In a case where Party A sought confirmation of the status of a clan member against Party A, whose mother was a member, after reporting the change of her mother’s surname and surname pursuant to the surname of her mother’s surname, the case holding that Party C is a member of the clan of Party C.

In a case where Gap sought confirmation of her mother's status as a member of a clan against Byung who is her mother after reporting the change of her mother's surname and surname pursuant to her mother's surname, the case holding that it is difficult to view that Gap still remains a member of a clan as a customary law effective for the reason that her mother is not able to become a member of a clan because her mother is not a member of a clan because it is not consistent with the provisions of the Civil Act easing the principle of father's dignity and gender equality under the Constitution, and the purport of amendment, etc. of the Civil Act easing the principle of father's gender equality under the Constitution, and that, even if her mother becomes her mother after her mother's birth and surname, her mother is an adult blood relative who share her common surname with her mother's common surname and surname origin, the change of her qualification to be a member of a clan after her birth and clan's change of her qualification to be a member of a clan cannot be seen as being natural for the purpose of changing her status after her mother's.

Articles 1, 31, 105, 77 subparag. 1, 781(1), (2), (3), and (6) of the Civil Act, Article 11(1), 19, 20, 21(1), and 36(1) of the Constitution of the Republic of Korea

Plaintiff (Law Firm East, Attorneys Seo Jung-hee et al., Counsel for the plaintiff-appellant)

The clan in the Republic of Korea (Attorney Kim Sung-sung, Counsel for defendant-appellant)

Suwon District Court Decision 2016Gahap76462 decided February 3, 2017

July 7, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The plaintiff confirms that he is a member of the clan of the defendant.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The defendant is a clan consisting of descendants (i.e., a son and a 3-year sibling) of the Gazin's rewing, and the non-party who is the plaintiff's mother is the defendant's member.

B. On November 21, 198, the Plaintiff was born on November 21, 198, and the father’s father’s surname as “Ginsen (Ginco),” and the Plaintiff was born on December 6, 2013, and filed an application for the change of the Plaintiff’s surname as Seoul Family Court Decision 2013Mo30408 on December 6, 2013. On June 23, 2014, the said court rendered a ruling to permit the change of the Plaintiff’s surname as “Ginsen,” and the Plaintiff’s change of the Plaintiff’s surname as “Ginsen,” and on July 15, 2014.

C. On November 7, 2015, the Plaintiff requested the Plaintiff to grant the status of a member of the board of directors to the Defendant. Accordingly, on January 9, 2016, the Defendant made a decision to reject the said request by presenting it to the board of directors as an agenda item at the meeting of the executives on January 9, 2016.

D. The main contents of the Defendant’s articles of incorporation (hereinafter “instant articles of incorporation”) are as follows.

Article 2 (Purpose) of the Table contained in the text of this Act is to promote common interests by promoting the noble ancestor worship and friendship among relatives. Article 3 (Business) 1. 3. Matters on the operation and management of the ancestor property; 4. Matters on the operation and management of the clan property; 6. Matters on the promotion of mutual welfare and culture among the members; 6. Matters on the promotion of mutual benefits and the improvement of culture among the members, Article 6 (Composition and Qualification) of the matters on the promotion of mutual benefits among the members, the members of this meeting shall be comprised of the descendants of the son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s right to vote and the expenses necessary.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 9 (including each number, hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The descendants sharing the same surname and the same surname of a common ancestor naturally become a member of the clan when they become adult. Since the plaintiff is a child of the non-party who is the defendant's female clan and is a descendants who share the defendant's common ancestor and the same surname as the defendant's common ancestor, they are eligible to be a member of the defendant's clan. Nevertheless, the defendant contests the plaintiff's qualification as a member of the clan, and therefore the plaintiff seeks confirmation

B. The defendant's argument

There is still a firm custom as to the fact that a clan is a clan organization essentially premised on a paternal blood relationship. There is no provision that limits its members to a paternal blood relationship in the defendant's articles of incorporation, but this is not necessary to stipulate it in light of the essential nature of the clan as above, and it is not premised on the fact that the maternal blood relationship may also become a member of the clan. Therefore, even though it is a descendants who share the defendant's common ancestor and the family clan with the defendant's common ancestor, the plaintiff as a member of the clan cannot be granted the qualification

3. Determination

A. Supreme Court precedents concerning clans

In the past, the Supreme Court has defined a clan as a customary organization as a natural group of a clan that consists of adult male members among the descendants of the joint ancestor with the aim of protecting the graves of the joint ancestor, conducting religious services, and promoting friendship among its members, and held that non-bloods or women cannot become a member of the clan.

However, on July 21, 2005, the Supreme Court held on July 21, 2005, that the legal conviction of the members of our society with respect to past custom that limits the membership of a clan to only adult male, and that it does not qualify as a member of a clan is shaking or weak, and above all, our entire legal order that is the highest norm of the Constitution guarantees individual's dignity and gender equality, does not discriminate on the basis of gender equality, removes discrimination against women in all areas, such as politics, economy, society, culture, etc., and then changes in the direction of realizing gender equality. In the future, the principle of gender equality is further strengthened, so the past custom that only adult male among descendants of a common ancestor is a member of a clan and that women cannot become a member of a clan is more consistent with the purpose and rationality of the clan 200 and the overall legal order of the clan 100, which is naturally changed or originally deprived of their opportunity to participate in the activities of the clan, such as the number of graves of the common ancestor and the clan 208.

B. History and content of the system for the alteration of surname and origin

With respect to the child's surname and origin of surname, the Civil Code stipulates that the child's name is in accordance with the father's surname and the father's name (Article 781, Paragraph 1).

However, Article 781 of the Civil Act, which was amended by Act No. 7427 of March 31, 2005 and enforced January 1, 2008, provides that the person shall comply with the father's surname and origin of surname, and that where the parent has agreed to comply with the mother's surname and origin of surname at the time of marriage reporting, the mother's surname and origin of surname shall be followed (Paragraph 1), and where the father is a father's mother's surname and origin of surname may be followed (Paragraph 2), and where it is necessary to change the mother's surname and origin of surname, the person whose father is not known shall comply with the mother's mother's surname and origin of surname (Paragraph 3), and if it is necessary to change the mother's surname and origin of surname for child's welfare, it may be changed upon

On the other hand, the Constitutional Court rendered a decision of inconsistency with the Constitution on December 22, 2005, as to the part of Article 781 (1) of the Civil Act (amended by Act No. 7427 of March 31, 2005) with regard to "the child shall be in accordance with the father's gender and the father's surname," and the part of "the father's gender shall be in accordance with the father's gender and the father's surname" shall not be deemed to violate the Constitution, but even in a case where it is deemed that compelling the use of the father's gender in a specific situation due to changes in family relations, etc. may cause serious disadvantage to an individual's family life, the mere fact that the use of the father's sex shall not be prescribed in the exception with regard to the father's gender shall violate the personality right and violate the dignity and equality of the individual, and thus, rendered a decision of inconsistency with the Constitution (see Constitutional Court en banc Decision 2003Hun-Ga5,56 (Consolidated))]

C. Determination on the instant case

According to the above facts, the plaintiff is an adult blood relative who shares the defendant's common ancestor and the surname of surname, and considering all the following circumstances in light of the Supreme Court precedents and the contents and purport of the system for the change of surname and surname as to the above clan, it is reasonable to view that the plaintiff can become a member of the defendant's clan, which is a naturally created family group composed of the plaintiff's descendants for the purpose of protecting the graves of the common ancestor, promoting friendship among the religious members, and promoting friendship among the religious members, even if the plaintiff's descendants of the female clan were a member of the defendant's clan, and even if there was the past custom or customary law that the descendants of the female clan of the clan of the deceased are not a member of the clan belonging to the relevant female clan, this is not in accordance with the changed overall legal order,

1) A clan was maintained by the law of the clan, which is the most important deceased of the deceased clan, based on the concept of the worship of the deceased clan. However, as set out in the above en banc Decision, the past common law that limits the qualification of the clan members only to adult men among the descendants of the common ancestor, following changes in our social legal order, etc. No longer has the legal effect, and the descendants who share the same clan with the common ancestor shall naturally become the members of a clan when they reach majority without distinction of gender. Of course, it was determined that the above decision was reasonable to regard the descendants as the members of the clan as being members of the clan, and it is not the conclusion as to whether the descendants of the female who are the members of the clan, were the members of the clan as the result of the above decision. However, as long as it is difficult to view that the descendants of the adult clan members of the clan as the common law of the clan members of the clan, have the legal effect of restricting the clan members of the clan members of the clan, they still become the members of the clan and have the legal effect of the clan members of the clan.

2) The Constitution of the Republic of Korea provides that all citizens shall be equal in front of the law (Article 11(1)), marriage and family life shall be established and maintained on the basis of individual dignity and gender equality, and that state shall ensure that they are guaranteed (Article 36(1)). According to such constitutional spirit, Article 77 of the Civil Act amended by Act No. 4199 of January 13, 1990 provides that “a blood relative within the eighth degree” as a relative does not discriminate against paternal and maternal blood relative, and the Civil Act amended by Act No. 7427 of March 31, 2005 provides that the family system that constitutes a family centered on Australia and succeeds to it through the male’s lineal descendant does not coincide with the Constitution of the Republic of Korea and various forms of families following changes in the times, and that a child needs to actively delete the provisions on the family register, family register, family register, and branch family register based on the premise that the family register is established and established, and that the child’s mother and father’s gender should be changed in accordance with the principle of gender equality.

3) The existence of a series of children is natural and scientific. In light of such fact, the principle of forced gender and the principle of father-supremacy on the father-child’s sex is mitigated worldwide, and the child’s sex is given by allowing the selection of father-child or mother, taking into account the child’s future welfare into account and taking into account the “self-supremacy interest.” As seen earlier, our Civil Act and our Civil Act, in cases where the parents agreed to follow the mother’s surname at the time of reporting marriage, a person may take the mother’s surname at the time of birth, and even in cases where the parents agreed to or the court decided on the mother’s mother’s surname at the time of birth, a person may take the mother’s surname at the time of birth. As such, it is natural to view that the child can be a member of the clan from the time of birth if the father’s mother’s mother’s surname was to follow the mother’s surname’s mother’s surname at the time of birth, and there is no reasonable reason to change the mother status of origin.

4) Not only a person who has reported the birth according to the mother’s surname but also a person who has been changed to the mother’s surname pursuant to the provisions of the Civil Act after birth, since the father’s surname does not coincide with the mother’s surname, the father cannot belong to or naturally secede from the clan attached. It provides that the articles of incorporation and blood relatives of the defendant clan shall not be recognized as descendants if they are changed to a sternity. A specific individual may become a member of several clans and may not belong to any clans, but it does not conform to the principle of equality under the Constitution, solely on the ground that he/she has followed the mother’s surname or changed to the mother’s surname after birth.

5) The defendant asserts that, for example, there may be attempts to join a clan in the case of a large number of property for a clan, by changing the membership of the clan into the clan, or that it would be a member of the clan to which the clan belongs even in the case of changing the membership of the clan as a child of the clan, and in such a case, the reason for the establishment of the clan would be lost. However, the defendant's above assertion is reasonable in view of the following facts: (a) it is unreasonable to determine the scope of the members of the clan based on the fact that it is possible only when it is deemed necessary for the welfare of a person after review and permission by the court; (b) it is unreasonable to determine the scope of the members of the clan based on concerns that it may be abused by the system; (c) it is a member of the clan, not only the rights but also the obligations of the clan; and (d) it shall not be deemed that the member of the clan is a member of the clan to which the clan belongs even if he is a child of the clan, as a result of the clan.

6) The defendant also asserts that the qualification of the clan members artificially changed due to the change of the surname of surname does not fit the nature of the clan, which is a naturally created family group. However, even though the clan is a naturally created family group, the previous common law does not allow the change of the clan members at all, such as that both the clans belong to the clans by adoption, and the clans do not lose the nature of the naturally created family group due to the partial change of the clan members, and as seen earlier, the defendant's articles of incorporation should not be recognized as descendants if they are changed to the clans, so it is difficult to view the above argument by the defendant as reasonable.

4. Conclusion

Therefore, as long as the plaintiff is a member of the clan of the defendant and the defendant disputes the status of the defendant's clan as a member of the defendant's clan, the plaintiff's claim of this case shall be accepted in its reasoning. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Noh Jeong-hee (Presiding Judge)