[1] Whether a resolution shall be passed at the general meeting of a clan in case where a clan files a lawsuit as an act of preserving its collective property (affirmative)

[2] The validity of a resolution at the general meeting of a clan held only by a male clan member (=negative)

[1] The provisions of Article 265 of the Civil Code concerning the preservation of collective property cannot be applied to the preservation of collective property. Barring special circumstances, the resolution of a general meeting of members pursuant to Article 276 (1) of the Civil Code shall be passed. Thus, in a case where a clan which is not a juristic person files a lawsuit as an act of preserving collective property, it shall undergo a resolution of the general meeting of a clan unless there are special circumstances

[2] In holding a clan general meeting, unless there are special circumstances, each member of the clan shall be given an opportunity to participate in the meeting, discussion, and resolution by individually informing all the members of the clan who are clearly residing in the Republic of Korea after determining the scope of the members of the clan who are subject to notification for convening a clan pursuant to the clan, etc., and each member shall be given an opportunity to participate in the meeting, discussion, and resolution by the general meeting of the clan held without a notification for convening a part of the members of the clan. Since the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005, since the adult female members who are the descendants of the common clan are also the members of the clan, a resolution by the general meeting of the clan shall not be valid, in case where the general meeting

[1] Articles 31, 265, and 276(1) of the Civil Act / [2] Articles 31 and 276(1) of the Civil Act

[1] Supreme Court Decision 2007Da17062 Decided December 27, 2007 / [2] Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 (Gong2005Ha, 1326) Supreme Court Decision 2008Da8898 Decided February 26, 2009

Plaintiff clan (Law Firm Nae, Attorneys Lee Don-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Maump, Attorney Park Jong-soo, Counsel for the defendant-appellant)

An intervenor, non-party 1 et al.

Supreme Court Decision 2008Da20898 Decided November 27, 2008

Seoul High Court Decision 2008Na113082 decided September 22, 2009

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

We examine the grounds of appeal.

1. The provisions of Article 265 of the Civil Act concerning the preservation of collective property cannot be applied to the preservation of collective property. Barring special circumstances, barring special circumstances, a resolution of a general meeting of members pursuant to Article 276(1) of the Civil Act concerning the preservation of collective property must be passed through a resolution of a clan general meeting unless there are special circumstances (see Supreme Court Decision 2007Da17062 delivered on December 27, 2007).

In the past, the Supreme Court has defined a clan as a customary organization as a natural group of the clan that consists of adult male members among the descendants of the common ancestor for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship among the members, and decided that women cannot become the members of the clan. However, in the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005, the Supreme Court decided that the previous opinion of the Supreme Court changed the previous common law that limits the qualification of clan members only with adult male cannot have legal effect as to the qualification of clan members, and that the previous opinion of the Supreme Court regarding the qualification of clan members cannot be applied to the new qualification of clan members, which is established after the above decision was rendered, for the purpose of protecting the graves of the common ancestor and promoting friendship among the members.

On the other hand, in holding a clan general meeting, each person shall be given an opportunity to participate in the meeting, discussion, and resolution by individually giving each person an opportunity to participate in the meeting, because the scope of the members of the clan, which are subject to notification for convocation, has been determined by the clan's clan, etc. and their whereabouts are clearly residing in the Republic of Korea, unless there are special circumstances. Therefore, a resolution at the clan general meeting held without a notification

Therefore, since the above en banc decision was rendered on July 21, 2005, adult female members, who are the descendants of the common ancestor, are also the members of the clan, in case where they did not call for convening a notification to the members of the clan only for male members at the time of the general meeting of the clan held after the above decision was rendered and they did not call for convening a notification to the members of the clan, the resolution at the general meeting of the clan has no effect (see Supreme Court Decision 2008Da8898, Feb. 26,

2. According to the facts established by the court below and the evidence submitted by the court below, the plaintiff is a clan of 25 years of age of Lee ○ (00), which is a member of the previous clan (00), and the plaintiff clan has held a special general meeting on August 13, 2006, which is after the decision was rendered by the above en banc decision, and has decided to terminate the title trust of the defendants with respect to the land of this case and to register the ownership transfer in the name of the plaintiff clan in the name of the plaintiff clan (the case of subparagraph 1). The plaintiff clan should have determined the scope of the members of the clan including the above general meeting and have notified all the members of the clan who can call for convening the general meeting, but it can be seen that the plaintiff did not call for convening the general meeting and did not notify the female clan members of convening the general meeting.

If the facts are the same, the resolution made at the general meeting of the above clans shall be null and void, and the lawsuit of this case brought pursuant to the resolution is unlawful as it was brought without the resolution of the legitimate general

3. Meanwhile, the plaintiff asserts that at the ordinary general meeting of February 24, 2008 and the ordinary meeting of January 17, 2010, the resolution of the above general meeting of August 13, 2006 was ratified. Thus, if the clan has regularly opened the general meeting on the date set each year without any special convocation procedure and made a resolution concerning the management of the property of the literature, the above resolution is valid in accordance with the custom of the clan (see Supreme Court Decision 92Da18146, Dec. 11, 1992).

According to the records, the rules of the plaintiff clan (hereinafter referred to as the "former rules") originally held on October 20 each year on the date of the general meeting, and the quorum and the quorum were required to be attended by at least eight persons and at least two-thirds of the members present at the general meeting of August 13, 2006. However, the general meeting of the plaintiff clan revised the rules at the general meeting of August 13, 2006 (hereinafter referred to as the "new rules") and revised the rules as requiring eight persons or more and the concurrent vote of the majority of the members present at the meeting of the general meeting of August 13, 206. However, as seen above, the above resolution of August 13, 2006 becomes null and void due to the defect in the convocation procedure. Thus, the new rules are not effective, and the proceedings for the opening of the general meeting, the quorum and the quorum for the proceedings are still in accordance with the old rules.

In this premise, first of all, in the case of the general meeting of February 24, 2008, it is not held on the day according to the old regulations, but in the case of the general meeting of February 24, 2008, only 29 of the 56 members present agree with the above resolution, so the resolution does not meet the quorum and thus it cannot be recognized that the resolution is valid (and in the above general meeting of shareholders, the above general meeting of shareholders appointed Nonparty 2 as the follow-up president of Nonparty 1 retired at the expiration of the term of office, and this does not have an effect for the same reason). In addition, the general meeting of January 17, 2010 is not held on the day according to the old regulations, and the non-party 2, who

Therefore, the plaintiff's assertion that the resolution of the extraordinary general meeting as of February 24, 2008 and January 17, 2010 is valid after ratification of the resolution of the extraordinary general meeting as of August 13, 2006 at the above general meeting as of August 13, 2006 cannot be accepted (However, it may be ratified by a resolution of the general meeting followed by the plaintiff again. In this case, it may be problematic who is legitimate representative of the plaintiff. In this case, where the appointment resolution is invalid even if the successor is not appointed or appointed despite the expiration of the term of office of the clan, the former president may perform his previous duties until the new president is appointed (see Supreme Court Decision 2000Da56037, Jul. 27, 2001). However, if the former president submits the resolution of the general meeting as of August 14, 2006, he can be seen as being inappropriate for the latter president to have been convened by the Supreme Court 90Da16979, supra.

4. Therefore, the court below should have dismissed the lawsuit of this case in the absence of such circumstances, and the court below erred by misapprehending the legal principles on the procedures for convening the general meeting of a clan, thereby failing to conduct a trial by misunderstanding the procedures for convening the general meeting of a clan.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below 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 Lee Hong-hoon (Presiding Justice)