Whether it is necessary to go through internal decision-making procedures of a non-corporate body, such as a resolution at a general meeting of members, where the creditors of a non-corporate body exercise the right to collective property of a non-corporate body without exercising the right to collective property (negative)

Articles 276(1) and 404 of the Civil Act

Supreme Court Decision 2010Da97044 Decided July 28, 2011 (Gong2011Ha, 1771)

Plaintiff 1 and one other (Attorney Kim Young-hoon, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-sung, Counsel for defendant-appellee)

Seoul High Court Decision 2013Na2014277 decided April 30, 2014

The part of the judgment below regarding the subrogation claim on the amount equivalent to remuneration shall be reversed, and that part of the case shall be remanded to the Seoul High Court. All remaining appeals are dismissed.

1. The grounds of appeal are examined.

The court below held that the part concerning the subrogation claim regarding the amount equivalent to the plaintiffs' remuneration in the lawsuit of this case is a vicarious exercise of part of the claims for operating expenses against the defendant of the representative meeting of this case, which is a non-corporate body, and that the operating rules of this case should go through a resolution of the general meeting of the representative meeting of this case as to the lawsuit of this case, since there is no specific provision as to the case where the representative meeting of this case files a lawsuit concerning the property jointly owned by the representative meeting of this case, the part concerning the subrogation claim concerning the amount equivalent to the plaintiffs' remuneration

However, it is difficult to accept such judgment of the court below for the following reasons.

Except as otherwise provided in the articles of incorporation, a resolution of a general meeting is required when a non-corporate group files a lawsuit concerning property jointly owned by it (see, e.g., Supreme Court Decision 2010Da97044, Jul. 28, 201). This is an internal procedure necessary for the decision-making and special authorization of the non-corporate group when the representative of a non-corporate group files a lawsuit concerning property jointly owned in the name of a non-corporate group. The obligee’s subrogation right does not require the consent of the obligor to exercise his/her right by subrogation of the obligor’s rights irrespective of the obligor’s intent when the obligor does not exercise his/her right to the property jointly owned by the non-corporate group, as it does not require the obligee’s right to exercise his/her right to the property jointly owned by the non-corporate group without exercising his/her right to the property jointly owned by the obligee of the non-corporate group, such as a resolution of the general meeting.

According to the reasoning of the judgment below and the records, the plaintiffs, as creditors of the representative meeting of the non-corporate body of this case, seek payment of the amount equivalent to the plaintiffs' remuneration among the claims for operating expenses of the defendant of the representative meeting of this case by subrogation of the representative meeting of this case. Thus, in light of the aforementioned legal principles, it is reasonable to deem that the plaintiffs are not required to undergo a resolution of the general

Nevertheless, the court below rejected this part of the lawsuit on the grounds stated in its reasoning, deeming the Plaintiffs’ subrogation claim to be unlawful because it did not go through a resolution of the general meeting of the representative meeting of this case. The court below erred by misapprehending the legal principles as to the requirements for exercise of subrogation right by a non-corporate group of persons liable for subrogation, which affected the conclusion of the judgment. The ground of appeal assigning this error is

2. The Plaintiffs appealed to the part of the judgment below regarding the claim for consolation money, but did not state the grounds of appeal on the petition of appeal, and did not submit a separate appellate brief within the submission period.

3. Therefore, the part of the judgment of the court below regarding the subrogation claim on the amount equivalent to the remuneration shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and all remaining appeals shall be dismissed. It is so decided as per Disposition by the assent of all participating

Justices Jo Hee-de (Presiding Justice)