), Supreme Court Decision 65Da2465 Decided March 15, 1966, Supreme Court Decision 73Da47 decided May 27, 1975 (Gong1975, 8475), Supreme Court Decision 76Da1029 Decided March 8, 197 (overruled), Supreme Court Decision 80Da2045, 2046 decided May 9, 198 (overruled), Supreme Court Decision 97Da10539 decided April 16, 195 (overruled), Supreme Court Decision 97Da1029 decided March 16, 195 (Gong1981, 19346) (overruled), Supreme Court Decision 94Da196459 decided December 16, 194).

Plaintiff (Attorney Park Il-hwan et al., Counsel for the plaintiff-appellant)

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Korea

Jeonju District Court Decision 2003Na7527 delivered on July 22, 2004

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

1. The lower court’s recognition and judgment

According to the reasoning of the judgment below, since Nonparty 1, who was the representative of the plaintiff's assistant intervenor, sold the land of this case owned by the plaintiff's assistant intervenor on behalf of the plaintiff's clan, and completed the registration of ownership transfer on the ground of consultation on public land on February 24, 1999, the rules of the plaintiff's assistant intervenor stipulate that the sale of the property of the defendant shall be subject to resolution by the general meeting (Article 14). The above non-party 1, who did not give any notice to 60 members of the general meeting for sale of the above land, was well known to him on July 7, 1998, after collecting about 10 members of the above clan from the plaintiff's assistant plaintiff's house to the plaintiff's assistant's non-party 1, the non-party 1, and the non-party 1, the non-party 6, the non-party 7, and the non-party 1, the non-party 99 and the non-party 1, the non-party 199.

2. Judgment of the Supreme Court

The judgment on the grounds of appeal shall be made ex officio.

Article 276 (1) of the Civil Act provides that "the management and disposition of collective ownership shall be made by a resolution of a general meeting of members", and Article 276 (2) of the same Act does not provide that "any member may use and make profits from collective ownership in accordance with the articles of association or any other rules." It does not include any provision like the proviso of Article 265 of the Civil Act or the proviso of Article 272 of the Civil Act that any act of preservation can be done by each member as in the case of joint ownership or joint ownership. This is a natural conclusion that the collective ownership, which is the form of ownership of an unincorporated association, is more collective ownership than that of joint ownership or joint ownership, is not recognized by members.

Therefore, a lawsuit concerning property collectively owned can be instituted in the form of indispensable co-litigation, either under the name of an association which is not a juristic person or through a resolution of a general meeting of members, and even if such association is the representative of the association or passed a resolution of a general meeting of members, it cannot be a party to the lawsuit. This legal doctrine applies to a lawsuit that is brought as an act of preserving property collectively owned by an association which is not a juristic person. In contrast, Supreme Court Decisions 4289Da617 Decided February 6, 1958; 4292Da191 Decided May 5, 1960; 65Da2465 Decided March 15, 196; 73Da47 Decided May 27, 197; 200Da8497 decided March 16, 197; 209Da8479 decided May 27, 197; 209Da8479 decided May 29, 2097.

Therefore, the judgment of the court below based on the premise that the lawsuit of this case brought by the plaintiff, only the members of the plaintiff assistant clan, as the act of preserving the collective ownership property, is legitimate, is erroneous in the misapprehension of legal principles as to the standing for parties in the lawsuit concerning collective ownership, which affected

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all participating Justices Kim Yong-dam-dam's Kim Yong-dam's theory.