[Obligee, Respondent] Obligee
[Obligor, Re-appellant] ○○○ Clan, △△△ Branch, □□□ Clan Council (Litigation Representative: Attorney Han Jae-woong)
[Decision of the Court Below] Seoul High Court (Incheon) Decision 2025Ra10035, dated November 5, 2025
[Order]
The decision of the court below is reversed, and the part of the first instance decision concerning the Obligee and the Obligor is vacated. With respect to the case of provisional injunction for suspension of performance of duties and preservation of status, Incheon District Court Case No. 2024Kahap10315, between the Obligee and the Obligor, the provisional injunction rendered by the said court on November 6, 2024 is vacated, and the Obligee's petition for provisional injunction against the Obligor with respect to that part is dismissed. The total costs of the litigation shall be borne by the Obligee.
[Reasoning]
The grounds for re-appeal are examined.
1. Overview of the Case
According to the reasoning of the decision of the court below and the record, the following facts can be established.
A. The Obligor is a clan (hereinafter referred to as the "Obligor Clan") composed of descendants having □□□ (Sejo) as their common ancestor, and the Obligee is a member of the Obligor Clan.
B. The Obligor Clan has bylaws (hereinafter referred to as the "Bylaws at Issue") providing that "the head descendant (Jongson) of this Clan Council shall be deemed an ex officio director."
C. The deceased Nonparty 1 (hereinafter referred to as the "Deceased"), who was the head descendant and ancestral rites officiant of the Obligor Clan, died in mid-February 1992. The deceased Nonparty 2 was the Deceased's eldest son, the Obligee is the Deceased's second son, and Nonparty 3 (born May 1, 1962) is the eldest son of the deceased Nonparty 2.
D. On or about April 3, 1992, the Obligee entered into an agreement with Nonparty 3 regarding the succession of the gravesite, etc. (hereinafter referred to as the "Succession Agreement at Issue"), and executed a notarial deed in relation thereto.
E. The document of the Succession Agreement at Issue states as follows: "Pursuant to Article 1008-3 of the Civil Act (민법), Nonparty 3, the eldest grandson of the deceased former head descendant, agrees to transfer to the Obligee, the second son of the Deceased, the duties as head descendant of the Obligor Clan with respect to the forest land and gravesite located in Nam-gu, Incheon (details omitted) and all matters relating to the presiding over ancestral rites, and the Obligee, the second son, agrees to assume and perform such duties."
F. From around that time, the Obligee served as an ex officio director of the clan on the ground that he was the head descendant of the Obligor Clan, and performed the roles of head descendant and ancestral rites officiant until around March 2024.
G. The Obligor Clan raised no particular objection against the Obligee, and at the 2022 regular general meeting of the clan, an agenda item for the confirmation of directors, which included the content that "the Obligee falls under an ex officio director pursuant to the Bylaws at Issue," was passed (hereinafter referred to as the "Resolution on Confirmation of Director at Issue").
H. Nonparty 4, the chairperson of the Obligor Clan, sent to the Obligee on March 11, 2024 a certified letter to the effect that "the Obligee took office as a director on April 27, 2018, and his term expired on April 26, 2023."
I. The Obligor Clan held its regular general meeting on April 13, 2024, at which an agenda item providing that the head descendant shall be determined according to the standards set forth in the clan's genealogical record (jokbo) was passed (hereinafter referred to as the "Resolution at Issue").
J. On August 13, 2024, the Obligee filed the instant petition for provisional injunction against the Obligor, seeking a provisional determination that the Obligee holds the position of director of the Obligor Clan, on the premise that the Resolution at Issue is null and void.
2. Determination as to Whether the Obligee's Status as Head Descendant Is Recognized (Relating to the First Ground for Re-appeal)
A. Determination of the Court Below
The court below determined, for the reasons stated in its decision, that since the Obligee had lawfully succeeded to the status of head descendant of the Obligor Clan pursuant to the Succession Agreement at Issue with Nonparty 3, the Obligee held the position of ex officio director of the Obligor Clan pursuant to the Bylaws at Issue, and then determined that, since the Resolution at Issue was defective, the Obligee's right to be preserved and the necessity for preservation had been demonstrated.
B. Determination of the Supreme Court
However, the above determination of the court below is difficult to accept for the following reasons.
1) Generally speaking, the term "head descendant" (Jongson) refers to "a male descendant of the eldest son's line who is a lawful eldest descendant" (see Supreme Court Decision 2024Da274398, decided December 24, 2024). Unlike the ancestral rites officiant, whose position may in the first instance be determined by agreement among co-heirs (see Supreme Court en banc Decision 2007Da27670, decided November 20, 2008; Supreme Court en banc Decision 2018Da248626, decided May 11, 2023), the status of head descendant is a status-based position that is inherently recognized by virtue of the existence of a certain kinship relationship, and cannot be the object of transfer. Furthermore, in light of this personally-exclusive nature of the head descendant status, even if a clan has recognized a person, who is not in fact the head descendant, as holding the status of head descendant, it cannot be readily concluded that such person thereby acquires the status of head descendant.
2) Examining the reasoning of the decision of the court below in light of the above legal principles and the record, it is reasonable to conclude that, notwithstanding the Succession Agreement at Issue, the Obligee did not receive a transfer of the status of head descendant of the Obligor Clan from Nonparty 3, and did not acquire the status of ex officio director of the Obligor Clan under the Bylaws at Issue; this conclusion is not otherwise affected by the fact that the Obligor Clan raised no objection against the Obligee for a long period of time, or by the existence of the Obligor Clan's Resolution on Confirmation of Director at Issue. Accordingly, regardless of whether the Resolution at Issue is void, the Obligee's petition for the instant provisional injunction must be deemed to lack a recognizable right to be preserved.
Nevertheless, the court below upheld the first instance decision, which had granted the Obligee's petition for the instant provisional injunction on the ground that the Obligee's right to be preserved and the necessity for preservation had been demonstrated, on the basis that the Obligee had lawfully succeeded to the status of head descendant of the Obligor Clan from Nonparty 3 pursuant to the Succession Agreement at Issue, and that it was recognized that the Obligee held the status of ex officio director of the Obligor Clan pursuant to the Bylaws at Issue. Such decision of the court below contains an error that misapprehends the legal principle concerning the personally-exclusive nature of the status of head descendant, thereby affecting the decision. The argument in the grounds for re-appeal pointing out this error is well-founded.
3. Conclusion
Therefore, without examining the remaining grounds for re-appeal, the decision of the court below cannot be sustained as it stands and is hereby reversed; and since this case is sufficiently ripe for this Court to render a direct judgment, for the reasons stated above, the part of the first instance decision concerning the Obligee and the Obligor, and the provisional injunction decision at issue between the Obligee and the Obligor, are vacated, the Obligee's petition for the instant provisional injunction against the Obligor with respect to that part is dismissed, and the total costs of the litigation are to be borne by the Obligee. This decision is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Shin Sook-hee (Presiding Justice), Justice Cheon Dae-yeop (Justice in Charge), Justice Seo Kyung-hwan, Justice Ma Yong-joo