The Aluri Village Association (Law Firm Masung, Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)

petitioner-gun (Law Firm Cheongju, Attorneys Hy-hun et al., Counsel for defendant-appellant)

Cheongju District Court Decision 2009Kadan1719 Decided January 27, 2010

June 29, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant will implement the procedure for the cancellation registration of the registration of the preservation of ownership completed on May 3, 1978 by the Cheongju District Court No. 15257 with respect to the real estate stated in the attached list to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Determination on this safety defense

A. Summary of the parties' assertion

The defendant asserts that the lawsuit of this case is unlawful since the plaintiff's general assembly meeting held on August 19, 2008 and August 3, 2009 held on August 3, 2009 is not a legitimate procedure, since it is not a legitimate procedure, the lawsuit of this case is filed without a legitimate general assembly resolution.

B. Determination

(1) A Dong Council organized in a Si/Eup/Myeon under the Administrative Law does not enjoy a legally independent personality as an administrative district. However, a Dong Council organized in the area is a community for the common benefit of residents and common welfare of all residents residing in the area and a person who moves into another area as a member of the whole, and as a matter of course, a person who moves into another area is a permanent organization composed of many and unspecified persons who are naturally disqualified from membership at the same time as moving into the area, and as a matter of course, the organization is not naturally extinguished due to changes in administrative district (see Supreme Court Decision 4285Da162, Apr. 21, 1953, etc.). Meanwhile, in order to recognize a fact that a non-natural father exists as an association and owns its proprietary property, the scope of members of a natural father, the inherent business of a natural father-decision-making body, whether there is regulations or custom on the organization and operation of a local father-decision-making body, and the process and form of management of the representative, if not determined by 39.

(2) The following facts can be acknowledged according to the results of the inquiries about Gap's evidence Nos. 5 through 9, 11, 12, 13, and Eul evidence Nos. 1, part of non-party 1 (non-party to the judgment of the Supreme Court) witness of the first instance court, and the head of the internal Eup at the court of first instance as to the head

㈎ 영조 후반(1750. ~ 1776.경)에 청주군 산외일면 지역에 화장리만 있었으나, 1789.경(정조 13년) 부곡리가 조성되었고, 1845.경(헌종 11년) 화장리로 통합되어 그대로 유지되던 중 1910.경 화장촌, 광암리, 화중리, 은곡리, 군량동으로 분리되었으며, 1914.경 행정구역 개편에 따라 군량동 일부는 내수리로 넘어가고, 나머지는 은곡리라 하여 북일면에 편입되었다.

㈏ 은곡리 서쪽에 원통리가 있는데, 1976.경 원통2리 ‘통샘골’이 공군비행장으로 편입됨에 따라 마을이 사라져 그 주민 일부가 구성2리로 이주하였고, 그 주민들이 1980.경 은곡2리 북쪽으로 이주하면서 은곡3리를 구성하게 되었으며, 은곡4리는 1999.경 ○○아파트 단지가 세워지면서, 은곡5리는 2001.경 △△아파트 단지가 세워지면서, 은곡6리는 2001.경 □□□아파트 단지가 세워지면서 새로이 형성되었다.

㈐ 은곡2리에 거주하는 주민들은 1988.경부터 계를 조직하여 운영하였고, 주민들간의 경조사를 챙기며, 불우이웃돕기 성금을 하는 등 봉사활동을 하였고, 은곡1리, 은곡2리 주민들은 이 사건 토지에서 땔감을 구해 사용하거나, 마을 주민이나 타지 사람들에게 이 사건 토지 위에 묘지를 설치하도록 허락하고 그 대가를 받아 마을기금으로 사용하는 등 이 사건 토지를 이용하여 왔고, 현재 이 사건 토지 위에 설치된 분묘는 53기 정도 된다.

㈑ 1984.경 은곡1리 마을회관이, 1987.경 은곡2리 마을회관이 각 신축되었다.

㈒ 은곡2리에 거주하는 주민들은 2008. 7. 8.경 ‘은곡2리 마을회’라는 명칭으로 피고를 상대로 이 사건 소송과 같은 내용의 소를 제기하였다가 같은 해 8. 11. 소를 취하하고, 2008. 8. 19. 총회를 개최하여 명칭을 ‘은곡리마을회’로 정하는 한편 성문화된 마을회 규약을 제정하여 설립목적, 대표자, 회원, 총회 및 의결사항 등을 명확히 하고, 원고 대표자로 은곡2리 이장인 소외 1을 선출하여 이 사건 임야에 관하여 피고를 상대로 이 사건 소를 제기하기로 결의하였다.

㈓ 그런데, 위 총회와 관련하여 일부 주민들로부터 소집절차 등에 하자가 있다는 문제가 제기되자, 다시 총회를 소집하기로 하고 은곡1리, 은곡2리 마을주민들에게 소집통보를 하여 2009. 8. 3. 주민 201명이 모인 가운데 위 2008. 8. 19.자 총회에서 결의되었던 사항들을 모두 추인하였다.

㈔ 현재 은곡리의 세대수(인구수)는 은곡1리 60세대(150명), 은곡2리 83세대(201명), 은곡3리 50세대(114명), 은곡4리 714세대(1,334명), 은곡5리 530세대(1,523명), 은곡6리 714세대(1,372명) 합계 2,151세대(4,694명)이다.

(3) Determination

According to the above facts, the plaintiff is a non-corporate body which has its own purpose with its own purpose and has its own decision-making body and its representative as a non-corporate body with its own decision-making body, and as a non-corporate body, it shall be deemed that the general meeting was convened in accordance with due process and the lawsuit in this case was filed. Thus, the defendant's defense prior to the merits is without merit.

2. Judgment on the merits

(a) Basic facts;

On March 30, 1918, there was a circumstance under the name of "Gero," as to the land of this case, and the fact that the registration of preservation of ownership (hereinafter "registration of this case") was completed on May 3, 1978 under the name of the defendant as stated in the purport of the claim on May 3, 1978 is neither dispute between the parties, nor can it be acknowledged by the statement in Gap evidence 1 through 3.

B. Summary of the parties' assertion

(1) Summary of the Plaintiff’s assertion

The plaintiff asserts to the purport that since the above-mentioned "Iei" refers to the community of residents using the same name as that of the administrative district, not to be the celerealistic as a mere administrative district, the land in this case belongs to the plaintiff's collective ownership, and therefore, the defendant is obliged to implement the procedure for cancellation registration of the registration in this case

(2) The defendant's argument

The Defendant asserts that the instant land cannot be deemed to be collectively owned by the Plaintiff, and that, even if the Plaintiff did not so, the Defendant completed the registration of the instant case and occupied the instant land for at least 20 years, as the acquisition by prescription or the acquisition by prescription of the registry was completed, the instant registration is in accord with the substantive relations.

C. Determination

If a certain forest land was under the name of Dong/ri under the Forest Survey Ordinance, it shall be deemed that the Dong/ri does not merely refer to the administrative district, unless there are special circumstances, but it refers to the community that uses the same name as the administrative district as an unincorporated association consisting of residents living in the administrative district (see Supreme Court Decision 2005Da60871, Jan. 31, 2008, etc.). According to the above evidence, a cereale was changed into a cereale, around 1910, and the legal cereale was changed into a cereale, and then on March 30, 1918, the land of this case was under the name of "Garealei". Thus, the cerealei, the circumstance of the land of this case, is not merely an administrative district, but also an association consisting of residents living in the valley as an association that uses the same name as an association consisting of residents, not a juristic person, at the time of this case.

However, even according to the plaintiff's assertion, the plaintiff is a natural village consisting of only the residents of Gaeei, a part of Gaei, a administrative district, and Gaei 2. The circumstance of the land of this case is not a community consisting of all the residents living in Gaei, an administrative district, but a community consisting of Gaei, a part of Gaei, and a natural village consisting of the residents living in Gaei, a group of Gaei, and a group of Gaei.e., the plaintiff. In order to view that the land of this case was a non-corporate group with a certain degree of organic organization at the time of the situation of the land of this case, and prior to the circumstance, the process or content of this case's land should be proved as belonging to the plaintiff, and whether the natural village, a community of some residents under Dong and Ri, could have the land under the name of Dong and Ri, an administrative district, and the reason for such circumstance should be acknowledged (see, e.g., Supreme Court Decision 2008Da71469).

The testimony of Non-Party 1 at the court of first instance, which seems to be consistent with the fact that the plaintiff had a certain organic organization at the time of the situation of the land in this case and was in existence as a non-corporate group with the legal capacity, is difficult to believe. According to the evidence above, since around 1988, only the fact that the non-party 1 had organized several residents of Yeee-2 with several residents of Ye-ri, and had regulations or customs on the existence and organization and operation of the plaintiff and the representative at around the time of the circumstance of the name of Gae-ri, there is no evidence to acknowledge the developments or causes of acquiring the real estate in this case. Rather, in full view of the purport of the arguments as seen in the evidence No. 15-1, 3, and 4, the plaintiff was to use the cemetery above the land in this case, and the plaintiff did not have to have the right to manage the land in this case by actively considering the circumstances that the plaintiff did not have the right to manage the land in this case as the residents of the village and the land in this case.

Therefore, the Plaintiff’s claim seeking implementation of the cancellation registration of the instant registration against the Defendant is without merit on the premise that the Plaintiff is an organization identical to the “Yeeiei,” which is the real estate’s title holder.

3. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Gyeong (Presiding Justice)