In cases where a legitimate person who has the right to convene a general meeting of the clan or a person who has the interest in the family of a clan fails to comply with the request for convening the general meeting of the clan without justifiable grounds, whether the person who has the interest in the clan or the promoters may convene the general meeting on behalf of the person who has the right to convene the general meeting (affirmative), and in such cases, whether the right to convene the general meeting of the persons who have the interest in the interest of the interest in the establishment of the

Articles 31, 70, and 71 of the Civil Act

Supreme Court Decision 94Da53563 Decided June 16, 1995 (Gong1995Ha, 2501) Supreme Court Decision 2010Da83199, 83205 Decided February 10, 201 (Gong2011Sang, 565)

Plaintiff 1 and one other (Law Firm Newro, Attorneys Cho Jong-young et al., Counsel for the plaintiff-appellant)

In the case of the head of organization (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Daejeon High Court Decision 2019Na13245 decided October 24, 2019

Of the part of the lower judgment against the Defendant, the part of the lower judgment regarding the claim for nullification of each of the resolution on appointment of general secretary with respect to Nonparty 1, who was made at the general meeting of clans dated November 3, 2016, the resolution on appointment of auditor with respect to Nonparty 2, and the resolution on ratification with respect to the sale of woodland 1,543 square meters in Sejong Special Self-Governing City (number omitted), is reversed, and that part of the case is remanded to Daejeon High Court

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. The portion of the resolution on appointment of general affairs with respect to Nonparty 1, the resolution on appointment of auditors against Nonparty 2, and the resolution on ratification of sale of forest land of 1,543 square meters in Sejong Special Self-Governing City (number omitted)

1) Although the members of a clan have requested a legitimate convening authority in accordance with the rules of the clan or the convening authority of the general meeting of a clan for the management or disposition of the clan's properties, if the convening authority fails to comply with the request without justifiable grounds, the convening authority may convene the general meeting on behalf of the convening authority (see, e.g., Supreme Court Decisions 94Da53563, Jun. 16, 1995; 2010Da8319, 83205, Feb. 10, 201). In such cases, the convening authority of the next passenger or promoters shall be the authority to exercise for the management or disposition of the clan's properties, and the convening authority of the general meeting shall not be limited to the appointment of the clan representative.

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On November 28, 2015, the Defendant held an extraordinary general meeting and made a resolution to sell 1,543 square meters of forest land (number omitted) to Sejong Special Self-Governing City (hereinafter “instant land”) which is owned by the Defendant (hereinafter “resolution to sell the instant land”) to Sejong Special Self-Governing City. The Sejong Special Self-Governing City completed the registration of ownership transfer on the instant land by agreement on December 21, 2015.

B) The Defendant’s clan members raised an objection on the grounds of procedural defect regarding the resolution of the extraordinary general meeting of November 28, 2015, and the Defendant held an extraordinary general meeting to ratification the resolution of the sale of the instant land on January 13, 2016, but did not obtain the ratification resolution, but Nonparty 3, who was the Defendant’s president, retired from the office of the president.

C) On November 3, 2016, the Defendant: (a) held a general meeting of this case to dismiss Nonparty 3 from the president; (b) made a resolution to appoint Nonparty 4 as the president; (c) Nonparty 1 as the president; and (d) made a resolution to appoint Nonparty 2 as the auditor; and (c) appoint the president and the chief executive officer of the lower clan in accordance with the amendment of the clan; and (d) respectively, made a resolution to ratification the sale of the instant land.

D) On October 18, 2018, the Plaintiffs filed the instant lawsuit against the Defendant seeking confirmation of invalidity on the grounds of procedural defect regarding each of the above resolutions made at the instant ordinary meeting.

E) On February 20, 2019, Nonparty 4, Nonparty 1, etc. demanded Nonparty 5, who is the co-resident of the Defendant, to convene an extraordinary meeting in order to appoint the Defendant’s president. Nonparty 5, who is his agent, signed and sealed the power of attorney on convening an extraordinary meeting through Nonparty 6, and gave Nonparty 4 the power of attorney on convening the extraordinary meeting. However, on March 17, 2019, Nonparty 5 refused to convene the extraordinary meeting without justifiable grounds after withdrawing the delegation.

F) On March 26, 2019, Nonparty 4 issued a muster notice to the Defendant’s clan members containing the following: (i) the Defendant’s case of election of executive officers including the representative among the door; (ii) the case of the enactment of the literacy; (iii) the case of ratification (excluding the portion of appointment of executive officers) on the resolution of the instant general meeting on November 3, 2016; and (iv) other necessary matters, holding the instant special meeting on April 14, 2019.

G) In the instant special meeting held on April 14, 2019, the Defendant resolved on each of the following matters: “Non-Party 4 as the president; Non-Party 1 as the chief executive officer; Non-Party 2 as the auditor; and Non-Party 2 as the auditor; and the resolution re-convening the resolution on the sale of the instant land.”

h) The chairperson and the chief executive officer of the defendant appointed as above may participate in meetings of executive officers related to the preservation, management, disposition, etc. of the clan property or take charge of affairs related thereto, and the auditor shall audit such affairs performed by the executive officer of the clan and report them to the clan general meeting.

3) Examining the foregoing factual basis in light of the legal principles as seen earlier, it may be deemed that: (a) the annual appellant convened by Nonparty 4, the promoters of the instant special meeting held on April 14, 2019, which was held on April 14, 2019, resolved on the “a resolution to appoint the president for Nonparty 4; (b) a resolution to appoint Nonparty 1; and (c) a resolution to reconvenate Nonparty 2 with respect to the resolution to sell the instant land, etc., within the scope of the promoters’ authority to convene and hold the general meeting for the management or disposal of the clan property.”

Nevertheless, the lower court deemed that the promoters’ authority to convene the general meeting is limited to “the appointment of representatives,” and thus, determined that the remainder of each resolution passed by Nonparty 4 at the general meeting of this case, which was held on April 14, 2019, with the exception of “the resolution for the appointment of the president to Nonparty 4,” as above, has no validity as it was a resolution on any other matters than the promoters’ authority to convene the general meeting of this case. Accordingly, the lower court erred by misapprehending the legal doctrine on the scope of the authority to convene the general meeting of this case, which affected the conclusion of the judgment, on the ground that the resolution at the general meeting of this case was lawful among the matters to be resolved at the general meeting of this case, the portion of “the resolution for the appointment of Nonparty 1 and Nonparty 2 as the auditor, and the resolution ratified with respect to the sale of the land of this case,” or that there was a requisite for protecting rights to seek nullification on the grounds of procedural defect in each of the matters to be resolved at the general meeting of this case.

Supreme Court Decision 2009Da26596 Decided December 9, 2010 cited by the court below was that the members of a clan need to select a representative regarding the management or disposition of the clan properties, and thus, they requested the convocation of a clan general meeting; however, if the members of a clan refuse to convene a general meeting without any justifiable reason, they merely purport that they may convene a meeting if they refuse to convene a general meeting, and that the scope of the authority of convening a general meeting of the members of a clan or promoters is limited to the "for the selection of a representative among the clans," and therefore, it is inappropriate to be invoked in this case.

B. The remaining appeal by the defendant

The defendant filed an appeal against the whole part of the judgment below against the defendant, but there is no specific statement in the petition of appeal or the appellate brief about the remainder.

2. Judgment on the plaintiffs' grounds of appeal

A. The part of the resolution on appointment of the president against Nonparty 4

For the reasons indicated in its holding, the lower court determined that: (a) the instant general meeting held on November 3, 2016, “a resolution to appoint Nonparty 4 as the chairperson of the Defendant”; and (b) the instant special meeting held on April 14, 2019, convened by Nonparty 4 as promoters, and duly re-established the same resolution as the said resolution at the general meeting of this case held on April 14, 2019; (c) the filing of a motion to nullify the “resolution to appoint Nonparty 4 as the chairperson of the Defendant” in the resolution of the instant general meeting of this case was unlawful because it

Examining the reasoning of the lower judgment in light of the records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the meaning and scope of promoters who have the authority to convene a clan general meeting, the scope of members subject to a notification of convening a clan general meeting and the procedure for convening a notification of convening a clan, or by exceeding the bounds of the principle of free evaluation

B. The remaining appeals by the plaintiffs

Although the plaintiffs filed an appeal against the whole of the judgment below, the remaining parts are not indicated in the petition of appeal or the appellate brief in detail.

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part of the decision of the court below regarding the resolution of appointment of general secretary against the non-party 1 at the general meeting of this case, the resolution of appointment of auditor against the non-party 2, and each claim for nullification of confirmation of the sale of this case's land is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal and the defendant's remaining appeals are dismissed as they are without merit

Justices Lee Ki-taik (Presiding Justice)