The case reversing the judgment of the court below on the grounds that there was an error in the misapprehension of legal principles as to the rights and obligations of fishing village fraternities and their members, since a trial was not conducted on whether to recognize the status of members of

The case reversing the judgment of the court below on the grounds that there was an error in the misapprehension of legal principles as to the rights and obligations of fishing village fraternities and their members, since it was not examined as to whether it is a member of the fraternity

Article 276(1) of the Civil Act

Plaintiff 1 and 42 Plaintiffs, Counsel for the defendant-appellant

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee-appellant

Daejeon High Court Decision 93Na3484 delivered on February 22, 1994

The judgment of the court below is reversed and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

(1) According to the reasoning of the lower judgment, the lower court acknowledged that the Plaintiffs were eligible to join the fishing village fraternity as its members, and, in principle, shall submit an application for membership to the head of the fishing village fraternity in a certain form. The head of the fishing village fraternity shall refer the case to the general meeting and shall enter the case in the register of members if he consented to the membership of the fishing village fraternity (Article 13 of the lower court’s articles of incorporation). However, the lower court rejected the Plaintiffs’ assertion that the Plaintiffs were eligible to join the fishing village fraternity as members of the fishing village fraternity by promoting cooperation of fishermen, and that the Plaintiffs did not have any specific reason for the establishment of the fishing village fraternity as members of the fishing village fraternity, such as the improvement of their social status, and that most of the fishing village fraternities were to exclusively own the fishing village fraternity as members of the fishing village fraternity, and that the fishing village fraternity was not subject to the above-mentioned general meeting’s right to enter the fishing village fraternity as members of the fishing village fraternity, and that there was no special reason for the establishment of the fishing village fraternity as members of the fishing village fraternity.

(2) The theory of lawsuit asserts that the lawsuit of this case seeking confirmation of status of a member of the fraternity is unlawful as there is no legal interest in the lawsuit, except that the plaintiffs can claim the distribution of dividends if there is a defect in the resolution or if there is an objection to the result of the liquidation, since the lawsuit of this case is completed due to the completion of the liquidation procedure by the defendant fishing village fraternity, it is difficult to accept the argument of the lawsuit based on the premise that there is no evidence to view that the liquidation procedure has been completed against the defendant fishing village fraternity.

(3) However, as long as the defendant fishing village fraternity is a non-corporate body as acknowledged by the court below, the members of the defendant fishing village fraternity shall have the right to use and profit from the property belonging to their collective ownership in accordance with the articles of incorporation or other regulations, and shall bear the duty of investment, the duty of providing labor, etc. In this respect, the defendant fishing village fraternity shall have the articles of incorporation that requires the resolution of the general meeting in determining whether to join the fraternity. Thus, in this case where the plaintiffs' assertion that the plaintiff's assertion was not recognized by the resolution of the general meeting in July 1989, the defendant fishing village fraternity did not have the procedure for granting the status of the fraternity members in accordance with the explicit general meeting resolution, but the objective circumstances that can be seen as such should be acknowledged.

However, it is reasonable to view that Defendant fishing village fraternity accepted the plaintiffs as the members of the fraternity and recognized their status as the members of the fraternity. Defendant fishing village fraternity, upon receipt of an application for membership of the fraternity around July 1989, provided that the general meeting of the members of the fraternity opened thereafter the plaintiffs with the right to participate in other general election or the right to participate in the election for the general members, and that some of them were elected at the general meeting of the above members. However, according to the records, it is difficult for the court below to recognize that Defendant fishing village fraternity's right to participate in the above general meeting of members and the right to participate in the election for the purpose of protecting the general meeting of the members of the fishing village fraternity was owned jointly by Defendant 2, and it is difficult to recognize that Defendant fishing village fraternity's right to participate in the election for the purpose of protecting the general meeting of members and the right to participate in the election for the general meeting of members of the fishing village fraternity. Meanwhile, in light of the purport that Defendant fishing village fraternity's right to participate in the election for the general meeting of members and the general meeting of members.

In fact, most of licensed fishing grounds are owned and managed exclusively by the fishing village fraternity (see Article 9 of the Fisheries Act), and as long as the fishery right is a property right with strong public interest and the person qualified as a fraternity member under the articles of incorporation of the defendant fishing village fraternity applies for the establishment of a fraternity, the same shall apply to the case where the defendant fishing village fraternity does not refuse or suspend the establishment of a fraternity, unless there are special circumstances to the contrary that it does not consent to the entry prescribed in the articles of incorporation, and otherwise, unless there are circumstances to deem that the defendant fishing village fraternity treated the plaintiffs equally with the existing members, the existing members of the defendant fishing village fraternity enjoy the status of a fraternity without undergoing strict procedures such as the decision to join the articles of incorporation, etc., the defendant fishing village fraternity denies the status of the fraternity member by gathering the status of the plaintiffs in accordance with procedures stipulated in the articles of incorporation, and it cannot be deemed as a violation of the principle of equity or the principle of speech.

In this case where the defendant fishing village fraternity received an application for joining the fraternity from the plaintiffs on July 1989, and thereafter, the general meeting of the members of the defendant fishing village fraternity should have deliberated more on whether only the members of the defendant fishing village fraternity can enjoy the right to use and benefit from the property belonging to the collective ownership of the defendant fishing village fraternity, or not, under the provisions of the articles of association of the defendant fishing village fraternity, the general election right was given to the plaintiffs, and the plaintiffs also exercised the right to be elected as the general members, and there is a circumstance that there is a doubt that some of them were elected as the general meeting of members of the above general meeting of members and the plaintiffs did not recognize their status as the members of the defendant fishing village fraternity. In this case, the court below, at the time of the defendant fishing village fraternity, granted the plaintiffs the right to use and benefit from the property belonging to the collective ownership of the defendant fishing village fraternity at that time, and whether the defendant fishing village fraternity bears the obligation to provide their labor or labor, which affected the conclusion of the judgment below, which did not reach the judgment below.

(4) Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)