2016Da231525 Registration for cancellation of ownership

Class A Congress

Korea

Suwon District Court Decision 2015Na55190 Decided June 3, 2016

November 10, 2016

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. A clan within its unique meaning is a family organization formed for the purpose of protecting the graves of a vessel, conducting religious services, promoting friendship, etc. consisting of all adult men and women from among the descendants of the joint ancestor, and the legal status and composition of a clan similar organization consisting only of residents in a specific region or descendants meeting specific qualification requirements are different (see, e.g., Supreme Court Decision 2002Da4863, May 10, 2002).

In a case where a family clan and its members are published a family clan, the family clan is produced and distributed on the basis of the family clan to clarify the scope of the members of the family, by stating the blood ties, spouse, and personal history of all his/her descendants on the basis of the family clan, and barring any special circumstance to recognize that the family clan was recorded or fabricated, it is in accordance with the rule of experience to believe that the contents of the family clan as to the family clan are in trust (see, e.g., Supreme Court Order 2000S2, Jul. 4, 200; Supreme Court Decision 2009Da45740, Oct. 10, 29; etc.).

2. On the grounds delineated below, the lower court rejected the Defendant’s assertion that the instant lawsuit is unlawful on the grounds that: (a) the Plaintiff’s main safety defense, namely, ① constituted only some descendants of the Joint Fishing K, and the Plaintiff did not have a unique meaning as a clan; and (b) the resolution of the clan General Meeting for filing a lawsuit was made without legitimate convening procedures, and thus

A. The Plaintiff is a clan with a unique meaning that the Plaintiff is a joint group of J 12 years of age K as its members and consists of all descendants. K was punished by K, AB, and AD in the AE case, but only the descendants of AC remain. The Plaintiff is an organization that leads from K to AC and is comprised of all descendants, and is not a clan similar organization that excludes other descendants of K or is comprised of only members who reside in a specific area.

B. Based on the family table, the Plaintiff confirmed 236 members of the clan subject to notification of convening among the descendants of K and AC, and passed a resolution of this case at the clan general meeting held by convening a notification to all these members of the clan. The resolution of the family general meeting is valid by going through legitimate convening procedures.

3. However, it is difficult to accept such judgment of the court below.

The lower court determined that the supplementary table published in 1765 indicated that all the children of AB and AD were not descendants, and that only the descendants of AC remains. However, the supplementary table published in 1824 (A), published in 1824, indicated that AB’s grandchildren AB BJ and BK, and the supplementary table published in 1868, included AB’s grandchildren BB, BJ, BJ, BF, and BF in 1868, and the supplementary table published in 1868, included ABN, grandchildren, BO, BO, and BP to AD. The supplementary table published in 1918 (198), the supplementary table published in 1980 (1980), and the records and records of ABD in 198 (1) and ABD.

AE 때로부터 240여년이 지나 발간된 을유보(1765년)에 AB과 AD의 증손(曾孫)으로는 BG(AB의 손자 BH의 아들임)만 기재되어 있고, 이후 발간된 족보에 BG의 자손은 나타나지 않는다. 그러나 을유보에 기재된 AB의 손자 8명이 증손 대에 BG만 남기고 모두 절손된다는 것은 경험칙상 매우 이례적인데다, 을유보에도 AB의 손자 AH과 AD의 아들 AT만 '무후(后, 즉 無後는 후손이 없다는 뜻임)'로 표시되어 있을 뿐 다른 자손에는 그러한 기재가 없다. 그러므로 위와 같은 을유보의 일부 기재와 작성시기 만을 들어, AB과 AD에게는 을유보에 기재된 외에는 후손이 없었다거나, 이후 발간된 족보에 추가로 기재된 자손들에 관한 부분이 모두 잘못 기재되었거나 조작되었다고 보기는 어렵다. 오히려 원고가 제출한 AK파보(1998년)를 보면 원고의 상위 종중으로 보이는 AK파에서는 상당수의 구성원을 AB이나 AD의 혈통으로 파악하고 있는 것으로 보인다. (다만, 구체적인 내력은 미제출된 12~23, 28~30면 등의 족보내용을 확인해 보아야 알 것이다).

The lower court should further examine whether there are circumstances to suspect that the descendants of AB or AD (1824) from the latter, including the AB or the AD, were wrong or distorted, and should have determined whether the members of the Plaintiff’s organization claiming a clan of its unique meaning that K is restricted to the descendants of AC. Nevertheless, the lower court erred by misapprehending the legal principles on the validity of the resolution of the clan general meeting, etc., without failing to exhaust all necessary deliberations, on the premise that (1) the Plaintiff’s descendants among the descendants of K were in existence, and (2) the Plaintiff’s organization composed of descendants of AC constituted a clan group group, and thus, falls under the unique meaning of the AC group group, under the premise that (3) the Plaintiff’s party ability and the clan general meeting’s resolution constitutes a clan group, and thus, rejected all of the Defendant’s defenses asserting the validity of the resolution. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the validity of the resolution of the clan general meeting, thereby affecting the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Young-young

Justices Park Byung-hee

Justices Kim Jong-il

Justices Kim Jae-sik in charge