[1] Whether the substance of a clan can be immediately denied merely because the use of the name of the clan goes against customs (negative)

[2] The case holding that where the name of a clan was indicated as if it was a similar organization of a clan at the time of filing a lawsuit, but it is clearly stated that it was unique in the cause of the complaint that it was a clan and thereafter changed to the same meaning as a clan of its unique meaning, it shall not be deemed that the clan was a similar organization of a clan, not a clan of its unique meaning, or that it was a similar organization of

[3] The meaning and criteria for determining the unique meaning of a clan, and whether it can be inferred that the clan does not have its own meaning because its contents violate the essence of the clan (negative)

[1] Even though the use of the name of a clan is contrary to the custom of the use of its name, it cannot be denied the substance of the clan just because it is against the custom of the use of its name.

[2] The case holding that where the name of a clan was indicated as if it was a similar organization of a clan at the time of filing a lawsuit, but it is clearly stated that it was unique in the cause of the complaint that it was a clan and thereafter changed to the same meaning as a clan of its unique meaning, it shall not be deemed that the clan was merely a similar organization of a clan, not a clan of its unique meaning, or that it was a similar organization of

[3] The unique meaning of a clan is naturally established as a member of a clan which is naturally formed by the members of the clan with more adult male among the descendants of the common ancestor without requiring a special organization for its establishment. Whether it falls under its unique meaning shall be determined by comprehensively considering the purpose of the clan, its establishment and formation, the circumstances of the organization, the scope and qualification criteria of the members, and the contents of the clan regulations. It cannot be concluded that part of the members of the already established clan became the main members of the clan and elected a representative by preparing the clan and convening a general assembly. This can not be said to be a mistake in the process of organizing the clan which has been set up and elected, so the clan rules which arbitrarily restrict the qualification of some members of the clan in this case are likely to be null and void because it goes against the essence of the clan, and it does not be viewed that it goes against the essence of the clan, and it does not immediately mean that it goes against the essence of the clan.

[1] Article 31 of the Civil Act / [2] Article 31 of the Civil Act / [3] Article 31 of the Civil Act

[1] Supreme Court Decision 89Da1484 delivered on December 26, 1989 (Gong1990, 449), Supreme Court Decision 91Da42081 delivered on July 24, 1992 (Gong1992, 2524), Supreme Court Decision 95Da1316 delivered on February 23, 1996 (Gong1996Sang, 1044) / [3] Supreme Court Decision 92Da15048 delivered on September 22, 1992 (Gong192, 2964), Supreme Court Decision 92Da18146 delivered on December 11, 1992 (Gong193, 1945) and Supreme Court Decision 9Da39479 delivered on September 36, 195 (Gong1994, 1945).

○○○ △△ branch (Attorney Choi Young-chul, Counsel for the defendant-appellant)

Defendant 1 and nine others (Law Firm Samung, Attorneys Shin Sung-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na55344 delivered on December 13, 2000

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

We examine the grounds of appeal.

1. Review of the lower judgment and the record reveals the following facts.

A. Nonparty 1, a ○○○○ ○○ 10-year-old knife, took four types of measures. Of them, Nonparty 3, a 16-year-old knife Nonparty 2, who was the second child, was 16-year-old knife, and Nonparty 4 and Nonparty 5’s knife.

B. Nonparty 3, including Nonparty 3, installed 20 seedlings in the instant forest. The descendants of Nonparty 3, focusing on Nonparty 4’s descendants residing in the Japanese War, left the funeral and discussed a clan worship by gathering them on October 15 every year, focusing on the descendants of Nonparty 4, who were living in the Japanese War. The descendants of Nonparty 3, Nonparty 5, who were the male of Nonparty 3, were raised in the following rank of Nonparty 5, and the remaining descendants of Nonparty 5, who were the male of Nonparty 5, came to be raised in the following rank of Nonparty 5, and even in the family clan 1987 and 1988, visited Nonparty 5, who was registered in Nonparty 6, the male of Nonparty 5, was present at the family clan.

C. The forest land of this case was originally registered for the preservation of ownership in the name of Nonparty 7, who is the 7-year old non-party 3's son [the non-party 8, who is the 7-year old 6-old son, was the son and the son was the son and the son was the son were the son and the son were the son.) but the register was lost due to the six-five-year incident, the defendant 1 (the son, the son and the son were the son and the son of the son, and the son's son were 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 198 May 198,

D. From the time the compensation for purchase of part of the forest land of this case was paid to the defendants, disputes have occurred between the defendant and the non-party 1's descendants over the ownership of the forest of this case. On November 30, 1997, the non-party 11, who is the lineal descendant of the non-party 4, was elected as the chairperson from among the non-party 4's descendants, who convened the general meeting. According to the rules of this case, the scope of the clan members was the descendants of the non-party 1, who reside in the area of the village. ② the non-party 1, who convened the general meeting of the non-party 5, which was convened by the non-party 10 on February 28, 198, the non-party 1, who was the non-party 5, changed the name of the clan members to the non-party 1, who was the non-party 1, the non-party 4, who was the non-party 1, the non-party 1, the non-party 1, and the non-party 1, the non-party 1, were 98.

2. Based on the above factual basis, the court below held that the descendants of the non-party 5 among the non-party 3's descendants used the name "○○○○ clan clan clan descendants" and it was unclear whether the descendants of the non-party 4 were the descendants of the non-party 5, who had been living in the non-party 3's clan after the non-party 3's establishment of two clans, such as the non-party 3's clan which made the non-party 3's establishment and the non-party 4's establishment of the non-party 3's clans and the non-party 5's establishment of the non-party 3 clans after the non-party 4's establishment of the non-party 4 clans' clan's establishment of the non-party 5's clans, which was the non-party 4's members of the non-party 3's clan's establishment of title trust after the non-party 4's establishment of the non-party 3's clan's descendants or the non-party 4's members of the non-party 3's title trust.

3. However, we cannot accept the fact-finding and decision of the court below in the following respect.

A. As to the name of the clan

Even though the use of a clan's name is contrary to the custom on the use of its name, it cannot immediately deny the substance of the clan (see Supreme Court Decision 91Da42081 delivered on July 24, 1992).

At the time of the institution of this case, the name of the plaintiff clan is "○○○ ○ Mamm Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam." The first head of the plaintiff's claim is "the plaintiff clan is a group composed of the descendants of non-party 3, and the plaintiff's clan Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam Mam," and it is naturally formed to promote the protection of graves and religious services of the plaintiff clan as members of the non-party 3, and it is later changed to ○○ ○○ Mam Mam Mam Mam Mam Mam Mam Mam Mam.", but it is not a similar organization of the plaintiff's clan, even though it is not a similar organization of this case.

B. As to the character and scope of clan members

The unique meaning of a clan is a naturally created clan organization, which is a naturally created clan which has been comprised of the descendants of the common ancestor who have attained majority or more, and is established in accordance with its custom without any special organization activity for its establishment. Whether it constitutes a clan shall be determined by comprehensively taking into account the purpose of the clan, its establishment and the circumstances of its organization, the scope and qualification of its members, and the contents of the clan regulations. It cannot be readily concluded that part of the members of the already established clan became the main members of the clan and elected its representative by preparing the clan regulations and convening a general assembly. This is because it can not be said to be a mistake in the process of organizing the clan which has been set up before, and in this case, the clan rules which limit some of the members of the clan arbitrarily qualification of its members are invalid, and therefore, it does not go against the essence of the clan under the regulations, and therefore it does not constitute a clan with its unique meaning (see, e.g., Supreme Court Decision 9Da42384, Feb. 13, 1996).

As determined by the court below, when the dispute arises over the forest land of this case, first, the scope of the members of the clan shall be determined as the descendants of Nonparty 4 who reside in the area of the right of the clan in the process of opening the general meeting of the clan and setting the rules regularly, and when it decided to exclude the descendants of Nonparty 5 who are the descendants of Nonparty 3, who are the descendants of the △△△△△△△△ from the clan, but above all, since the members of the clan were the first time of the right of the clans every year, the members of the clans were the members of the right of the clans, and the descendants of Nonparty 4, who were the head of the right of the clans, were living in the clans and participated in the clans, the regulations on the scope of the members of the first established clans do not refer to the descendants of the △△△△△△△△, and it appears that the members of the clans did not appear to have been able to be clearly excluded from the scope of the members of the clans after the opening of the clans.

C. As to the ownership relation of the forest of this case

According to the records, ① the forests and fields of this case are established with 20 seedlings of its descendants, including △△△△△, the joint ancestor of the plaintiff clan. ② The descendants of the plaintiff clan are the descendants of the plaintiff clan. ③ On February 10, 1971, the non-party 9, who is the head of the non-party 7, as the de facto representative of the plaintiff clan, was in charge of the plaintiff clan on February 10, 1971, and the non-party 13, who was in charge of the plaintiff clan at the time, did not have registered the preservation of ownership of the forests and fields of this case under the Act on Special Measures for the Registration of Transfer of Forest Ownership, etc., which was in force at the time to prevent his descendants from disposing of the forests and fields of this case, which were installed in the plaintiff clan, and the non-party 10 and the non-party 13, who was the head of the non-party 4, who was the joint ancestor of this case, shall be deemed to have been in the name of the plaintiff clan 13.

D. Therefore, the court below rejected the plaintiff's claim on the ground that it is difficult for the person who held title trust of the forest of this case to be deemed the plaintiff's clan, which erred by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on the establishment of the clan and the title trust of the clan property, and which affected the conclusion

The part of the grounds of appeal assigning this error is with merit.

3. Conclusion

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.

Justices Yoon Jae-sik (Presiding Justice)