[1] Whether a legitimate representative can be ratified at the court of final appeal for litigation conducted by the representative of an unincorporated association without a legitimate representative (affirmative)

[2] Method of appointing a clan representative

[3] The target and method of convening a clan general meeting

[1] Articles 52, 60, and 64 of the Civil Procedure Act / [2] Article 52 of the Civil Procedure Act / [3] Article 31 of the Civil Act, Article 52 of the Civil Procedure Act

[1] Supreme Court Decision 96Da2527 delivered on March 14, 1997 (Gong1997Sang, 1083) / [2] Supreme Court Decision 96Da25715 delivered on November 14, 1997 (Gong1997Ha, 3799), Supreme Court Decision 98Da5072 delivered on April 13, 1999 (Gong199Sang, 864) / [3] Supreme Court Decision 93Da45015 delivered on June 14, 1994 (Gong194Ha, 1946) (Gong207Da34982 delivered on September 6, 2007)

Plaintiff-Appellee (Attorney Yoon Jong-sung et al., Counsel for the plaintiff-appellee)

Defendant 1 and one other (Attorneys Jeong Nam-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na85012 decided Dec. 17, 2008

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the evidence adopted in its judgment. The plaintiff's general meeting of each clan dated March 2005 and July 26, 2005 held without legitimate convening procedures, and therefore there is no resolution adopted at each of the above clans general meetings. The lawsuit of this case was instituted without legitimate convening a resolution of the general meeting of clans, and the non-party 1 was not entitled to represent the plaintiff's clans and dismissed the lawsuit of this case on the ground that it is unlawful.

2. Judgment on the grounds of appeal

A. The plaintiff acknowledged that there was a defect in the resolution of each clan general meeting on March 2005 and July 26, 2005, and argued that since the date of the closing of argument in the court below, each special meeting on January 17, 2009 and March 21, 2009, which was after the date of the closing of argument in the court below, appointed Nonparty 1 as the representative, the above non-party 1 confirmed all the previous procedural acts, the previous procedural acts were retroactively effective at the time of the act.

B. The act of litigation conducted by the representative of a non-incorporated association who is not qualified as a legitimate representative shall have retroactive effect upon ratification of the act of the representative. Such ratification shall also be made at the court of final appeal (see Supreme Court Decision 96Da2527, Mar. 14, 1997). The representative of a clan shall be appointed according to the rules or practices of the clan, and if not, he shall be elected by convening a majority from among the members of the clan, and unless the head of the clan or the head of the door shall not be appointed by the majority of the members of the clan, and if the head of the clan or the head of the door is not appointed by the clan or the head of the clan, and if the head of the non-incorporated association or the head of the non-incorporated association has no rules or practices concerning the appointment of the clan, it shall be deemed that the representative of the clan has been residing in the Republic of Korea and shall be appointed by the second 4th son or the head of the non-incorporated, and it shall not be deemed that the head of the clan or the head of the non-permanent shall be individually notified in writing.

C. First of all, taking into account the descriptions of Gap evidence 20-1 through 5 submitted by the court of first instance for the extraordinary general meeting of January 17, 2009, the non-party 2, the non-party 3, the non-party 4, and the non-party 5 (hereinafter referred to as "non-party 2, etc.") sent to the members of 181 the day and time of January 5, 2009 to 10:10:0 a.m. on January 7, 2009, the non-party 1, the non-party 2, etc. sent to the above non-party 1, the non-party 4, the non-party 1, the non-party 7, the non-party 1, the non-party 4, the non-party 1, the non-party 4, the non-party 1, the non-party 2, etc. were the non-party 1, the non-party 7, the second non-party 4, the non-party 1, the non-party 3, who was the non-party 1, the plaintiff 1.

D. Next, in full view of the statement No. 26-1 through No. 6 of the evidence No. 26-1 submitted by the first instance court for the special general meeting of March 21, 2009, the Plaintiff, upon proposing the special general meeting by Nonparty 6 and 8, identified 20 years or more as of March 21, 209 as a clan member subject to the notification of the general meeting. On March 9, 2009, the fact that Nonparty 6 and 8 members sent out the special general meeting by mail to the above Class 7 members, but it is impossible to conclude that the above general meeting was convened by the legitimate convening authority for the non-party No. 4, including the non-party No. 1 and the non-party No. 8's lineal descendants, since all of the non-party No. 2 were excluding the non-party No. 9 and the non-party No. 5's lineal descendants, and the remaining non-party No. 1 and the non-party No. 6's lineal descendants. 1 and the non-party No. 6.

E. Therefore, the Plaintiff’s allegation in the grounds of appeal premised on the lawful holding of an extraordinary general meeting after the date of closing argument in the lower court is without merit without further review.

3. Conclusion

Therefore, all appeals are 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 Cha Han-sung (Presiding Justice)