In a case where the lack of a representative right of a clan is disputed in the pleading and it is found that both parties have no representative right as a result of attack and defense, whether to issue an order to correct the defects.

In cases where it comes to the other party's defense whether or not a person who raised a lawsuit has legitimate power of representation in the family representative, and it became clear that there has been no legitimate power of representation in the family representative after the attack and defense of the parties who raised the lawsuit and the hearing of the court, etc. up to the appellate trial, the court shall not be deemed to have a duty to issue an order to correct the defects of the power of representation until the case is dismissed for this reason, or to demand correction of the indication of the family representative to the court.

Articles 55, 56, 60, and 227 of the Civil Procedure Act

Supreme Court Decision 92Da48789, 48796 Decided March 12, 1993 (Gong1993Sang, 1169) 92Da27270 Decided June 8, 1993

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

Defendant 1 and 5 Defendants, et al., Counsel for the defendant-appellant-appellee)

Busan District Court Decision 93Na13510 delivered on February 16, 1994

The appeal is dismissed.

The costs of appeal shall be assessed against Nonparty 1.

We examine the grounds of appeal.

1. Examining the reasoning of the judgment below in comparison with the records, it is deemed that the finding of the facts by the court below is justifiable, and there is no error of law by mismisunderstanding the facts in violation of the rules of evidence or the rules of experience, and therefore,

2. As the court below duly established, the rules of the plaintiff's clan which are the rules of the plaintiff's clan shall not be deemed a legitimate representative of the plaintiff's clan, so the judgment below is just, and there are no errors in the misapprehension of legal principles as to the convening of the clan or the appointment of the representative of the clan or in violation of the precedents, since the rules of the plaintiff's clan were passed by the clan on May 11, 1986, which was convened and held by the non-party 2, etc. who is not a legitimate convening authority, and no other legitimate rules or practices exist in the plaintiff's clan. The ordinary general meeting of May 28, 1988, the ordinary meeting of May 6, 190, or the ordinary meeting of May 17, 192, which elected non-party 1 as the representative of the plaintiff's clan, is not a legitimate representative among the members of the plaintiff's clan's clan, and it cannot be accepted because the court below did not assert or criticize the facts that the court below did not recognize.

3. The records reveal that the qualification of the representative of the plaintiff clan was sufficiently examined until the original trial. In the case where it became clear that the defendant's defense that whether the person who raised the lawsuit has legitimate power of representation as the representative of the plaintiff clan, as in this case, the defendant's defense has the issue of lawsuit and that he has no legitimate power of representation, after the attack and defense of the parties who proposed the lawsuit until the original trial was held, and after the court's deliberation, etc., it is sufficient for the court to dismiss the lawsuit on this ground. In this case, it is not sufficient that the court orders correction as to the defects of its power of representation or has the duty to urge the plaintiff clan to make the correction of the plaintiff clan (see Supreme Court Decision 92Da48789, 48796, Mar. 12, 1993). Thus, there is no error of law in the misapprehension of legal principles as to the incomplete deliberation or correction, such as the theory of the lawsuit, and there is no reasonable precedent as to this case.

4. After the filing of the appeal of this case, the non-party 3 and the chief secretary of the plaintiff clan who are the members of the plaintiff clan, the non-party 4 and the non-party 1, who are the representatives of the plaintiff clan in the lawsuit of this case, jointly convened a general meeting and ratified the previous rules decided at the general meeting of the plaintiff clan on May 11, 1986 by the court below as the rules of the plaintiff clan's clan. The above non-party 1 ratified all acts concerning the lawsuit raised by the above non-party 1, and delegated the authority to conduct acts necessary for the execution of the lawsuit of this case, and therefore, the above non-party 1 and his attorney appointed was retroactively effective, so it is unlawful for the court below to dismiss the lawsuit of this case for reasons as stated in its reasoning, but it is difficult to accept the notice of convening all the non-party 3's non-party 1's arguments, who are the members of the plaintiff clan, only the materials cited by the plaintiff's clan, to all the above non-party 3's non-party 3's arguments.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against Nonparty 1. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)