[1] Whether a clan within its unique meaning can be arbitrarily excluded from the descendants of a common ancestor (negative), and the legal nature of an organization that forms and works for a clan only within a specific scope among the descendants of a common ancestor (affirmative)

[2] The time when the original meaning of a clan or an unincorporated association which has no capacity to exercise rights similar to a clans is the basis for determining whether the association has the capacity to be a party (i.e., the time of closing argument in the court of fact-finding) and an unincorporated association which does not have the capacity to exercise rights similar to a clans has continuously engaged in social activities centered on a person who forms a common property and takes the lead in the work to achieve the common purpose, even if it did not have a system of regularly opening an inaugural general meeting

[3] The case holding that in case where Gap, a deceased, as a joint ancestor, formed an organization for the purpose of "the protection of graves of a vessel and the worship of his descendants, etc." as his own descendants, and the above sentence includes as its members, the judgment below erred by misapprehending legal principles on the ground that the above sentence's original activities in the above sentence were not carried out at all at present on the ground that the above sentence's activities were not carried out on by the members on the ground that the above sentence's activities were not carried out on the grounds that the above sentence's existence of a non-corporate group before the death was determined by satisfying the requirements even at the time of the closing of argument at the fact-finding court, and whether the above sentence's existence of a party ability as a non-corporate group is determined by whether the above sentence's existence of a party ability as a non-corporate group was a non-corporate group

[1] The unique meaning of a clan (hereinafter referred to as a "family") does not require a special organization as a family organization naturally created for the purpose of the protection, religious service, mutual friendship among the members of the common ancestor, but does not require any special organization, and its number is formed at the same time as the death of the collective ancestor, and there is no limit to the number of the descendants. The descendants of the common ancestor naturally become the members of the common ancestor when they become majority regardless of their intentions, and some of the members of the members cannot be arbitrarily excluded from their clans. Therefore, if the members of the common ancestor are organized only within a specific scope among the descendants of the common ancestor, they cannot be viewed as a clans within a specific scope, and if they are members of the common ancestor, they cannot be viewed as a clans within a specific scope, and it can only be an unincorporated association (hereinafter referred to as a "a similar clans organization") with no legal capacity to rights of the clans. Although such clans have no specific purpose or function, it is an artificial organization established in accordance with the principle of private qualification or autonomy of the members of the common ancestor.

[2] The party capacity is a matter related to the requirements for litigation, which is separate from the legitimacy of the claim. Since the requirements for litigation are met at the time of the closure of arguments in the fact-finding court, the existence of a clan or an organization with no capacity to have the rights of clans or clans similar to the clans (hereinafter “a non-legal entity”) should be determined based on the time of the closure of arguments in the court below, which is the fact-finding court, as it has the substance as a non-legal

However, a clan similar organization is not necessarily established as an organization only when it opens a general meeting to establish a sex and cultural rules and establishes a system of organization for the purpose of unity, but it has already existed an entity as an organization since that time when it formed a common property and continuously engages in social activities centered on a person who leads in the work to achieve the common purpose.

[3] In a case where Gap, who was the deceased, was a joint ancestor before his birth and formed an organization for the purpose of "the number of graves of a non-corporate body" and his descendants as well as "salary worships" (hereinafter referred to as "non-corporate body similar to a clans"), and the issue was whether the above door has a capacity to be a party, the case held that the judgment below erred by misapprehending the legal principles as to a party's own ability and a non-corporate body in determining whether the above door has a capacity to be a party as a non-corporate body by meeting the requirements at the time of the closure of arguments at the fact-finding court, and whether the time of death or the existence and validity of the time of each general assembly in the above door, where the time of death and the existence of the existence of the existence of a non-corporate body should not be determined at the point of time before the death of Gap, after examining whether the above door was a group of non-corporate body formed by the above door, and on the ground that a property dispute between the members of the above door Gap and its members continued, it did not actually engage in the original activity.

[1] Article 31 of the Civil Code/ [2] Article 31 of the Civil Code, Article 52 of the Civil Procedure Act/ [3] Article 31 of the Civil Code, Article 52 of the Civil Procedure Act

[1] [2] Supreme Court Decision 2018Da264628 Decided February 14, 2019 (Gong2019Sang, 747) / [1] Supreme Court Decision 96Da20567 Decided August 23, 1996 (Gong1996Ha, 2858) Supreme Court Decision 2019Da216411 Decided April 9, 2020 (Gong2020Sang, 908) / [2] Supreme Court Decision 2004Da8159 Decided February 23, 2006

Plaintiff (Law Firm LLC, Attorneys Park Jong-Un et al., Counsel for the plaintiff-appellant)

Maritime High Court Decision 201Na11446 delivered on August 2, 2011

Gwangju High Court Decision 2019Na22233 decided May 13, 2020

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The court below, citing the reasoning of the judgment of the court of first instance, acknowledged facts as stated in its reasoning, and for the following reasons, determined that the lawsuit against the defendant's door against a non-party who is not a party to the lawsuit was unlawful as it was against the non-party to the lawsuit of this case against the non-party to the lawsuit of this case.

A. The deceased non-party 1, who was a joint ancestor, established an organization with the purpose of “the number of graves in a vessel and the worship of a ancestor” by its members as a joint ancestor, etc. The deceased non-party 1 was included in its members. It is difficult to view such organization as a clan similar organization.

B. Although the property exists in the name of the Defendant’s door and the property was also managed, the decision-making of the Defendant’s door was made independently by the deceased Nonparty 1, and as a result, the property in the name of the Defendant was managed in the same manner as the personal property of the deceased Nonparty 1.

C. The rules of literature among the defendant literature merely stipulate the purpose, name, decision-making body, executive body, organization, activities, etc. of the defendant literature in the appearance of the above rules, but it does not seem that there was an organizational act that can actually recognize the substance of the defendant literature, or an organization activity that conforms to its purpose.

D. Basically, in order to constitute a clan or a clan similar organization, at least the scope of a family member comprised of spouse, lineal blood relatives, brothers, sisters, etc. (Article 779 of the Civil Act) or a church member. In addition, where inheritance commences due to the death of Nonparty 1, excluding the non-party 1 called the time, the members of the literature members stipulated in the above door door door door door door door door door door door door door door door door only are the lineal descendants of the non-party 1, who are the first heir, or the third heir, who is the third heir. Therefore, insofar as the above members except the deceased non-party 1 continue to exist until now, it is difficult to deem that the defendant door door up beyond the scope of the deceased non-party 1 and the family members or the family members who are connected with inheritance relations, thereby becoming the aggregate of descendants.

Of course, the Defendant may be viewed as a clan similar organization in the event that a number of households have been signed and sealed at the time of the preparation of the first literature, and all those who were signed and sealed by the deceased Nonparty 1 died, and the deceased Nonparty 1 remains no longer in the inheritance relationship with the deceased Nonparty 1, and, among them, the joint purpose of which is indicated in the deceased Nonparty 1’s bylaws, such as the protection and removal of graves, etc. among them, the deceased Nonparty 1, including the deceased Nonparty 1, takes place. However, at the present stage, there is no room for recognizing the Defendant’s capacity

E. Even after the death of the deceased non-party 1, the members of the Defendant’s door are standing for dispute in order to secure control over the property under the name of the Defendant’s door by securing the representative status of the Defendant’s door, and do not engage in any organizational act or activity for common purposes, such as the number and removal of graves and religious services, and friendship among the members.

Furthermore, since the members of the defendant literature include Nonparty 2, who is the deceased Nonparty 1’s partner, and some of the deceased Nonparty 1’s grandchildren are omitted, it cannot be deemed that the defendant literature had the character of clans or similar organizations of clans or other non-legal groups after the deceased Nonparty 1 died.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. A. The unique meaning of a clan (hereinafter referred to as a "family") does not require a special organization as a family organization naturally created for the purpose of the protection of graves, religious services, and mutual friendship among the members of a common ancestor, but is established by their descendants at the same time as the death of the common ancestor, and there is no limit on the number of the members. The descendants of the common ancestor naturally become the members of the common ancestor when they become majority regardless of their intention, and some of the members of the members cannot be arbitrarily excluded from their clan members. Therefore, if the members of the common ancestor are organized only within a specific scope among the descendants of the common ancestor, they cannot be deemed to be a clan within a specific scope, and if they are members of the common ancestor, they can only be a similar clan organization. Although there is no difference between the purpose or function of the clan, it is a private organization established by artificial activities of the common ancestor, such as the qualification or function of the members of the common ancestor, and therefore, they cannot be excluded from their members of the common ancestor.

In light of these legal principles, it is not reasonable for the court below to have determined that the family members or the members of a church consisting of spouse, lineal blood relatives, and siblings, etc. or that the family members of the church should go beyond the scope of the family members or the members of the church in order to be a non-family organization, or that only after descendants or descendants who are no longer inherited with the deceased non-party 1, and only after the deceased non-party 1, can be a similar organization of a clan. In particular, in the case of a unique clan, even though the deceased non-party 1 cannot have a clan for the number of graves and the religious rites of the deceased non-party 1 while he is alive (see Supreme Court Decision 89Da33630 delivered on July 10, 190), it cannot be viewed that it is impossible for the deceased non-party 1 to have the character of a clan similar organization of the deceased non-party 1 as the deceased non-party 1.

Furthermore, the court below stated that the deceased non-party 1's birth among the members of the defendant literature includes the deceased non-party 1's birth while the deceased non-party 1's children are omitted, unlike the clan's unique clans, it also stated that a clan similar organization can freely determine the qualification or membership conditions according to the principles of private autonomy or the freedom of association.

B. Meanwhile, the party capacity is a matter related to the litigation requirements and is separate from the propriety of the claim. Since the litigation requirements are met at the time of the closure of arguments in the fact-finding court, whether a unique clan or a clan similar organization has the substance as a non-corporate group and has the ability as a party should be determined on the basis of the time of the closure of arguments in the court below, which is the fact-finding court (see, e.g., Supreme Court Decisions 2004Da8159, Feb. 23, 2006; 2007Da6468, May 31, 2007).

However, a clan similar organization is not necessarily established as an organization only when it opens a general meeting and establishes a system of organization of the common sense, but where it has continuously formed a common property and continuously engaged in social activities centered on a person who leads the work to achieve the common purpose, there is an entity as an organization from that time (see Supreme Court Decision 2018Da264628, Feb. 14, 2019, etc.). Therefore, whether the Defendant’s door is capable of being a party in this case should be determined depending on whether it satisfies the above requirements and satisfies the substance as a non-corporate group at the time of the closing of argument in the lower court, which is the fact-finding court, at the time of the death of the deceased non-party 1, the time at which the deceased non-party 1 died or at the time of the death of the Si, and the existence and validity thereof should not be determined based on each general meeting on July 1, 2017 and July 26, 2017 of the Defendant door.

Of course, in a case where the existence or validity of a resolution of a general meeting is disputed as in the case of this case, it is in principle that a clan similar organization having the substance as an organization should be established and proved, and if such fact is not proven, it may be said that the existence or validity of the resolution of the general meeting can not be recognized. However, it is a matter that should be examined in determining the legitimacy of the request, and it is not necessary to determine the existence of a party ability of a clan similar organization which is a matter that belongs to the requirements of lawsuit.

C. Furthermore, even according to the court below's findings, the following facts were made: (i) the defendant's door made the first door door which covers the 3th anniversary of the 3th anniversary of the 3th anniversary of the 5th anniversary of the 5th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 206th anniversary of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 206th anniversary of the 1996th 2nd 2nd 206th 2nd 3rd 200's death, and (ii) the 1st 2nd 1st son of the 3rd 1st son of the 1.

D. If so, the court below should have further deliberated on what activities had been done in relation to the business of the defendant's door in determining the party ability of the defendant's door, and should have determined whether the defendant's door has the organizational nature of the non-corporate body as a non-corporate body as a similar organization at the time of the closing of argument in the court below.

E. Nevertheless, the lower court determined that the original activities of the Defendant door were not carried out at all at present due to the reason that the property dispute between the members of the deceased Nonparty 1 was pending after the deceased Nonparty 1’s death, thereby denying the party ability of the Defendant door. In so doing, the lower court erred by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on clan similar organizations and their party capacity. The allegation in the grounds of appeal assigning this error is with merit.

3. 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 Kim Jae-hyung (Presiding Justice)