[1] In a case where the members leave a church and lose their status as the members of the church, the ownership of the properties of the previous church (=collective ownership of the remaining members) and in a case where part of the members of a branch church belonging to a religious order decided to leave the religious order and then establish a separate church and appoint a representative and join another religious order, whether the members of the newly established church possess the right to the properties of the previous church (negative)

[2] In a case where some members leave their religious orders 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 shall leave the religious order

[3] 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 process of a resolution to move to a different religious order and the size of the members who agreed to move to a different order

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

[5] The case holding that, in case where the pastors who have joined a new religious order on behalf of the church after the general assembly of its members and the Buddhist pastors who have joined the new religious order on behalf of the church, appointed after the general assembly of its members, were dismissed from or removed from the previous religious order and the resolution to move to the religious order becomes null and void after the resolution to move to the religious order was made final and conclusive by the court, as long as the removal and move to the religious order cannot be deemed null and void, the above pastors, etc. cannot retain the membership of the previous church any longer regardless of whether they left the previous church, and thus they lose their

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

[1] Articles 31, 275, 276, and 277 of the Civil Act / [2] Articles 31, 275, 276, and 277 of the Civil Act / [3] Articles 31, 275, 276, and 277 of the Civil Act / [4] Article 248 of the Civil Procedure Act / [5] Article 248 of the Civil Procedure Act / [5] Article 248 of the Civil Procedure Act, Article 20 (1) of the Constitution, Articles 31, 275, 276, and 277 of the Civil Act / [6] Article 52 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2004Da37775 Decided April 20, 2006 (Gong2006Sang, 851) / [4] Supreme Court Decision 2005Da10388 Decided June 24, 2005 (Gong2005Ha, 1254) Supreme Court Order 2007Ma24 Decided June 29, 2007 (Gong2007Ha, 1176)

The Korean Association of Gwangjin-gu and the Korean Association of Gwangjin-gu (Seoul Eastnam Association, Counsel for the plaintiff-appellant-appellant-appellee)

Defendant 1 and 12 others (Law Firm Ha & Yang et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na76695, 76701 decided August 5, 2009

The part of the judgment of the court below against Defendant 10, 11, 12, and the part of the case is reversed, and that part of the case is remanded to the Seoul High Court. Defendants 1, 2, 3, 4, 5, 6, 7, 8, and 9 are all dismissed. The costs of appeal by Defendants 1, 2, 3, 4, 5, 6, 7, 8, and 9 are borne by the said Defendants.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 4 (part)

A. Whether the defendant church is a church with an independent entity separate from the plaintiff

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 members leave the church and lose their status as members of the church, they shall lose their status of being entitled to participate in the resolution on the management and disposal of the properties of the previous church as well as the right to use and gain profit from them, and 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 who belong to a religious order intend to leave the previous church after setting up a separate church and establish a new church within 70.

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 below, the court below comprehensively adopted the adopted evidence and adopted a resolution to move to a different religious order with the purport that some members of the Korea Mine Association (hereinafter referred to as the "Korea Mine Association") opened a general meeting of the members on April 11, 2005, leave the existing association of the Korean Egyptian Association and join the Korean association of the independent church and the association of the Korean association (hereinafter referred to as the "resolution to move to a different religious order in this case"), but the above resolution was judged to be null and void due to procedural defects such as the convening procedure or the method of resolution; the above resolution was made at the above general meeting of the members; the defendant 2, 3,4,5,6,7,7,8,9 are all members of the above general meeting of the members; the defendant 10, 11, and 12 are members of the Korean church after the above general meeting of the members; the defendant 1 is an incorporated association of the Korean church with the exception of the remaining members of the defendant church that belongs to the defendant church.

However, according to the evidence and facts rejected by the court below, some of the members of the church that agreed to move to a different religious order did not oppose the way to move to the different religious order, and the conflict with the religious order of this case is deep, and the members who agreed to move to the different order of this case shall not reach 6,00 members, which are close to 2/3 of the entire members of the church that moved to the different religious order of this case or presumed to be the majority of the members, and it is difficult to recognize that the members who agreed to move to the different religious order of this case as a new resolution to move to the different order of this case after the fact that there were no new resolution to move to the different order of this case, and it is still difficult to view that the members who agreed to move to the different order of this case as the members who moved to the different order of this case after the new resolution to move to the different order of this case, as the members who agreed to move to the different order of this case were to move to the different order of this case after the new resolution to move to the order of this case.

The court below determined that the defendant church is an independent church with separate substance from the plaintiff, and whether the remaining Defendants lost their status as a member after leaving the luminous church. However, the defendant church is an independent church separate from the plaintiff on the ground that some members of the luminous church resolved to move to a different religious order and attempted to move to a new religious order, and the remaining Defendants left the luminous church. 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 No. 1 pointing this out is with merit.

B. The validity of the dismissal and withdrawal disposition against Defendant 1, 2, 3, 4, 5, 6, 7, 8, and 9 (hereinafter “Defendant 1 and eight others”).

According to the reasoning of the judgment below and the records, as to Defendant 1 pursuant to the Constitution of the Korea Culture and Arts Association of Korea (wholly amended on May 15, 2007, hereinafter "the Constitution of the Korea Culture and Arts Association"), the trial division affiliated with the Seoulnam Labor Association may dismiss Defendant 2,3,4,5,6,7,8,99 from office and dismiss Defendant 1 on the ground that he violated the provisions of Article 1 of the Constitution of the Korea Culture and Arts Association on April 28, 2005 concerning the abuse of duties of the chairman of the church, abandonment of duties, violation of the duties of pastors, sexual intercourse, the act of interference with worship, inciting, aiding and abetting the act of incompetuity as a teacher, in particular, he is in bad faith as a teacher of the church, aiding and abetting assault in violence within the church, aiding and abetting the principal of violence within the church, defamation, and the placement of a private guard.

On the other hand, with respect to Defendant 1 and eight others, the Plaintiff asserted that even if the aforementioned Defendants did not withdraw from the luminous School, they lost the right to possess and use each of the instant real estate, passenger cars, etc. (hereinafter “each of the instant real estate, etc.”) which was used as a company house or a car in accordance with the status of pastors or assistant pastors due to the above dismissal and withdrawal of the said Defendants.

A resolution of disciplinary action against a religious organization is within the territory of the freedom of religion guaranteed by the Constitution, and therefore, unless it regulates legal relations related to a specific right or obligation of an individual of a member of the religious organization, in principle, the court shall not determine the validity of the resolution. However, in a case where there is a dispute over a specific right or legal relationship in relation to the validity of the resolution, and where it is necessary to determine the validity of the above disciplinary action prior to the determination of the validity of the resolution, the court shall make a decision of the disciplinary action as long as the contents of the decision do not affect the interpretation of the religious doctrine (see Supreme Court Decision 2005Da10388, Jun. 24, 200

As in the case of this case, in the case where the plaintiff lost the right to possess each of the real estate of this case against Defendant 1 and 8 and filed a request for the surrender, etc., the suspension or invalidation of each of the above dismissal and entrance dispositions against Defendant 1 and the 8 shall be decided. In this case, it shall not be determined that the so-called final disciplinary decision which cannot be contested pursuant to the church rules is null and void, unless there are special circumstances to deem that the disposition is null and void, such as not being issued by a legitimate trial agency as stipulated in the church constitution or not undergoing the disciplinary procedure at all or there is no ground for disciplinary action against the religious organization (see Supreme Court Decisions 83Meu2065, Jul. 24, 1984; 91Da41026, May 22, 1992, etc.).

However, according to the records, around February 2005, Defendant 1 appointed Nonparty 1 as a defense counsel for the above case of complaint filed by the Seoul Eastnam Association; on February 26, 2005, Defendant 1 and Nonparty 1 wanted to attend the prosecution committee; but the counsel was not allowed to attend the prosecution committee; Article 26(1) of Part III of the Constitution of the religious order provides that “Defendant may appoint a defense counsel at any time and obtain defense counsel; Nonparty 1 submitted a written opinion to the Seoul East East Eastnam Court on March 3, 2005 for Defendant 1; Defendant 2 did not appear at the trial committee; Defendant 1 sent a written request to dismiss the above defendant 1 and his defense counsel on March 7, 2005; and Nonparty 1 sent the written order to Nonparty 2 to Nonparty 1 and his defense counsel on March 11, 2005, and Nonparty 2 sent the written order to Nonparty 1 and Nonparty 2's defense counsel on behalf of the Seoul Southern High Court.

According to this, there is a defect in the procedure of each dismissal and withdrawal from office against Defendant 1 and eight others, and if it is so serious, it is difficult to deem that each dismissal and withdrawal from office are null and void as it goes against the concept of justice.

As above, so long as each dismissal and withdrawal disposition against Defendant 1 and 8 cannot be deemed null and void, Defendant 1 and Defendant 8 shall be deemed to have lost the right to possess and use each of the instant real estate, etc., on the ground that the aforementioned dismissal and withdrawal disposition, regardless of whether or not the Defendants withdraw from the Masung Association, is no longer due to the above dismissal and withdrawal disposition, and thus, the right to possess and use the instant real estate, etc.

The lower court determined that Defendant 1 and 8 were not entitled to possess and use each of the instant real estate to Defendant 1 and Nonparty 8 by deeming that Defendant 1 and Defendant 8 had withdrawn from the Masung conference, is erroneous in misapprehending the legal doctrine as seen earlier, but the conclusion that Defendant 1 and Nonparty 8 were justified upon receiving the Plaintiffs’ claim against Defendant 1 and Nonparty 8, which eventually did not adversely affect the judgment.

This part of the ground of appeal No. 4 is without merit.

2. Regarding ground of appeal No. 2

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and determined that the non-party 3's temporary pastors sent to the branch church without the resolution or consent of the general meeting of the members in accordance with Article 6 (2) of the Constitution of the religious order in the event that the branch church of the plaintiff church becomes vacant, it is legitimate that the non-party 1's temporary pastors sent to the non-party 3's temporary pastors after the closure of all rights of the defendant 1's representative of the branch church due to the decision of the provisional disposition of the suspension of duties against the non-party 1's representative of the branch church, such as the suspension of all rights of the defendant 1's representative of the branch church, is legitimate, and that the above provisional disposition became effective due to the objection against the decision of the provisional disposition of the defendant 1's pastors, and even if the grounds for temporary sending of the representative to the non-party 1's representative of the plaintiff 4 and the non-party 5's temporary pastors after the removal and removal of the above.

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.

However, as to the status of the representative of the Plaintiff church as in this case, where the Defendants asserted the invalidity of the dismissal or withdrawal disposition against Defendant 1 on that premise, the court below should consider the existence or invalidity of the above dismissal or withdrawal disposition. However, without examining and determining the legitimacy thereof, it is not appropriate for Defendant 1 to determine that the above disposition is valid on the premise that it is not a right to represent the sexual intercourse. However, as long as it is difficult to regard the dismissal or withdrawal disposition against Defendant 1 as null and void, even if the court below did not make a decision, it cannot be said that the result of the judgment affected the conclusion of the judgment.

The ground of appeal No. 2 is without merit.

3. As to the grounds of appeal Nos. 3 and 4 (part)

According to the reasoning of the judgment below, with respect to the defense of this case that the lawsuit of this case shall be dismissed as being brought without the resolution of the teachers' general meeting or the separation council, the court below rejected the lawsuit of this case on the ground that the facts as stated in its reasoning are acknowledged based on the evidence of its employment, and that the rules of the Masung association (amended by October 28, 2005, hereinafter "former rules") do not provide for the management or preservation of the basic property, and that the management or preservation of the basic property of the plaintiff church shall correspond to the politics of the Masung. Thus, the court below rejected the lawsuit of this case on the ground that Article 67 subparagraph 8 of the Constitution of the religious order provides that the provisions of Part II of the Constitution of the Republic of Korea shall apply to the management or preservation of the basic property owned by the plaintiff church, and Article 67 subparagraph 8 of the religious order of this case shall also apply mutatis mutandis to the management of the movable property, and the above provisions shall also apply or apply mutatis mutandis to the management of the movable property.

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 filing a lawsuit or the procedure for collecting property as alleged in the grounds of appeal.

The arguments in the grounds of appeal Nos. 3 and 4 are without merit.

4. Conclusion

Therefore, the part of the judgment of the court below against Defendant 10, 11, 12, and Masungsung (which belongs to the Seobuk-dong Association) is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1, 2, 3, 4, 5, 6, 7, 8, and 9 are all dismissed, and the costs of appeal by Defendant 1, 2, 3, 4, 5, 6, 7, 8, and 9 are assessed against the above Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)