Does a Judgment Won against a Clan Bind Its Members? The Res Judicata Effect of a Grave-Removal Judgment and the Limits of Declarations of Ownership over Unregistered Land

Question

Disputes over clan land and graves are often not resolved by a single judgment. Suppose a person claiming to own the land sues the clan, relying on ownership, for removal of graves and delivery of the land and wins, and then faces an individual clan member in a fresh dispute over the same land. The question is how far the earlier judgment has effect. The first question is whether the fact that ownership was recognised in the reasons of the judgment carries over unchanged into the later dispute.

For unregistered land, the land register or forest land register may record only the name of the owner, without the titleholder's address or personal particulars, so that it is impossible to identify who that person is. In such a case, if a person claiming to be the titleholder's creditor obtains, by subrogation on behalf of the titleholder, a declaratory judgment of ownership against the State, the second question is whether that judgment constitutes the proof of ownership required for registration of preservation of ownership.

Both questions converge on what a judgment determines with finality, and as against whom. They ask how the scope of a judgment's effect is to be read in disputes where the holder of the right is indistinct, as with a clan, which is an unincorporated association, and its members, or with a titleholder in a register whose actual existence is unclear.

This brief does not determine who owns any particular land or recommend any method of litigation. It confines itself to setting out the materials to be checked and the points at which interpretations diverge, within the scope of what the provisions and the summaries of the two judgments state.

Material to check

First, the objective scope of res judicata. Article 216(1) of the Civil Procedure Act provides that a final and conclusive judgment has res judicata effect only as to what is contained in the operative part, and Article 216(2) provides that a determination as to whether a claim asserted by way of set-off exists has res judicata effect only up to the amount set off against the opposing claim. The judgment should first be checked to see what the operative part of the earlier judgment ordered, and whether the subject matter of the suit was a declaration of ownership or claims for removal of graves and delivery of land.

Second, the subjective scope of res judicata. Article 218(1) provides that a final and conclusive judgment has effect against the parties, successors after the close of pleadings, and persons possessing the object of the claim on their behalf, and Article 218(3) provides that a final and conclusive judgment against a person who became the plaintiff or defendant on behalf of another person also has effect against that other person. It can be checked whether the parties to the earlier suit were designated in the name of the clan or as individual clan members, and whether clan members took part as co-litigants.

Third, the provisions on the legal status of a clan. Article 52 provides that an unincorporated association or foundation that has a representative or administrator may be a party in its own name, and Article 31 of the Civil Act provides that a juristic person cannot be established except under the provisions of law. Although the judgment did not cite them as reference provisions, Article 275(1) of the Civil Act provides that where the members of an unincorporated association own a thing as a collective body, it is owned collectively (chongyu), and Article 276(1) provides that the management and disposition of collectively owned property are governed by resolution of the general meeting of members; these provisions may therefore be considered together when ascertaining the form in which clan property is held.

Fourth, creditor's subrogation and the declaratory action. Article 404(1) of the Civil Act provides that a creditor may exercise the rights of the debtor in order to preserve his or her own claim, except for rights exclusively personal to the debtor. Judgment 2020Da300893 cited Articles 250 and 134 of the Civil Procedure Act as reference provisions on the interest in seeking a declaratory judgment; however, the wording of Article 250 provides for a declaratory action to determine whether a document proving a legal relationship is genuine, so the standard for deciding whether there is an interest in seeking a declaratory judgment must itself be read from the reasoning of the judgment.

Fifth, the requirements for registration of preservation of ownership. Article 65 of the Registration of Real Estate Act lists, among the persons who may apply for registration of preservation of ownership of unregistered land, a person registered as the first owner in the land register or forest land register, or that person's heir or other universal successor (subparagraph 1), and a person who proves his or her ownership by a final and conclusive judgment (subparagraph 2). Subparagraph 6 of Article 46(1) of the Rules on Registration of Real Estate requires information proving the address, resident registration number and other particulars of the registration right-holder who will become the new registered titleholder to be provided as attached information.

Sixth, the records of the registers and of the parties. It is possible to arrange in chronological order what is entered in the titleholder column of the land register or forest land register, whether the titleholder's address or personal particulars remain, materials showing whether the subrogated debtor is a real person and is alive, and materials showing whether the State claims ownership of the land.

Possible readings

A reading that takes a broad view of the objective scope of res judicata would hold that, where claims for removal of graves and delivery of land based on ownership have been granted, the determination of ownership that is their premise has also been finally settled. The aim of preventing the same issue from being litigated repeatedly over the same land points in support of this reading. In case 2010Da58889, the court below held that acquisition of ownership could be asserted against the clan member as well, solely on the ground that the first-instance judgment against the clan had become final and conclusive.

A reading that takes a narrow view ties res judicata, in accordance with the wording of Article 216(1), to the operative part, that is, to the conclusion on the existence or non-existence of the legal relationship asserted as the subject matter of the suit. Judgment 2010Da58889 held that, even where a determination on the title to real estate was made in a suit whose subject matter was a claim for removal of a building and delivery of land, res judicata is confined to the claim stated in the operative part and does not extend to the determination of title in the reasons of the judgment, and it applied the same logic to claims for removal of graves and delivery of land.

On the subjective scope, the readings diverge on whether the clan and its members are to be treated as one or separately. Treating them as one brings the conclusion closer to holding that a judgment against the clan also extends to its members. Judgment 2010Da58889 held that, even where an unincorporated association becomes a party to a suit, the association is an entity separate from its representative or members, so the res judicata effect of a judgment to which the association was a party does not extend to its representative or members, and it determined that the judgment had no effect on a person who stood merely in the relationship of an ordinary co-litigant as a clan member.

As to a declaratory judgment of ownership of unregistered land obtained by subrogation, there is on one side the expectation that settling the ownership of the titleholder in the register by judgment may lead to registration of preservation of ownership. Judgment 2020Da300893 held that where the titleholder column of the register contains no entry concerning a specific address or personal particulars so that the titleholder cannot be identified, even if the titleholder's creditor obtains by subrogation a declaratory judgment of ownership against the State, the owner is not identified, and the judgment cannot therefore be regarded as a final and conclusive judgment proving that a specific person is the owner of the land. Subparagraph 2 of Article 65 of the Registration of Real Estate Act and subparagraph 6 of Article 46(1) of the Rules on Registration of Real Estate were relied on as the grounds.

The lawfulness of the subrogation action lies on the same axis. Judgment 2020Da300893 held that where the subrogated debtor is not a real person or is deceased, the preserved claim cannot be recognised, and the creditor's subrogation action is unlawful for lack of standing to sue. It also held that a claim for a declaration of land ownership against the State has an interest in seeking a declaratory judgment only where the land is unregistered and there is no registered titleholder in the register or it is unknown who the titleholder is, or where there are other special circumstances, such as the State denying the ownership of a third party who is the registered titleholder while continuing to assert State ownership, and that the existence of such an interest is a matter to be examined ex officio.

Placing the two judgments side by side, a common stance can be read: what a judgment determines with finality is tied to the subject matter of the suit and to the parties, and the effect as to title is not extended merely by the reasons of a judgment or by the designation of a titleholder in a register. Which reading fits a dispute over a particular piece of land, however, is for the reader to judge after comparing the operative part and parties of the earlier judgment and the entries in the register.

What the decisions held

Supreme Court Decision 2010Da58889 rendered 23 December 2010 held, on the objective scope of res judicata, that "the res judicata effect of a final and conclusive judgment arises only as to what is contained in the operative part of the judgment, that is, only as to the conclusion itself of the determination on the existence or non-existence of the legal relationship asserted as the subject matter of the suit, and does not extend to the existence or non-existence of the legal relationship that is its premise as set out in the reasons of the judgment". On the subjective scope, it stated: "since the unincorporated association is an entity separate from its representative or members, it naturally follows not only that the res judicata effect of a judgment to which the representative or members were parties does not extend to the unincorporated association, but also that the res judicata effect of a judgment to which the unincorporated association was a party does not extend to its representative or members." It reversed and remanded the judgment of the court below, which had held that acquisition of ownership could be asserted against the clan member as well, solely on the ground that the judgment against the clan for removal of graves and delivery of land had become final and conclusive.

Supreme Court Decision 2020Da300893 rendered 21 July 2021 held that "the case where the subrogated debtor is not a real person or is a deceased person likewise falls under a case in which the creditor's right against the debtor, being the preserved claim, cannot be recognised, and such a creditor's subrogation action is therefore unlawful for lack of standing to sue." As to a declaratory judgment of ownership obtained by subrogation for unregistered land whose titleholder in the register cannot be identified, it stated that "since the owner is not identified in this declaratory judgment, it cannot be regarded as a final and conclusive judgment proving that a specific person is the owner of the said land", and it held that "in a declaratory action, the existence or non-existence of an interest in seeking a declaratory judgment is a matter to be examined ex officio, and the court must therefore determine it ex officio regardless of whether the parties assert it." It reversed the judgment of the court below and remanded the case.

Practical checklist

This section is not advice but a set of questions that can be asked when checking the record. First, the operative part and the subject matter of the earlier judgment can be examined. It can be noted, distinguishing each point, whether the operative part ordered removal of graves, delivery of land or removal of a building, or declared ownership, and whether the determination of ownership appears in the operative part or only in the reasons.

Second, the designation of the parties can be examined. The litigation record can be checked to see whether the plaintiff and defendant in the earlier suit were designated in the name of the clan or as the representative or individual clan members, in what form clan members took part if they were co-litigants, and whether there was any succession after the close of pleadings.

Third, the register and the subrogated debtor can be examined. The documents can be compared to see whether the titleholder column of the land register or forest land register contains an address or personal particulars, whether there are materials showing that the subrogated debtor is a real person and is alive, and, if there has been an inheritance, whether there are materials identifying the heirs.

Fourth, the interest in seeking a declaratory judgment can be examined. For a declaratory claim against the State, it can be checked whether the land is unregistered, whether there is no registered titleholder in the register or it is unknown who the titleholder is, and whether the State claims ownership of the land. This is solely a list of materials to be checked; the conclusion is for the reader to draw.

Glossary

Res judicata refers to the effect by which the determination in a final and conclusive judgment binds the parties and the court in a later suit. Article 216 of the Civil Procedure Act sets its objective scope, and Article 218 its subjective scope.

The subject matter of the suit refers to the right or legal relationship that is the object of adjudication in the suit. Judgment 2010Da58889 held that, in a suit whose subject matter was claims for removal of graves and delivery of land, no res judicata effect arises as to the determination of ownership in the reasons of the judgment.

An unincorporated association is a body that has no legal personality but has a representative or administrator and may therefore be a party in its own name (Article 52). Judgment 2010Da58889 treated the clan within this category, and the form in which its property is owned can be ascertained together with the provision on collective ownership (chongyu) in Article 275 of the Civil Act.

A creditor's subrogation action is a suit in which a creditor exercises the debtor's rights in the debtor's place in order to preserve the creditor's own claim (Article 404 of the Civil Act). The subrogated debtor is the debtor whose rights are exercised by subrogation, and the preserved claim is the creditor's right against the debtor that the creditor seeks to preserve.

Sources and limitations

The provisions are sourced from the current texts on the National Law Information Center (Articles 52, 134, 216, 218 and 250 of the Civil Procedure Act; Articles 31, 275, 276 and 404 of the Civil Act; Article 65 of the Registration of Real Estate Act; and Article 46 of the Rules on Registration of Real Estate), checked on 16 October 2026. The two judgments were rendered in 2010 and 2021, so the wording of provisions amended since then, in particular Article 46 of the Rules on Registration of Real Estate, which has been amended several times, may differ from that in force when the judgments were rendered. When reading on the basis of the law in force at the time of the conduct in question, the amendment history must be checked separately.

The judgments were checked against the holdings, summaries of judgment and operative parts in the original texts on the National Law Information Center. The full reasons of the judgments were not checked, so facts such as the location and area of the land, the composition of the clan and the specific entries in the registers are not set out in this brief.

Judgment 2020Da300893 mentioned that registration precedents No. 201112-2, No. 201005-1 and others are to the same effect, but this brief did not check the original texts of those registration precedents. The question of the establishment of customary-law rights over graves is also not addressed in the summaries of the two judgments and has therefore been left outside the scope of the check.

Points left open

Judgment 2010Da58889 held that a judgment against a clan does not extend to its members. When a clan member is permitted to litigate in an individual capacity over clan property, and how this fits with Article 276 of the Civil Act, which leaves the management and disposition of collectively owned property to resolution of the general meeting of members, are questions that the summary of this judgment does not directly address.

If res judicata does not extend to the determination of ownership in the reasons of a judgment, a party seeking to forestall a later dispute may consider making a declaration of ownership the subject matter of the suit. How the scope within which an interest in seeking a declaratory judgment is recognised in that case differs from the standard stated in judgment 2020Da300893 for declaratory claims against the State leaves room for separate analysis depending on whether the opposing party is the State or a private person.

Judgment 2020Da300893 held that where the titleholder in the register cannot be identified, a declaratory judgment obtained by subrogation cannot serve as a final and conclusive judgment for registration of preservation of ownership. Where only part of the identifying information remains, as where a name is recorded but the address is incomplete, the summary of the judgment sets no standard for the degree of identification required.

A further remaining question is how the holding that a subrogation action is unlawful where the subrogated debtor is deceased connects with a suit in which the heirs are treated as the subrogated debtors. This may be a particular problem in disputes concerning long-standing titleholders in registers for whom no materials remain to establish the line of inheritance.

When to reconsider

This brief will be rewritten if the provisions of the Civil Procedure Act on res judicata and capacity to be a party, the provisions of the Civil Act on the creditor's right of subrogation and collective ownership, or the provisions of the Registration of Real Estate Act on registration of preservation of ownership are amended, or if the Supreme Court issues a new determination on the scope of the effect of judgments concerning clans or on the requirements for a declaration of ownership of unregistered land.

In that event, the objective and subjective scope of res judicata, the interest in seeking a declaratory judgment, and standing to sue in a subrogation action will be set out again within the scope of what the holdings and summary of the new judgment state.

Statutes referred to

• 민사소송법 제52조, 제134조, 제216조, 제218조, 제250조
• 민법 제31조, 제275조, 제276조, 제404조
• 부동산등기법 제65조
• 부동산등기규칙 제46조

Decisions referred to

• 대법원 2010. 12. 23. 선고 2010다58889 판결 · Decision ledger
• 대법원 2021. 7. 21. 선고 2020다300893 판결 · Decision ledger

Verification status

The cited provisions (Articles 52, 134, 216, 218 and 250 of the Civil Procedure Act; Articles 31, 275, 276 and 404 of the Civil Act; Article 65 of the Registration of Real Estate Act; and Article 46 of the Rules on Registration of Real Estate) were checked against the current texts on the National Law Information Center on 16 October 2026. The cited judgments (Supreme Court Decision 2010Da58889 rendered 23 December 2010 and Supreme Court Decision 2020Da300893 rendered 21 July 2021) were checked against the holdings, summaries of judgment and operative parts in the original texts on the National Law Information Center. The full reasons of the judgments and the registration precedents mentioned in the judgment were not checked.