Seoul Central District Court 2009Kahap46250 ( August 17, 2010)

It is reasonable to deem that there was a legitimate resolution of the Plaintiff clan general meeting regarding the sale of real estate.

Even if some defects, such as sealing, which is not a seal imprint, exist, if the resolution of the clan general meeting for the sale of real estate had already been made, and only the clan council has embodied it, such defects shall not affect the validity of the real estate sales contract.

2010Na86749 Registration, etc. for cancellation of ownership

AAAA No. AA A. Magazina

1. Attached Table 1. (BB Logistics Co., Ltd. and 15 others)

Seoul Central District Court Decision 2009Da46250 Decided August 17, 2010

December 14, 2012

February 8, 2013

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

Of the judgment of the first instance court, the part against the plaintiff shall be revoked. It shall seek a judgment such as the entries in the purport of the claim in attached Form 2

1. Basic facts

A. The plaintiff has been holding a general meeting of the general meeting without a separate convocation procedure after the date of October 7, 1999, when the plaintiff took the initiative of the AA (AAA) among the descendants of the 00th king and the 00th kings, and after holding the general meeting of the general meeting of the general meeting of the general meeting of the clans on October 7, which is the date of the AAA.

나. 원래 원고의 소유이던 분할 전의 용인시 처인구 원삼면 OOO리 산 000 임야 132，199㎡(이하 위 임야를 분할 전후를 통틀어 '이 사건 부동산'이라 한다)는 2007. 9. 14.부터 2008. 6. 13.까지 7회에 걸쳐 같은 리 산 000， 000 등 12필지로 분할되어 피고 BB물류， 백CC， DDD， 김EE， FFF에게 각 일부씩 매각되었고，이에 따라 별지 2. 청구취지 기재 중 1의 가. 내지 라.항 및 마.의 (1)항 기재 각 소유권이전등기가 마쳐졌다. 이후 피고 DDD 명의의 같은 리 산 0008， 32， 33 토지에 관하여 제1 심 공동피고 문GG， 조HH， 정II， 배JJ， 이KK， 권LL， 오MM， 김NN， 이PP， 김QQ， 박RR， 김SS， 임TT， 황UU， 서WW， 최XX， 김YY， 안ZZ， 남aa 등 19 인 앞으로 각 지분이전등기가 순차 마쳐졌고， 피고 FFF 명의의 같은 리 산 00 토지에 관하여는 같은 리 산 00토지가 합병된 후에， 제1심 공동피고 김bb， 최cc， 이XX， 박dd， 신ee， 유ff， 김gg， 권hh， 서ii， 이jj， 최kk， 이ll， 정mm， 김nn， 조oo， 최pp 및 망 정qq 등 17인 앞으로 각 지분이전등 기가 순차 마쳐졌으며， 같은 리 산 0000 토지에서 같은 리 산 00 내지000 토지의 167R 필지가 분할되면서， 위 각 토지에 관하여 2008. 8. 21. 공유물 분할을 원인으로 2008. 9. 25. 피고 FFF， 망 정미숙 및 제1섬 공동피고 김rr， 조ss， 서tt， 박uu，김vv，이ww，이yy，이XX，신zz，유ㄱㄱ，권ㄴㄴ，김ㄷㄷ，최ㄹㄹ，최ㅁㅁ， 최ㅂㅂ， 정ㅅㅅ 등 18인 앞으로 별지 2. 청구취지 기재 중 1의 마.의 (2)항 및 2항 기재 등의 각 소유권이전등기와 지분이전등기가 순차 마쳐진 상태이다. 한편， 별지 3. 부동산 목록 기재 중 1 토지에 관하여 피고 하나은행 명의의 별지 2. 청구취지 1의 사.항 기재와 같은 근저당권설정등기 및 지상권설정등기가， 별지 3. 부동산 목록 기재 중 2 내지 4， 6 내지 9 토지에 관하여 피고 임GG， 조ㅈㅈ， 김ㅊㅊ， 김ㅋㅋ, 명의의 별지 2. 청구취지 1의 아. 내지 카.항 기재와 같은 각 근저당권설정등기 가， 별지 3. 부동산 목록 기재 중 8 내지 10 토지에 관하여 피고 김ㅌㅌ 명의의 별지 2. 청구취지 1의 타.항 기재와 같은 소유권이전청구권 가등기가 각 마쳐져 있다. 또한， 피고 대한민국은 별지 3. 부동산 목록 기재 중 4， 6， 10 토지와 9 토지에 관 한 피고 DDD의 지분 및 12 내지 28 토지에 관한 피고 FFF의 지 분에 관하여 각 압류 등기를 마친 상태이고， 피고 용인시는 별지 3. 부동산 목록 기재 중 2， 4 토지 및 7토지에 관한 피고 DDD의 지분， 별지 12 내지 28 토지 에 관한 피고 FFF의 지분에 관하여 각 압류등기를 마쳤으며(다만， 뒤에서 보는 바와 같이 일부 토지에 관하여는 후에 압류등기가 말소되었다)， 피고 김ㅍㅍ은 별지 3. 부통산 목록 기재 중 4， 6 토지 및 7， 9 토지에 관한 피고 DDD의 지분을， 피고 김OO， 김OO은 별지 3. 부동산 목록 기재 중 8 토지에 관한 피고 제이에스아이 앤디의 지분을 각 가압류한 상태이다.

C. On March 3, 2008, the Plaintiff’s representative OO et al. filed a complaint on the grounds that the Plaintiff’s previous representative OO and OOO et al. forged the Plaintiff’s minutes of the Plaintiff’s clan and sold the instant real estate in installments and embezzled the proceeds therefrom. As a result of the investigation, EO was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and sentenced to four years of imprisonment, and the sentence was finalized, but it was found that there was a non-prosecution disposition on April 30, 2009 with respect to the accusation against OO, etc.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 29, Gap evidence 6, and the purport of the body before oral argument

2. The parties' assertion

A. Summary of the plaintiff's assertion

원고는 이 사건 주위적 청구원인으로， 이 사건 부동산의 매각에 관하여 2005년도 나 2006년도에 원고의 적법한 총회결의가 없었음에도 원고의 종전 대표자 이OO 및 총무이사 이OO 등이 2007. 2. 10.자 임시총회에서 이 사건 부동산을 매도하기로 결정 한 것처럼 종중총회 회의록을 위조하여 피고 BB물류 등 최초의 매수인들과 사이에 각 매매계약을 체결하고 이에 따라 별지 2. 청구취지 기재와 같이 각 소유권이전등기를 마쳤으므로， 위 각 매매계약은 원인무효로서 말소되어야 하고， 이에 터 잡은 각 소유권이전등기， 근저당권설정등기 등은 모두 말소되거나 현재의 등기명의자인 해당 피고들이 원고 앞으로 진정명의회복을 원인으로 한 소유권이전등기를 경료하여야 하며， 나아가 가압류나 압류 등으로 위 각 소유권이전등기의 말소에 이해관계가 있는 해당 피고들은 위 말소등기에 대하여 승낙의 의사표시를 할 의무가 있다고 주장하고， 예비적 청구원인으로， 가사 원고의 적법한 총회결의가 있었다고 보더라도 2007. 2. 10.자 임시총회는 총회가 아니라 이사회로서 이 사건 부동산 매각의 구체적인 실무를 논의한 최초 회의였으므로 위 임시총회 회의록에 기재된 부동산 매각 면적 56，198㎡의 범위를 초과할 수 없고， 만약 이를 초과하는 면적이 매각되었다면 그 부분만큼은 적법 한 종중총회 및 이사회 결의 없이 매각된 것이어서 해당 매매계약은 당연 무효라고 할 것 인데 ， 원고는 이 미 2007. 6. 5.자， 2007. 12. 1.자 및 2008. 3. 10.자 매매계약을 통하여 합계 54，868㎡를 매각하였으므로 2008. 6. 13.자로 피고 DDD에게 이 사건 부동산 중 용인시 처인구 원삼면 OOO리 산000 임야 3，306㎡， 같은 리 산0000 임야 3，306㎡， 같은 리 산0000 임야 5，630㎡ 합계 12，242㎡를 매각한 것은 본래 매각을 결의한 면적을 초과하므로 이 부분에 대하여는 원고의 적법한 매각결의가 없어 무효이고， 따라서 이에 관한 소유권이전등기는 모두 말소되어야 한다고 주장한다(다만， 원고는 위 예비적 청구원인에 맞추어 따로 청구취지를 정리하지는 않았다).

B. Summary of the Defendants’ assertion

The defendants, and the plaintiff asserts that the sale of the real estate of this case was legally decided at the regular clans meeting in 2005 and 2006, and that it is merely a specification through the resolution of February 10, 2007.

3. Determination

A. Organization of issues

The facts that the ownership transfer registration following the sale of the real estate of this case was completed on February 10, 207 based on the minutes of the extraordinary general meeting (see each of the statements in No. 4-1 through No. 3) of this case are no dispute between the parties, and it is apparent in light of the record that the number of members present and the members present, and the land subject to the disposition are different, although the above minutes were uniformly prepared, it is obvious in light of the record, but the above evidence No. 2-1 through No. 7 of this case, Gap evidence No. 17, Eul evidence No. 17, and evidence No. 5 and No. 7, and the overall purport of the pleadings, and the minutes of the extraordinary general meeting as of February 10, 207 are merely 200,000,0000,0000,0000,0000 won after the end of the board of directors on February 10, 2007, 207,07,07.

B. Determination as to whether there was a resolution of the plaintiff's legitimate clan with respect to the sale of the real estate of this case (determination as to the ground for the claim of the head of the family)

(1) Relevant legal principles

In a case where the clan members are regularly gathered at a certain place on a certain day each year in accordance with the rules or practices of the clans, if the clan members are to handle the church affairs of the clan, it is not necessary to separately convene the general meeting of the clans (see, e.g., Supreme Court Decision 93Da27703, Sept. 30, 1994); and the recognition of facts as to the fact that the disposition of the clan property was made in accordance with the regulations of the clans or that there was a resolution lawful by the general meeting of the clans, may also be made by recognizing indirect facts that can confirm that the resolution of the general meeting of the clans was not made directly by the evidence that can directly prove such facts, such as the resolution of the general meeting of the clans, and that there was a resolution of such general meeting of the clans (see, e.g., Supreme Court Decision

(2) Application of this case

The direct evidence, consistent with the plaintiff's argument that there was no legitimate clan meeting of the plaintiff for the sale of the real estate in 2005 and 2006, that there was the plaintiff's 1 through 10, Eul evidence 10-1 through 7, Gap evidence 23-3, Gap evidence 27-9, Eul evidence 10, 11, 13, and 16, and 20, each of the testimony of Lee O and Lee O of the first instance trial, and the testimony of Lee O and Lee O of the first instance trial, are included in the parts of evidence 3-1 through 5, and evidence 6, Gap evidence 7, 9, 11, 12, 13, 17, and 22, and evidence 10, Eul evidence 23-1, and Eul evidence 3 through 7, and evidence 20, which are hard to see that the plaintiff's testimony of the above case can be found as follows, compared to the circumstances of the plaintiff's evidence.

① On February 10, 2007, when the directors, auditors, and auditors appointed in each clans upon the family assembly in 2006 gather, they held a clan board on February 10, 2007 to build a medical care center for the elderly at the proceeds of the sale of the real estate owned by the plaintiff, and discussed specific matters (such as: (a) there are some directors (O, EO, EO, EO, EO, etc.) who did not directly attend the clan board on February 10, 207; and (b) there was a discussion on the fact that the Plaintiff received a seal imprint in the minutes (Evidence No. 4-1) after this mold, and that there was a defect in selling the real estate on the same day, and that there was a defect in selling the real estate on the same day. However, even on April 6, 2007 and August 207, 207, the Plaintiff continued to hold a clan board to discuss the use of the real estate for the preceding purposes of the sale of the real estate.

② Some of the clans (O, EO, EO, EO, EO, EO, etc.) were present at the pilot in 2005 or 2006. Although they argued that there was no discussion about the sale of the real estate in this case, it seems difficult for the above clans who did not directly participate in the member of the clans, and that it would be difficult for these clans to accurately memory the discussions discussed at the time. When construction of the elderly welfare care center for the elderly in the year 2005 and 206, the plaintiff heards that they did not look at any point to these Os, but they did not know that they did not sell the real estate in the year 206, that they did not know that they were about 205 or 205 stories, and that they did not know that they were about 05 stories and 205 stories in the year 206 (see, e.g., evidence 8, evidence 1050).

③ The Plaintiff asserts that some of its members (O, EO, EO, EO, EO, EO, EO, etc.) were not present at the regular meeting held in 2005 or 2006, and that they were present and speaked in minutes (Evidence A) in 2005 or minutes (Evidence A) in 2006, etc., and according to the above evidence, each of the above minutes is not immediately prepared at that time, but may be recognized as having been prepared more than a considerable time. However, EOO used directly for the Plaintiff clan at that time, etc. was prepared after the lapse of 205 or 206 at the regular meeting held in 206 (OOO used directly for the Plaintiff clan) that part of the above real estate was sold in order to solve the problem of tax payment related to real estate owned by the Plaintiff, etc., and that there was a resolution that any defect in the profit-making business was made, and that each of the above minutes is easily rejected, and each of the above minutes cannot be rejected.

④ As seen earlier, it seems possible for the clan Council of February 10, 2007 to discuss the use of the real estate proceeds of this case on the following grounds: (a) there was a resolution of the clan General Assembly of 2005 and 2006.

⑤ Although the Plaintiff’s representative and EOO filed a charge of forging EO’s unconstitutionality with EO on February 10, 2007, the Prosecutor, around April 30, 2009 and around May 24, 2012, issued a disposition that was without suspicion, and the Seoul High Court dismissed an application for adjudication against a disposition that was not suspected on July 26, 2012.

(3) Sub-determination

Therefore, the plaintiff's argument about the primary cause of claim of this case, which was based on the premise that there was no legitimate clan general meeting of the plaintiff for the sale of the real estate in 2005 and 2006, is without merit (On the other hand, considering the overall purport of the argument in the evidence No. 2, and the attachment registration, which was completed in the name of the wife population as to the land No. 2 in the real estate list No. 3, on October 29, 2010, and the attachment registration, which was completed in the name of the wife population as to the land No. 2 in the real estate list No. 3, was cancelled on July 20, 2010, and the attachment registration, which was completed in the name of the Gu as to each of the land No. 4 and 7 in the real estate list No. 3, respectively, can be recognized as cancelled on July 20, 2010, so this part

C. Determination on the conjunctive cause of claim

As seen earlier, in 2005 and 2006, there was a resolution of the Plaintiff’s lawful clan general meeting for the sale of the instant real estate, and the resolution was merely made on February 10, 2007, and the minutes of February 10, 2007 (No. 4-1) are prepared ex post to meet the formal requirements for the completion of the registration of ownership transfer following the sale of the instant real estate after the completion of the board of directors, and it is difficult to view that the resolution of the Plaintiff’s clan general meeting on the sale of the instant real estate is limited to the area stated in the above minutes, and there is no other evidence to acknowledge this, and there is no reason to support the Plaintiff’s conjunctive claim.

4. Conclusion

Then, the plaintiff's claim of this case against the defendants should be dismissed because it has no reason, and the judgment of the court of first instance is just as this conclusion, and the plaintiff's appeal is dismissed as it has no reason, and it is so decided as per Disposition.