Whether it can be inferred that a clan's rules are against its essence or merely a similar organization of a clan, which has already been established, if the clan's rules are against its essence (negative)

Article 31 of the Civil Act

Supreme Court Decision 96Da25715 delivered on November 14, 1997 (Gong1997Ha, 3799) Supreme Court Decision 97Da57405 delivered on April 28, 1998

Plaintiff clan (Law Firm Bosch Rexroth et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Barun, Attorneys Jeong Jin-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na33981, 33998 decided April 4, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

In the past, the Supreme Court has defined a clan as a customary organization as a natural group of the clan that consists of adult male members among the descendants of the common ancestor for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship among the members, and decided that women cannot become the members of the clan. However, in light of the above purpose and nature of the clan in the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005, it is reasonable to view that the descendants who share the same clan with the common ancestor naturally become the members of the clan when they reach majority without distinction of gender, and that the previous common law that limits the qualification of the members of the clan only with the adult male cannot have legal effect any longer, while changing the opinion on the qualification of the members of the clan, the changed opinion of the Supreme Court has determined that the previous common law that limits the qualification of the members of the clan, as seen above, applies only to the qualification of the members of the clan and the legal relationship newly established in relation to it.

On the other hand, although the rules of the clan which restrict or expand the qualification of some members of the clan arbitrarily while preparing the rules of the clan, after the unique meaning of the clan was naturally formed, it shall be null and void against the essence of the clan, even though some rules of the clan violate the essence of the clan, it shall not be viewed that the members of the clan already established are denied, or that it cannot be inferred that it is merely an organization similar to the clan, not a clan that has its own meaning (see, e.g., Supreme Court Decisions 96Da25715, Nov. 14, 1997; 97Da57405, Apr. 28, 1998).

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning after compiling the adopted evidence, and found that the plaintiff enacted the clan rules that grant the qualification of the members to the unmarried female in the special meeting held on April 26, 1998, but at the time, the plaintiff had already been established as a clan with a unique meaning of the adult male, so the above clan rules that expand the qualification of the members arbitrarily by prescribing the membership of the clan to be null and void, and further, the above clan rules that are contrary to the essence of the clan cannot be deemed null and void. Furthermore, since the plaintiff enacted the clan rules that are contrary to the above nature of the clan, it cannot be deemed that the organization of the clan similar to the clan, which expanded the scope of the members of the plaintiff's own land, was changed to the organization of the same clan that is not a clan with a unique meaning of the plaintiff, and even if the plaintiff omitted notification for convening the previous clan in the process of selling the land of this case, it cannot be deemed that there was a defect in the resolution of the general meeting.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the grounds of appeal, there were no errors in the misapprehension of legal principles as to the change of clan organization, violation of the principle of private autonomy, incomplete deliberation as to the time of extinction of the past customary law as to the qualifications of clan members, and errors

2. As to the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the sales contract of this case was concluded in accordance with the resolution of the general meeting of the plaintiff, on the premise that the non-party, as a legitimate representative of the plaintiff, entered into the sales contract of this case with the defendant on March 7, 2004, under the premise that the minutes (Evidence A No. 10-4) of the minutes of the general meeting of the plaintiff (Evidence A No. 10-4) were genuine

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence or incomplete deliberation as alleged in the grounds of appeal.

3. As to the fourth ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that even if there is a defect in the sales contract of this case concluded between the plaintiff and the defendant and the resolution of the plaintiff's clan that decided to sell the land of this case to the defendant as alleged by the plaintiff, at least the general meeting held on April 11, 2004, the plaintiff did not dispute the validity of the land of this case and decided to distribute the purchase price received from the defendant to the members of the clan, and in light of the fact that all the members of the plaintiff at the time of such resolution received the purchase price distributed by the plaintiff without objection, it was reasonable to view that the plaintiff ratified the sales contract of this case concluded with the defendant.

In light of the records, the above fact-finding and judgment of the court below are justified, and there is no violation of law such as misunderstanding of legal principles as to ratification of invalid acts, as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)