[1] The case where the court can determine the legitimacy of disciplinary action against a religious organization

[2] In a case where Gap religious order takes a disposition to remove Eul church members from the religious order and leave Eul church members, and in a case where Byung's lawsuit filed as the representative of Eul church is illegal as it is filed by a person who has no power of representation, the case holding that Byung's disposition, such as expulsion on the ground that Byung acted to separate a church illegally, is not effective as it is not based on legitimate grounds of dismissal, and that Byung still is a legitimate representative of Eul church, regardless of disposition such as expulsion

[3] In a case where a title trust on real estate, which is the basic property of an incorporated foundation, was terminated, but a foundation which is the title trustee, did not file an application with the competent authority for permission for the return of the real estate held in title trust, whether the title truster may file a lawsuit claiming a judgment against the title trustee in lieu of the declaration of permission for the transfer of ownership, and file a lawsuit claiming the performance of procedures

[1] Article 248 of the Civil Procedure Act / [Institution of Lawsuit] Article 20 (1) of the Constitution / [2] Article 52 of the Civil Procedure Act / [3] Articles 42 (2), 43, 45 (3), and 103 of the Civil Act / [title trust] Articles 389 (2) of the Civil Procedure Act, Article 263 of the Civil Execution Act

[1] Supreme Court Decision 2005Da10388 Decided June 24, 2005 (Gong2005Ha, 1254), Supreme Court Decision 2009Da67658 Decided May 27, 2010 (Gong2010Ha, 1238) / [3] Supreme Court Decision 93Da62478 Decided May 9, 1995 (Gong195Sang, 2076), Supreme Court Decision 97Nu14538 Decided December 26, 1997 (Gong198Sang, 427)

N. N. N. N. N. N. N. L. L. L. L. L.C.

Nr. J. D.C., a foundation, but N. N. P.

Seoul High Court Decision 2009Na84945 decided June 9, 2010

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

The grounds of appeal are examined.

1. As to the ground of appeal on the main defense of this case

A. (1) Since a resolution of disciplinary action against a religious organization is within the territory of the freedom of religion guaranteed by the Constitution as a regulation within the religious organization, if it does not regulate any legal relationship related to a specific right or obligation of a member of the religious organization, in principle, the court cannot determine the validity of such resolution. However, if a dispute over a specific right or legal relationship exists in relation to the existence of validity of such resolution and it is necessary to determine the legitimacy of such disciplinary action prior to the determination of the validity of such a claim, unless the decision does not affect the interpretation of a religious doctrine, the court shall determine the legitimacy of such disciplinary action (see Supreme Court Decisions 2005Da10388, Jun. 24, 2005; 2009Da67658, May 27, 2010, etc.).

(2) Review of the reasoning of the lower judgment and the record reveals the following facts.

The Nr. D. N. N. N. N. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. L. and L. L. L. L. L. L. L. L. L. L. and L. L. L. L. L. L. L. L. L. L. L.

On December 2006, the three different different religious orders began to be discussed for integration, and around May 21, 2007, following the resolution of the respective general meetings, the integrated promotion committee composed of seven members selected and delegated the authority for integration, such as the right to amend the Constitution, the right to appoint executives, etc. On June 15, 2007, the integrated promotion committee was replaced by Nonparty 2 as the representative of the first half of the Constitution, and opened a competition on October 15, 2007, which declared the integration of the above three different religious orders, by forming the Constitutional Amendment Committee and the Special Committee on Integration.

After that, the Special Committee established a special law for integration (the main contents of which are to be applied temporarily for three years prior to all laws, and which the president of the representative general meeting with three-year term of office has the right to appoint and dismiss directors other than ex officio directors), and there was mutual disagreement as to whether the special law is recognized on the grounds that the special law grants the representative general meeting head too much authority among the three different different different different different different different different different different orders. Accordingly, in the 57th general meeting held on May 19, 2008, the lower court rejected the above special law at the 57th general meeting held on May 19, 2008, and around that time, the lower order was adopted to the same purport, and the lower order was virtually no longer integrated, but the lower order supported the integration continues its activities as the representative of Nonparty 2.

On July 18, 2008, Nonparty 1, who is the Plaintiff’s heading Nonparty 2, participated in the part of Nonparty 2 as the representative. On the ground that Nonparty 1 left from the religious order without permission, the trial committee of the order to remove himself from the religious order and leave the religious order (hereinafter “disposition such as expulsion of this case”) and the disposition such as expulsion of this case became final and conclusive around that time.

Article 3 of the Ordinance on the Disciplinary Powers of the religious order provides that "When a pastor, an employee, a member of the church, a member of the church violates his/her religious order or commits a criminal act, or causes another person to commit a criminal act, the crime shall be established." Article 8 (2) provides that "The types of punishment include "(i) rights, (ii) reprimand (vi) sexual suspension (iii) sexual suspension (st) (iv) , (v) , (vi) , (vi) , (iv) , (iv) , (iv) , (vi) , (iv) , and g) , g) ," and Article 95 provides that "When a pastor claims for a different group or performs an act to divide an illegal church, he/she shall be dismissed if the agenda item is serious."

After taking a disposition, such as the expulsion of this case, against Nonparty 1, on July 5, 2008, Nonparty 3 was dispatched to the Plaintiff’s dental pastor. However, on June 7, 2009, the Plaintiff: (a) held a temporary meeting and a temporary joint meeting to confirm the withdrawal of the Plaintiff; (b) passed a resolution to confirm whether the Plaintiff was affiliated with the consolidated lower court; (c) re-verification of the Plaintiff’s standing tree ( Nonparty 1); and (d) the consent to return the instant land and buildings; and (c) the validity of the above provisional joint meeting resolution was a problem due to the attendance of the non-voting members; (d) Nonparty 1 convened a temporary joint meeting (hereinafter “temporary joint meeting”) on April 25, 2010 through a resolution of the temporary meeting; and (d) agreed that the above temporary joint meeting was held by at least 203/3 of the members present at the meeting of the instant joint meeting and obtained a resolution of at least 203 persons present at the above temporary joint meeting.

However, the defendant still has lost the status of Nonparty 1 as the representative of the plaintiff by the disposition such as the expulsion of this case, and the provisional joint council of this case held by Nonparty 1, which was convened by the convocation of Nonparty 1, asserts that the resolution has no validity, and that the resolution has no validity. The lawsuit of this case is filed by the non-party 1, and further asserted that the lawsuit of this case is unlawful because it was filed by the non-representative.

(3) Examining these facts in light of the legal principles as seen earlier, in order to determine whether the instant lawsuit instituted by Nonparty 1 as the representative of the Plaintiff was instituted by a person without the power of representation, and thus illegal, it is problematic whether Nonparty 1, who convened the temporary joint council of this case, which re-convened Nonparty 1 as the Plaintiff’s representative, was convened by the legitimate authority of convocation, or on the premise thereof, whether Nonparty 1, who convened the temporary joint council of this case, lost the status of the Plaintiff’s representative due to the disposition, such as expulsion, etc., of this case. Therefore, it is necessary to determine the validity of the disposition, such as expulsion, etc. of this case, and thus, it

In addition, after the above three different religious orders have been actually separated, the non-party 1, who is the plaintiff's officer, participated in the part of the non-party 2 as the representative of the non-party 1. However, although the non-party 1, who is the plaintiff's officer, originally placed in the religious order, has been running in a way different from the situation of the non-party 1, it is difficult to say that the non-party 1, as the reason why the non-party 1, who is the plaintiff's representative, had a different position as to the non-party 1's leading powers of the religious order and the method of the integration of the religious order, originally, has passed a resolution to incorporate the religious order along with the Nron Association's religious order with the right to revise the Constitution and the right to appoint officers, has been granted to the chairperson of the integrated religious order, and the non-party 1, as the reason why the non-party 1, who is the representative of the integrated religious order, still has a legitimate reason to dismiss the non-party 1 from the religious order as a legitimate order.

(4) Therefore, although the court below did not decide on the validity of the disposition such as expulsion of this case, and there were any defects in the lawsuit of this case filed by Nonparty 1 as the representative of the plaintiff, it shall be erroneous in finding that all defects, such as the defect in the representative authority of Nonparty 1, were cured by the resolution of the provisional joint council of this case. However, the provisional joint council of this case is valid and the non-party 1 has the authority to represent the plaintiff and the lawsuit of this case filed by the non-party 1 is lawful, and the decision of the court below rejecting the defendant's defense of this case is just, and there is no error of law by misapprehending the legal principles as to the validity of the resolution convened by the non-

B. Meanwhile, according to the reasoning of the judgment below, the defendant argued to the purport that, according to the constitution of a different religious order, the move or consolidation resolution of a church to a different religious order requires the seal of 3/4 or more of the registered members, so in order to move to a different religious order, it is necessary to pass a resolution of 3/4 or more of the registered members, but since the temporary joint council of this case failed to meet the quorum, it failed to be ratified by the resolution as legitimate representative of the plaintiff, but the court below rejected the above argument on the ground that it is difficult to view the move to a different religious order

As seen earlier, as long as Nonparty 1 is a legitimate representative in spite of the disposition of the expulsion, etc. of this case, as long as he is the plaintiff's temporary council resolution of this case on the agenda which he re-convened as the plaintiff's standing pastors, the part on the resolution of the temporary council of this case concerning the agenda re-convened as the plaintiff's standing pastors cannot be directly related to the withdrawal from the religious order. As such, whether the temporary council of this case satisfies the requirements for the resolution of withdrawal from the religious order, and whether the decision of the court below is proper does not affect the representative of the non-party 1's right to represent the plaintiff. Therefore, the argument in the ground of appeal of this case disputing the legitimacy of the decision of the court below does not affect the conclusion on the defense of this case. In addition, if it is recognized that a branch church which joined a specific religious order has accepted the Constitution of the branch church as its own self-governing rules, changes to the religious order would result in changing its own self-governing rules, and if it satisfies its own rules, changes included in the rules, such as the name or purpose.

2. As to the ground of appeal on the merits

A. The lower court, citing the first instance judgment, determined that the Plaintiff registered the instant real estate in the name of the Defendant and registered it in the name of the foundation in order to prevent the distribution of church properties and to receive tax benefits by registering it in the name of the foundation in the name of the foundation, based on the adopted evidence.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, as alleged in the grounds of appeal.

B. Even in cases where real estate, which an incorporated foundation received a title trust, is incorporated into a basic property under the articles of incorporation of the incorporated foundation with the permission of the competent authority and becomes part of the matters to be entered in the articles of incorporation, the title truster may receive the return of such real estate from the basic property. Thus, where the title truster terminated a title trust, the incorporated foundation, bears the duty to apply for permission from the competent authority with regard to the return of the real estate held in title trust, and where the title trustee fails to perform such duty, the title truster may file a petition against the title trustee for a judgment in lieu of the declaration of permission from the competent authority pursuant to Article 389(2) of the Civil Act. In addition, where the original or a certified copy of the judgment rendered in lieu of the declaration of permission, is deemed to have been applied for a disposition directly by the incorporated foundation pursuant to Article 263 of the Civil Execution Act. Thus, the competent authority cannot reject such permission, even if the minutes of the board of directors meeting, which is the materials to examine whether the corporate foundation formed legitimate internal intent, were submitted (see Supreme Court Decision 2008Da4697.

For the reasons indicated in its holding, the lower court determined that the title trust on the instant real estate, which was held as the Defendant’s fundamental property by receiving a title trust from the Plaintiff, was terminated, and the Defendant is obligated to implement to the Plaintiff the procedures for applying for permission to amend the articles of incorporation as an incorporated foundation following the disposition of fundamental property to the competent administrative agency of this case, and to implement the procedures for the registration of ownership transfer on September 22, 2008 on the instant real estate,

Upon examining the reasoning of the judgment below, the above judgment of the court below is in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the legal nature of the application procedure for requesting the disposal of basic property by the foundation and the amendment of the articles of incorporation.

Supreme Court Decision 98Da19202, 19219 Decided August 21, 1998 cited by the Defendant as the ground of appeal is different from this case, and thus, it is inappropriate to invoke this case.

3. Conclusion

Therefore, the appeal is dismissed, and the 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 Shin Young-chul (Presiding Justice)