[1] Where some members leave their religious order and move to another religious order, the criteria for determining whether the members who agreed to move to the religious order leave the previous church

[2] The case holding that it is difficult to conclude that members who agreed to move to a different church from the previous church either intended to leave the previous church or established a new church only as members, in light of the details of the resolution about moving to a different order and the size of the members who agreed to move to a different order

[3] The case holding that since it is legitimate that the Council members of the religious order to which the branch church belongs has dispatched the pastor Eul as the temporary president of the branch church because the pastor Gap, who is the president of the branch church, received a decision of suspension of duties from the bureau of the union and suspended all rights as the president of the church, and as such, it is legitimate that the pastor Eul as the president of the church, who caused the vacancy of the branch church Eul as the president of the branch church, was dispatched to the temporary president of the branch church, and even if the grounds for the strike of the temporary president have been resolved temporarily thereafter, as long as the Council recognizes the pastor Eul as the temporary president Eul after the dismissal and the dispatch of the pastor as the president of the branch church, all of them are entitled to represent the branch church

[4] Where the court can decide whether a religious organization’s disciplinary action is proper

[1] It is a concept that some members move to a different religious order and move to a different religious order is distinguished from the collective withdrawal of the previous church. Whether it is possible to judge that the members who agreed to move to a different order have left the previous church is able to leave the previous church, in accordance with the general legal principles of legal acts, whether the previous church expresses its intention to leave the religious order, whether the previous church has abandoned its doctrines and methods of worship and worship, whether the previous church has used a name different from the previous church or the previous church's doctrines intentionally exclude the remaining members who want to follow the previous church principles, and if the previous church fails to move to a different order, it shall be determined whether the previous church has formed a separate religious community with the previous church, or if the previous church fails to pass a resolution to move to a different order, it shall be determined whether the previous church has no right to use and make profits from the previous church, or if it fails to pass a new resolution to move to a different order, it shall be decided whether the previous church has no right to move to a different order.

[2] The case holding that it is difficult to conclude that members who agreed to move to a different religious order had intended to leave the previous church or established a new church separate from the previous church only as members in light of the details of a resolution to move to a different order and the size of the members who agreed to move to a different order

[3] The case holding that, in accordance with the provisions of the religious order constitution of the branch church where the branch church belongs, as a result, in the event that the president of the branch church becomes vacant, it is legitimate that the pastor Gap, who is the president of the branch church, has dispatched the pastor Eul as the temporary president of the branch church, in which the vacancy of the president of the branch church occurred, such as the suspension of duties from the bureau of the union and the suspension of all rights as the president, etc., after receiving a provisional disposition of suspension of duties from the bureau of the church, and that even if the grounds for temporary sending of the temporary president of the branch church have been resolved as a result of the objection against the provisional disposition of the pastor Gap, even if the church temporarily removed as a result of the provisional disposition of the pastor Gap, after the dismissal and withdrawal of the pastor Gap, recognized the pastor Eul as the temporary president of the branch church after recognizing him as the temporary president of the branch church, all of them shall represent the branch church as the temporary president.

[4] A resolution of disciplinary action against a religious organization is within the territory of the freedom of religion guaranteed by the Constitution, and if it does not regulate the legal relationship related to a specific right or duty of an individual of a member of the religious organization, in principle, the court shall not determine the validity of the resolution. However, if there is a dispute over a specific right or legal relationship in relation to the validity of the resolution, and if it is necessary to determine the validity of the above disciplinary action before determining the validity of the resolution, the court shall determine the legitimacy of the disciplinary action, unless the contents of the decision do not affect the interpretation

[1] Articles 31, 275, 276, and 277 of the Civil Act / [2] Articles 31, 275, 276, and 277 of the Civil Act / [3] Article 52 of the Civil Procedure Act / [4] Article 248 of the Civil Procedure Act, Article 20 (1) of the Constitution

[4] Supreme Court Decision 2005Da10388 Decided June 24, 2005 (Gong2005Ha, 1254) Supreme Court Order 2007Ma224 Decided June 29, 2007 (Gong2007Ha, 1176)

The Magsung (Seoul East-dong Association, Counsel for the defendant-appellant-appellant-appellee)

The Masung-ro Association of the Republic of Korea (Yeong-dong Law Firm, et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na79007 decided August 5, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

As long as a church exists as an association which is not a juristic person, in resolving disputes over its legal relations by means of lawsuit, etc., the essence of the church shall be grasped and determined in accordance with the general theory of the Civil Act concerning an association which is not a juristic person. Accordingly, the legal principles concerning the property relations of an association which is not a juristic person, the rights of the members of the association and the withdrawal of the members, in particular, the effects of collective withdrawal, etc. shall also be applied to a church. Therefore, the members shall jointly own and use the church properties, and use them and gain profit from them. If some of the members leave the church and lose their status as members of the church, they shall lose their status to participate in the resolution on the management and disposition of the properties jointly owned by the previous church as well as the right to use them and gain profit from them, while the previous church shall continue to exist while maintaining the consistency of its substance, and the properties of the previous church shall belong to the joint ownership of the remaining members of the church, and as long as the members of the previous church which belongs to a religious order intend to leave the order after the previous church established by 2070.

However, it is a concept that some members leave a religious order and move to a different religious order is distinguished from the collective withdrawal of the previous church. Whether it is possible to evaluate that the members who agreed to move to a different order have left the previous church is able to leave the previous church, in accordance with the general principles of interpretation of juristic acts, whether the previous church expresses their intent to leave the religious order, whether the previous church has abandoned its doctrines and methods of worship and worship, whether the previous church has used a name different from the previous church or the previous church has followed the doctrine of the previous church, and whether the previous church has formed a separate religious community with the previous church by intentionally excluding the remaining members who want to move to a different order from the previous church, or by seeing a new church that does not follow the previous doctrine of the church, and if the previous church fails to pass a resolution to move to a different order, whether it is possible to choose whether it would be valid or not to use the previous church only when it simply moves to a different order, or if it fails to pass a new resolution to move to a different order, it shall be judged as it is possible to leave the previous church.

According to the reasoning of the judgment of the court below, the court below acknowledged that some members of the Korea Egyptian Association (hereinafter referred to as the "Korea Egyptian Association") signed a resolution to move to a different religious order (hereinafter referred to as the "resolution to move to a different religious order in this case") with the purport that they leave the Korea Egyptian Association and join the Korea Egyptian Association and the Korean Association of Egyptian Association (hereinafter referred to as the "Korea Egyptian Association"), but thereafter, the above resolution became null and void due to procedural defects such as the convening procedure or the method of resolution, etc., and the non-party 1 retired from the Korea Egyptian Association and its affiliated Seoul Egyptian Association as the Korea Egyptian Association on behalf of the defendant church and the Korea Egyptian Association as the Korea Egyptian Association and the Korea Egyptian Association, and determined that the defendant's members withdrawn from the Korea Egyptian Association as the Korea Egy group.

However, according to the evidence and facts that the court below rejected the religious order change, since the members of the non-party 1 association oppose the way to move to the different religious order, they continue to oppose the church in connection with the operation of the previous religious order, and the conflict with the religious order is deep, and the members who agreed to move to the religious order in the records reach 6,00 members, which are close to 2/3 of the entire members of the religious order or presumed to be the majority of the members of the church, it is difficult to recognize that the new religious order change of the previous religious order is null and void by the new religious order change of the church after the fact that the members of the non-party 2 agreed to move to the new religious order change of the previous religious order, it is difficult to recognize that the members of the non-party 1 association still moved to the new religious order change of the church after the new religious order change of the previous religious order change of the church, and it seems that the members of the non-party 1 association did not move to the new religious order change resolution after the new religious order change of the church.

The court below should carefully examine the above considerations and determine whether the members of Nonparty 1 can be deemed to withdraw from the Masung church. However, the court below determined that the members of the Masung association separated from the Masung church and established a separate church on the ground that they resolved to change their religious order and attempted to move to a new religious order. Thus, the court below erred by misapprehending the legal principles on the withdrawal from the church or the establishment of the church, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. Regarding ground of appeal No. 2

A. The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and determined that it is legitimate to temporarily dispatch Nonparty 2 to the Masung because, after Nonparty 1's provisional disposition as to the temporary closure of Nonparty 1's pastor, the provisional closure of Nonparty 2 was suspended due to the objection against the provisional disposition as to Nonparty 1's religious director, and the temporary closure of Nonparty 1's religious director and the temporary removal of Nonparty 2's religious director from the office until the removal of Nonparty 1's religious director and the temporary removal of Nonparty 2's religious director from the office of the above temporary removal of Nonparty 2, even if the provisional disposition became effective due to the temporary removal of Nonparty 1's religious director and the temporary removal of Nonparty 2's religious director from the office of the above temporary removal of Nonparty 2, as the temporary removal of Nonparty 1's religious director from office and the temporary removal of Nonparty 2, even after the temporary removal of Nonparty 1's religious director from office and the temporary removal of Nonparty 2.

Examining the admitted evidence of the court below in light of the records, the above fact-finding and judgment of the court below are just and acceptable.

The court below did not err in the misapprehension of legal principle as to the representative of a church as otherwise alleged in the ground of appeal.

The ground of appeal on this part is without merit.

B. A resolution of disciplinary action against a religious organization is within the territory of freedom of religion guaranteed by the Constitution, and if it does not regulate any legal relationship related to a specific right or duty of an individual of a member of the religious organization, in principle, the court shall not determine the validity of the resolution. However, if there is a dispute over a specific right or legal relationship in relation to the validity of the resolution, and if it is necessary to determine the validity of the above disciplinary action before determining the validity of the resolution, the court shall determine the legitimacy of the disciplinary action unless the contents of the decision do not affect the interpretation of the religious doctrine (see Supreme Court Decision 2005Da10388, Jun. 24, 2005, etc.).

As in this case, if the defendant denies his/her power of representation in the lawsuit on the status of the representative of the plaintiff church and contests the invalidity of the dismissal and entrance disposition against the non-party 1's pastor on that premise, he/she shall not be held liable for the suspension and invalidation of the above removal and entrance disposition. In this case, the so-called final judgment of authority that cannot be challenged pursuant to the church constitution cannot be concluded to be null and void, unless there are special circumstances, such as that the disposition is not issued by a legitimate court under the church constitution (see, e.g., Supreme Court Decision 83Meu2065, Jul. 24, 198

However, according to the records, the non-party 1 was appointed by the non-party 5 as a defense counsel on the complaint case of the Seoul Eastnam Association on February 2005. The non-party 1's pastor and his defense counsel on February 26, 2005 were allowed to attend the prosecution committee, but the attorney was not allowed to attend the prosecution committee. Article 26 (1) of Part III of the Constitution of the religious order provides that "the defendant may select a defense counsel and receive defense counsel at any time." The non-party 5 submitted the counsel's opinion for the non-party 1 on March 3, 2005 to the trial division of the Seoul Eastnam Association without the consent of the court court on March 7, 2005. The non-party 1's written request to dismiss the non-party 1's defense counsel on March 11, 2005 and the non-party 5's written request to dismiss the non-party 1's defense counsel on the non-party 2's non-party 1's own opinion and the non-party 5's defense council.

The court below did not review and determine the validity of the disposition of removal and withdrawal of the Lee Sung-dong pastors in the court below, and held that the above disposition is not appropriate on the premise that the decision is valid, but as long as the above dismissal and withdrawal disposition cannot be deemed unlawful, it cannot be deemed that the decision affected the conclusion of the judgment even if the court below did not make a decision on it.

This part of the ground of appeal is without merit.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below rejected the lawsuit of this case on the premise that Article 67 subparagraph 8 of the Constitution of the religious order, which stipulates the right to manage or preserve the basic property owned by the plaintiff church, applies to the management or preservation of the basic property owned by the plaintiff church, on the ground that Article 67 subparagraph 8 of the Constitution of the religious order, which stipulates the right to manage or preserve the real property, applies to the religious order as stipulated in Part II of the Constitution, on the ground that Article 67 subparagraph 8 of the Constitution of the religious order, which stipulates the right to manage or preserve the real property, is also analogical or applicable mutatis mutandis to the management of the movable property, on October 2, 2005, on the ground that it cannot be seen that the plaintiff church of this case was unlawful, since it held a meeting of the church on October 28, 2005 and resolved the lawsuit of this case.

Examining the admitted evidence of the court below in light of the records, the above fact-finding and judgment of the court below are just and acceptable.

The court below did not err in the misapprehension of legal principles as to the procedure for filing lawsuits as alleged in the grounds of appeal.

This part of the ground of appeal is without merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)