As revealed through case law, a jongjung (clan association), once organized, is a blood-based community, so its descendants are compulsorily members from birth, leave upon death, and are barred from joining or leaving while alive; this is where the difference appears. In addition, unlike an ordinary association, a jongjung is not made up only of people with capacity to act, so from the outset it has the characteristic of an association whose clan-member status and clan-association-member status must be constructed differently. (Lee Cheon-sun, 2019, A Study on Title Trusts of Real Estate: Focusing on Clan Property, Konkuk University, master's thesis)

The jongjung issue is an institution found only in Korea and sits in a borderline area between law and ethics; as a result, the legislators of the Civil Act deliberately did not legislate on it, and in practice jongjung problems have been resolved through case law. (Lee Sang-gyun, 2016, The Transformation of Clans and Clan Property near Seoul: Focusing on the Seogye-gong Branch of the Bannam Park Clan, The Academy of Korean Studies, Graduate School of Korean Studies, doctoral dissertation)

In particular, although jongjung matters should in principle be evaluated as falling within the sphere of private autonomy, a solution can be found on the basis that issues such as the distribution of clan property are not simply matters of private autonomy but matters of objective legal norms. (Gu Seong-jin, 2014, A Study on Clan Property Litigation, Daejin University Graduate School of Legal Affairs and Public Administration, master's thesis)

This is because, when disputes arise among clan members, state public authority must intervene to resolve them, and resolving such disputes inevitably calls on objective legal norms. Furthermore, the normative force of the law at the top of those legal norms is regarded as the highest value to be upheld even in relations between private persons, and this was presented as a key to resolving such cases. In other words, the specific content of clan bylaws is regarded as legally in the nature of autonomous regulations, and the point is that such clan bylaws must also be subject to the normative force of the Constitution.

First, considering that the jongjung institution differs from, yet is related to, marriage and the family system, the guarantee provisions on the family system set out in the law can be applied mutatis mutandis through interpretation. In that case, from the perspective of equal protection among children, which is part of the guarantee of the family system, discrimination against women in the distribution of clan property under clan bylaws is regarded as violating the provision of the law establishing "individual dignity and equality of the sexes."

Second, the essence of a jongjung is an unincorporated association, the basis of an unincorporated association is freedom of association, and compared with ordinary associations a jongjung has various distinctive features. Because of those features, clan bylaws that govern a jongjung's internal rules cannot be left entirely to private autonomy, and objectivity consistent with legal norms is required. In conclusion, clan bylaws may restrict women's eligibility as members of the clan association, but eligibility as a clan member is based on the blood relationship itself and therefore cannot be restricted; and since one takes part in the distribution of clan property in the capacity of a clan member, not in the capacity of a clan-association member, there is no reason to exclude women from it. Accordingly, clan bylaws that discriminate against women violate the right to equality under the law required to realize the freedom of association, together with the provisions on dignity. (Ha Nae-ra-mo, 2014, A Study on the Jongjung System in Industrial Society: Focusing on the Point of Transition from Agrarian to Industrial Society, Korea University Graduate School of Law, master's thesis)

Therefore, rather than being bound by past precedents, judges should render new, reasonable judgments consistent with today's trend of gender equality and the spirit of the law. (Lee Jae-ik, 2014, Unincorporated Associations and the Attribution of Property, Kyungpook National University Graduate School, master's thesis)

If the Supreme Court were to ignore this constitutional spirit and try to resolve the problem by clinging to tradition and its own precedents, it would be turning away from the spirit of the times and would meet strong resistance and distrust.

Since the en banc decision 2002Da1178, the Supreme Court has continued the line of holding void even resolutions that, in distributing compensation for expropriated clan land, gave smaller shares only to female clan members or differentiated by whether they had married out. So when writing about the distribution of clan property, you need to connect clan-member eligibility, the limits of general-meeting resolutions, and the attribution of property of an unincorporated association (collective ownership, chongyu). This material can be used directly for assignments in Civil Act general provisions, property law and family law, and for law debates on gender equality and customary law. There is a separate list of reference cases, so it is easy to look up the original texts by case number.