2017Na22811 Invalidity of the clan General Assembly

1. A;

Mayang-si

2. B

Yangsan City

3. C.

Dongbcheon-si

4. D;

Seoul

[Judgment of the court below]

Attorney Park Jong-sik

E Subjects

Busan

Chairperson F of the Representative F

Attorney Seo-dong, Counsel for the defendant-appellant

Daegu District Court Decision 2016Gahap11351 Decided May 26, 2017

May 16, 2018

June 27, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On April 5, 2015, the defendant appointed F as president at the ordinary general meeting of shareholders on April 5, 2015 must confirm that the resolution is null and void.

2. Purport of appeal

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

1. Basic facts

A. Status, etc. of parties

1) The Defendant is an organization comprised of descendants of GHP 26 years old, G, and the Plaintiffs are adult women who are descendants of GHP 40 years old, i.e., the descendants of I., G HP 40 years old.

2) The main contents of the Defendant Association Rule (see Evidence A No. 2) are as follows.

(1) The purpose of this Article is to promote the number of graves set forth in Article 2 (Purpose): to promote friendship between officers and clans, to respect their character, and to make their unity. The property of the meeting shall be divided into real estate and cash 9 (29, 551m) J-Eup) 40msan (16, 264m) and Article 5 (2) of the Act: The number of officers set forth in the Article 2 (1): The purpose of this Article is to ensure that the two-year term of office of officers and vice-chairpersons shall be, with the consent of the majority of the officers set forth in the Article 6 (1) that the term of office of officers and vice-chairpersons shall be at least 1: The term of office of officers and vice-chairpersons who shall be at least 2: The chairperson shall be at least 1: The term of office of officers and vice-chairpersons who shall be at least 2: The term of office of officers and the chairperson shall be at least 1: the number of vice-chairpersons who shall be at least 2.

Paragraph 3: (General Affairs) The meeting shall be held in charge of all meetings (general meetings and executive meetings) and various events, and the minutes shall be prepared, maintained, and managed.Article 13 (Types of General Meetings) The general meeting shall be divided into an ordinary general meeting (Korean funeral day) and an extraordinary general meeting (if necessary): Article 14 (1): The general meeting shall be held once a year, and the first day of April shall be determined on Sundays (in a case where the daily participation rate is low, the special meeting shall be held at least 1/3 of the operating committee members or the chairperson shall be required to convene a meeting if the general meeting is required.Article 13 (3). Resolution of the general meeting shall be made with the consent of a majority of the members present at the general meeting and with the consent of a majority of all members present at the general meeting, and shall be made with the consent of a majority of all members present at the general meeting and with the date and time notified by text messages.Article 15 (1). A resolution of the general meeting shall be made with the consent of a majority of all members present.

B. Holding a general meeting of the Defendant on April 5, 2015 (hereinafter referred to as the “general meeting of the instant case”).

1) On March 18, 2015, K, the president of the Defendant, sent a notice of convening an ordinary general meeting to the effect that, under Article 6 of the Assembly Regulation, K, among the following descendants, is holding at least 25 years of age from among those who reside in 00,00,00 J-Eup, 0,00 in J-Eup, and those who are written in 10,000,000 in J-Eup, 00,000,000,000,000,000,0000,0000,0000,0000,0000,000,0000,0000,0000

2) At the instant ordinary meeting, I took a total of 50 descendants, and among them, some adult women were included.

3) On April 5, 2015, the above fifty persons, who attended the instant general meeting, adopted a resolution as follows, which was held on April 5, 2015.

A person shall be appointed.

1) According to the resolution of the instant general meeting, F, appointed as the president of the Defendant following the resolution of the instant general meeting, issued a notice of convening the instant general meeting on August 21, 2016 to 100 members who can communicate among the descendants of I, i.e., e., 100 members who will hold the instant general meeting at a 00-type 00 restaurant of J-Eup, Y-gu, 00

2) In the instant special general meeting, I attended a total of 32 descendants and passed a resolution with the following in full value:

1. The plaintiffs' case of the plaintiff's lawsuit against the plaintiff's lawsuit of this case will appoint F as the defendant's representative and actively respond to the decision of the general meeting of this case. 2. The conclusion of ratification of the resolution of the general meeting of this case will be discussed again on April 2017, 201 for the following reasons: the resolution of the general meeting of this case to ratification the resolution to appoint F as the president from the general meeting of this case to the general meeting of this case. 4. Otherwise, the plaintiff should not exercise the right to property of the defendant's property any longer, such as the plaintiff.

【Uncontentious facts, Gap’s evidence of subparagraphs 2 through 5, and Eul’s evidence of subparagraphs 2 through 5

2. Determination as to this defense

A. The defendant's argument

1) Pursuant to Article 6 of the Rules of the clan Association, the defendant is unlawful in the lawsuit of this case where the plaintiffs who cannot be the defendant's members because they did not correspond to the plaintiff's members, among the descendants of the I, who are the descendants of G HHm 26 years old, residing in the 00 Si/Gu J-Eup 00, or a male organized in the family of 25 years old or older as recorded in the family register, since they do not belong to them, they do not have any interest in the lawsuit of this case.

2) As of February 26, 2018, F, which is arguing that the plaintiffs are not the chairperson of the defendant, would resign from the defendant's office as of February 26, 2018, sent the defendant's general secretary L and M as the chairperson's resignation certificate, and the above content certification reached L and M, thereby becoming effective. As long as F has resigned from the defendant's office as the defendant's chairperson, the lawsuit in this case is unlawful as it concerns the past relation of rights and interests in the lawsuit are nonexistent.

B. Determination

1) First of all, we examine the argument that the Defendant constitutes a "Class 1 Similar Organizations".

A) Relevant legal principles

A clan within its unique meaning does not require a special organization as a clan organization, which is naturally created custom for the purpose of the number of graves of the common ancestor and the friendship among the religious members, but is naturally a member of the common ancestor, and since some of the descendants of the common ancestor naturally become the member of the clan, some of the members of the clan cannot be arbitrarily excluded from their clans, if the resolution or the rules of the general meeting of the clan restrict the qualification of some members of the clan arbitrarily, the resolution or rules of the general meeting shall be deemed null and void against the essence of the clan (see, e.g., Supreme Court Decisions 95Da3430, Oct. 11, 1996; 2002Da1178, Jul. 21, 2005).

On the other hand, whether it constitutes a clan with its unique meaning should be determined by comprehensively taking into account the purpose of the clan, the status of its establishment and organization, the scope and qualification standards of its members, and the contents of the clan rules (see, e.g., Supreme Court Decision 95Da34842, Feb. 13, 1996).

B) Specific determination

In light of the purport of Gap's evidence Nos. 1 and 7, "G H 001 Ham-dong 201 Ham-dong 2007 Ham-dong 2007 Ham-dong 201 Ham-dong 2001 Ham-dong 2001 Ham-dong 201 Ham-dong 98, J-dong 200 Ham-dong 200, J-dong 99 Ham-dong 200 Ham-dong 99 Ga-dong 00 Ham-dong 200 Ham-dong 201 Ham-dong 91 Gam-dong 201 Ham-dong 91 Gam-dong 91 Gam-dong 2001 Gam-dong 1, which is one of the above Ham-dong 201 Gam-dong 97 Gam-dong 3209.

① In light of the contents of the above bylaws, the defendant does not suggest that the defendant has a separate meaning of clans comprising his/her descendants and descendants in order to promote the protection of the graves of his/her ancestor and friendship among his/her descendants and to respect and harmonize his/her personality (Article 2). In light of the provisions of the above Article 13, the defendant does not suggest that the defendant has a separate meaning of clans comprising his/her descendants.

② In addition, the Defendant made a resolution to refund donations to the members who paid donations under this Chapter in addition to the appointment of F as president at the general meeting of the instant case. In light of the contents of the resolution, the Defendant appears to play a role as a clan, such as managing the tombstones of I and their descendants and raising their memorials.

③ From among the instant forests and fields, GHHP 001 and the instant land were registered as owners of 00:0,000 J-Eup, J-do 00,000 J-do 99 and 00,000,044,000,000,000. In addition, the Defendant did not deny that it is the Defendant in the instant case, “GHP 001 East, the nominal owner of the damage on the registration of real estate in each of the said forests and fields,” and Article 4 of the Defendant’s rules stipulates the said forests and fields as an intentional property under consideration.

④ At the instant ordinary meeting, some adult women, who are descendants of I, have attended the instant ordinary meeting (including not only I, but also I have argued that the Defendant has given notice of convening a general meeting in writing or by wire to adults, among the descendants of I at the time of holding the instant ordinary meeting each year), and thereafter F, to 100 clan members, including the adult women who can communicate at the lowest time to open the instant ordinary meeting. In light of this, the Defendant seems not to strictly restrict the subjects of attending a general meeting, etc. to allow them to participate only by adults, who are 25 years old or older, residing at 00 :0 in J-Eup-gu, 00 among the descendants of I, or entered in a family meeting, etc.

C) As long as the defendant is deemed to be a clan with a unique meaning, the part of Article 6 excluding the plaintiff's adult women including the plaintiff's hear from among the defendant's rules is null and void, and the plaintiffs who are descendants of the Gam HH 26 years old descendants as adults are also the defendant's clan members. Thus, the lawsuit of this case in which the defendant's clan members dispute the validity of the resolution of the general meeting of this case held by the defendant is recognized.

2) Next, we examine the main text that F withdraws from the Defendant’s office and the benefit of the instant lawsuit was extinguished.

A) Relevant legal principles

If the president, etc. was appointed by a resolution of the clan general meeting but later resigned, seeking confirmation of invalidity of the resolution of appointment is a matter of principle for seeking confirmation of legal relations in the past and there is no interest in litigation, but in the absence of a successor or where the resolution of appointment is null and void despite the resignation of the president, etc., the former president, etc., barring any special circumstance that it is deemed inappropriate to allow the former president, etc. to perform his/her duties, etc., has the duty and authority to perform the previous duties until his/her successor is appointed pursuant to Article 691 of the Civil Act. In such a case, the former president, etc., shall be deemed to have the interest in filing a lawsuit seeking confirmation of invalidity of the resolution of the clan general meeting in order to exclude his/her duties from his/her duties (see, e.g., Supreme Court Decisions 97Da26142, Dec. 23, 1998; 206Da23695, Oct. 27

B) Specific determination

Even if the F, as alleged by the Defendant in this case, expressed his intention of resignation as the resolution of the general meeting of this case, unless there is any evidence to acknowledge that the F, who was the president of this case, had been appointed by the resolution of the general meeting of this case, was duly appointed by the Defendant after his resignation, the interest in the lawsuit seeking confirmation of invalidity of the resolution of the general meeting of this case cannot be deemed to be denied merely because F, in light of the above legal principles.

C. Sub-committee

Therefore, all of the defendant's defenses are without merit.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiffs

A) The defendant held a regular meeting of this case without giving notice to the plaintiffs who are the members of the clan and passed a resolution to appoint F as the chairperson of the defendant. Thus, the above resolution of the general meeting is null and void.

B) The instant special general meeting, which ratified the resolution of the instant general meeting, was also convened by the F without authority to convene the meeting, pursuant to the resolution of the instant regular meeting, which was null and void, and is also null and void since it was conducted based on the null and void clan rules. Thus, the resolution that was formed at the instant general meeting cannot be deemed ratified.

2) Defendant

A) According to the Defendant’s rules, the Defendant’s vice-chairperson’s appointment as the next president constitutes automatic succession. The majority of the members present at the instant general meeting is merely a procedure to confirm that there is no ground for disqualification in the appointment as the president of the F. Therefore, even if there was any defect in the procedure at the time of convening the instant general meeting, F is working as the Defendant’s president.

B) Since the defendant is a "Class I's subordinate male group composed of not less than 25 years old among I's descendants," it is difficult to view that there is a procedural defect even if it did not give notice to the plaintiffs, not a member, at the time of convening the general meeting of this case.

C) Ratification of the resolution of the instant general meeting at the instant general meeting. The instant general meeting was convened by the F, appointed in accordance with the resolution of the instant general meeting. However, since the term of office of K, the former president, at the time of the instant general meeting, falls under the flexible notice of the president as stipulated in Article 12(a) of the Rules, the F, a vice president of the Defendant, was entitled to convene and hold the instant general meeting on behalf of the president, and even if the resolution of the instant general meeting is null and void, the defect was cured.

D) On September 24, 2017, the Defendant enacted new rules by convening an extraordinary general meeting in the name of M and the general secretary L, who is the co-resident of the Republic of Korea on September 24, 2017. Since the resolution of the instant general meeting was re-convened, the defect of the said resolution was cured.

B. Determination

1) Whether the resolution of the general meeting of this case was valid, where the notice for convening the convocation was defective for the plaintiffs

A) Unless there are special circumstances, a clan general meeting has no effect on the resolution of the clan general meeting held without a notification for convening a meeting, discussion, and resolution by individually giving each person an opportunity to participate in the meeting, discussion, and resolution by determining the scope of the members of the clan who are subject to notification for convening a meeting by the clan, and by individually giving each person an opportunity to participate in the meeting, discussion, and resolution to all members of the clan who are clearly residing in Korea (see, e.g., Supreme Court Decision 2007Da34982, Sept. 6, 2007).

B) As seen earlier, the defendant is a clan of unique meaning composed of descendants of I, and the facts that the defendant did not individually give notice of convening the general meeting of this case to the plaintiffs who are descendants of I are acknowledged as above. The evidence submitted by the defendant alone is insufficient to deem that the defendant did not grasp the plaintiffs' location despite having made considerable efforts to identify the confirmation and location of the clan members in making a notification of convening the general meeting of this case. Therefore, the resolution of the general meeting of this case held without a notice of convening the general meeting of this case is significant defect in the convocation procedure. Thus, since the resolution of this case held without a notice of convening the general meeting of this case against the plaintiffs, the resolution of this general meeting of this case was invalid as the chairperson who appointed F from the above general meeting of this case as the chairperson.

2) Judgment on the defendant's assertion

A) The assertion that there was no resolution to appoint a president at the instant ordinary meeting

As seen earlier, Article 9 (1) 2 of the Rules of the Defendant Association provides that "F shall be appointed as the chairperson of the next regular meeting unless any ground for disqualification exists, and Article 10 (2) "F shall be appointed with the consent of more than a majority of the members present at the general meeting, and shall be appointed with the consent of more than a majority of the members present at the general meeting." Thus, if a ground for disqualification exists to F, who is the vice-chairperson, it shall not be appointed as the chairperson unless the consent of a majority of the members present at the general meeting is obtained, and in fact, it shall not be appointed as the chairperson unless the consent of a majority of the members present at the general meeting is obtained. This part of the Defendant's assertion is without merit.

B) The assertion that a notice for convening an ordinary general meeting is unnecessary

The defendant asserts to the effect that the resolution of the general meeting of this case does not become null and void even if it is merely a "a non-member organization" and it is not a member of the general meeting, or even if it is considered a "second class", the date of the general meeting is specified on the first Sundays of April (Article 14 (1)), and the resolution of the general meeting of this case does not become null and void even if it does not separately notify the general meeting of shareholders.

However, as seen earlier, if the defendant set up a clan regularly at a certain place on the same day as the Korean clan's rules or practices, and the members of the clan are to handle the church affairs, it is not necessary to convene a clan meeting. However, in convening a general meeting separately, unless otherwise provided for in the above regulations or practices, each of the members of the clan is given an opportunity to participate in the debate and resolution of the meeting, and the resolution of the clan meeting held without such convening notice is null and void. Since some of the members of the clan obtained the consent of the majority of the members of the clans who are able to give notice, it is difficult to view that all of the members of the general meeting of the clans are to be held separately until the date and place of the general meeting of the general meeting of the defendant, and that it is difficult to say that all of the members of the general meeting of the clans set forth in the above provision of the general meeting of the defendant's 4th day before the date and place of the general meeting of the general meeting of the defendant, as well as that of the general meeting of the above 15th day of the general meeting of the general meeting of the defendant.

C) The assertion that the defect of the resolution of the instant general meeting was removed according to the ratification resolution of the instant general meeting

(1) Even if the term of office of the president, who is the representative of a non-corporate body such as a clan, has expired and there is no appointment of successor, or even if such appointment was made, the former president may perform his/her previous duties until his/her successor is appointed (see, e.g., Supreme Court Decision 2000Da56037, Jul. 27, 2001). In addition, even if a person without authority to convene a general meeting is called by a person without authority, if the person with authority to convene the general meeting gives consent to convene it, it shall not be deemed that the person with authority to convene the general meeting is not the person with authority to convene the general meeting, but it shall not be deemed that the person with authority to convene the general meeting attended the general meeting and raises an objection against the convocation of the general meeting or the appointment of the representative, and it shall not be deemed that the general meeting was convened by the person with authority to convene the general meeting, or that any defect in the procedure for convening the general meeting is corrected and lawful (see, e.g., Supreme Court Decision 2016Da165, May 197, etc.).

(2) The Defendant’s former president’s term of office expired on April 5, 2015 is as seen earlier. However, as seen earlier, there is no evidence to deem that the resolution to appoint F as president at the instant general meeting was null and void, and that K did not elect the chairman of the Defendant through lawful procedures thereafter, and that it is inappropriate to carry out the said business, at the time of the instant general meeting, K, the former president, shall be deemed to be the lawful person holding the convening of the general meeting. However, K did not call the convening of the instant general meeting, and there is no evidence to support that K did not have obtained the consent of K to convene the instant general meeting, and the foregoing F did not have any evidence to support that it was present at the time of the instant general meeting, but merely on such basis, it cannot be said that the instant general meeting was convened by the consent of the convening authority or that the defect in the procedure of convening the general meeting was not lawfully cured.

(3) Next, at the time of the convening of the instant special meeting, the Defendant constitutes a “public announcement of the president” under Article 12(2) of the Regulations because the term of office of the former president, who is only the former president, at the time of the convening of the instant special meeting. Accordingly, the Defendant convened an extraordinary general meeting by acting for the president, who is the vice president, and thus, argued that the resolution of the instant general meeting was cured by the president of the instant case. However, in the instant case where the appointment of the former president becomes null and void after the expiration of the term of office of the Defendant, who is the former president, K, who is the former president, shall be deemed a legitimate convening authority.

(4) Ultimately, the Defendant’s assertion that the resolution of ratification of the special meeting of this case is valid is without merit.

D) The assertion that the defect of the resolution of the instant general meeting was cured according to the ratification resolution of the special general meeting of September 24, 2017

The defendant asserts that the defect of the resolution of the instant general meeting was cured since M is the co-existence of the defendant, and that the resolution of ratification was passed again at the special general meeting of the defendant on September 24, 2017, which was adopted by M, and that the resolution of the instant general meeting of this case was passed again. However, there is no evidence to acknowledge that the defendant lawfully elected the re-representative of the K by September 24, 2017, the legitimate convening authority of the special general meeting of the defendant on September 24, 2017 shall be K, the former president. Therefore, the resolution of ratification of the special general meeting of the defendant on September 24, 2017, which was convened by M who is not a legitimate convening authority, cannot be deemed valid, and this part of the defendant's assertion is without merit.

C. Sub-committee

Therefore, a resolution that appoints F as the president of the Defendant at the instant ordinary general meeting is null and void, and as long as the Defendant contests this, the benefit of confirmation is recognized.

4. Conclusion

The plaintiff's claim is justified, and the judgment of the court of first instance is consistent with this conclusion, and the defendant's appeal is dismissed as it is without merit.

Interest-gu (Presiding Judge)

Escopicization

Yellow liquor

1) No. 2-3 is the same as the evidence No. 2-3.