[1] The method of determining the parties to a contract where the actor has entered into the contract under the name of another

[2] The case holding that in a case where a sale contract was concluded with a clan as a seller for real estate held in title by a clan, the title trustee is in the position of a common seller with a clan

[3] The standard for determining whether an act of invalidation or an act of unauthorized representation has been implicitly ratified

[4] Whether an auditor shall convene a general meeting or convene a general meeting with the permission of the court where Article 70 of the Civil Code applies mutatis mutandis where a legitimate convening authority of the general meeting of a clan fails to comply with the legitimate convening demand of the members of the clan (negative)

[5] In a case where a clan member organized an emergency countermeasure committee and requested the convening authority of an extraordinary general meeting to convene an extraordinary general meeting, but failed to comply with this request, and held an extraordinary general meeting by personally convening a convocation notice, the case holding that since the existing president et al. failed to comply with the above request for convocation without justifiable grounds, the extraordinary general meeting held by all members of the emergency countermeasure committee upon convening a convocation notice to all members directly

[1] As to who is a party to a contract where an actor, who is a principal of a contract, committed a juristic act in the name of another person, shall be determined in accordance with the consent of the actor and the other party. If the intent of the actor and the other party are in accord, then the other party shall be determined in accordance with the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and circumstance of the contract, if there is any difference between the actor and the other party, then the other party shall be determined in accordance with whom the actor and the nominal owner,

[2] The case holding that in a case where a sale contract was concluded on real estate held in title by a clan and several title trustees, the title trustee is in the position of a common seller with a clan as stated in the sale contract

[3] The ratification of an invalidation or an unauthorized representation is a single act with the knowledge of the invalidation and the effect of such an act to vest in the person in question. Thus, if there are circumstances to deem that the person in question sufficiently understand the legal status faced by such an act and, even if there are reasons to deem that the result of such act belongs to himself/herself, it may be deemed that the ratification has been impliedly ratified.

[4] Although the members of a clan have requested a legitimate convening authority in accordance with the rules of the clan or the convening authority of the general meeting of the clan for the management or disposition of the clan's properties, if the convening authority fails to comply with the request without justifiable grounds, the seat or the promoters (the proposer who requested convening of the general meeting) may convene the general meeting on behalf of the convening authority, and the auditor shall not necessarily convene the general meeting or convene the general meeting with the permission of the court by applying mutatis mutandis Article 70 of the Civil Code.

[5] In a case where a clan member organized an emergency countermeasure committee and requested the president of the clan and the persons with authority to convene the extraordinary countermeasure committee to convene the extraordinary countermeasure committee to remove the qualification and qualification of representative related to the management, disposition, etc. of the clan properties, but failed to comply with this request, and thereby held the extraordinary countermeasure committee by convening a convocation notice, the case holding that since the existing president et al. refused the above convocation request without justifiable grounds, the extraordinary countermeasure committee member held the extraordinary countermeasure committee's convening a convocation notice directly to all its members, barring special circumstances.

[1] Article 105 of the Civil Act / [2] Article 105 of the Civil Act / [3] Articles 130 and 139 of the Civil Act / [4] Articles 31, 70, and 71 of the Civil Act / [5] Articles 31, 70, and 71 of the Civil Act

[1] Supreme Court Decision 97Da22089 delivered on March 13, 1998 (Gong1998Sang, 101), Supreme Court Decision 2003Da44059 Delivered on December 12, 2003 (Gong2004Sang, 125) / [2] Supreme Court Decision 97Da7356 Delivered on May 16, 1997 (Gong1997Ha, 1840), Supreme Court Decision 200Da27923 Delivered on October 6, 200 (Gong200Ha, 22284) / [3] Supreme Court Decision 2009Da3781 delivered on September 24, 2009 (Gong209Ha, 1749 decided May 16, 197) / [360Da36979 decided Oct. 25, 2005] Supreme Court Decision 209Da37949 decided September 1979, 19797.

Advanced M&D Co., Ltd. and two others

Eti Cases Co., Ltd. and one other

Dongyang Co., Ltd. and one other

Plaintiff 8

Young-gu Co., Ltd. and one other (Law Firm Barun Law, Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

Jungwon Co., Ltd. (Law Firm Barun, Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

1. The term "landmark" means landmark, landmark, landmark, landmark, landmark, landmark, and landmark.

Defendant 1 and three others

Searching Jin-Jin Pyeong-Jin (Attorney Choi Chang-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 2009Na7289, 7296 decided August 17, 2010

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal by the plaintiffs and the successor intervenors

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

(1) As to who is a party to a contract where an actor who executes a contract was engaged in a juristic act in the name of another person, the parties to the contract shall first be determined as the party to the contract in accordance with the consent of the actor, if the actor and the other party agree to the other party. If the other party does not coincide with the intent of the actor and the other party, on the basis of the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and details of the contract, if the other party does not coincide with each other, then the party shall be determined in accordance with whom the actor and the nominal owner would understand as the party to the contract (see, e.g., Supreme Court Decisions 97Da22089, Mar. 13, 1998; 2003Da4059, Dec. 12,

(2) According to the reasoning of the judgment of the court below and the judgment of the court below, the defendant 2's remaining shares in the sales contract for the defendant 1 and the defendant 2's sale of the non-party 12 and the non-party 2's new clans' shares in the name of "the non-party 8 and the non-party 2's new clans' shares in the non-party 1 and the non-party 8's new clans' shares in the non-party 1 and the non-party 2's new clans' shares in the non-party 8's sale and purchase contract for the non-party 1 and the non-party 8's new clans' shares in the non-party 2's name and the non-party 9's new clans' shares in the non-party 1 and the non-party 2's new clans' shares in the non-party 8's shares in the non-party 1 and the defendant 2's new shares in the non-party 1 and the non-party 3'.

(3) However, the lower court’s determination is difficult to accept in light of the legal principles as seen earlier and the following circumstances.

First, according to the facts established by the court below, the forest of this case was registered under title trust with the defendants, and the registration of ownership transfer was completed in the name of the defendants, and the defendants are also recorded in the sale contract of this case with the defendant. In addition, according to the records, executives such as the defendant 1, etc., who were the chairperson of the clan of this case, agreed to sell the original land for 2.60,000 won per average, and the conclusion date of the contract was made on June 21, 2007. However, the defendant 4, who is the title trustee of the forest of this case, did not cooperate in the conclusion of the contract and did not request the above defendant 4, etc. to enter into the sale contract of this case for compensation for the above compensation, etc. 70,000,000 won per usual, and the defendant 1, the chairperson of the clan of this case, who was the plaintiff 1, had entered the sale contract of this case into the sale contract and the sale contract of this case into the sale contract of this case with the defendant's.

The following circumstances revealed through the above facts and records, namely, the forest land of this case was registered under the name of the defendants. If the defendants did not cooperate with the conclusion of the sale contract or the registration procedure for transfer of ownership, it is difficult to think that the plaintiffs, including the plaintiff's advanced members, agreed with the executives of the clan of this case, who are the title truster of the forest of this case, intended to completely exclude the defendants from the seller. This is the same as the clan of this case where some defendants were unable to cooperate in the process of conclusion of the sale contract of this case, and the defendants were to pay compensation for the registered name. The sale contract of this case was concluded under the name of 60, the registered title truster of this case as the seller, and the sale contract of this case was concluded under the name of 70, the sale contract of this case was concluded under the name of this case as the purchaser of this case, and the purchaser of this case as the plaintiff's name, and it was reasonable for the defendants to have agreed with the sale contract of this case to be executed under the name of the defendant 1 and the defendants.

(4) Nevertheless, the court below held that only the clan of this case is a party to the sales contract of this case and the registration of transfer of ownership in the names of the plaintiffs and succeeding intervenors is null and void solely on the ground that there is a defect in the resolution of the clan concerning the disposition of the forest of this case. Thus, the court below erred by misapprehending the legal principles on the confirmation of parties to the

B. Regarding ground of appeal No. 3

(1) The ratification of an invalidation or an unauthorized representation is a single act with the knowledge of the invalidation and the effect of such an act to vest in the person in question. Thus, in a case where there are circumstances to deem that the person in question sufficiently understand the legal status faced by the act and, even if there are circumstances to deem that the result of the act belongs to himself/herself based on the truth, ratification may be deemed impliedly ratified (see, e.g., Supreme Court Decision 2009Da37831, Sept. 24, 2009).

(2) According to the facts established by the court below and its adopted evidence, in order to report the progress of revenue and expenditure, etc. for the past time after the plaintiffs received full payment of the purchase price, and to resolve the distribution of the purchase price, the clan issued a notice to notify the extraordinary general meeting under the name of the defendant 1, who is the president at the time of April 22, 2008, of "3 cases other than the clan recycling plan". Accordingly, at the extraordinary general meeting held on May 10, 2008, 108, 71 members attend the meeting to recognize the voting rights of the clan members, and the name of the clan and registration of the remaining clan members, 300,000,000,000 won after deducting the business expenses and operating funds, and 200,000,000,000,000 won for the remaining 20,000,000,000 won for the remaining general meeting of the clan, and 300,000,00 won,00 won.

If the members of the clan of this case decided to distribute the price to the members of the clan under the premise that the sales contract of this case was valid when they knew of the conclusion of the sales contract of this case, and actually distributed the price, in light of the legal principles as seen earlier, the clan of this case shall be deemed to have ratified at least the previous resolution on the disposal of the clan property and the sales contract of this case. Therefore, even if there was a defect in the resolution of the general assembly of the clan of this case which is in the position of the common seller of the sales contract of this case, such defect shall be deemed to have been legally cured by the above ratification (the same shall apply to the case where the clan of this case is deemed to be in the position of the sole seller, as well as to the case where the clan of this case is deemed to be in the position of the sole seller). Accordingly,

(3) Nevertheless, the court below determined otherwise that it is difficult to see that there was an implied ratification. In so doing, the court below erred by misapprehending the legal principles on implied ratification, which affected the conclusion of the judgment.

2. As to the grounds of appeal by an independent party intervenor

A. Although a clan member requested a legitimate convening authority in accordance with the rules of the clan or the convening authority of the general meeting of a clan for the management or disposition of the clan's properties, if the convening authority of the clan does not comply with the request without justifiable grounds, the following shall be allowed to convene the general meeting on behalf of the convening authority (see Supreme Court Decisions 92Da51372, Mar. 12, 1993; 94Da53563, Jun. 16, 1995; 97Da25279, Sept. 26, 1997; 97Da25279, Sept. 26, 1997; and Article 70 of the Civil Act does not necessarily require an auditor to convene the general meeting or to convene the general meeting with the permission of the court (see Supreme Court Decision 2006Da46365, Apr. 6, 2006).

나. 원심이 확정한 사실에 의하면, 이 사건 종중의 종중원인 소외 5, 6 등 은 종중 임원들 주도의 종중 재산 매도 및 그 매매대금의 분배에 불만을 품고 2008년 6월경부터 비상대책위원회(이하 ‘비대위’라고 하고, 이를 구성하거나 이에 동조한 종원을 ‘비대위 측 종원’이라고 한다)를 구성하여 종중 회장인 피고 1에게 위 매매대금의 분배, 종중 임원 개임 등의 의안을 다룰 종중 임시총회의 개최를 요구하였고, 위 피고가 이를 거부하면서 이 사건 종중은 기존 임원들에 동조하는 종원들과 비대위 측 종원들 사이에 심한 갈등이 발생한 사실, 비대위 측 종원들이 2008년 8월경 이 사건 종중의 회장인 피고 1 및 연고항존자 소외 7, 차석 연고항존자 소외 8에게 종중 임시총회의 소집을 요구하였으나 위 3인은 이를 거부하였고, 이에 소외 6은 2008. 9. 3. 비상대책위원회 명의로 자신이 파악하고 있는 종원들에게 ‘회장, 총무 및 임원진 전원사퇴, 임원진 공금횡령 환수조치문제 등’을 안건으로 한 비상 임시총회 소집을 통지한 사실, 이에 따라 2008. 9. 6. 14:00경 임시총회가 개최되어 “종원 44명이 참석하여 전원 찬성으로 소외 5가 회장으로 선임되었다.”는 내용의 총회 회의록이 작성되었고, 곧바로 15:00경 소외 5가 비대위원장 자격으로 총회를 진행하여 “참석 종원 44명 중 34명이 비대위를 인준하였고 기존 임원들은 2008. 9. 6.부터 자격이 상실되었으며 향후 비대위가 종중 업무를 추진하여 바로잡은 연후에 새로운 임원을 구성해 업무를 인계하겠다.”는 내용의 총회 회의록이 작성된 사실, 이후 소외 5는 2008. 9. 9. 비대위원장 명의로 피고 1 등 이 사건 종중의 기존 임원들에게 “비대위가 발족하여 기존 임원을 해임하였으니 추후 종중 업무는 비대위에서 인수하겠다.”는 내용의 통지를 하고, 2008. 9. 25. 비대위 명의로 종원들에게 총회 개최를 통지한 후 2008. 10. 5. 비대위원장 자격으로 총회를 개최한 사실, 한편 피고 1은 비대위와는 별도로 2008. 12. 22. 종중 회장 지위에서 이 사건 종중의 임시총회를 개최하고, “ 피고 1은 회장직을 사임하였고, 참석 종원 61명 중 의결권이 부인된 여성 종원 3명을 제외한 58명 중 47명의 찬성으로 소외 9를 신임 회장으로 선임하였다.”는 내용의 총회 회의록을 작성한 사실, 이후 소외 9는 2009. 3. 22. ‘자금사용에 대한 감사보고, 이사 선임’을 안건으로 한 임시총회를 개최하였는데, 비대위 측 종원들이 다수 참석하여 소외 9에 대한 탄핵안을 발의하고 이에 찬성하는 종원들의 서명을 받자, 위 임시총회는 파행으로 끝난 사실, 비대위 측 종원들인 소외 6, 10 등은 소외 5의 위임을 받아 2009. 3. 26. 임시총회 소집통지를 하였고, 2009. 4. 5. 개최된 임시총회에서 “참석 종원 31명 중 25명의 찬성으로 소외 9를 탄핵하고 소외 10을 신임 회장으로 선임하였다.”는 내용의 총회 회의록을 작성한 사실, 한편 소외 9는 별도로 임시총회 소집통지를 하여 2009. 4. 20. ‘규약 개정, 임원 선임’을 안건으로 한 총회를 개최한 사실, 그러다가 이 사건 소송의 진행 중에 소외 10 및 소외 9를 종중 회장으로 선임한 각 임시총회의 절차상 적법성에 대한 의문이 제기되자, 비대위 측 종원들은 2009. 6. 15. 피고 1(기존의 회장) 및 소외 9(기존 임원진이 새로운 회장이라고 주장하는 사람), 소외 7(연고항존자), 소외 8(차석 연고항존자)에게 ‘종중 회장 확정’을 안건으로 한 임시총회의 소집을 요구하였으나, 위 4인은 이를 거절한 사실, 이에 비대위 측 종원들은 이 사건 종중의 족보를 통해 종원을 확정하고 각 종원의 연락처를 조사한 후 2009. 6. 26. 자신들을 이 사건 종중의 임시총회 발기인으로 하여 여성 종원을 포함한 연락 가능한 종원 261명에게 임시총회 소집을 통지한 사실, 이에 따라 2009. 7. 5. 개최된 임시총회에 82명의 종원이 참석하였고, 그 중 81명의 찬성으로 “ 소외 10을 회장으로 선임하고, 종중의 명칭은 ‘탐진최씨중서령공신평파종회‘으로 확정한다.”는 내용의 결의를 한 사실을 알 수 있다.

Examining the above facts in light of the legal principles as seen earlier, it is justifiable for non-Subrogation members to demand convocation of an extraordinary general meeting in order to eliminate the qualification expenses for representatives in relation to the management, disposition, etc. of the clan properties to the persons holding the authority to convene the extraordinary general meeting, and Defendant 1 et al. shall be deemed to have refused the above demand for convocation without justifiable grounds. Therefore, the extraordinary meeting held on July 5, 2009 by non-Subrogation members who directly notify all the members of the call shall be deemed lawful, barring any special circumstances.

C. Nevertheless, the court below rejected the application for intervention of the independent party on the ground that the above Supreme Court precedents apply only to cases where there are special circumstances in which Article 70 of the Civil Act is not applicable or where it is extremely limited to cases where the purpose of a clan cannot be achieved if the convening of a general meeting is not permitted by the above method, etc.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Shin Young-chul (Presiding Justice)