(영문) 대법원 2015.8.27.선고 2014다201513 판결

1. The unique meaning of a clan is a naturally created clan organization that consists of a naturally created family members, which consists of adult male members among the descendants of a common ancestor, without requiring special organization activities for its establishment. Whether a clan falls under its unique meaning shall be determined by comprehensively taking into account the purpose of the clan, its establishment and establishment, the circumstances of its organization, its scope and qualification criteria, and the contents of the clan regulations (see, e.g., Supreme Court Decision 2001Da5296, Jun. 28, 2002).

In addition, an organization consisting only of some members of a clan residing in a specific area is merely an organization similar to a clan and cannot be a general member of the meaning of intention (see, e.g., Supreme Court Decisions 2002Da4863, May 10, 2002); however, a clan which arbitrarily limits or expands the qualification of some members of the clan while preparing the rules of the clan, such as the articles of association, after the unique meaning of the clan has naturally created, shall be null and void against the essence of the clan; and the clan rules which have already been established shall not be deemed null and void against the essence of the clan; nor shall the clan be deemed to be merely an organization similar to a clan, not a clan of its own meaning (see, e.g., Supreme Court Decisions 92Da15048, Sept. 22, 1992; 2008Da30482, Aug. 20, 209).

2. For the reasons indicated in its reasoning, the lower court determined that (1) (1) the clan rules enacted by the Plaintiff around January 30, 1979 set forth the following: (2) the purpose of this clan is to preserve and manage the graves of the clan clans residing in the area of Gyeonggi-do, the number of the clans, their relics and their relics, and the property of the clans (Article 2) and to promote mutual friendship among the clans (Article 3); (3) the clans are each set forth in the Rules that the Plaintiff shall be composed of the adult male of 20 years of age or older from the village of Gyeonggi-do (Article 3); and (2) The Plaintiff did not accept the Plaintiff’s request from the deceased for the registration of the title trust agreement with the representative and executive body in accordance with the clans, while the members of the clan appear to have been present each year; and (3) the Plaintiff did not recognize the Plaintiff’s specific title trust agreement with respect to the title of the clans under the title trust agreement, and thus, did not recognize the Plaintiff’s specific title title of the clans.

3. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. According to the reasoning of the judgment below and the evidence duly admitted, (1) the plaintiff took up the four descendants of AC from much more than before the establishment of the clan Code in 1979 as a joint group of AC members, and had engaged in activities, such as setting up a memorial system each year at the seat of the graves, etc. of the above AD located in Q Q Q Q Q Q Q Q in Q Q Q Q of Pakistan; (2) although the plaintiff's clan rules limit the scope of the clan members to those of a delay in the year; however, the plaintiff's "ABC list (A evidence 17) in the Socheon-gu area" prepared around September 1, 1993 and "the AB list (A evidence 15; hereinafter referred to as the "AB list") prepared around November 205, the plaintiff's address was not limited to the residents of the clan, but limited to the area of the clan (AE)'s daily distribution of the clan members of the above 4000 members.

B. In light of the actual place of residence and the preparation of the register of members of the plaintiff clans, and the circumstances where the above clans rules have provisions concerning its branch offices under the premise that the members of the clan reside in addition to the clans area, it is doubtful whether the above clan rules enacted by the plaintiff set their names "A during the clans" and set the scope of the members of the clans as "the origin of the clans in Gyeonggi-do," but it is doubtful whether the plaintiff can be determined to be composed solely of the residents of the Socheon area or the persons of the Socheon area.

Therefore, according to the above legal principles, the court below should further examine whether the plaintiff's scope of the general members was limited to the person from the beginning of the game Socheon area or whether the plaintiff's general members was established as a clan with a unique meaning without such restriction, and thus, limited the scope of the members of the clan in order to manipulate it.

If the plaintiff is only an organization similar to a clan, only the above regulations that limit the scope of the members of the clan are null and void, and the plaintiff still has to determine whether it constitutes a unique clan. Nevertheless, the court below, however, did not fully examine the remaining circumstances that the plaintiff was only a organization similar to the clan on the basis of only some contents of the clan rules, etc., and rejected the plaintiff's claim of this case based on the premise that the plaintiff is a unique clan.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to clans within its unique meaning, which did not exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.