[2] The scope of "interested person" who can apply for the selection and appointment of a provisional director pursuant to Article 63 of the Civil Code

[3] The meaning of "where there is no director or there is a vacancy" under Article 63 of the Civil Code as the requirement for the appointment of a provisional director, and the meaning of "if there is a possibility that damage will be caused thereby"

[4] Matters to be considered in relation to freedom of religion guaranteed by the Constitution when a court appoints a provisional director of a religious organization pursuant to Article 63 of the Civil Code

[5] Whether a person, other than the believers of the pertinent Religious Order, can be appointed as a provisional director due to a vacancy in the senior Religious Order representative

[2] The "interested person" who may apply for the selection and appointment of a provisional director includes other directors, employees, creditors, etc. of the juristic person, who have legal interest in the appointment of a provisional director.

[3] "Where there is no director or there is a vacancy" under Article 63 of the Civil Code as a requirement for the appointment of a provisional director refers to the case where there is no director or the number of persons under the articles of incorporation is insufficient, and "if there is a possibility that a loss may be caused thereby" means that where a director is appointed according to the ordinary procedure for the appointment of a director, it may cause damage to the corporation or a third party.

[4] Article 20 of the Constitution guarantees freedom of religion and declares strict separation of religion and state function. As such, freedom of religious assembly and association belonging to freedom of religion is guaranteed more wide range than that of ordinary assembly and association in its nature. Accordingly, autonomy in its organization and operation should be guaranteed to the maximum extent possible with respect to religious organizations established to realize freedom of religious assembly and association. Therefore, when a court participates in the organization and operation of a religious organization in the form of temporary director in order to prevent the vacancy of directors in a religious organization, it should be careful in recognizing the requirements and necessity for appointment so that freedom and autonomy of religious activities guaranteed by the Constitution does not infringe upon the freedom and autonomy of religious activities guaranteed by the Constitution. In particular, when determining “where damage is likely to occur” as the requirement for appointment, it should be considered whether the situation leading to the vacancy of directors and whether the religious organization can resolve the vacancy of directors by autonomous means, and it should be taken into account whether the selection and appointment of temporary directors may seriously go against the concept of justice and whether it would cause serious obstacles to the management and operation of the religious organization for free religious activities.

[5] Even in cases where it is inevitable to appoint temporary directors as measures to prevent future damages to the pertinent religious organization as a result of an examination of the requirements for the appointment of temporary directors in a religious organization, the pertinent director’s position, authority and duties, and duties that the temporary directors are vacant, and the pertinent religious organization should be restricted from qualifications for appointment or specific authority or duties so as not to interfere with the religious activities and autonomy of the religious organization. In particular, the representative of the religious group, which is a comprehensive religious organization organized as the higher organization of the unit religious organization for the unification of the teaching organization, has the authority to represent the religious organization. On the other hand, the head of the religious group, who is a comprehensive religious organization organized as the higher organization of the unit religious organization, has the comprehensive authority to form the religious organization through the appointment authority prescribed by the regulations of the religious group, and is in the position of performing the role of self-regulation and integration of the relevant religious unity as a representative of the religious organization, which is an exceptional position equivalent to that of the relevant religious group, barring special circumstances where it is acknowledged that the appointment of new religious organization and new duties of the religious group can be restricted from an internal standpoint.

1. As to the grounds of reappeal by interested parties 2 and interested parties 3 as to the analogical application of Article 63 of the Civil Code in an unincorporated association

As the Civil Act only provides Articles 275 through 277 that stipulate the form and management of property ownership with respect to the legal relations of an unincorporated association, with respect to other legal relations such as the substance and formation of an association, acquisition and loss of qualification as a member, method of representation, operation of a general meeting, and reason for dissolution, the remaining provisions of the Civil Act, except for the provisions premised on the legal personality, are applied by analogy in principle (see, e.g., Supreme Court Decisions 2001Da32687, Nov. 14, 2003; 2004Da37775, Apr. 20, 2006).

Article 63 of the Civil Code provides that "if there is no director or there is no director vacancy and such vacancy is likely to cause damage, the court shall appoint an ad hoc director upon the request of an interested party or a prosecutor." Since there is a concern that an urgent clerical work between the absence of a director and the absence of a director may cause damage to a corporation or a third party unless he/she receives an expression of intent, the court shall appoint an ad hoc director and have him/her perform the duties of a director temporarily

As such, Article 63 of the Civil Act concerning the organization and activities of a juristic person is not a provision on the premise of a juristic person, but a provision on the premise of a juristic person. In the case of an unincorporated association or foundation, there may be no director or a vacancy, and in the case of an unincorporated association or foundation, it is extremely difficult to appoint a new director according to ordinary procedures, and in the case where the appointment of a new director is extremely difficult and the emergency disposition authority of the previous director is not recognized, there may be a concern about

In the case of an unincorporated association or foundation, the Supreme Court Order 4294 Resident Re-port 431 dated November 16, 1961 which held that Article 63 of the Civil Act concerning a legal entity shall not apply mutatis mutandis to the case of an unincorporated association or foundation shall be amended to the extent that it is inconsistent with the opinion of this Order.

Therefore, the order of the court below that judged that an association which is not a juristic person may be appointed as a provisional director because Article 63 of the Civil Code is applied by analogy is just, and there is no error in the misapprehension of legal principles as to the provisional director system under Article 63 of the Civil Code, as otherwise alleged in the grounds for reappeal by interested person 2 and

2. As to the grounds of reappeal by interested person 1 as to the applicant qualification

The term "interested persons" who may apply for the selection and appointment of provisional directors shall include other directors, employees, creditors, etc. of the juristic person who have legal interest in the appointment of provisional directors (see Supreme Court Order 76Ma394, Dec. 10, 1976, etc.).

Examining the reasoning of the order of the court below in light of the records, the order of the court below holding that the applicant is an interested party to the application for selection and appointment of a provisional director of this case by recognizing the applicant as a chief executive officer of the case principal's Order Order of the first half order of the first half order of the first half order (hereinafter "the case principal's order") is just, and the interested party's ground of reappeal 1

3. As to the grounds of reappeal by interested person 2, interested person 3, interested person 1's grounds of reappeal by analogy of Article 63 of the Civil Code and the party 1's grounds of reappeal by the religious organization which is an unincorporated association

Article 63 of the Civil Code provides that "if there is no director or there is a vacancy," the term "if there is no director or the number of persons determined by the articles of incorporation is insufficient (see, e.g., Supreme Court Order 74Ma562, Mar. 31, 1975)" and "if there is a concern that a loss may be caused by such reason" means that where a director is appointed in accordance with the ordinary procedure for appointing directors, it may cause damage to the corporation or a third party.

Even though a religious organization is for the purpose of declaration of religion, execution of religious consciousness, correction of believers, etc., if it possesses human and material organizations in the course of performing religious activities and operates in the general society with activities of an organization (a private organization or foundation) and forms and maintains a social relationship with other social main bodies, the Civil Act provisions concerning a juristic person shall apply in cases where the pertinent religious organization is established as an incorporated association or incorporated foundation, and in cases where it is not incorporated as a juristic person, the general legal doctrine concerning an unincorporated organization may apply in accordance with the disputes over specific rights or legal relations arising therefrom. Therefore, interested parties or public prosecutors may request the court for the appointment of temporary directors under Article 63 of the Civil Act to a religious organization which is an unincorporated association, insofar as the requirements are met in principle.

However, Article 20 (1) of the Constitution provides that all citizens shall enjoy freedom of religion, and Article 20 (2) provides that state religion shall not be recognized, and that religion and politics shall be separated, thereby guaranteeing freedom of religion and declaring strict separation of religion and state function. As such, freedom of religious assembly and association belonging to freedom of religion shall be guaranteed more wideer than that of general assembly and association in its nature, and accordingly, autonomy in its organization and operation shall be guaranteed to religious organizations established to realize freedom of religious assembly and association.

Therefore, when the court participates in the organization and operation of temporary directors in order to prevent the vacancy of directors in the form of temporary directors, it should be careful in recognizing the requirements and necessity of appointment so that freedom and autonomy of religious activities guaranteed by the religious organization under the Constitution is not infringed. In particular, in determining “if damage is likely to occur” as the requirements for appointment, it should consider the situation leading up to the vacancy of directors and whether the religious organization can resolve the vacancy by autonomous means. Furthermore, in addition, it should be taken into account whether the failure to appoint temporary directors is remarkably contrary to the concept of justice, and rather, it would seriously interfere with the management and operation of the religious organization for free religious activities.

According to the reasoning of the order of the court below, as of the closing date of the examination, the court below recognized that the case principal Religious Order does not have a legal representative and a manager, and further determined that the appointment of a provisional director pursuant to Article 63 of the Civil Act is necessary for the execution of duties of the head of the case principal Religious Order, on the grounds as stated in the judgment of the court below, on the grounds as indicated in the reasoning of the judgment below, such as the practical difficulties in appointing a head of the religious affairs ledger pursuant to the Do Constitution of the case principal Religious Order, the financial structure, funds and management status of real estate in the case principal Religious Order, the maintenance and preservation of the clan Religious Order's property, and the situation where appropriate countermeasures are required due to the filing of

In light of the above legal principles, the above judgment of the court below is acceptable, and it is not erroneous in the misapprehension of legal principles as to the application by analogy of Article 63 of the Civil Code by religious organizations which are non-corporate associations and the requirements for appointment of temporary directors in the case principal order. The grounds for reappeal by interested parties 2, interested parties 3, and interested parties 1 cannot be accepted.

4. As to the grounds of re-appeal by interested parties 1, interested parties 2 and interested parties 3 as to qualifications for appointment of provisional directors and restriction of authority of the senior chief executive officer

A. In light of the constitutional value of a religious organization based on the freedom of religion and the principle of separation of religion and state, if a director who is to be naturally appointed within a religious organization is vacant, it should maintain a prudent attitude to recognize the requirements and necessity of selection and appointment of provisional directors. Furthermore, even if the State inevitably participates in a religious organization through a court trial to fill the vacancy, the main purpose of involvement should not be a matter belonging to a pure religious area, and it does not interfere with religious activities as a religious community as a result of involvement, and the form of involvement shall not excessively intervene in the autonomous operation of the pertinent religious organization.

Therefore, even in cases where it is inevitable to appoint a provisional director as a measure to prevent damage that may arise in the future to the pertinent religious organization as a result of the review of the requirements for appointment of a provisional director in a religious organization, the qualifications for appointment, specific powers or duties should be restricted so that it does not interfere with religious activities and autonomy of the religious organization in question, depending on the specific circumstances of the pertinent religious organization, such as the position, authority and duties of the relevant director, and duties that the provisional director should actually perform.

In particular, the representative of the Religious Order, which is a comprehensive religious organization that is organized as the higher organization of a unit religious organization for the unification of the teaching profession, has the authority to represent the Religious Order legally, and has the comprehensive authority to form the organization of the Religious Order through the appointment authority prescribed by the rules of the Religious Order. Meanwhile, he/she is in the position of performing the role of putting in mind and abroad the identity of the relevant Religious Order in support of and integration into the believers through the religious authority. Considering the importance of the status and role of the representative of the Religious Order in the religious sector, it is reasonable to interpret that allowing an external third party, who is not recognized as a religious identity, to take charge of the representative of the Religious Order, is against the autonomy and essence of the religious organization, barring any special circumstance, and thus, not permitted in principle.

However, if there are exceptional circumstances where it is impossible to find out a proper person who can perform the duties of the representative of the Religious Order in a neutral position among the believers of the relevant Religious Order due to the overall rules inside the Religious Order and overall confrontations, a person who is not a new one may be appointed as a provisional director. However, even in this case, by limiting the scope of his duties or authority to the minimum extent equivalent to the necessity of appointment in a non- religious area, it is necessary to preserve the identity of the Religious Order and minimize restrictions on its autonomous operation.

B. According to the reasoning of the order of the court below, the head of the case principal Religious Order is a legal representative under the Do Constitution as well as an execution agency, and the head of the case principal Religious Order is an religious event within the Religious Order according to the order of the Do governor. At present, the head of the case principal Religious Order is in the position of acting as an agent for the head of the religious event within the Religious Order, which is a religious event within the Religious Order. At present, the head of the case principal Religious Order has the religious representative of the case principal Religious Order, and is absent before the organization and operation of the Religious Order had the highest leader's status in terms

In addition, considering the fact that the status of the head of the clan who was a vacancy in the case principal Religious Order is a representative in the law and religion of the case principal Religious Order and has a comprehensive authority in its organization and operation, and the principal role required for the provisional director of the case who is appointed as a vacancy in the principal principal Religious Order in light of the situation of the principal Religious Order as shown in the judgment of the court below is an essential organizational reorganization for the normalization of the principal principal Religious Order, and the procedure for the amendment of the Do Constitution for the appointment of the head of the religious Religious Order and the appointment of the head of the religious Religious Order, and the preservation of the property during that period, the court shall appoint a person who is a new principal Religious Order as a Do governor (Do governor) and can derive a dispute resolution by gathering a large number of trust in the principal principal Religious Order, and if it was impossible to find a new person due to the present process of division and the present internal situation of the principal Religious Order, the appointment of a new person in the religious sphere shall be limited to the minimum scope of his/her religious authority.

However, in light of the records, the court below did not fully examine whether there is a person in a new position in the case principal Religious Order, and did not take measures to restrict the scope of duties or authority while appointing an attorney who is not a new position in the principal Religious Order, but did not take measures to restrict the scope of duties or authority.

Such decision of the court below is erroneous in the misunderstanding of legal principles as to the freedom of religion under the Constitution and the scope of duties and authority of a provisional director appointed as a vacancy of a Religious Order representative, which led to failure to exhaust all necessary deliberations. The grounds for reappeal by interested parties 1, 2 and 3 are with merit.

5. As to the reappeal under the name of the case principal Religious Order

The materials submitted by the Nonparty alone cannot be deemed as the representative of the instant principal Religious Order. Therefore, the reappeal filed under the name of the instant principal Religious Order by the Nonparty, who is referred to as the representative of the instant principal Religious Order, is unlawful.

6. Conclusion

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. The reappeal filed in the name of the case principal Religious Order shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Chief Justice Kim Young-ran (Presiding Justice)