[1] Whether a legitimate representative can be ratified in the final appeal for litigation conducted by the representative of an unincorporated association at a fact-finding court (affirmative)

[2] The validity of convening a clan in case where other clan members have convened a clan with the consent of the members of the clan who are qualified for the representative of the clan (effective)

[3] Whether a resolution of the clan general meeting may be null and void on the ground that a member of the clan who did not receive a notification for convening a clan general meeting and a notification for convening a clan general meeting becomes aware of it by any other means (negative)

[1] Articles 52, 60, and 64 of the Civil Procedure Act / [2] Articles 31 and 71 of the Civil Act / [3] Articles 31 and 71 of the Civil Act

[1] Supreme Court Decision 96Da25227 delivered on March 14, 1997 (Gong1997Sang, 1083) / [2] Supreme Court Decision 96Da2729 delivered on June 14, 1996 (Gong1996Ha, 2170), Supreme Court Decision 200Da42908 delivered on May 14, 2002 (Gong2002Ha, 1386), Supreme Court Decision 2003Da61689 Delivered on July 15, 2005 / [3] Supreme Court Decision 94Da42389 delivered on June 9, 195 (Gong195Ha, 2378), Supreme Court Decision 2006Da3297479 delivered on October 27, 2006 (Gong206Da329475 delivered on July 27, 2005)

In order to determine whether a person is guilty or not, he shall not be held liable for damages due to the violation of Article 12(1)

Defendant 1 et al., a lawsuit taking place by the deceased Nonparty 1 (Attorney Shin-young et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2009Na6296 decided August 25, 2010

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

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the recruitment evidence, and found that the plaintiff's general assembly of June 25, 2006 and each clan of November 2, 2008 were conducted without the convening authority for the clan members, and the general assembly of the clan of July 20, 2008 was convened by a non-authorized person, and the general assembly of the clan of October 3, 2009 was convened by the non-authorized person, and was held without the convening authority for the clan members' notification only to some members, and therefore, the above clan assembly of October 3, 2009 did not lawfully determine the scope of the clan members and was held without the convening authority for the clan members, and therefore the resolution that elected or ratified the non-party 2 as the representative at each of the above clan

2. Judgment on the grounds of appeal

A. The procedural acts conducted by the representative of an unincorporated association shall have retroactive effect upon the ratification of the procedural acts by the representative who lawfully acquired the qualification as the representative after the procedural acts were conducted by the representative, and such ratification may also be conducted in the final appeal (see Supreme Court Decision 96Da2527 delivered on March 14, 1997).

Meanwhile, even if a member of the family who is qualified for the representative of the clan did not directly convene the clan, if he consented to convening another clan member to convene the clan, he shall not be deemed to have no authority to convene the clan (see, e.g., Supreme Court Decision 2003Da61689, Jul. 15, 2005). Furthermore, a clan general meeting shall, unless there are special circumstances, give a notice individually to the members of the family who can give notice because they are residing in Korea after the scope of the members subject to notice for convening the clan has been determined, and the method of convening the meeting shall not be necessarily required in writing, but shall not be allowed either orally or by telephone, or through another member of the family or through the head of the household (see, e.g., Supreme Court Decision 2007Da34982, Sept. 6, 2007); if a member of the clan becomes aware of it by any other method, it shall not be deemed null and void even if he did not attend the general meeting.

B. According to the records, the non-party 2, who was delegated with the notification of convening a convening authority by the non-party 3, who is the colon of the plaintiff clan, for the first time in the trial, notified the non-party 2 to the non-party 2 residing in the country where the non-party 3 was in contact with the non-party 10 residents other than the non-party 10 residents among the plaintiff's clan members individually of September 22, 2010 that he would hold an extraordinary general meeting at the 1111 Dong-dong, Dong-dong, Dong-dong, Dong-dong, 15:00, and the general meeting of the plaintiff clan was held at the above time and at the above place, and the non-party 2 was elected from among the whole members of the above general meeting as the representative of the plaintiff clan, and according to this, the above non-party 2 seems to be legally appointed at the plaintiff clan on September 22, 2010.

Therefore, as long as the above non-party 2 ratified the litigation that he had done as the representative of the plaintiff clan so far, it is reasonable to view that all the litigation conducted by the court of first instance and the court below as the representative of the plaintiff clan was valid retroactively to the time of the act.

Therefore, the court below's decision dismissing the lawsuit of this case on September 22, 2010 should be examined additionally as to whether the general assembly of plaintiffs was lawfully held on September 22, 2010, and whether the above non-party 2 legally ratified the litigation during that period as the representative of the plaintiff clan. Thus, the court below's decision dismissing the lawsuit of this case on the ground that the non-party 2 did not have the power of representation is ultimately erroneous

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)