[1] In a case where the basic identity of facts alleged by the parties is maintained as to the substance of a clan which is a party to a lawsuit, whether it constitutes a change of party (negative), and the court shall determine the legitimacy of the lawsuit, such as the party capacity

[2] Whether a legitimate representative may ratification litigation conducted by the representative of an unincorporated association without a legitimate representative (affirmative)

[1] If the party's legal assertion about the legal nature of a clan, which is a party to a lawsuit, maintains the basic identity of the facts alleged by the party as to the substance, it does not constitute a change of the party with legal assertion. In such a case, based on the facts examined ex officio, the court may determine whether the substance of the organization alleged by the party is a clan of unique meaning, an organization similar to a clan, or a person who is a common ancestor, and shall determine the legitimacy of the lawsuit, such as the party's ability, based thereon.

[2] The litigation conducted by the representative of an unincorporated association shall become effective retroactively to the time of the act when the representative duly acquired the qualification as the representative has ratified the litigation after the act was conducted, and such ratification may also be conducted in the court of final appeal.

[1] Article 31 of the Civil Act, Articles 52 and 249 of the Civil Procedure Act / [2] Articles 52, 60, and 64 of the Civil Procedure Act

[1] Supreme Court Decision 2010Da41911 Decided September 9, 2010 / [2] Supreme Court Decision 2010Da77583 Decided December 9, 2010

PPPPPPPPP (Law Firm Love, Attorneys Kim Yong-hoon, Counsel for the defendant-appellant)

Defendant

Daejeon District Court Decision 2013Na2373 Decided September 5, 2013

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and determined that the instant lawsuit was unlawful on the following grounds.

A. The clan, which differs from the common ancestor, is a separate entity that differs from its members. Therefore, the Plaintiff’s claim that the common ancestor is “non-party 1 who is 26 years old and older,” while claiming that the common ancestor is “non-party 29 years old and older,” it would not be permitted to bring about the result of the change of the parties. Meanwhile, Non-party 29 years old and older, who were the descendants of the above non-party 1, was succeeded to the adoption of Non-party 28 years old and older, the descendants of the non-party 1, who were the descendants of the non-party 2, to the non-party 3, who were the descendants of the non-party 2, cannot be the members of the clan that was unique to the non-party 1, who was the common ancestor. Therefore, the Plaintiff cannot be deemed the non-party 1, who first asserted in the Plaintiff, was a member of the common ancestor, and

B. On July 14, 2013, the general meeting of the Plaintiff clan was held for ratification of the litigation by Nonparty 4 as the representative of the Plaintiff. On behalf of the Plaintiff, Nonparty 4 filed the instant lawsuit on behalf of the Plaintiff without a lawful resolution of the general meeting of clans without a legitimate resolution of the general meeting of clans, for some members, including the Defendant and two lineal descendants, who sent a letter en bloc to the Defendant’s domicile. This is not legitimate as a notification of convening the general meeting of clans. Thus, the above general meeting cannot be deemed to have been convened by legitimate convening procedures.

2. First, we examine the plaintiff's ability to sue.

The court below reasoned that the plaintiff's assertion that the joint ancestor of the plaintiff clan is "non-party 2 of age 29" brings about the change of the party, and thus it is not permissible to accept the plaintiff's assertion about the character of the plaintiff's organization only as "a clan of the unique meaning that the non-party 1 of age 26 is a joint ancestor," and denying the plaintiff's party ability

A. Whether a party's legal assertion about the legal nature of a clan, which is a party to a lawsuit, maintains the basic identity of the facts alleged by the party as to its substance, does not constitute a change of the party with the trend of its legal assertion. In such a case, based on the facts examined ex officio, the court may determine whether the substance of the organization alleged by the party is a clan with a unique meaning, whether it is a clan or a similar organization of a clan, or who is a common ancestor, and then evaluate the legal character differently, and determine the legitimacy of the lawsuit, such as the party's ability (see Supreme Court Decision 2010Da41911, Sept. 9, 2010, etc.).

B. The Plaintiff initially asserted to the effect that the common ancestor of the clan was “non-party 1, 26 years old,” but thereafter, asserted that “non-party 29 years old,” rather than the above non-party 1, was a common ancestor from the preparatory document of December 18, 2012. However, upon examining the record, the Plaintiff’s assertion was premised on the consistent factual basis that “non-party 2, who was Nonparty 1’s descendants 26 years old, was transferred to the two by Non-party 3, who was the 28 years old, the 28 years old, the 26 years old, Nonparty 1’s descendants, was a larger ancestor, and the Plaintiff was a clan consisting of Non-party 2’s descendants, focusing on the branchhouse of the Chungcheong-gun budget, and carried out a furnal system while managing the graves of the non-party 1 or lower-party 2’s children.”

In addition, all of the 26-year-old grandchildren 1 to 28-year-old grandchildren 29 years-old grandchildren 29 years-old descendants and 6 years-old, both of which were made to the 29-year-old grandchildren 29 years-old, and only Nonparty 2 went to the 29-year-old grandchildren 29 years-old, and the 31-year-old grandchildren 6 years-old, died, and Nonparty 7, the 31-year-old grandchildren, who were the 6-year-old grandchildren, and the 1-year-old descendants were cut off. Thus, it is consistent in that the 26-year-old grandchildren were all the 31-year-old descendants, who were alleged by the Plaintiff from the beginning, and the 29-year-old grandchildren were called the 29-year-old grandchildren as a joint vessel based on blood relationship, and the 29-year-old grandchildren asserted that the 29-year-old grandchildren was the basic identity of the organization alone.

C. Examining these circumstances in light of the legal principles as seen earlier, the court below erred by misapprehending the legal principles on the change of a voluntary party, which led to failure to exhaust all necessary deliberations, on the premise that the plaintiff's assertion that the non-party 2 was a joint ancestor shall not be allowed by considering the party's change, although the court below should have judged the existence or absence of the party's ability by examining the contents of the plaintiff's rules and what activities had been done by the plaintiff's members. However, the court below held that the non-party 1, who was lost, cannot be recognized as being the plaintiff by presenting only a clan with the unique meaning of the joint ancestor group, which was made by the non-party 1 as the joint ancestor group.

3. We examine the Plaintiff’s grounds of appeal on the procedures for convening the general meeting.

A. The procedural acts conducted by the representative of an unincorporated association shall have retroactive effect when the representative duly acquired the qualification of representative after the procedural acts are ratified, and such ratification may also be conducted in the final appeal (see Supreme Court Decision 2010Da77583, Dec. 9, 2010, etc.).

B. The record reveals that: (a) Nonparty 8, who was appointed as the president of the Plaintiff clan from the Hongsung branch of the Daejeon District Court, was permitted by the above court to hold a temporary clan general meeting; (b) on March 3, 2015, the Plaintiff’s 249 members residing in Korea who can communicate among the Plaintiff’s members, notified each member of the fact that “the general meeting is to be held at the ○○○○○○○○○○○○ branch of the Chungcheongnam-gu budget-Eup, 200,” which was sent by telephone to some members; (c) Nonparty 20 members who attended the above general meeting at the above date and at the above place, who were appointed as the president of the Plaintiff clan, as the representative of the clan; and (d) Nonparty 9, who was the representative of the non-party 2, who was the non-party 1, the second five members of the Daejeon District Court, was duly elected with the consent of all members present at the general meeting; and (e) Nonparty 3, who was appointed by the court, 2019.

C. Examining the above circumstances in light of the legal principles as seen earlier, there is room to view that Nonparty 4, who was elected by the general meeting of the clan of March 14, 2015, as the representative of the Plaintiff clan, ratified the litigation acts conducted by Nonparty 4 as the representative of the Plaintiff clan, thereby filing the lawsuit in this case, and thereafter, all the litigation acts conducted in the name of the Plaintiff clan were retroactively effective at the time of the act in this case.

Therefore, the court below should make an additional review on whether the facts alleged by the plaintiff are recognized based on the materials submitted to the court of a political party, and then determine whether the above clan general meeting has been lawfully held, whether the resolution to elect the non-party 9 as the representative and to delegate the authority to file a lawsuit is valid, and whether the non-party 9 is legally ratified as the representative of the plaintiff clan. The ground of appeal pointing this out has justifiable grounds.

4. 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 So-young (Presiding Justice)