Whether it is permissible to claim a change in the common ancestor of a clan as a party (negative), and in such a case, the court's measures

A clan's specific clan is classified as a member of the common ancestor who is a member of the clan and the scope of the members of the clan can be determined on the basis of which the scope of the members of the clan is different. Thus, changing the common ancestor of the clan claimed by the plaintiff is not permitted as it brings about the result of the change of the parties. In such a case, the court shall examine whether the plaintiff has been a member of the clan or whether the representative of the plaintiff's clan is qualified as the representative of the plaintiff's clan as originally asserted by the plaintiff, and shall dismiss the lawsuit if such clan has not been lost or is recognized as the representative's qualification. On the contrary, the case shall be decided as unlawful, and if the qualification of the member of the clan is recognized as the representative, the case shall be entered into the principal, and it shall not be recognized as the plaintiff because the clan has been lost according to the changed argument, and each of these legal principles shall apply equally to the case where the name and the representative of the clan are the same.

Article 31 of the Civil Act, Article 52 of the Civil Procedure Act

Supreme Court Decision 99Da1428 delivered on August 24, 1999 (Gong1999Ha, 1934 delivered on May 10, 2002) 2002Da4863 delivered on May 10, 2002 (Gong2002Sang, 1371)

The same clan clans of the same clan (Law Firm us, Attorney Cho Jong-soo, Counsel for the defendant-appellant)

Defendant

Changwon District Court Decision 2000Na7442 delivered on July 6, 2001

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below, the court below consistently asserted in the first instance court that the plaintiff's clan is a clan of 28 years old grouping among the descendants of the five-year old supporting supporting supporting family members of the five-year old supporting family members, and argued that the plaintiff's clan should reach the court below, and that the plaintiff's clan is a clan of 28 years old supporting family members. Since these two clans are separate clans different from the common ancestor members, changing the plaintiff's argument to the clan is not permissible under the Civil Procedure Act because it constitutes a voluntary change of the plaintiff, and therefore, the plaintiff's lawsuit of this case is unlawful, and dismissed the judgment of the court of first instance that dismissed the plaintiff's claim, and dismissed the lawsuit of this case.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A clan is classified as a member of the common ancestor who is subject to the members of the clan and the scope of the members of the clan can be determined on the basis of which the scope of the members of the common ancestor varies. Thus, the alteration of the common ancestor of the clan claimed by the plaintiff is not permitted as it brings about the result of the change of the parties. In such a case, the court shall examine whether the plaintiff is a member of the same clan or whether the representative of the plaintiff's clan is qualified as the representative of the plaintiff's clan as originally asserted, and shall dismiss the lawsuit if such clan is not registered or is recognized as a representative, and the lawsuit shall be dismissed as unlawful. On the contrary, if the qualification of the representative of the clan is recognized as a member of the common ancestor and the representative of the same clan, it shall not be recognized as the plaintiff because the representative of the clan, etc. according to the changed assertion, and it shall not be applied to the case where the representative of the clan, etc. is in existence (see Supreme Court Decisions 96Da32850, Nov. 26, 1996>

However, according to the records, as decided by the court below, the plaintiff argued that the plaintiff's clan was a clan of 28 years old clans in the first instance court that the plaintiff's clan was a clan of 23 years old clans, and although the court below asserted that the plaintiff's clan was a clan of 23 years old clans, it was left alone to conduct the lawsuit as a clan of 23 years old clans, the court below rejected the plaintiff's lawsuit on the ground that the plaintiff's change of the plaintiff's party was unlawful. In this case, in light of the above legal principles, the plaintiff's assertion that the scope of the plaintiff's common ancestor and its members should be changed and it cannot be permitted because the plaintiff's assertion that the scope of the plaintiff's common ancestor and its members should be changed and it should not be recognized as the plaintiff, and the plaintiff's first instance court's first instance court's original decision should not be accepted if it is acknowledged that the plaintiff's ability to represent the non-party, which is the representative, was not affected by the decision of the court below.

The part of the grounds of appeal assigning this error is with merit.

3. 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 Yoon Jae-sik (Presiding Justice)