종중재산의 보존을 위한 소송의 원고적격

Abstract

According to the en banc decision of Korean Supreme Court (2004Da44971) in 2005, in the case of filing a lawsuit in the name of the families of the same clan(hereinafter referred to as the clan) itself, there is a problem that the lawsuit is dismissed inappropriately due to a defect in the general meeting call procedure (defect in eligibility of the plaintiff), and the lawsuit is dismissed inappropriately and cannot even enter the main hearing. In reality, it is extremely difficult for all members to file a lawsuit as an essential joint lawsuit. If an individual member files a complaint for the preservation of the property of the families of the same clan(hereinafter referred to as the clan property), he/she will not be able to enter the main case hearing because he/she does not meet the legal requirements due to a defect in the eligibility of the plaintiff(Standing Requirement). Considering the question of whether it is contrary to substantive justice that the clan property is actually neglected without receiving relief in the state of invasion, discussions on the provisions of the Civil Act's collective ownership, the act of preserving the clan property under collective ownership, the pattern of joint ownership of the clan property, the eligibility of the plaintiff and the necessity of the resolution of the general meeting in the lawsuit for the preservation of the clan property were examined. In conclusion, it is unreasonable to strictly require a conference call procedure such as identifying and notifying the contact information of each member for a resolution at the general meeting of the clan to recover the infiltrated clan property from a large group with about 30,000 members. Furthermore, rejecting the main case hearing due to defects in litigation requirements due to defects in the convocation and resolution procedure of the general meeting of the clan is contrary to the substantive justice and lacks specific validity. Under the premise that the clan is an other association than a juristic person, it is unfair to interpret that members cannot individually perform conservation acts in accordance with the collective ownership regulations under the Korean Civil Act. In principle, other association than a juristic person can file a complaint under its own name after a resolution at the general meeting of members, but it should be considered that preservation can be carried out of course if there is an exceptional urgency or special circumstances, and for this purpose, each member can file a complaint with a standing requirement. In light of the characteristics of the clan, I think it is necessary to ease the strict interpretation of the eligibility of the plaintiff in a lawsuit for the preservation of the clan property unless it is for the preservation of the clan property but for other purposes. Therefore, even for the realization of substantive justice, which is the ideal of the Civil Procedure Act, the eligibility of the plaintiff in a lawsuit for the preservation of the clan property should not be strictly interpreted in the name of the clan or in a way that all members of the clan must do through a resolution of the general meeting of the clan as in the above en banc decision. Like sharing or joint ownership, which is another form of joint ownership, it is desirable to make an interpretation that recognizes the eligibility of the plaintiff for individual members of the clan. And unlike a lot of other associations than a juristic person, in the case of the clan, the members are connected by blood, and they are scattered across the country, making it difficult to grasp the whereabouts and information of the members. In particular, it is very difficult and almost impossible for large-scale families of the same clan with thousands to tens of thousands of members to take the procedure for notifying the general meeting. In light of these characteristics, it is necessary to simplify the procedure for notifying the convocation of the general meeting to open a way for practical dispute resolution. In particular, it is necessary to interpret that a general meeting resolution is not required for lawsuits for the preservation of the clan property in the name of the clan itself or by a individual member of the clan. If that is difficult, it is necessary to significantly ease the strict convocation notification procedure normally required in connection with the resolution of the general meeting of the clan.