Gyeonggi-gu Seoul High Court Decision 2010Na14477 decided May 2, 201

Defendant 1 and 3 others (Law Firm Rate, Attorney Oi-ju, Counsel for the defendant-appellant)

February 22, 2017

Suwon District Court Decision 2016Da50075 Decided October 20, 2016

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Revocation of the first instance judgment.

2. The Plaintiff:

(a) With respect to co-ownership of 18.9/71 of the shares of 1 real estate listed in the separate sheet, with respect to the 4 real estate listed in the separate sheet, 1/2 of the shares of 5 real estate listed in the separate sheet:

1) Defendant 1: (a) the transfer registration of ownership completed on January 4, 2013 by the District Court No. 1083;

2) Defendant 2: (a) the transfer of ownership, which was completed on July 8, 2010 by the District Court, No. 59872;

B. Defendant 3: (a) the transfer of ownership that was completed on September 9, 2010 by the District Court for the District Court for the District Court for the District Court for the District Court for the District Court for the Second Real Estate listed in the separate sheet;

C. As to co-ownership share 18.9/71 of the shares of 1 real estate listed in the separate sheet, with respect to 3 real estate listed in the separate sheet, Defendant 4’s registration of transfer of ownership as to 1/2 of the shares of 5 real estate listed in the separate sheet as to 1/2 of the shares of 5 real estate listed in the separate sheet as to July 8, 2010;

Each procedure for cancellation registration shall be implemented.

1. Basic facts

A. Status of the parties

The plaintiff is the clan of which the non-party 3, the second son of non-party 2, the second son of non-party 3, the second son of non-party 3, the second son of non-party 4, who is the view of the time group in the Yim-gun of the Gim

Defendant 2 was the president of the Plaintiff’s clan from March 1, 2006 to October 2015, and Defendant 3 was the president of the Plaintiff’s general affairs from March 1, 2006 to June 1, 2010. Defendant 4 was the vice president of the Plaintiff’s general affairs from March 1, 2006 to May 31, 2010.

B. Progress of a lawsuit for the return of paper soil

The Plaintiff was under title trust with respect to the forest land (road address omitted) 84,822 square meters and two parcels, including Nonparty 5, etc. in Yangju-si. On March 1, 2006, the Plaintiff held a general meeting of shareholders and completed the registration of ownership transfer under the name of a clan, and made a resolution to delegate all authority to the president (Defendant 2) who is the representative, if necessary for filing a lawsuit.

Defendant 2 filed a lawsuit claiming the transfer of ownership, etc. on behalf of the Plaintiff against Nonparty 5 and two others (hereinafter referred to as “the final return lawsuit”). On November 14, 2007, the first instance court (Seoul Central District Court 2006Dahap83005) rendered a dismissal lawsuit on the ground that Defendant 2 was not a legitimate representative of the Plaintiff. However, the second instance court (Seoul High Court 2007Na125279) rendered a favorable judgment of the Plaintiff on September 11, 2008, and the said judgment became final and conclusive by the final judgment of the lower court on February 12, 2009 (Supreme Court 2008Da759666).

On the other hand, on March 1, 2007, the Plaintiff made a resolution to pay 7% of the winning amount as a honorarium to the person who contributed to expenses incurred in the final soil return lawsuit with the consent of 217 members. On January 26, 2008, the Plaintiff made a resolution to ratification the previous resolution related to the final soil return lawsuit with the consent of 328 members present at the extraordinary general meeting.

C. Resolution of the instant general meeting

On November 23, 2009 (No. 7, 2009), the Plaintiff held a general meeting (hereinafter referred to as “instant general meeting”). At that time, the total of 35 persons (including 22 persons directly present and 13 persons who submitted power of attorney) attended the general meeting, and Defendant 2 presided over the general meeting as the president of the Plaintiff.

The general meeting of this case notified the winning in the lawsuit for the return of the clans as above and decided on March 1, 207, based on the resolution of the special general meeting of this case, etc. on the resolution of No. 1, "the case of partial donation of the restored land to the person who contributed to the recovery of land for the clans", and "the general meeting of this case shall contribute the private fund to restore the land for the clans and restore all the clans to the clans and restore the clans in practice to the clans and donate part of the audit to the auditor's clans." The general meeting of this case decided to donate part of the plaintiff's clans to Defendant 2, Defendant 3, and Defendant 4 (hereinafter "Defendant 2, etc.") as follows, but the designation of the land to be donated shall be delegated to the plaintiff's chairperson (the plaintiff 2). The resolution was passed with the consent of all members present (hereinafter "the resolution of this case").

Defendant 2 in the main sentence: Defendant 4 of 3,915 square meters among the forests and fields ( Address omitted) in Yangju-si, and Defendant 4 of 18.9 square meters among the forests and fields ( Address 2 omitted): 5,496 square meters among the forests and fields ( Address 2 omitted) in Yangju-si, and Defendant 3 of 18.9 square meters among the forests and fields ( Address 2 omitted): 5,049 square meters among the forests and fields ( Address 2 omitted)

D. Progress after the resolution on donation of this case

On May 26, 2010, the area of 84,82 square meters of forests and fields in Yangju-si ( Address omitted) was divided into 60,364 square meters of forests and fields, ( Address 3 omitted), 5,049 square meters of forests and fields (attached Table 2), ( Address 4 omitted), 5,358 square meters of forests and fields (attached Table 3), 3,775 square meters of forests and fields (attached Table 5 omitted), 3,775 square meters of forests and fields (attached Table 4), ( Address 6 omitted), 276 square meters of forests and fields (attached Table 5).

Defendant 2, etc. completed the registration of ownership transfer for each of the lands listed in the separate sheet as indicated below. Defendant 2 sold the land that completed the registration of ownership transfer to Defendant 1, and completed the registration of ownership transfer on January 4, 2013.

In the description of the Defendants’ real estate contained in the main text (name 2 omitted), among Defendant 2 ( Address 2 omitted), Defendant 1/2 of the shares of June 30, 2010, among the shares of 18.9 shares of June 30, 2010 ( Address 5 omitted) Defendant 1 ( Address 6 omitted), Defendant 1/71 of the shares of 18.9 shares of November 28, 2012, among the shares of 18.9 shares of Defendant 1 ( Address 2 omitted), Defendant 3 ( Address 5 omitted), Defendant 6 omitted on September 1, 2010, among the shares of 18.2 shares of June 74, 2017, Defendant 2087 (No. 5 omitted) No. 1083 (No. 6 omitted) of receipt on November 4, 2013.

(e) Details of the final contribution;

The relevant contents of the Plaintiff’s Hunting Constitution as of November 23, 2009 (hereinafter “Hunting Constitution”) are as follows.

Article 3 (Membership's Qualifications) clan members included in the text of this Decree shall be adults among the descendants of the Young-gun (Non-Party 4): Provided, That a person who does not know at all his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his or his members are not recognized as a member immediately after confirmation. The clan meeting shall be divided into an ordinary general meeting, an extraordinary general meeting, the board of directors and the meeting of the board of directors. 1. The regular meeting shall be held on the date of the first day of the meeting of Article 12 (Quorum). The resolution of each level of meeting of Article 13 (Quorum) shall be held with the consent of a majority of the members present. The resolution of the second day of the meeting of Article 14 (Resolution) shall be decided on January 2, 197, which falls under the basic direction of the plenary session for the enactment of the Constitution of Korea and the amendment of the Constitution and the following matters concerning its operation and development:

[Reasons for Recognition] Unsatisfy, Gap's 2 through 4, 9, 10 evidence, Eul's 1 (including provisional number), the purport of the whole pleadings

2. Judgment on the main defense of this case

This Court's explanation is identical to the corresponding part of the judgment of the court of first instance (Articles 4 through 6, 3). Thus, this Court's explanation is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Judgment on the merits

A. The plaintiff's assertion

The instant gift resolution is null and void because procedural defect and content defect are significant as follows. Therefore, the Defendants, as they acquired the land stated in the purport of the claim without any legal ground, are obliged to cancel the registration of transfer of ownership of each of the above land by return of unjust enrichment.

(i) any defect in the convocation procedure;

Since Defendant 2 was not a member of the Plaintiff’s clan, it convened the general meeting in 2009 without the qualification of the representative, there is a significant defect in the convocation procedure of the general meeting in this case.

2) Defects in the resolution method

A) The general meeting of this case was held by Defendant 2, not the Plaintiff’s clan members, so there is a significant defect in the resolution procedure.

B) The instant gift resolution was made by an interested party, not by the Plaintiff’s paper, but by Defendant 2, etc., who was not the Plaintiff’s paper. Of 22 persons directly attending, there were significant defects in the method of resolution, including 12 persons, who are not the Plaintiff’s paper members, such as Defendant 2-4.

3) Defect in the resolution

The decision on the donation of this case is null and void since it violated Article 20 of the clan Constitution prohibiting the distribution of clan property.

B. Determination

1) Determination on the assertion of defects in the convocation procedure

A) In a case where members of a clan regularly gather at a certain place on a certain day every year in accordance with the rules or practices of a clan and are to handle the church affairs, it is not necessary to separately convene a clan meeting (see Supreme Court Decision 2005Da36298, Dec. 8, 2005).

B) The Plaintiff’s general meeting under Article 10(1) of the Hun-Ga Constitution provides that the Plaintiff’s general meeting shall be held on the off-gun Si/Gun, and the fact that the resolution of the instant general meeting was adopted on October 7, 2009 (No. 23, 2009, no. 199, no. 200) that the resolution of the instant general meeting was made on October 7, 2009 (No. 209, Nov. 2

Therefore, it cannot be said that there is a defect in the convocation procedure at the general meeting of this case where the gift resolution of this case was made. Thus, this part of the argument is without merit without further review.

2) Determination on the assertion of defect in the method of resolution

A) As to whether Defendant 2 et al. is Plaintiff 2

(1) In order for a clan to clarify the scope of its members, a clan’s clan or a literature to be produced and distributed by entering the blood transfusion, spouse, and personal records, etc. of all his/her descendants on the basis of the time of the clan. Barring any special circumstance to recognize that a clan was fabricated, it would be in accordance with the empirical rule to believe that the contents of a family clan’s family register on the blood transfusion are in trust (see Supreme Court Order 2000S2, Jul. 4, 200) (see Supreme Court Order 2000Da20033, Apr. 13, 201). In addition, since a family clan was prepared by a method from his/her descendants, it does not necessarily necessarily go through a clear and clear family register, so there is a little difference in the registration or detailed descriptions at each time of compilation, and as long as a family register is listed on the family register, it is not clear that there is no clear circumstance to suspect the circumstances of its registration, the contents of the family register are different from those of the previous report (see Supreme Court Decision 2003Da3134, 13.

(2) In addition to the above legal principles, considering the following facts and circumstances, considering the respective entries in Eul evidence Nos. 1, 6, 10, 12, 14, 15, 18, and 19 (including virtual numbers) and the overall purport of the pleadings, it is insufficient to recognize that Defendant 2 is not a member of the Plaintiff’s religious service, and there is no other evidence to prove that the entries in Gap evidence Nos. 8, 17, and 21 are not a member of the Plaintiff.

① According to the regular reservation published in 1957 by the Plaintiff’s higher clan clan 1957, Nonparty 6’s children were Nonparty 7 and Nonparty 8’s descendants, and Nonparty 9, Nonparty 10, Nonparty 11 (i) and Nonparty 12 followed by Nonparty 8’s descendants, and Nonparty 12. From among the presidential vice clans published by the clan 1911, Nonparty 6 through 9 are also written in the Japanese clan 191, and Nonparty 6 through 9 and Nonparty 10 were written in the Japanese clan 2015, while Nonparty 13 was written in the Nonparty 10, Nonparty 11 as △△△△△, it also appears that Nonparty 13’s children were indicated in the name of Nonparty 12 and Nonparty 12-2 (i.e., Defendant 2).

② Nonparty 7, a member of Defendant 2’s ancestor, is not recorded in the Guidebook published by the Plaintiff in 1985. However, considering the fact that the Guidebook, regular reservation, and Eul was published by a clan of the same clan, which is a higher clan, and that Eul was published later than the Guidebook, it is difficult to view that the Guidebook is more reliable than the above Guide newsletter. Moreover, there is no special circumstance to recognize that the Guide was operated by the Guide newsletter or the above Guide.

③ There is a difference between Defendant 2’s date of birth, etc. between Defendant 2 and Defendant 2, and the content of the third family register also differs from the content of the third family register (in particular, the name of Defendant 2’s high family register is Nonparty 14, not Nonparty 8), and there is also a person who does not coincide with the portr of the fourth family, among those indicated by Defendant 2’s vessels. However, considering the fact that the third family register is prepared based on the information provided by clans rather than objective materials and there is a high possibility of error in the specific contents, it is difficult to readily conclude that the above circumstance alone does not constitute the same part among the parts written in the third family register.

④ Nonparty 6’s non-party 6’s non-party 6’s non-party 6’s non-party 6’s written statement (Evidence No. 20 of the A), and the national library (Evidence No. 21 of the A), are only recorded with respect to Nonparty 15, who was composed of children of Nonparty 6, and there is no record regarding Nonparty 7. However, if Nonparty 7’s written statement as Defendant 2’s assertion, it is difficult to readily conclude that there was no non-party 7 solely based on the same facts when considering the historical atmosphere at the time when the distinction between the books was obvious and the status of Nonparty 6’s written statement was taken into account (Evidence No. 57 and 58 of the A).

⑤ From March 1, 2006, when Defendant 2 performed the Plaintiff’s president’s duties, Defendant 2 had no objection to the qualifications of Defendant 2 among the Plaintiff’s clan members from the time of the instant general meeting of shareholders to the time of the instant lawsuit. Moreover, Defendant 2 was appointed as the clan member of the Plaintiff’s highest clan on January 6, 2010 and operated as the Plaintiff’s clan member.

④ Defendant 2 cannot be readily concluded that Defendant 2 is not a member of the Plaintiff’s clan solely on the ground that Defendant 2 submitted a written reply to the effect that he/she would recognize the provisional disposition application in the instant case (Seoul Central District Court 2015Kahap102) where he/she suspended the performance of duties and appointment of acting directors for the president of the Korea Constitutional Court that was filed against him/her

(3) The Plaintiff’s assertion that the procedure of the instant general meeting held by Defendant 2 was unlawful on the premise that Defendant 2 is not a member of the Plaintiff’s clan is without merit.

B) Determination as to whether the quorum satisfies the quorum

As to the resolution of the general meeting of clans, the clan rules do not stipulate that the majority of the members of the clan shall be present and the majority shall be approved, and the provisions of the clan rules shall not be null and void (see Supreme Court Decision 91Da44902 delivered on January 26, 1993).

According to Articles 12 and 13 of the Constitution of the Republic of Korea, the resolution of the Plaintiff’s clans general meeting shall be held as a member of the clan and shall be subject to the affirmative vote of a majority of the number of members present at the general meeting of the instant case. The facts supporting all 35 members present at the general meeting of the instant case (22 direct members and 13 proxy members present at the general meeting of the instant case are as above.

Even if there is no voting right because the defendants et al. do not have any voting right because they did not have any voting right or they did not have any voting right as the plaintiff's member, as alleged by the plaintiff, 12 of this 22 of this Decree or the family members of defendant 2, etc., the non-voting persons are not included in the number of family members which serve as the basis for calculating the quorum, so long as 10 of the remaining 25 of this case except the above 25 members are present and resolved with the consent of all of the majority, the donation resolution of this case is valid upon meeting the quorum requirements prescribed by the religious Constitution.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Determination as to the assertion of defect in the contents of resolution

A) The compensation for accommodation of a non-corporate clan's land belongs to the collective ownership of its members, and the distribution of compensation for accommodation constitutes a disposition of collective property. Unless otherwise stipulated in the articles of association or other regulations, the compensation for accommodation may be distributed by a resolution of the general meeting of a clan, and the ratio, method, and contents of the distribution may also be decided autonomously by a resolution. However, in light of the nature of a clan, in which the descendants who share the common ancestor with the common ancestor and the family clan naturally become adult regardless of their intention when they become its members when they become its members when they become adult regardless of their intention, the resolution shall be null and void in cases where the resolution of the general meeting of a clan regarding the distribution of a clan property is considerably unfair or contrary to good morals or other social order, or it seriously unfair for the contents of the resolution of the general meeting of a clan to distribute the clan property, the circumstances leading up to the creation of the clan property, the maintenance and management of the clan property, the degree of contribution to the distribution of the clan property, the degree of contribution to the clan property and its entire distribution 270.

B) The fact that Article 20 of the Constitution of the Republic of Korea provides that "in principle, the property during the plenary session shall be operated for the business necessary for the development of the clan and shall not be distributed to the individual of the clan members under the title of "the prohibition of the distribution of the property" is prohibited.

However, the above provision does not absolutely prohibit the distribution of the clan property, and as seen earlier, it is reasonable to view that the plaintiff can reward the above property through a resolution of the general meeting in accordance with the Civil Act and the general principles in cases where there are many persons who contributed to the development of the plaintiff, etc. in light of the fact that the person eligible for reward is not limited to the clan members, and that the person eligible for reward does not dispute the qualification of the clan members, etc. until the resolution of donation in this case is passed) and that the distribution and reward of clan property constitutes the disposal of the clan property and can be made by a resolution of the general meeting of clans.

In addition, considering the fact that the Plaintiff recovered ownership of several parcels through the lawsuit for the return of land and Defendant 2, etc. contributed to a certain part, there is no particular evidence to deem that the resolution of the general meeting of this case was considerably unfair or contrary to good morals and other social order, or that it constitutes a case where the contents of the resolution of the general meeting of this case are considerably unfair or is contrary to good morals and other social order, or where the fundamental rights of a clan member are infringed upon (whether the specific method of subdivision, etc. is legitimate or not is separate from the validity of the resolution of the gift of this case, as well as the evidence submitted by the Plaintiff cannot be deemed significantly unfair, the Plaintiff’s assertion to the effect that the method of subdivision is disputed is also without merit).

C) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed. Since the judgment of the court of first instance is just in conclusion, all of the plaintiff's appeals are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Yang Sung-ju (Presiding Judge)

(1) The Plaintiff asserts to the effect that 14 persons have no voting rights in the reference documents for the reference documents submitted by March 16, 2017 after the closure of the pleadings at the trial, but the conclusion is the same.