[1] Whether a clan may take a disposition that infringes on the essential rights of the clan members' unique and basic rights (negative)

[2] The validity of a disposition suspending all the rights of the members of a clan to participate in the decision-making of the clan for a long time (negative)

[1] It is not allowed that a clan violates its unique and basic rights, in light of the nature and legal nature of the clan.

[2] Where a clan takes a disposition to suspend the qualification of a member of the clan (the right to attend and speak, voting right, election right, or election right at various meetings) for 10 to 20 years, based on the clan rules that "a member who has inflicted damage on a clan or damaged the reputation of the clan due to an act committed by a member of the clan, who has caused damage to the clan or damaged the reputation of the clan, who shall compensate for it, and reported to the general meeting after the resolution of the board of directors," it shall not be recognized as valid since it infringes on the unique and basic rights of the member of the clan.

[1] Articles 31, 73, and 276 of the Civil Act / [2] Articles 31, 73, and 276 of the Civil Act

[2] Supreme Court Decision 80Da1194 delivered on February 8, 1983 (Gong1983, 485)

Plaintiff 1 and 18 others (Law Firm Rental, Counsel for the plaintiff-appellant)

D. Defendant 1 and 3 others (Law Firm Shinsung, Attorneys Cho Yong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na76133 delivered on August 10, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion on the claim for confirmation of invalidity of disciplinary action

A clan is a naturally occurring organization of a common ancestor, which aims at the protection of graves, religious services, and friendship among its members, and the descendants of the common ancestor naturally become its members if they reach majority regardless of their will, and if the clan has been equipped with and continuously engaged in activities to the extent that it is represented by the representative elected in accordance with the rules or customs, etc. In light of the nature and legal nature of the clan, it is not allowed to make a disposition that infringes on its unique and basic rights that the clan has against its members.

In full view of the admitted evidence, the court below held that Article 26 of the Rules of the defendant clan provides that "any member who has inflicted damage on the clan due to an unlawful act committed by the members of the clan or damaged reputation shall compensate for it and report it to the general meeting after the resolution of the board of directors." The defendant clan decided on March 30, 199 to suspend the qualification of 26 members including the plaintiff 12, etc. for 10 to 20 years (hereinafter referred to as "first suspension of qualification") based on Article 26 of the Code (hereinafter referred to as "the right to attend various meetings"), and that the defendant clan lawfully notified the person subject to disciplinary action on January 8, 200, and that the defendant clan shall lawfully suspend the qualification of 10 to 26 members of the clan for 15 years on September 14, 201, and that the defendant clan notified the person subject to disciplinary action on September 14, 201.

Examining the above facts in applying the legal principles as seen earlier, the disposition of this case, which deprives all members of a clan who are members of the clan of all rights entitled to participate in the decision-making of the clan for a long time, violates the essential contents of the unique and fundamental rights of the members of the clan, and thus is not valid (in the case of Plaintiff 1, 3, 12, 13, 17, etc. who are older than 60 to 80 members, the suspension of the qualification of the members of the clan for 10 to 15 years, is virtually difficult to expect recovery of the qualification of the members of the clan, and therefore it is no longer to deprive them of the qualification of the members of the clan permanently).

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to clans as alleged in the grounds of appeal

On the other hand, as long as the judgment of the court below on the above point is just, Article 26 of the above Code cannot be a ground provision for the disposition of this case, and there is no custom or practice that permits suspension of qualification for the clan members. Whether the remaining judgment of the court below on the validity of suspension of qualification of this case is justifiable or not can not affect the conclusion of the judgment. Thus, the argument in the grounds of appeal on this point is without merit.

2. As to the claim on the confirmation of invalidity of the resolution of the clan General Meeting of January 29, 2001

The notification for convening a general meeting of a clan shall be given to all the members who can be notified, unless there are special circumstances or the rules or practices of the clans, with an opportunity for each member to participate in the discussion and resolution of the general meeting, and without giving such notification to some members, the resolution of the general meeting of a clan held without holding such notification shall be null and void, and it shall not be viewed otherwise with the consent of a majority of the members who can be notified of the resolution (see Supreme Court Decisions 92Da34124 delivered on November 27, 1992, 95Da44986 delivered on February 28, 197, etc.). It is the opinion of the Supreme Court that it is not necessary to change it, and therefore, there is no need to change it. Therefore, there is no ground for appeal as to a change in the precedents (in this regard, the issue is whether or not the decisions of the general meeting of shareholders are null and void, and it is a matter different from this case).

The court below, after compiling the adopted evidence, found the facts as stated in its holding, and found the grounds for the first suspension of the qualification to the members of the clan who were subject to the disposition, which did not give a notice of convening a general meeting, or in such a case, 26 members who were subject to the disposition without a notice of convening a general meeting on the premise that there is no provision or custom which does not require a notice of convening a general meeting, and that the resolution of the general meeting on January 29, 2001, which was taken by them when they deprived of their opportunity to participate in the discussion and resolution, was invalid because they were erroneous in the procedures for convening a general meeting and the method of resolution, and that such error did not affect the result of voting, is not different. The court below is justified in the misapprehension of the rules of evidence, omission of judgment, or misapprehension of the legal principles on the validity of the resolution of the general meeting

Meanwhile, even if the term of office of the chairperson has already expired by the resolution of the clan of January 29, 2001, which elected the clinical order as the chairperson, the court below is just in holding that there is a legal interest in claiming confirmation of the invalidity of the resolution of the clan of January 29, 2001 to the plaintiffs, since the resolution of January 30, 2004, which again elected the clinical order as the chairperson, is invalid for the reasons as stated in its reasoning, and the judgment of the court below cannot be viewed otherwise solely on the ground that the clinical order was elected as the chairperson around January 29, 208, and even if ex officio examination is conducted, there is no illegality in the judgment of the court below as to this.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)