In a case where Eul church Eul, which belongs to the different religious order Gap, had Eul church's representative Byung who belongs to the different religious order, held a joint assembly of Eul church and passed a resolution to change Eul church's church's name and notified this to the general assembly, and Gap religious order's trial court decided that " Eul church's delegate officer and the church director's office is dismissed and Eul church is removed from Eul church's temporary church's office; accordingly, Eul sent Eul church's temporary church's resolution on the ground of vacancy in the church's membership; and Eul's church dismissed Eul's lawsuit for confirmation of existence of abolition of Eul church's membership against Eul church et al., the case held that the judgment of the court below erred by failing to exhaust all necessary deliberations on the validity of Eul's provisional church's withdrawal from the religious order, since Byung's resolution on the withdrawal of Eul church's membership loses the qualification of the representative of Eul regardless of the validity of the general assembly's judgment.

Article 423 of the Civil Procedure Act

Plaintiff (Law Firm Barun, Attorneys Kim Jae-up et al., Counsel for the plaintiff-appellant)

Defendant 1 and six others (Law Firm Lee & Lee, Attorneys Kim Jong-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2015004 decided April 20, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the fourth ground for appeal

A. For the following reasons, the lower court determined that the withdrawal of the instant lawsuit by Nonparty 1 was effective on October 11, 2016.

1) On May 8, 2016, Nonparty 2, the representative of the Plaintiff, held a joint meeting of the Plaintiff, and made a resolution to change the Plaintiff’s name to “○○ church” (hereinafter “instant resolution”). The effect of the instant resolution is not subject to consideration in the instant lawsuit.

2) Article 88(2) of the Regulations on the Implementation of the General Assembly Constitution provides that a person who has withdrawn from a general meeting or a union meeting may be expelled, regardless of the course of a trial, and the effect of expulsion is the same as that of dismissal and withdrawal from the union. Nonparty 2 notified his withdrawal from the general meeting on May 9, 2016, and △△△ Council appears to have been expelled from the register of union members on or around May 17, 2016. Accordingly, on May 2, 2016, it appears that the country of the integrated school trial was expelled from the register of union members. Accordingly, regardless of the validity of the judgment (hereinafter “instant general meeting judgment”), Nonparty 2 was disqualified from the Plaintiff’s qualification due to the withdrawal from the integrated school, and Nonparty 2 appears to have been subject to the Plaintiff’s temporary suspension of the Plaintiff’s membership from the register of union members on May 2, 2016.

3) Therefore, Nonparty 1, who was dispatched to the temporary president of the Plaintiff by the △△ Labor Council, has the authority to withdraw the Plaintiff’s lawsuit as a legitimate representative at the time of withdrawal of the instant lawsuit.

B. However, we cannot accept the above determination by the court below for the following reasons.

1) There is no circumstance to deem that a new church separate from the Plaintiff was established after the instant resolution was made on the record. Therefore, on the premise that the Plaintiff continues to exist without maintaining its identity from the time the instant lawsuit was filed until now, whether the withdrawal of the instant lawsuit made by Nonparty 1 is valid should be determined.

2) However, it should be clearly distinguished that a branch church withdraws from its religious order and that a pastor leaves the religious order.

Accordingly, in light of the following circumstances revealed by the record, namely, that the Plaintiff withdraws from the integrated school group, the subject of the instant resolution that the Plaintiff withdraws from the integrated school group is the Plaintiff, and the purport of Nonparty 2’s withdrawal from the integrated school group rather than the Plaintiff’s withdrawal from the integrated school group on May 9, 2016 under the title of “Notification of the withdrawal from the integrated school group” at the general meeting held on May 8, 2016, it is reasonable to interpret the above content-certified mail sent by Nonparty 2 as follows: (a) the joint council held on May 8, 2016, to the effect that “○○ school shall withdraw from the integrated school group on May 9, 2016.”

3) In addition, the phrase “the expulsion from withdrawal” as stipulated in Article 88(2) of the General Assembly’s implementation rules provides that a meeting may be held by a plenary session. However, there is no evidence to deem that △△△ Labor Association, which is a plenary session, was taking measures against Nonparty 2 on the ground of the withdrawal from the integrated school. As long as there is no evidence to deem that △△△ Labor Association, based on the record, announced and announced the suspension of withdrawal to Nonparty 2 in accordance with the instant general meeting decision, and ordered Nonparty 2 to remove Nonparty 2.

4) Therefore, the issue of whether the requirements for the sending of a temporary president, i.e., vacancy in the president of a party branch, as stipulated in Article 16-7(1) of the Enforcement Rule of the General Assembly Constitution, are determined depending on whether the judgment of the instant general meeting is valid or not. If the judgment of the instant general meeting is deemed null and void, the requirement of the Plaintiff’s vacancy in the president was not satisfied, and thus, it should be deemed that the instant lawsuit by Nonparty 1, who was dispatched to the temporary president of the instant general meeting, has no effect (However, Supreme Court Decision 2017Da253010 Decided November 14, 2019, became final and conclusive that

5) Nevertheless, the lower court determined that the withdrawal of the instant lawsuit by Nonparty 2, regardless of the validity of the instant general assembly judgment due to the notification of Nonparty 2’s withdrawal from the integrated school, constituted by Nonparty 1, who was dispatched to the temporary president, on the ground that Nonparty 2 loses the Plaintiff’s representative qualification. In so determining, the lower court erred by failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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

Justices Kim Jae-hyung (Presiding Justice)