Plaintiff clan (Attorney Kim Jong-han, Counsel for the plaintiff-appellant)

Defendant 1 and six others (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

April 11, 2008

Daejeon District Court Decision 2006Gadan86280 Decided December 7, 2007

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Plaintiff: (a) As to Defendant 1’s share of 3/15 square meters among the forest land of 15,676 square meters in Yansan-gun, Chungcheongnam-do; and (b) as to each of 2/15 shares of 2/15 shares, the remaining Defendants implement the procedure for the registration of ownership transfer based on the title trust termination on October 16, 2006.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Determination on the defense prior to the merits

A. The defendants' assertion

The lawsuit of this case is unlawful, since the plaintiff's clan is not recognized as its substance and it cannot be deemed that the non-party 5 is the legitimate representative of the plaintiff's clan.

B. Determination

(1) A clan is a naturally occurring family organization formed by descendants of the common ancestor for the purpose of protecting the graves of the ancestor and promoting friendship among their descendants and its descendants, and there is no limit on the number of members established by their descendants at the same time as the death of the clan (Supreme Court Decision 94Da17772 delivered on November 11, 1994), and a clan does not require special organization for its establishment, but it does not require special organization for its establishment. However, there are cases where regulations are prescribed in order to regulate the activities of protecting the graves of the common ancestor, conducting religious services, and conducting external activities, it is only necessary to appoint its representative, and there is no need to use a specific name and written regulations, or there is a continuous appointment of the representative of the clan, etc., and there is no need to establish organization for its establishment, and there is no special regulation for the clan to elect the majority among the members or descendants of the common clan by a resolution of the common clan or by the majority of its management status, etc., but it must be decided by the majority or majority of the clan members.

(2) Comprehensively taking account of the overall purport of arguments in Gap evidence 4, Gap evidence 7, Eul evidence 9, Eul evidence 14-1 to 12, and the testimony of the non-party 4 and 6 of the first instance court, the non-party 1, the co-member of the plaintiff clan, purchased a forest land of 15,676m2 (hereinafter "the forest land of this case"), which is the family members of the non-party 1's family, and used them for their religious services. ② The non-party 1 died, and his descendants were to lawfully maintain the graves of the non-party 1, who were the representative of the non-party 1's family, and therefore, most descendants were gathered on the date of the non-party 1's clan and investigated the family register with the non-party 5's opinion on the non-party 1, who was the representative of the non-party 6's clan, and the non-party 1, the non-party 5's non-party 2 and the defendant 6's non-party 7.

2. Judgment on the merits

(a) Basic facts;

(1) On December 30, 1965, Nonparty 1 decided to purchase the forest of this case in order to use the forest of this case as a paper for the tombstone and the descendants to ask for their own post, and completed the registration of ownership transfer on July 21, 1970. After that, Nonparty 1 purchased Nonparty 2’s shares and completed the registration of ownership transfer on March 25, 1985, while Nonparty 1 purchased the ownership of this case and did not complete the registration of ownership transfer on March 25, 1985, pursuant to the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3562).

(2) On February 23, 1992, the non-party 3 died and jointly succeeded to the non-party 3's property with 3/15 shares and 2/15 shares, respectively, and the non-party 1 died on December 23, 1996.

(3) The children and the Defendants installed Nonparty 1 and Nonparty 3’s graves in the instant forest.

(4) From 1989 to 1989, Nonparty 4, who is Nonparty 1-3, had been raising rush in the forest of this case, or prevented tobacco and sculp farmers, and the Defendants did not raise any objection thereto.

(5) On October 16, 2006, the Plaintiff clan sent to the Defendants a written notice of the content that the Defendant’s instant forest was title trusted to Nonparty 3, and that the Defendant’s forest was terminated. At that time, the Plaintiff clan reached all the Defendants.

[Ground of Recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-1 through 4, Gap evidence 4, Gap evidence 8-1 to 7, Gap evidence 13-1 to 3, Gap evidence 11, non-party 4 and non-party 6's testimony and the purport of whole pleadings

[Evidence of Deficiency] No. 1 to 7 of evidence No. 1

B. Determination

In full view of all the circumstances revealed in the above facts of recognition, Nonparty 1 shall be deemed to have held title trust with the intention to preserve the forest land of this case permanently with the collective ownership property of the clan for the clan, which is a third person who will be established after the fact of the above recognition, and it shall be deemed that the Plaintiff, the beneficiary of the above title trust agreement, as the above, terminated the title trust to the Defendants who succeeded to the status of Nonparty 3 by declaring the intention of profits, thereby acquiring the status of the truster, and at the same time cancelling the title trust.

Therefore, among the forest land in this case, Defendant 1 is liable to pay the Plaintiff 3/15 shares, and the remaining Defendants are liable to pay the ownership transfer registration procedure based on the termination of title trust on October 16, 2006, respectively.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified with this conclusion, and the defendants' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Maximum (Presiding Judge)