(영문) 대전고등법원 2017.06.22 2016나13657

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(영문) 대전고등법원 2017.06.22 2016나13657

부당이득금

Text

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The total cost of the lawsuit shall be borne by H (K).

Reasons

1. The reason why the court uses this part of the basic facts is the same as the reasoning of the judgment of the court of first instance. Thus, the relevant statement is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the defense prior to the merits

A. On February 20, 201, the summary of the Defendant’s argument confirmed H as the representative of the clan general meeting of February 20, 2016 (hereinafter “instant clan general meeting”) held by the clan on April 14, 2001 (hereinafter “instant clan”).

However, the clans of this case are null and void because only those who are registered as male members, at least 20 years of age, are admitted to be members of the clan.

In addition, the plaintiff's clan did not notify the members of the clan on the basis of the clan, but did not notify the members of the clan on the basis of the null and void clan rules for only some of the members registered, among the members of the clan.

Since the general assembly of this case is null and void due to a serious defect in the procedures for convening the clan, H, the representative of which was ratified by the general assembly of this case, cannot be deemed a legitimate representative of the plaintiff clan, and the lawsuit of this case is unlawful as it was filed by a

B. The representative of a clan 1) shall be elected according to the regulations or general practices of the clan, but if not, the head of the clan or the head of the door shall convene the members of the clan who have attained majority among the members of the clan and be elected by the resolution of the majority of the members present, according to general customs. In the absence of the regulations or general practices regarding the appointment of the head of the clan, the head of the clan or the head of the door shall not be appointed to the members of the clan, and it is common customs to notify the members of the existing family and to convene a general meeting of the members who are obvious that they have resided in the Republic of Korea and have resided therein, and to appoint the representative of the clan at the meeting, unless there is any special reason.

참조조문

-민사소송법 제420조

유사 판례

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