宗中의 構成과 本質에 관한 法理 小考

Abstract

The families of the same clan are groups composed for the protection of common ancestors' groves, memorial service of their ancestors, and cultivation of mutual friendship between the members of the families of the same clan. Our country has no statutory norms about the families of the same clan, so has regulated them with conventional law. In the meantime, the supreme court has had the stance that the families of the same clan are spontaneous groups without any separate organizing act or rules, and they are naturally joined by majorities without any joining procedures. The theory of spontaneity like this has triggered a lot of legal disputes about the families of the same clan. First of all, descendents of common ancestors become the members of the families of the same clan by all means without any separate joining procedures, so difficulty of grasping who the members of the families of the same clan are and where they live in convening the general meeting of the families of the same clan for their decision-making makes it hard to notify the call of the general meeting. It is also troubling to understand the scale and existence of the overall members of the families of the same clan in fixing quorum of conference and resolution to decide proceedings or elect a representative. Also whether a member is eligible can be certified only by a clan register, which is a private register, and extinguished or distorted a lot, so if its authenticity is in doubt, it is difficult to catch hold of the descendent of common ancestors. Also up to recently, the qualification of the members of the families of the same clan are granted only to men of legal age, so it has been criticized as discrimination of women, and women's qualification of the members of the families of the same clan was not accepted until the supreme court 2005. 7. 21.sentence 2002Da1178 Decision. However, the theory of spontaneity like this started on the distorted grasp of conventional practice to theory of spontaneity like this in the Japanese, has brought forth plenty of property disputes of the theory of spontaneity like this these days, so a new approach is necessary. Namely, the families of the same clan should be considered being constituted they have their rules or representatives through artificial organizing acts, and any descendent of common ancestors don't become the members of the families of the same clan concurrently when they become adults, but need any separate joining procedures. Thus, women or daughters' grandchildren are qualified for the members of the families of the same clan, and become the members of the families of the same clan. And in case of distributing the property of the families of the same clan, it should be considered being allocated only to the members of the families of the same clan.