[1] The case holding that, in case where Gap's children attended the general meeting of the clan of Eul, which consists of descendants of Eul, which is one of Eul's descendants, and the descendants of Eul, and only Eul attended the general meeting of the clan consisting of descendants of Eul, and elected Byung as the representative of the clan consisting of descendants of Eul, the decision that although the above general meeting was convened by the descendants of Eul, even though Eul was present only the members of the clan, it does not constitute the general meeting of the clan consisting of descendants of Eul, the decision that elected Byung as the representative of the clan consisting of descendants of Eul does not have validity, and even if the members of the clan were the members of the clan, it does not have the right to represent the clan properties of Eul, and it does not have the right to represent the clan properties of Eul as a matter of course, and the application for provisional disposition raised by Byung was unlawful since it was made by a non-representative of the representative authority, barring special circumstances such as confirmed by the general meeting lawfully convened

[2] The validity of a resolution made at a general meeting of a clan held by a male clan member only by convening a convocation notice (=negative)

[1] Articles 31 and 52 of the Civil Act / [2] Articles 31 and 71 of the Civil Act

[2] Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 (Gong2005Ha, 1326), Supreme Court Decision 2008Da8898 Decided February 29, 2009, Supreme Court Decision 2009Da83650 Decided February 11, 201 (Gong2010Sang, 559)

A clan obligee (Law Firm Shin, Attorney Lee Jong-soo, Counsel for defendant-appellant)

More than Gu, 6 others (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Busan High Court Order 2009Ra86 dated October 28, 2009

The order of the court below is reversed, and the case is remanded to Busan High Court.

The grounds of reappeal are examined.

1. The court below held that the non-party 4 was a legitimate representative of the creditor of the clan, since the creditor, who was the non-party 3's descendants, who were the non-party 26 years of age, among non-party 1's children, who were the non-party 1's 26 years of age, elected the non-party 4 as the representative at the general meeting of the clan on September 13, 2004, which was convened and held by the non-party 4, who was the non-party 4, the non-party 4, who was the non-party 3's descendants, not the non-party 3's descendants, at the general meeting of the above clan, withdrawn the form of convening the general meeting of the non-party 2's descendants composed of the non-party 2's descendants, not the non-party 3's descendants, but the non-party 4 was the non-party 3's descendants of the clan.

2. However, it is difficult to accept the above judgment of the court below.

A. According to the reasoning of the order of the court below and the records, (1) creditors of the clan filed a lawsuit against the debtor for the transfer of ownership on the land, etc. listed in the separate sheet of the court below in 199, and creditors of the clan are composed of the descendants of the non-party 2, and since the descendants of the non-party 5, 3, and 6 among the non-party 2's three children were damaged by the non-party 3 and only the non-party 3 was not damaged by the non-party 4, the non-party 3's remaining members of the clan and the non-party 4 were elected by the non-party 4 at the general assembly on June 18, 1980. (2) The above lawsuit was remanded to the appellate court after the plaintiff was remanded to the non-party 2's non-party 4's non-party 7, 8, 9, 10, 111, and 12 who were the non-party 2's members of the clan, who were not elected by the non-party 18.

B. According to the above facts, the general meeting of the clan dated September 13, 2004 shall be deemed to have been convened not only for the creditors who are non-party 3's descendants but also for the non-party 2's descendants as the general meeting of the clan. Although the above general meeting was convened by the non-party 4 who is the members of the creditor's clan and was present only for the members of the clan, it shall not be deemed to be the general meeting of the creditor's clan, it is reasonable that the non-party 4 has no effect of the resolution elected as the representative of the creditor's clan. In addition, even if the non-party 4 is the members of the clan, it does not have the right to represent the clan property as a matter of course (refer to Supreme Court Decision 9Da9523 delivered on July 27, 199), and the application for provisional disposition of this case brought pursuant to the non-party 4 is unlawful, unless there are special circumstances such as lawful ratification of it at the general meeting of the clan.

C. Meanwhile, according to the records, while the creditors of the clan attended the general meeting of the clan on April 26, 2007 (the same as the members of the clan who attended the general meeting of the clan on September 13, 2004) and decided to appoint non-party 4 as the members who will hold the general meeting of the clan and conduct litigation on behalf of creditors on behalf of the clan. However, after the decision of the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 was rendered, the adult female who is the members of the joint clan shall be also the members of the clan. Thus, the resolution of the general meeting of the clan shall be null and void (see, e.g., Supreme Court Decision 2008Da898, Feb. 26, 2009), since the resolution of the general meeting of the clan was made on April 26, 2007, it cannot be viewed that there was a notification to communicate the above general meeting of the clan.

D. Therefore, the court below determined whether there were circumstances such as ratification of the resolution of the general meeting of clans newly convened after the above clans general meeting on April 26, 2007 by Nonparty 4 as the representative of the non-party 4. In the absence of such circumstances, the court below accepted the application of creditors without reaching the first instance court's decision rejecting the application of this case. The court below erred by misapprehending the legal principles on the validity of the resolution of the general meeting of clans and the appointment of the representative of a clans and failing to

3. Conclusion

Therefore, the order 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)