In fact, even though the church has been divided, in case where the church denies it after the division and claims the registration of ownership transfer on the ground of the cancellation of title trust with respect to the real estate held by the previous church before the division, by asserting the identity of the church before the division with itself, whether the church is eligible (affirmative)

In fact, even though a church has been divided, in case where the church denies it after the division and claims a registration of ownership transfer based on the cancellation of title trust concerning the real estate which the previous church before the division claims that it is the entity having the identity of the church before the division, even though the identity of the church after the division is not recognized, since the church after the division and the church brought a lawsuit through the resolution of the general meeting of the members at the time of the division, it shall not be deemed unlawful on the ground that it is a lawsuit brought by the church alone after the division consisting of only part of the members at the time of the division, and it shall not be deemed that the church after the division has a right to claim ownership transfer registration as claimed.

Article 276(1) of the Civil Act; Article 48 of the Civil Procedure Act

Supreme Court en banc Decision 91Da1226 delivered on January 19, 1993 (Gong1993Sang, 712) Supreme Court Decision 94Da28437 delivered on October 25, 1994 (Gong1994Ha, 3101) Supreme Court Decision 94Da2173 delivered on February 24, 1995 (Gong195Sang, 1430 delivered on September 5, 1995)

Plaintiff church (Dongba General Law Firm, Attorney Kang Jong-won, Counsel for plaintiff-appellant)

Defendant Incorporated Foundation (Attorney Fixed-time, Counsel for defendant-appellant)

Seoul High Court Decision 97Na10392 delivered on September 9, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. We examine the grounds of appeal.

The issue is that, in the case of Nonparty 2, 3, 4, 5, 6, 7, and 8 before the division (hereinafter referred to as “the church before the division”), the previous church was removed from the list of the members on December 31, 1989 and the above believers did not meet the requirements for the establishment of the branch church as provided by the Constitution of the religious order to which the previous church belongs, the church before the division cannot be deemed to have been divided, and even though the plaintiff church had the sameness with the previous church before the division, and the plaintiff argued that it was not determined by the court below, the court below did not make a decision. However, according to the evidence adopted by the court below, the court below rejected the plaintiff’s assertion that the previous church before the division was incorporated into the plaintiff church after the division (hereinafter referred to as “the above church after the division”) and the head of the Korean church after the division of the plaintiff church (hereinafter referred to as the “the above plaintiff church after the division of the church after the division.

2. It shall be deemed ex officio.

However, the court below acknowledged the following facts based on the evidence adopted.

① Since November 14, 1974, when Nonparty 10, the representative of the Plaintiff, was appointed as a temporary pastor from the Seoul Labor Association before the division, the new church before the division was established on May 1, 1904, and the new church before the division was completed the registration of ownership transfer in the name of Nonparty 10 by purchasing the instant land with the money of the members in order to use it as the site, and completing the registration of ownership transfer in the name of the Defendant on April 19, 1985.

② From around March 7, 1985, in the process of newly building the above church from around 1981, the dispute between the non-party 10 and the non-party 2 et al. occurred, and the non-party 2 et al. filed a petition with the Integrated Labor Association, which was denied for the said new church on or around March 7, 1985. Accordingly, the Integrated Labor Association dispatched the right members to the pre-division church on or around April of the same year, and until October 24 of the same year, the temporary pastor of the church before the division was in temporary pastor of the non-party 10, whose term of office expires. Nevertheless, the non-party 10 continued to be in the pre-division church at around 1989, and the non-party 10 and the non-party 2 were in the process of integrating the above 30 members et al. of the previous church with the non-party 10 and the non-party 10 members of the Seoul church.

③ On April 191, 191, the Plenipotentiary Power Committee dispatched by the integrated side appointed Nonparty 11 as the temporary pastor of the church before the division, and let the members who had been viewed separately as the non-party 10 oppose the non-party 10 deliver the same. On April 22, 1993, the members of the previous church who supported the non-party 10 moved to a different religious order and then moved to the order, the consolidated side appointed the non-party 11 as the temporary pastor of the new church after the integration, and transferred the non-party 10 to the non-party 10.

In this case, under the premise that the plaintiff church has the identity with the church before the division, the land of this case is purchased by the plaintiff church and claimed for the execution of procedures for the registration of transfer of ownership based on the title trust, claiming that the plaintiff church completed the registration of transfer of ownership in its name. On this basis, the court below rejected the judgment of the first instance court which rejected the plaintiff's lawsuit of this case, which did not meet the plaintiff's standing to sue alone, since the land of this case was originally owned by the church before the division, but the church before the division was divided into the plaintiff church. The land of this case, which is the church before the division, belongs to the collective ownership of the members at the time of the division, in preparation for the case where the church is divided, in advance, at the church's head or other generally approved regulations, in preparation for the case where the church is divided.

However, as seen above, the plaintiff has already denied the division of a church as recognized by the court below, and filed the claim of this case by asserting that it is an entity which has the identity of the church before the division. Thus, even though the identity of the plaintiff church is not recognized as recognized by the court below, since the plaintiff church filed the lawsuit of this case with the general assembly resolution of its members at the time of filing the lawsuit of this case, as determined by the court below, since the plaintiff church alone filed the lawsuit of this case, the lawsuit of this case is not deemed unlawful, and it cannot be deemed that the plaintiff church has a right to claim the transfer of ownership as alleged by the plaintiff church. Therefore, the court below should have dismissed the plaintiff's claim of this case, but the plaintiff's appeal of this case should be dismissed by applying the principle of prohibition of disadvantageous alteration.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)