Chang and Pream Co., Ltd (Law Firm Law, Attorneys No Young-dae et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm Dosan, Attorneys Kim Jong-chul, Counsel for the defendant-appellant)

April 25, 2018

1. All of the instant lawsuits are dismissed.

2. The litigation costs are borne by Nonparty 2, who is represented by the Plaintiff’s representative.

As to the Plaintiff with respect to the 7,739 square meters in Jeonnam-gun ( Address 1 omitted), Defendant 1 implemented the procedure for the registration of cancellation of each of the registration of creation of superficies completed on August 25, 2016 by the Gwangju District Court Mine Office No. 11818, the registration of transfer of ownership completed on August 25, 2016, the Defendant Young-gun Forestry Association completed on September 5, 2016 by the same registry office and the registration of cancellation of each of the registration of creation of superficies completed on the same date pursuant to Article 12364,

1. Basic facts

A. On December 18, 1932, with respect to the 7,739 square meters in Jeonnam-gun ( Address 1 omitted) (hereinafter “the instant real estate”), the registration of ownership transfer was completed under the name of the “Seonam-gun, Youngnam-gun ( Address 2 omitted)’s address on the ground of the sale on December 18, 1932.

B. On August 25, 2016, Defendant 1 completed the registration of creation of a superficies as the receipt of the registration office of the Gwangju District Court No. 11818 on August 16, 2016 with respect to the instant real estate (hereinafter “instant registration of transfer of ownership”), and on September 5 of the same year, Defendant Young-gun Forestry Cooperatives (hereinafter “Defendant Union”) completed the registration of creation of a superficies as the receipt of the said registration office under Article 12363 on September 5 of the same year.

C. The ownership transfer registration of this case was completed by forging documents necessary for the transfer of registration, such as the agreement and minutes, in collusion with Defendant 1 in order for Nonparty 1 to obtain money as collateral and use the real estate for personal use.

【Ground of recognition】 The fact that there is no dispute, entry of Gap Nos. 1, 5, and 9, including each number, and the purport of the whole pleading

2. Determination as to the legitimacy of the instant lawsuit

A. Summary of the defense before the merits

With respect to the instant lawsuit seeking the cancellation of the above registration and the above-mortgage and superficies creation registration based on the ground that the ownership transfer registration of this case is null and void, the Defendant Union has no capacity to do so because the Plaintiff was merely a group of members, and the instant lawsuit was not filed by a legitimate representative, or there was no special authorization as to the filing of the lawsuit.

B. As to the existence of party capacity

A non-corporate group similar to a clan is not necessarily established as an organization only when opening a general meeting to establish a custom which is stipulated as a sexually, and only when establishing an organization system, but where a non-corporate group has formed a common property and continuously engaged in social activities centered on persons leading the work to achieve the common purpose, it shall be deemed that there has already been an entity as an organization since that time (see Supreme Court Decision 94Da56401, Mar. 12, 1996, etc.).

The plaintiff was not a clan with a unique meaning of the nature of the plaintiff's literature, but "a clan similar organization composed of adult male residing in 00 Gun among the descendants of 00 years old," the plaintiff was organized for the purpose of protecting the graves of his husband and wife, conducting religious services, creating and managing the memorials, creating and managing the memorials, and promoting friendship among the members of his clans on September 15 of each year. The facts that the plaintiff registered the registration number for real estate registration in 00 Gun, and managed the list of the members of the plaintiff's door by its representative. The facts that the plaintiff submitted the list of the members of the 00 Gun to this court are not disputed between the parties, or that the plaintiff submitted the list of the members of the 100 Gun 10 Do 1214, 1281, 218, 210, 2218 and 310

In light of these facts and circumstances, it is reasonable to view that the plaintiff has the substance of a clan similar organization composed of adult male who resides in ○○ Military among the descendants of the Man-gun.

C. As to whether the instant lawsuit was brought lawfully

1) Criteria for determination

In the absence of special circumstances, the general meeting of a clan shall determine the scope of the members of the clan who are subject to notification for convening the meeting, debate, and resolution of the general meeting of a clan, and shall give each person an opportunity to participate in the meeting, debate, and resolution individually to all the members of the clan who are clearly residing in the Republic of Korea and their whereabouts are clearly possible to be notified, and no resolution of the general meeting of a clan shall be valid: Provided, That if the members of the clan regularly meet at a certain place once a year in accordance with the rules or practices of the clan and have decided in advance to handle the clans, the resolution of the general meeting of the clan shall not be deemed null and void, unless the notification for convening the meeting or resolution was given separately (see Supreme Court Decisions 87Meu194, Oct. 13, 1987; 2010Da20235, Aug. 19, 2010, etc.).

Meanwhile, while a clan or a similar organization of a clan consisting only of residents in a specific region or persons meeting specific qualifications among its descendants for the purpose of the protection of graves of a clan, the conduct of religious services, and the conduct of friendship and the conduct of friendship, etc., has different meanings from the legal status of the clan or the composition of the organization, it is similar to the fundamental nature and objective of the clan as a clan organization and its operation method. Thus, the legal principles on the clans also apply to the legal relations concerning organizations similar to the clans to the extent that it does not go against its nature or regulations. In particular, the above legal principles on the convocation and notification, etc. of the general meeting of clans also apply to similar organizations to the clans (see Supreme Court Decision 2012Da9843, Feb. 13, 2014).

2) Determination

We examine whether Nonparty 2 asserted as the representative of the Plaintiff’s representative is legally entitled to represent the Plaintiff. The Plaintiff asserted that Nonparty 2 was elected at the ordinary meeting held on October 15, 2016, which was held on the date of the Plaintiff’s agenda. However, there is no evidence to deem that the above ordinary meeting was held after undergoing the aforementioned procedure, such as the notice of convening an ordinary meeting or the notice of resolutions. Moreover, there is no evidence to deem that the rules of the Plaintiff’s literature did not provide for the date, place, resolution, etc. of the ordinary meeting; nor there is no evidence to deem that the Plaintiff’s literature members regularly meet on the date of the presentment, and there is a customary practice that dealt with the general meeting of doors including the representative. Accordingly, it is difficult to see Nonparty 2 as a legitimate representative of

Meanwhile, in the event that the Plaintiff files a lawsuit as an act of preserving property jointly owned by the Plaintiff, barring any special circumstance, it shall undergo a resolution of the door-to-door general meeting (no room exists to interpret that the representative may bring a lawsuit against the property in the form of the Plaintiff without a resolution of the general meeting). However, the defect in the notification procedure as to the notice of convening a notice of convening a notice or resolution in the above case exists in the door-to-door general meeting on March 19, 2017 where the right to receive the instant lawsuit was resolved (see, e.g., Supreme Court Decision 200Do3148, Nov. 3, 201). The same applies to the extraordinary general meeting of November 3, 201 where the Plaintiff ratified the above door-to-door general meeting (see, e.g., Supreme Court Decision 7,8 members from among the two door-to-door general meetings). Therefore, even if Nonparty 2 is the representative of

Ultimately, the lawsuit of this case is unlawful since it was not filed by a legitimate representative, and its representative has not been granted the authority to file a lawsuit by the literacy General Assembly.

3. Conclusion

Thus, all of the lawsuits of this case are dismissed, and the costs of the lawsuit shall be borne by Nonparty 2, who is represented by the plaintiff as the representative.

Judges Yang Sung-soo