[소유권이전등기말소][공1986.11.15.(788),2941]
Methods of preserving church properties;
The provisions of Article 265 of the Civil Act concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned, and barring any special circumstance, a resolution of a general meeting of members under Article 276(1) of the Civil Act shall be passed unless there are special circumstances, such as that the articles of incorporation otherwise provide for the case where a church, a non-corporate group, whose representative is determined, conducts procedural acts in the name of its representative, as the preservation of property jointly owned.
Article 276(1) of the Civil Act
Supreme Court Decision 80Da2045, 2046 Decided December 9, 1980
Attorney Kim Jong-il, Counsel for the defendant-appellee-appellant of the Korean Film Association
A school juristic person under the name of the school juristic person prior to the change of a school juristic person Geumsung Institute of Education, the Gyeongnam-gu Seoul High School Education Center, Attorneys Choi Min-young and one other
Daegu High Court Decision 83Na61 delivered on November 21, 1983
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal No. 1 are examined.
According to the reasoning of the judgment below, the court below rejected the defendant's principal safety defense to the purport that the representative of the plaintiff church has no resolution of the general meeting of the members belonging to the plaintiff church in filing the lawsuit of this case concerning the collective ownership of the property of the plaintiff church, so the lawsuit of this case is unlawful, since it is recognized that the plaintiff church has the substance of an unincorporated association with the representative of the chairman of the church who is a pastor and works as an unincorporated association, and therefore, the lawsuit of this case, which is the act of preserving the property jointly owned by the representative, is sufficient if it is filed by the representative, and it does not require
However, the provisions of Article 265 of the Civil Act concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned, and barring any special circumstance, it shall undergo a resolution at a general meeting of members under Article 276(1) of the Civil Act (see Supreme Court Decision 80Da2045, 2046, Dec. 9, 1980). The above legal principle applies to the cases where a church, an unincorporated association, which is the representative, conducts legal acts under the name of the representative, even if it is an act of preserving property jointly owned by the representative, unless there are special circumstances such as the articles of association otherwise stipulated.
Therefore, in this case where the representative of the plaintiff church did not have any evidence to see that there was the resolution of the general meeting of the members of the plaintiff church in filing the lawsuit in this case and there is no trace of the submission of the articles of association, etc. of the plaintiff church, the court below's rejection of the defendant's main defense for the above reasons is erroneous in the misapprehension of legal principles as to the act of preserving the collective ownership of the plaintiff church, which affected the conclusion of the judgment
Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-sik (Presiding Justice)