[1] The validity of convening a clan where another clan member has convened a clan with the consent of the members of the clan (effective)

[2] The validity of a resolution of the clan general meeting, which is defective in convening procedures, is ratified by a legitimate clan general meeting after its adoption (effective)

[3] Whether the land can be determined as owned by a clan solely on the basis of the fact that it is a tombstone or a tombstone (negative)

[4] The case reversing the judgment of the court below which recognized the reversal of the legal presumption of ownership transfer under the former Act on Special Measures for the Registration of Real Estate Ownership, etc.

[1] Even though a member of the family who is qualified for the representative of the clan did not directly convene the clan, if he consented to convening the clan to the convening of the clan and let the member of the clan convene it, it shall not be deemed that the person who is not wholly authorized to convene the clan.

[2] Even if the resolution of the clan general meeting which cannot be recognized as effective due to the defect in the convening procedure, it shall be valid from the beginning if it is ratified by the clan general meeting lawfully convened thereafter.

[3] In a case where a certain land is provided as a tombstone for the establishment of a specific grave related to a clan or for the preparation of expenses for religious services, there may be cases where the clan acquired the ownership thereof directly and set up it as a clan property, and where a member of the descendants particularly set up the land owned by an individual as a tombstone or a tombstone. Thus, the fact that it is a tombstone or a tombstone cannot immediately be readily concluded as the ownership of the clan.

[4] The case reversing the judgment of the court below which recognized the reversal of the legal presumption power of the registration under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (No. 3094, invalidation)

[1] Articles 31, 106, and 133 of the Civil Act / [2] Articles 31, 106, and 133 of the Civil Act / [3] Article 187 of the Civil Procedure Act, Article 186 of the Civil Act / [4] Article 186 of the Civil Act, Articles 6 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094, effective)

[1] Supreme Court Decision 92Da40402 delivered on January 11, 1994 (Gong1994Sang, 674), Supreme Court Decision 93Da51454 delivered on May 10, 1994 (Gong1994Sang, 1654), Supreme Court Decision 95Da5288 delivered on May 23, 1995 (Gong1995Ha, 2237) / [2] Supreme Court Decision 94Da53563 delivered on June 16, 1995 (Gong1995Ha, 2501) / [3] Supreme Court Decision 85Da847 delivered on November 26, 198 (Gong1986, 198) / [194Da94979 delivered on April 195, 194]

Kim Gim-han was a part of the Gongmong-gu Loss (Attorney Kim Yong-han, Counsel for the plaintiff-appellant)

Kim Young-young (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Gwangju District Court Decision 93Na4980 delivered on November 30, 1995

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

We examine the grounds of appeal.

1. On the first ground for appeal

A. The point of the capacity of the plaintiff clan to be a party

Since a clan is a naturally created organization formed by descendants of a common ancestor for the purpose of protecting the graves of the common ancestor and promoting friendship between descendants and descendants, it does not require a special organization. However, if the rules are prescribed in order to regulate the protection of graves, conducting religious services, and promoting friendship among the members of the common ancestor, or if external activities are performed, it does not necessarily require the designation of a representative, and it does not necessarily require the use of a special name and a written clan rules or establish an organization, such as the appointment of a representative of the clan (see Supreme Court Decisions 94Da5699, Mar. 12, 196; 95Da16103, Nov. 14, 1995, etc.).

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff clan was established naturally for the purpose of protecting his graves, conducting religious services and promoting mutual friendship among the descendants, who are the 17-year old non-party 1, who is the deceased non-party 1, who is the deceased non-party 1, as a member of the deceased Kim Jong-chul's clan (the plaintiff clan), according to his reasoning of the evidence, and that the plaintiff's religious services were discussed on October 1 of the above year with the sound records of the non-party 1's religious services, and rejected the defendant's main defense of safety. The court below determined that the plaintiff's religious services were equipped with the substance of the clan and rejected the defendant's main defense. In comparison with the records, the court below's above fact-finding is just, and since the above recognition alone alone is recognized that the plaintiff's substance of the clan is not a non-legal entity, and there is no error in the misapprehension of legal principles or the defendant's ability to take measures against the defendant's political party's defense.

B. The qualification for the representative of the plaintiff clan of the non-party Kim Jong-ok

The representative of a clan shall be appointed according to the rules or general practices of the clan, and if not, the head of the clan or the head of the door shall convene a meeting of the adult male or more among the clans and elect it by the resolution of the majority of the present male, and if not, the head of the clan does not have the head of the clan or the head of the door, and if there is no rules or general practices regarding the appointment of the head of the clans, he shall notify the members of the existing clan who have been the head of the clan or the head of the door and have clearly resided in the country and shall convene the general meeting of the clan, and shall appoint the representative of the clan at that meeting (see Supreme Court Decisions 94Da5699, Mar. 12, 196; 95Da5288, May 23, 1995, etc.).

Meanwhile, even if a member of the family who is qualified for the representative of the clan did not directly convene the clan, if he consented to the convening of the clan and let the member of the clan convene it, it shall not be deemed to be the convening of the non-authorized person (see, e.g., Supreme Court Decisions 95Da5288, May 23, 1995; 93Da51454, May 10, 1994; 93Da514, May 10, 1994; 94Da5563, Jun. 16, 195). On the other hand, even if the resolution of the general meeting of the clan which is lawfully convened after the convening of the clan, it shall be deemed to be valid from the beginning if it is ratified by the resolution of the general meeting of the clan which is not recognized as effective (see Supreme Court Decision 9

According to the reasoning of the judgment below, on March 22, 191, 191, which was before the filing of the lawsuit of this case, 11 members of the plaintiff clan were gathered and appointed as the representative of the non-party Kim Jong-ok on March 22, 1991, and on March 14, 1993, the above Kim Jong-ok, who was the representative of the plaintiff clan on March 14, 1993, convened the general meeting of the clan (the non-party did not notify the defendant of the cause of the clan) and approved the resolution of March 22, 1991, and again, on April 30, 193, the court below rejected the judgment of the court below that the above Kim Jong-ok decided that the defendant's appointment of the non-party representative, including the defendant, was legitimate in the misapprehension of the legal principles on the appointment of the general meeting of the plaintiff clan on May 5, 191 with the consent of a majority of members present at the meeting of the above Kim Jong-ok, and there was no violation of the legal principles of the defendant's.

In light of the above rules of the plaintiff clan (No. 2) ratified by the general meeting of the plaintiff clan dated May 5, 1993, the general meeting of Article 13 recognizes the fact that the majority of the members of the plaintiff clan are members of the majority of the members of the clan, and the resolution is made with the consent of the majority of the members of the clan. However, according to the records of No. 12-3 (Minutes) of the above clan No. 12, the general meeting of May 5, 1993 excludes 11 members of the 64 members of the above clan, who are not deemed legitimate members of the 64 members of the 193 clan, from among the 64 members of the 193 clan, the 29 members of the power of attorney and 14 members of the 38 members of the 38 members of the above clan participate in the voting and the consent of the resolution of the above clan on March 22, 191, the court below did not have any influence on the conclusion of the judgment.

2. On the second ground for appeal

A. As to the forest of this case

According to the reasoning of the judgment below, the court below held on May 9, 1949 that the plaintiff clan acquired a 141 forest land 20,430 square meters in Yongnam-gun, Yongnam-gun (hereinafter "the forest of this case"), and installed and owned a grave of the deceased non-party 1 in the above location, and when the land investigation project was conducted in 1918 at a certain city of 1918, on February 20 of the same year, the non-party 1, who was the deceased non-party 1's descendants, and entrusted the name to the defendant with the registration of the transfer of the ownership of the forest of this case under the name of the above deceased non-party 1's Kim Jong-dong, who was the deceased non-party 1, the deceased non-party 1, who was the deceased non-party 1, on May 7, 194, the non-party son-Nam, who was the head of this case, made the registration of transfer of ownership of the forest of this case on his own title trust.

Examining the evidence admitted by the court below to acknowledge the facts that the forest of this case was owned by the plaintiff clan, and that the defendant was under title trust to the above Kim Jong-dong, it is not sufficient to acknowledge the above facts only by the defendant as a certificate of personal seal impression Gap's 10-2, which was issued on July 10, 1991 after the date of the lawsuit of this case, and it is insufficient to recognize the above facts. From the testimony of the non-party 2, who testified at the court of first instance at the court of first instance by the prosecutor, "the witness of this case is not aware of the plaintiff clan, and the forest of this case is one of the defendant's own clan and is 0f0f06", and the above non-party 2's testimony at the court of first instance is not sufficient to recognize the facts related to the above facts of this case's summary order and the summary order of this case's testimony at the court of first instance, and it is also difficult to recognize the above facts of this case's testimony and evidence of this case's first instance.

In addition, the statement of No. 6-11 to No. 15, No. 14-7 and No. 8, respectively, and the testimony of Non-party 2 is the statement of the plaintiff clan or the non-party 1's bereaved family member who was the administrator of the forest of this case, and most of the forest of this case is the plaintiff clan ownership and the deceased non-party 1's graves, who were the time of the plaintiff clan, are installed in the forest of this case, and it is difficult for the plaintiff clan to make the above defendant's testimony that the plaintiff's clan was established as a clan property, and it is hard for the defendant to believe that the defendant's defendant's testimony that the defendant's above defendant's 1 was the 10th day before the defendant's defendant's testimony that the non-party 1 was the 5th day of the defendant's 1's laver Kim, Kim Jong-sik, and the defendant's testimony that the defendant's 10th day of the defendant's 10th day of the defendant's testimony.

Ultimately, the evidence admitted by the court below is insufficient to recognize the fact of acquisition and title trust, such as how the plaintiff clan created the forest land of this case as a clan property and what circumstances the plaintiff clan came to title trust.

The party asserting that a clan property is a clan property shall assert and prove the circumstances leading up to the establishment of the clan property. However, it is sufficient to view that the property does not necessarily require an explicit assertion that it is the clan property, and that it includes the circumstances leading up to the establishment of the clan, and that it is sufficient to presume the requisite facts by asserting and proving indirect facts, etc., the members' consistent precedents or records (see Supreme Court Decisions 95Da16103, Nov. 14, 1995; 92Da18146, Dec. 11, 1992, etc.) have been set up as an indirect fact that the plaintiff clan created the woodland of this case as the clan property of this case, and it is difficult to readily conclude that the plaintiff clan was owned by the deceased clan 1 and the deceased clan 1 and the deceased clan 4 were owned by the deceased clan's own property of the clan or the deceased's own property of this case for the establishment of the clan, and it is difficult to readily conclude that the land of this case was owned by the deceased 1 and the deceased.

On the other hand, according to the records, on October 26, 1970, the defendant completed registration of preservation of ownership of the forest of this case under the name of the defendant pursuant to the Act on Special Measures for the Registration, etc. of Ownership of Forest Land (Act No. 2111), and the plaintiff clan did not raise any objection thereto until April 4, 1991, which was the filing date of the lawsuit of this case, and the registration certificate (No. 3) was possessed by the defendant. The plaintiff clan did not engage in other clan activities except that about 10 clan members were gathered in front of the deceased non-party 1's grave every year until the filing date of the lawsuit of this case until the filing date of this case. In light of the fact that the plaintiff clan was dead before about 150 years prior to the death of the deceased non-party 1, it is difficult to view that the plaintiff clan had engaged in activities to acquire the forest of this case to install the grave of this case.

Nevertheless, the court below recognized that the forest land of this case was entrusted with the title by allowing the plaintiff to undergo an assessment in the name of the above Kim Jong-dong, the deceased non-party 1, who was the deceased non-party 1 of the above deceased non-party 1, on February 20, 1918, because the forest land of this case was acquired as the result of the plaintiff's death for about 150 years by using only the evidences of that time. Therefore, the court below erred by misapprehending the rules of evidence in violation of the rules of evidence.

B. As to the earlier of the instant case

According to the reasoning of the judgment below, the court below decided that the above transfer registration of real estate was made to the plaintiff on the ground that the non-party 1 was owned by the non-party 635 square meters prior to 1662 Mari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri (hereinafter referred to as the "before this case"). The above Kim Young-ri was entrusted with the management of the forest of this case from around 1972 to around 1976, and was disposed of while the plaintiff clan was kept in the forest of this case, and was distributed pursuant to the Farmland Reform Act at the time, and was distributed to the plaintiff at the time, and was not separated from about 200 to 300 meters in the forest of this case from the forest of this case, and the defendant did not know that the above transfer registration was made under the name of the non-party 1's right to claim the transfer registration of real estate under the name of the defendant 1 to the plaintiff on August 9, 1979.

Since registration under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (Act No. 3094, invalidation) is presumed to be a registration that has been completed in accordance with the lawful procedures prescribed in the same Act, it shall be presumed to be consistent with the substantive relationship. Thus, if it is proved to the extent that there is a burden of proving the reversal to the person who has filed a lawsuit for the cancellation of the registration, and that the substantive contents of the guarantee certificate or written confirmation, which forms the basis of the registration, are not true, the presumption of registration shall be reversed (see, e.g., Supreme Court Decisions 94Da39116, Feb. 10, 1995; 93Da7143, Sept. 14,

However, in light of the letter of guarantee attached to the application for the issuance of a written confirmation under the above Act on Special Measures for the transfer of this case (No. 5-4 of this case), it is stated that the defendant purchased the past of this case from Non-party 2, Gangwon-do, and Seocho-gu on February 5, 1969 and actually owned it. The contents of the above letter of guarantee employed by the court below as evidence that the contents of the above letter of guarantee are not true. Under the premise that the forest of this case is owned by the plaintiff clan, the above Kim Young-young was in charge of management of the forest of this case under the premise that the forest of this case was owned by the plaintiff clan, and disposed of the forest of this case while the plaintiff clan kept the spab from the forest of this case, and decided to pay damages to the plaintiff clan as the above discussion of the deceased non-party 1's funeral, and the contents of this case were not sufficient to recognize that the forest of this case was owned by the plaintiff clan, and therefore, it cannot be seen that the above evidence was not necessary to prove that the defendant 17.

According to the evidence of the court below, the above Kim Young-young, who was the previous owner of this case, transferred this case before the transfer of this case with the consent of the transferee and used part of the harvested material to the deceased non-party 1's memorial services. However, the mere fact that a certain land was provided as a plot of land for a specific grave related to a clan cannot be readily concluded as belonging to a clan immediately. Thus, the above fact of recognition alone cannot be viewed as proved to the extent that the substantial contents of the above guarantee are not true.

Nevertheless, the court below, based only on its evidence, agreed that the above Kim Young-young agreed to pay in kind the plaintiff's clan to the plaintiff's clan as a compensation for damages to the plaintiff's clan, which was on the forest of this case. The non-party 2, the guarantor under the Act on Special Measures for the Registration, etc. of Transfer of Real Estate Ownership, etc. was prepared with a false guarantee and obtained a written confirmation, and recognized that the registration of ownership transfer was completed in the name of the defendant prior to this case. Thus, the court below erred in the misapprehension of the rules of evidence. The argument is justified.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)