Plaintiff (Attorney Yoon-soo et al., Counsel for plaintiff-appellant)

Defendant clan (Attorney Jeon Soo-soo, Counsel for the defendant-appellant)

February 22, 2005

Seoul Central District Court Decision 2003Gahap67705 Delivered on June 24, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

It is confirmed that the resolution that the defendant clan appointed the co-defendant 2 of the first instance court as the chairperson of the above clan on June 8, 2003 by the Religious Committee is null and void.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or each statement in Gap evidence 1 through 9, Eul evidence 11 through 16 (including each number), Eul evidence 1 through 12, Eul evidence 15 through 20 (including each number), and Eul evidence 15-1, Eul evidence 15-1, Eul evidence 15-1, and Eul evidence 16 through 19, can be acknowledged after considering the whole purport of the pleadings as a whole.

A. The defendant clan is a clan consisting of adult male members among the descendants of (the head office and the head office omitted) clan (the head office and the head office omitted) that is a middle time group, and the plaintiff is a clan member belonging to the defendant clan.

B. The rules of the defendant clan were amended on April 18, 1994 and December 1, 1997 after the enactment of April 4, 197, but each of the above amended rules of the clan is identical. However, there are only the list of the members of the clan attached to the end, but the list of the members of the clan attached to the rules of the clan in 1994 is the same as the list B of the members of the clan, and the list of the members of the clan attached to the rules of the clan in 1997 is the same as the list of members of the clan in attached Table B.

C. According to the rules of the defendant clan, there shall be not more than one chairperson, two vice-chairpersons, two auditors, and 12 or less members of the clan (Article 5); the president shall be elected from the clan council with the same knowledge and good reputation as recommended by the descendants or descendants (Article 6); the term of office shall be three years (Article 6); and several special members may be included if deemed necessary (Article 10); the members of the clan shall be elected in consideration of the advice of the clan members and the general meeting shall be ratified (Article 11); the members of the clan shall be appointed in consideration of the clan members and the advice of the clan members; the members of the clan shall be confirmed at the highest decision-making institution with the functions of opening and closing the rules of the clan, the chairperson, the vice-chairperson and the auditor; the temporary members of the clan shall be elected once a year; the chairperson shall, with the consent of the majority of the members of the clan members and the chairperson shall, with the consent of the majority of the members (Article 14); and the majority of the members of the members shall, with the members present at least three and the members (3).

D. The defendant clan consists of "(the name of the clan 1 omitted)" among the clans (the non-party 2) and "(the name of the clan 2 omitted)" (the non-party 3), but the property of the defendant clan has been managed separately from the property of each of the above clans. From around 1940 to 1970, some of the members of the above clan who managed the property of the defendant clans had been disposed of at will the property of the defendant clans and embezzled them frequently.

E. After that, in around 1971, Nonparty 3, a member of the clan of the clan, was appointed by the president of the Defendant clan, and was removed from the tomb of the Defendant clan by setting up a mountain in the regular family of the Gyeonggi-gu, Gangdong-gu, Seoul, which is the property of the Defendant clan, for the proceeds of disposing of approximately 300 square meters of land, which is the property of the Defendant clan, and opened the tomb of the Defendant clan, and operated the clan with its rental profits by constructing and renting the clan building in the Jung-gu, Seoul around 1980, and thereafter, Nonparty 1 was appointed by the president of the Defendant clan and managed the clan property.

F. However, in the course of managing the property of the Defendant clan by some of the members of the clan, Nonparty 1 disposed of the land and the building on the land of Gangdong-gu Seoul Metropolitan Government (number 1 omitted), (number 2 omitted), and its ground, and subsequently, there was suspicion that he arbitrarily consumed the price and appropriated the funds of the Defendant clan. Accordingly, on June 25, 2000, some of the members of the clan and of the clan were held an extraordinary general meeting with the exclusion of Nonparty 1, and decided to appoint Co-Defendant 2 of the first instance court as a new president, and to improve the executive officers by excluding Nonparty 3 from the non-party 1.

G. Although the members of the clan who led such a resolution requested Nonparty 1 to transfer the management rights of the clan properties to Nonparty 1, Nonparty 1 did not improve the executive officers of the Defendant clan by refusing the above request on the grounds of the defect in the procedure of the above extraordinary general meeting.

H. On May 17, 2003, non-party 1 notified the non-party 1 of the fact that the general meeting should be held on June 8, 2003, that "the non-party 1 shall hold the general meeting of shareholders (the committee for the non-party 1) with the major agenda such as the settlement of accounts in 2002, the revision of the rules, and the improvement of executive officers of the defendant clan."

I. Accordingly, at the office of the above clan building on June 8, 2003, the regular clans committee was held in 2003 (hereinafter “instant clans committee”) and was proceeding to Nonparty 5’s society upon the delegation by Nonparty 1. Nonparty 1’s expiration of the term of office (at the end of three years from June 25, 2000, the day on which the clans committee was held as indicated in the above paragraph (f)) or the above F. At the request of the replacement of some of the non-party members due to the suspicions such as the above paragraph (f), the improvement of the defendant clan made a vote of the non-party 1 as the candidate (or the clan) on the recommendation of Nonparty 2, the non-party 2, who is the member of the defendant clans, but the voting was rejected by Nonparty 3,8, and the non-party 2, who voluntarily opposed the chairman (or the non-party 2).

(j) As a result, Defendant 2 of the first instance court was elected as the president by taking a vote (third-party vote) by the majority of the members of the members of the clan, focusing on the members of the clan (or the members of the clan) indicated in paragraph (1) of the attached Table No. 2 of the members of the clan who demanded that he is the president of the defendant clan, but the non-party 1, 2, and 3 raised an objection to the above voting, and moved to the side of the above members of the clan office and did not participate in the voting, and did not sign the minutes.

(k) After that, the co-defendant 2 of the first instance court demanded non-party 1 to transfer the right to manage the property of the defendant clan, such as the issuance of a deposit passbook managing the funds of the clan, but the non-party 1 elected the co-defendant 2 of the first instance court as the president at the committee of the clan of this case on the ground that the resolution of this case was invalid because it was not in violation of the provisions of the rules of the clan, and then, the resolution of this case was adopted in the presence of some members of the clan on July 13, 2003.

Other. Accordingly, the dispute between the non-party 1 and the non-party 1 and the non-party 2 who supported the non-party 1 and the non-party 1's co-defendant 2 was not closed. The co-defendant 2 of the first instance court was signed by approximately 78 clan members, and the non-party 1 was prosecuted on July 23, 2003 by filing a complaint against the non-party 1 for the suspicion of forging and embezzlement under the above paragraph (f). The non-party 1 was already indicted on May 6, 2004 on the ground that the non-party 1's non-party 1 sold the above land to the non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1'.

2. Judgment on the assertion

A. The parties' assertion

The plaintiff (1) The resolution of this case was made after the non-party 1, the chairperson of the defendant clan, declared the dissolution of the clan of this case. Thus, in violation of Article 14 of the Rules, the resolution of this case was made at the clan committee held without the request of the chairperson's notice of convening or the majority of the members of the clan. (2) Non-party 8, 9, 10 and non-party 11 participated in the resolution of this case even though they are not members of the clan, the resolution of this case did not meet the quorum, and (3) the non-party 2 was elected as the chairperson in violation of Article 6 of the Rules of the Council, and therefore, the resolution of this case, which was elected by the chairperson of the co-defendant 2 of the court of first instance as the

As to this, the defendant clans (1) participated in the resolution of this case even non-party 1, 2 and non-party 3; (2) non-party 8, 9, 10 and non-party 11 are members of the clans; and (3) non-party 1, 2 and non-party 3 were elected as the president by the voting of the members of the clans first instance by the voting of the members of the clans without going through the recommendation procedure of the members of the clans with the consent of the non-party 1, 2, and 3;

B. Determination

(1) Whether there is a defect in the convocation procedure

On June 8, 2003, the committee of the instant case, which was held on June 8, 2003, was lawfully convened by Nonparty 1, the chairman of the committee of the instant case, and was lawfully convened by Nonparty 1, the chairman of the committee, and the second voting against Nonparty 2 had been carried out without any problems in the procedure. Therefore, it is problematic whether the resolution of this case (the third voting) carried out by Nonparty 1, 2, and 3 without participating in the voting was carried out in violation of the provisions of Article 14 of the Rules and there is any defect.

Although it cannot be deemed legitimate to hold a clan meeting as a regular or extraordinary general meeting in light of the above general meeting practices after the representative has abandoned the meeting at the general meeting of the clan, it cannot be deemed that the non-party 2 was closed or terminated if the chairperson leaves the meeting contrary to his will while the non-party 1 was legally or factually able to examine the agenda without completing the examination by the non-party 2's meeting, the chairperson cannot be deemed to have given up his/her right to vote and exercised his/her rights. Thus, the non-party 2's dissenting opinion that the non-party 1's dissenting opinion cannot be seen as being adopted by the non-party 1's dissenting opinion that the non-party 2's dissenting opinion cannot be seen as being adopted by the non-party 1's dissenting opinion that the non-party 1's dissenting opinion cannot be seen as being legitimate, since the non-party 2's dissenting opinion that the non-party 1's dissenting opinion and the dissenting opinion that the non-party 2's dissenting opinion had not been adopted at the meeting of the first instance.

(2) Whether a person who is not a non-member has taken part in voting

First, in light of whether the list in attached Table 1, as alleged by the plaintiff, is the accurate list of the members of the non-party 3 as of the time of the instant voting, it is difficult to believe that part of the evidence Nos. 2 and 11, corresponding thereto, and the testimony of non-party 3 of the first instance trial witness, considering the following circumstances, and there is no other evidence to acknowledge it.

Rather, according to the statements in Gap evidence 5-7 to 13, Gap evidence 7, part of Gap evidence 2, and non-party 3's testimony of the first instance court, ① the defendant's non-party 14 prepared to receive a regular audit report on the defendant's clan as an auditor, ③ the non-party 14 prepared to be a member of the defendant's clan in 1997, on the other hand, the list of members attached to the horse (hereinafter referred to as the "list") was prepared and printed in a computer, and its preparation method is different from the list; ② the above list is indicated as the non-party 8 and 9 auditors, but the above list is indicated as the non-party 7, 12, and 13 from 1997 to 199; ③ the non-party 14 prepared a regular audit report on the defendant's clan as an auditor before the death of 202, and the above list was not attached to the list of members of the defendant's non-party 197.

Meanwhile, according to the above facts, according to the list of non-party members attached to the 1994 Amendment Rule (No. 6-2) submitted by the defendant (No. 6-3 and No. 2) attached to the 1994 amendment, the non-party 1, the chairperson of the non-party 1, at the time of the non-party 1, the non-party 1, the chairperson of the non-party 1, at the time of the non-party 1, the non-party 2, and the non-party 3, the non-party 1, the non-party 1, the non-party 2, the non-party 5, the non-party 1, the non-party 1, the non-party 2, the non-party 5, the non-party 9, the non-party 2, the non-party 1, the non-party 1, the non-party 9, the non-party 2, the non-party 9, the non-party 2, the non-party 9, the non-party 2, the non-party 2, the voting vote.

[Gag and attached Table 4, the list of the plaintiff's assertion 1 in lieu of the list, is considered as the list of paperless members. According to the above facts, at the time of the resolution of this case, the court below's non-permanent members [the co-defendant 2, non-party 1, 2, 3, 6, 7, 11 (the representative of non-party 15), 16, 17] were present, and five paperless members [the co-defendant 2, non-party 6, 7, 11 (the representative of non-party 15), and 16] who are the majority of the paperless members present at the court of first instance [the fact that the non-party 2, non-party 6, 7, 11 (the representative of non-party 15), and 16] can be acknowledged as supporting the resolution of this case. Thus,

(3) Violation of the procedure for recommending paper descendants and their validity

As to whether the resolution of this case was defective in selecting a person who did not obtain the recommendation of a member of the clan in violation of Article 6 of the Rules as the chairperson, it can be acknowledged that the co-defendant 2 of the first instance court at the time of the resolution of this case did not obtain the recommendation of the non-party 2 or the non-party 3, who is the non-party 3, who is the non-party 2 or the non-party 3, as seen earlier. Thus, the resolution of this

The defendant, at the time of the voting of this case, renounced the right of recommendation by Nonparty 2 and Nonparty 3, and agreed to appoint the chairman by a majority of the Labour Committee. Accordingly, the defendant argued to the effect that he was elected the co-defendant 2 of the first instance court as the chairman, but the above argument is not accepted because there is no evidence to acknowledge it.

In addition, although the defendant asserts that the clan rules of this case, which have excessive authority over one member of the clan, are contrary to the purpose of the existence of the clan, the fact that the members have the right to recommend the chairperson and the right to elect the members of the clan cannot be deemed to be contrary to the purpose of the establishment of the clan, and as long as the contents are deemed as the clan rules, they shall be deemed to be a provision established according to the will of the members of the clan, which takes into account all the matters

Furthermore, according to the above facts with respect to the validity of the resolution of this case in violation of Article 6 of the Rules, Article 6 of the Rules provides that if the decision-making of the defendant clan, which is linked with complicated interests, is decided by the principle of majority, it shall not be operated beyond the original purpose of the defendant clan, "to preserve the relics of the ancestor, to cultivate the morals of the ancestor, and to promote the friendship among the clans". Article 16 of the Rules of the Association seems to be prescribed to ensure the stable operation of the defendant clan in accordance with the previous custom by careful attention in amending all the provisions of the Rules of the Association. In light of the purport of Articles 6 and 16 of the Rules, it is reasonable to view that the resolution of this case in violation of Article 6 of the Rules of the Association is an invalid resolution which has significant defects in its procedure, and if it is impossible or impossible for the chairperson to recommend the clan to replace or terminate the part of the resolution of the general meeting without recommendation of the clan members, the resolution of this case in violation of the provisions of Article 6 of the Rules of the Association.

3. Conclusion

If so, the plaintiff's claim against the defendant's clan shall be accepted due to the reasons, and the judgment of the court of first instance shall be justified and the defendant's appeal shall be dismissed and it is so decided as per Disposition.

[Attachment]

Judges Kim Tae-tae (Presiding Judge)