[1] The meaning of "the relationship between a party to a case and a joint obligee and a joint obligor" as a ground for exclusion under Article 41 subparagraph 1 of the Civil Procedure Act

[2] Whether a member of a clan has a common legal interest in the validity of the resolution of the general meeting of the clan that amended the rules of the clan that directly affects the property and status of the members of the clan (affirmative)

[3] Where a lawsuit seeking confirmation of invalidity of a resolution of the general meeting of the clan that amended the rules of the clan was filed, and one of the judges constituting the original adjudication division is the member of the relevant clan, the case holding that the judge falls under "a person who has a relation with the party as a joint right holder or a joint obligor" under Article 41 subparagraph 1 of the Civil Procedure Act

[1] Article 41 subparagraph 1 of the Civil Procedure Act / [2] Article 41 subparagraph 1 of the Civil Procedure Act / [3] Article 41 subparagraph 1 of the Civil Procedure Act and Article 424 (1) subparagraph 2 of the Civil Procedure Act

Plaintiff 1 and 7 others

[Defendant-Appellee] Cheongsung P&S Co., Ltd. (Attorney Park Jong-il, Counsel for defendant-appellee)

Seoul High Court Decision 2009Na68011 decided November 17, 2009

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 27(1) of the Constitution provides that “All citizens shall have the right to a trial by law” that provides that “All citizens shall have the right to a trial by a judge as prescribed by the Constitution and laws,” thereby guaranteeing the right to a lawful and fair trial (see Constitutional Court en banc Decision 2008Hun-Ba124, Dec. 29, 2009).” Article 1 of the Civil Procedure Act provides that “the court shall endeavor to ensure the fair, prompt, and economical progress of the trial.” Meanwhile, Article 1 of the Civil Procedure Act provides that “Where a judge or his/her spouse or ex-spouse is a party to the case, or a joint obligor or a joint obligor is a party to the case, and the relationship between a party to the case and a joint obligor or a joint obligor shall be presumed to exist in the position of grounds for exclusion to prevent a judge from performing his/her duties as a matter of course in certain cases where a judge is likely to conduct an unfair trial.”

On the other hand, a clan may establish the rules of the clan for the management method of the property of the clan, the appointment of officers, including the representative of the clan, and the operation and use of the property of the clan which belongs to the collective ownership of the clan when the rules of the clan exist, shall follow the rules of the general meeting of the clan held in accordance with the rules of the clan or the rules of the clan, and shall also follow the rules of the clan in relation to the rights and obligations of the clan such as the right to appoint the officers of the clan. Accordingly, the clan members have a common legal interest in the validity of the resolution of the general meeting that has amended the rules of the clan which directly affect the property and status of the clan members.

2. According to the records, as the first instance judgment cited by the court below at the special meeting of February 24, 2008, the defendant clan elected the chairperson of the defendant clan and passed a resolution to amend the rules of the defendant clan (hereinafter "the resolution of this case"), and the plaintiffs of the defendant clan filed the lawsuit of this case seeking confirmation of invalidity of the resolution of this case on the ground that there is illegality, etc. held by the non-authorized person to convene the resolution of this case. The △△△△ decision judge composed of the court below in charge of the judgment of the court below, can find the fact that the defendant clan was the grounds of the defendant clan like the plaintiffs.

In light of the above legal principles, the judge of △△△△, which is the defendant clan, is in a position directly affected by the property owned by the defendant clan and other rights and obligations in accordance with the provisions of the rules of the defendant clan like the plaintiffs who are the parties of this case. The plaintiffs asserted the invalidity of the resolution of this case, which revised the rules of the defendant clan through the lawsuit of this case, and according to whether the plaintiffs' assertion is invalid or not, it can be denied the validity of the rules of the defendant clan in accordance with the legal relationship with the judge of △△△△, as well as the plaintiffs, applicable to the legal relationship with the defendant of the defendant of this case. Therefore, the judge of △△△△△△, which can be deemed to have a common interest with the plaintiffs as to whether the resolution of this case, which is the purpose of the lawsuit of this case, is invalid or not, shall be deemed to fall under a person who has a relation with the parties of this case as provided in subparagraph 1 of Article 41 of the Civil Procedure Act. Accordingly, the judgment of the court below participating in the judgment shall be justified.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)