The validity of a resolution of the clan general meeting, which lacks a notification for convening a clan general meeting and some of its members who can be notified (negative)

Articles 31 and 71 of the Civil Act

Supreme Court Decision 200Da17582 Decided July 6, 200 (Gong2000Ha, 1868) Supreme Court Decision 99Da32257 Decided June 29, 2001 (Gong2001Ha, 1710) Supreme Court Decision 2014Da29483 Decided August 20, 201

C. Themyang & P&C Co., Ltd. (Law Firm Dongyang, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Lee Young-chul, Counsel for defendant-appellant)

Cheongju District Court Decision 2012Na2058 Decided February 19, 2013

The appeal is dismissed. The costs of appeal are assessed against Nonparty 1 who is represented by the plaintiff.

The grounds of appeal are examined.

1. The judgment of the court below

The lower court determined that, on the grounds that the resolution of the clan General Meeting on December 20, 1990 that Nonparty 1 elected Nonparty 1 as the representative of the Plaintiff could not be recognized that there was a notice for convening a notification on some of the members residing in Korea, including the Defendant, and that the resolution of the clan General Meeting on May 30, 2012, which ratified the above resolution was adopted with the consent of the majority of the members present at the meeting and the consent of the majority of the members present, all of the grounds that the resolution was null and void, and thus, the lawsuit of this case brought by Nonparty 1 as the representative of the Plaintiff clan was filed by the

2. Judgment of the Supreme Court

A. The resolution of the clan general meeting for the appointment of the representative of a clan or the adoption of the clan rules shall be in accordance with the clan rules or the clan rules, and if not, it is common customs to make a resolution with the consent of a majority of the members present at the legitimately convened general meeting (see Supreme Court Decisions 94Da1772 delivered on November 11, 1994; 2009Da7182 delivered on May 28, 2009). The judgment of the court below invalidating the resolution of the clan general meeting held on May 30, 2012 on the ground that the majority of the members present at the clan and the majority of the members present at the clan did not agree to the resolution of the clan general meeting is erroneous.

B. However, examining ex officio, the lower court’s conclusion that the instant lawsuit was unlawful on the ground that the resolution of each of the above clans was null and void, and thus, was instituted by a person who has no power of representation, is justifiable for the following reasons, and thus, it cannot be deemed that

(1) In order to hold a clan general meeting, the convening authority shall individually give notice to the members of the clan who can give notice of convening a general meeting by determining the scope of the members of the clan in full efforts as possible and grasping the whereabouts of the members of the clan and by clarifying their whereabouts in Korea. The method of convening a general meeting shall not necessarily be required in writing, but shall not be deemed to have given notice by verbal or telephone or by any other member or through the head of the household, but shall not be deemed to have given legitimate notice to the representative of the branch or by place of residence. Further, the resolution of the general meeting of a clan general meeting held without giving notice to some members of the clans who can give notice (see, e.g., Supreme Court Decisions 200Da17582, Jul. 6, 200; 9Da3257, Jun. 29, 201; 2014Da29483, Aug. 20, 2014).

(2) According to the records, the plaintiff is the defendant's father's 20th day of June 26, 196, which was established by the non-party 2 as joint ancestor's 46th day of the non-party 1, the plaintiff's 20th day of the clan's 20th day of the clan, the plaintiff's 12th day of the clan's 20th day of the defendant's 20th day of the defendant's 1, the non-party 2's 20th day of the defendant's 20th day of the above clan's 9th day of the plaintiff's 20th day of the above clan's 1, the non-party 3's 20th day of the defendant's 20th day of the above clan's 20th day of the plaintiff's 1, the non-party 16th day of the plaintiff's 1, the non-party 15th day of the plaintiff's 2's day.

In light of the fact that all the members of the plaintiff at the time of the above clans general meeting can be easily understood as relatives within the sixth degree of relationship and the number is not many, the detailed circumstances on the fact that it was difficult to ascertain the whereabouts of the members of the family residing in Korea who did not call-up notice at the time, or that certain measures were taken to identify their whereabouts are taken, and rather, it is difficult to deem that the above clans general meeting convened each of the above clans general meeting and made a reasonable effort to determine the scope of the members subject to call-up or to grasp their whereabouts. As such, each of the above clans general meetings cannot be deemed to have been individually given to the members of the clans who can call-up notice, and thus all of the resolutions made shall be deemed null and void in accordance with the aforementioned legal principles.

C. The ground of appeal argues that even if the resolution of the general meeting of the clan dated May 30, 2012 is null and void, it is valid by the resolution of the board of directors on the election of officers pursuant to Articles 20, 22, and 23 of the clan Regulations, and therefore, it is erroneous in the judgment below as to this point.

However, the clan rules are enacted by the resolution of the general meeting of the clan, and as seen earlier, there is no evidence to deem that the plaintiff's clan rules were effective since the resolution of the general meeting of the clan on December 20, 199, which was adopted by the resolution of the general meeting of the clans, and the plaintiff's subsequent resolution of the general meeting of the clans, was made only once by the general meeting of the clans, and since there is no evidence to deem that the plaintiff's clan rules were legitimate by the notification of convening the above legal principles. Therefore, the argument in the grounds of appeal asserting that the resolution of the non-party 1 elected as the representative by the general meeting of the clans on May 30, 2012 is valid as the resolution

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the non-party 1 who filed the lawsuit without the representative authority. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)