[1] The most important standard in identifying a clan and identifying its substance (=joint aid of a clan)

[2] The case holding that Gap and Eul, different from the common ancestor, cannot be viewed as the same clan, and the name of Gap's clan cannot be viewed as merely changed to Eul's clan

[1] Article 31 of the Civil Act / [2] Article 31 of the Civil Act

[1] Supreme Court Decision 2002Da4863 Decided May 10, 2002 (Gong2002Ha, 1371) Supreme Court Decision 2006Da14165 Decided October 25, 2007

An Gindong-dong Kim Jong-dong Association (Law Firm Roice, Attorneys Kim Un-soo et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Attorney Park Jin-jin, Counsel for the defendant-appellant)

Defendant 4 and two others (Attorney Park Jin-jin, Counsel for the defendant-appellant)

Suwon District Court Decision 2009Na4180 decided October 27, 2009

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 2

A. A clan is a naturally created family organization that aims at the protection of the graves of a common ancestor, the religious services, and the friendship among members of a clan, but it does not require a special organization, and as such, it may be a non-permanent member in a clan depending on whom it becomes a member of the common ancestor. Thus, in identifying a specific clan and its substance, it shall be the most important criteria for whom the common ancestor of the clan is the common ancestor, and the clan that differs from the common ancestor shall be a clan that has a separate entity that differs from its members (see Supreme Court Decisions 2002Da4863, May 10, 2002; 2006Da14165, Oct. 25, 2007, etc.).

B. According to the reasoning of the judgment below, the court below determined that the above two clans are the same clans on the grounds that the plaintiff's clans and the members of the Ansan clans are located in the same place, they were registered with the same clans by the non-party 1, and that at least 122 of the clans in the name of the non-party 1 of the same representative, the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 1, who is the

C. However, the lower court’s determination is difficult to accept for the following reasons.

According to the records: (1) The plaintiff used the name of 7 years old Kim Jong-soo's son's 7 years old Kim Jong-soo's son's son's 7 years old Kim Jong-chul's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's 17 years old son's son's 1.

In light of the above facts in light of the legal principles as seen earlier, it is an organization similar to a clan consisting of descendants of the 7 years old Kim Jong's descendants or the descendants of the 11-year old clan. On the other hand, since the plaintiff clan consisting of descendants of the 11 years old Kim Jong, the two different clans are not the same clans, and the name of the clan of the Ma-dong clan shall not be deemed to be changed to the plaintiff clan merely. In addition, in light of the fact that Article 77 (2) of the Civil Act provides that "an association of the Ma-dong clan shall become nonexistent or dissolved by the resolution of the general meeting," it shall not be deemed that the establishment requirements of the clan were satisfied merely because it remains in the case of the clan of an unincorporated association or unless the general meeting does not actually operate the clan, since the plaintiff clan still exists as the members of the Ma-dong clan including the 113 years old clans and there is no evidence that it still existed the resolution of dissolution of the Ma-dong clan.

D. Nevertheless, the court below determined that two clans are the same and that the name of the clan of the Ansan clan is merely a change to the name of the plaintiff clan. The court below erred by misapprehending the legal principles on the clans or similar organizations, or by violating the rules of evidence, which affected the conclusion of the judgment. The defendants' arguments pointing this out are with merit.

2. Regarding ground of appeal No. 1

A. According to the reasoning of the judgment below, the court below determined that the exercise of the right of representation by the non-party 3 of the honorary president is legitimate on the ground that the plaintiff clan and the non-party 2, who is the chairperson of the clan, are not in conflict with the interests of the plaintiff clans and the non-party 2, as in the case of this case, on the ground that it is reasonable to view that the "profescing" under Article 14 of the articles of association (No. 3) of the plaintiff clans is when the chairperson cannot exercise his right of representation lawfully

B. However, the lower court’s determination is difficult to accept for the following reasons.

First, as seen earlier, since the plaintiff clan is not the same clan as that of the clan of Ansan, it is not the owner of each land of this case, and therefore, even if the non-party 2 arbitrarily disposed of each land of this case without the resolution of the general meeting of the plaintiff clan, it cannot be said that the interests of the plaintiff clan are conflicting.

In addition, Article 14 of the articles of incorporation of the plaintiff clan refers to cases where the representative becomes unable to perform his/her duties due to death, disease, or other unavoidable circumstances (see Supreme Court Decision 2006Da57131, Dec. 11, 2008, etc.). Thus, even if non-party 2 is in a position contrary to the plaintiff's clan, unless there are circumstances such as the court's decision of provisional disposition of suspending the performance of duties against non-party 2, such reasons alone cannot be deemed as falling under the provision of the above articles of incorporation.

Thus, even though the lawsuit of this case filed by Nonparty 3 as the representative of the honorary president is an unlawful lawsuit filed by a person without authority, the court below rejected the defendants' defense of this case on the ground that the lawsuit of this case is lawful, and thus, the court below erred by misapprehending the legal principles on legitimate representative authority of clans and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The defendants' assertion pointing this out has merit.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)