Chang and Pream Co., Ltd. (Law Firm Law, Attorney Noh Jeong-soo et al., Counsel for defendant-appellant)

Defendant 1 and one other (Law Firm Dosan, Attorneys Kim Jong-chul, Counsel for the defendant-appellant)

November 2, 2018

Gwangju District Court Decision 2017Da509312 Decided May 16, 2018

1. Revocation of the first instance judgment.

2. As to the Plaintiff with respect to the area of 7,739 square meters in Gwangjin-gu, Jeonnam-gun ( Address 1 omitted), the Plaintiff shall:

A. Defendant 1: (a) the transfer of ownership that was completed on August 25, 2016 by the Mine Office of the Gwangju District Court pursuant to the receipt No. 11818;

B. The registration of establishment of neighboring superficies completed on September 5, 2016 by the same registry office and the registration of establishment of superficies completed on the same date pursuant to Article 12364, which was completed on September 5, 2016

Each cancellation registration procedure shall be implemented.

3. All costs of the lawsuit are borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. On December 1, 1932, the registration for the transfer of ownership in the name of the “public” in the name of the Jeonnam-gun ( Address 2 omitted) was completed on the ground of sale and purchase on December 18, 1932 with respect to the land area of 7,739 square meters (hereinafter “instant real estate”).

B. On August 25, 2016, Defendant 1 completed, on August 16, 2016, the registration of creation of superficies (hereinafter “registration of creation of superficies”) under Article 12363 as the receipt of the same registry office, with respect to the instant real estate, following the completion of the registration of transfer of ownership based on the sale as of August 16, 2018 (hereinafter “instant registration of transfer of ownership”), and on September 5, 2019, Defendant Young-gun Forestry Cooperatives (hereinafter “Defendant Union”) completed the registration of creation of superficies (hereinafter “registration of creation of superficies”).

C. The ownership transfer registration of this case was completed by forging documents necessary for the transfer of registration, such as the agreement and minutes, in collusion with Defendant 1 in order for Nonparty 1 to obtain money as collateral and use the real estate for personal use.

D. In the presence of 20 members on June 23, 2018, the Plaintiff held an extraordinary general meeting (hereinafter “instant extraordinary general meeting”). On October 15, 2016, in which Nonparty 2 was elected as the representative of the Plaintiff with the consent of all the present members, the Plaintiff ratified the instant general meeting as of March 19, 2017, which delegated all the pertinent legal acts to Nonparty 2, and ratified all the general meetings as of November 3, 2017, which ratified the general meeting as of March 19, 2017.

[Grounds for Recognition: Facts without dispute, entries in Gap evidence Nos. 1, 5, 9, 25 through 30 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings]

2. Determination as to the legitimacy of the instant lawsuit

A. Summary of the defense prior to the merits

With respect to the instant lawsuit seeking the cancellation of the above registration and the above-mortgage and superficies creation registration based on the ground that the ownership transfer registration of this case is null and void, the Defendant Union has no capacity to do so because the Plaintiff was merely a group of members, and the instant lawsuit was not filed by a legitimate representative, or there was no special authorization as to the filing of the lawsuit.

(b) the existence of party capacity;

The reasoning for this part is that the court's reasoning is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part is cited in accordance with the main sentence of Article 420

C. Whether the instant lawsuit is lawful

(1) Relevant legal principles

In the absence of special circumstances, the general meeting of a clan shall determine the scope of the members of the clan who are subject to notification for convening the meeting, debate, and resolution of the general meeting of a clan, and shall give each person an opportunity to participate in the meeting, debate, and resolution individually to all the members of the clan who are clearly residing in the Republic of Korea and their whereabouts are clearly possible to be notified, and no resolution of the general meeting of a clan shall be valid: Provided, That if the members of the clan regularly meet at a certain place once a year in accordance with the rules or practices of the clan and have decided in advance to handle the clans, the resolution of the general meeting of the clan shall not be deemed null and void, unless the notification for convening the meeting or resolution was given separately (see Supreme Court Decisions 87Meu194, Oct. 13, 1987; 2010Da20235, Aug. 19, 2010, etc.).

Meanwhile, while a clan or a similar organization of a clan consisting only of residents in a specific region or persons meeting specific qualifications among its descendants for the purpose of the protection of graves of a clan, the conduct of religious services, and the conduct of friendship and the conduct of friendship, etc., has different meanings from the legal status of the clan or the composition of the organization, it is similar to the fundamental nature and objective of the clan as a clan organization and its operation method. Thus, the legal principles on the clans also apply to the legal relations concerning organizations similar to the clans to the extent that it does not go against its nature or regulations. In particular, the above legal principles on the convocation and notification, etc. of the general meeting of clans also apply to similar organizations to the clans (see Supreme Court Decision 2012Da9843, Feb. 13, 2014).

Unless there exist special circumstances, such as otherwise stipulated in the articles of incorporation, a lawsuit on the property jointly owned by a non-corporate clan shall be brought to a resolution of the general meeting, so if a clan, which is a non-corporate group, has brought a lawsuit on the property jointly owned without the resolution of the general meeting, such lawsuit is unlawful (see Supreme Court Decision 2012Da118594, Apr. 25, 2013). However, even if a clan brought a lawsuit on the property jointly owned without a legitimate resolution of the general meeting, it shall have the retroactive effect upon ratification of the lawsuit conducted after a legitimate general meeting resolution (see Supreme Court Decision 2018Da227087, Jul. 24, 2018).

(2) Whether the instant lawsuit is lawful

According to the reasoning of the above macroscopics and arguments, the Plaintiff decided to hold the instant extraordinary general meeting on June 23, 2018, and Nonparty 3 and members of the Plaintiff were sent by mail to 32 persons, excluding them, among 34 persons who are able to communicate at the time of holding and holding the instant extraordinary general meeting on June 12, 2018. On June 7, 2018, the Plaintiff announced the convening of the said extraordinary general meeting to △△ Vice-gu, Seoul Special Metropolitan City, which is the place of the said extraordinary general meeting, and it can be recognized that all of the instant lawsuits were lawful. In light of the aforementioned legal principles, the instant special general meeting was held through legitimate convocation of the Plaintiff’s right to represent the said general meeting (the instant lawsuit was ratified on the premise that all Nonparty 1 and Nonparty 2 were disqualified on the ground that Nonparty 1 did not have the right to represent the instant general meeting with the consent of 20 members present at the instant general meeting, and on the premise that all the instant lawsuit was presented on June 17, 19, 20.

3. Determination as to the cause of action

According to the above facts, the ownership transfer registration of this case is invalid registration of cause, and the registration of the establishment of a mortgage and the establishment of a superficies of this case, which is based on the above facts, shall also be null and void. As to the real estate of this case, Defendant 1 is obligated to implement the registration of the ownership transfer of this case, Defendant 1 is obligated to implement the registration procedures for the establishment

As to this, the Defendant Union asserted that the Plaintiff was not the same organization, but the Plaintiff and the Plaintiff’s association did not have any other clans asserting ownership of the instant real estate except the Plaintiff. In full view of the following circumstances: (a) the Plaintiff and the Plaintiff’s domicile were registered in the family table published in 1978 and 1997, and the Plaintiff’s domicile were the same as that of the Plaintiff; and (b) the Plaintiff did not have any other clans asserting ownership of the instant real estate on December 20, 2016; and (c) the Plaintiff entered into a lease agreement with Nonparty 4 and the instant real estate from December 20, 2016 to December 30, 2019, it should be deemed that the Plaintiff and the Defendant Union were the same organization. Therefore, the aforementioned assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendants should be accepted on the grounds of all the reasons, and the judgment of the court of first instance has dismissed the lawsuit of this case differently. However, since this case was tried to the extent that it can render a judgment on the merits of this case, it is not remanded to the court of first instance pursuant to the proviso of Article 418 of the Civil Procedure Act, but it is decided as per Disposition by the

Judges Kim Sung (Presiding Judge)