[1] In a case where it is found that there is no legitimate power of representation of a person who filed a lawsuit in the capacity of a clan as the representative of the clan after the issue of the lawsuit is whether the person who filed the lawsuit has a legitimate power of representation, and there is no legitimate power of representation through the attack and defense of the Republic of Korea and the trial of the court, whether the

[2] In a case where an administrative agency conducts a lawsuit with the representative of a clan who has no legitimate power of representation as a party, whether the principle of trust protection for the administrative act of the administrative agency is applicable to whether the representative of the clan has legitimate power of representation (negative)

[1] Article 12 of the Administrative Litigation Act / [2] Article 4 (2) of the Administrative Procedures Act

[1] Supreme Court Decision 92Da48789, 48796 delivered on March 12, 1993 (Gong1993Sang, 1169), Supreme Court Decision 94Da15738 delivered on September 29, 1995 (Gong1995Ha, 3587) / [2] Supreme Court Decision 2006Du3957 delivered on February 15, 2008 (Gong2008Sang, 396)

Jeju C&S (Attorneys Yang Dong-dong et al., Counsel for the defendant-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Daejeon High Court Decision 2009Nu1301 Decided December 24, 2009

The appeal is dismissed. The costs of appeal are assessed against the Nonparty.

We examine the grounds of appeal.

1. As to the violation of the duty to explain the defects in the power of representation and the assertion of incomplete hearing

The record reveals that the qualification of the representative of the plaintiff clan was sufficiently examined by the court below. In this case, if the plaintiff clan is the representative of the plaintiff clan and whether there is a legitimate representative authority as the defendant's defense, and the court below found that there was no legitimate representative authority in the court below after the attack and defense of the parties and the court's deliberation, etc., the court should dismiss the lawsuit for this reason, and it cannot be said that the court has an obligation to issue an order to correct the defects of the representative authority or to urge the correction of the plaintiff clan (see, e.g., Supreme Court Decisions 92Da48789, 48796, Mar. 12, 1993; 94Da15738, Sept. 29, 195). This part of the ground of appeal is without merit.

2. Regarding the misapprehension of the legal principles on the appointment of the clan representative and the procedures for convening the general meeting of clans

After compiling adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the rules enacted around January 14, 1993 stipulated that the members of the clan shall represent the members of the clan, but limited the members of the clan to the members of the clan and to the members of the clan within the tenth degree, which are null and void in violation of the essence of the clan, and that each clan assembly held on January 4, 1993, January 14, 1993, December 14, 2009 and December 22, 2009 without going through legitimate procedures for convening a clan, and thus, the lawsuit of this case was filed by the plaintiff without the power of representation. In light of the relevant legal principles and records, the above recognition and decision of the court below is justified, and there is no violation of law by misapprehending the legal principles as to the procedures for appointing the members of the clan and the procedures for convening the clan, as otherwise alleged in the grounds for appeal.

On the other hand, the circumstances cited in the grounds of appeal are insufficient to recognize that there exists a customary practice to appoint the clans as the representative of the plaintiff clan, or that the clans' general meeting on January 4, 1993 does not require a separate convocation procedure as the ordinary general meeting, and there is no evidence to recognize it differently in the records. The grounds of appeal on this part are without merit.

3. As to the assertion of violation of the principle of protection of trust

In a case where a clan is a party, whether the representative of the clan has legitimate power of representation or not is a matter of ex officio investigation by the court (see Supreme Court Decisions 2000Da42908, May 14, 2002; 2007Da71318, May 15, 2008; 2007Da71318, etc.), and it is not subject to the principle of protection of trust in the conduct of an administrative agency (see Supreme Court Decision 2006Du3957, Feb. 15, 2008). The argument in the grounds of appeal on this point is not acceptable.

4. Therefore, the appeal shall be dismissed, and the costs of appeal shall be assessed against the Nonparty who filed the appeal by applying Articles 108 and 107(2) of the Civil Procedure Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)