Korean Buddhist Cho Jae-sung ○○ (Attorney Jeong Byung-hee, Counsel for the plaintiff-appellant)

Ycheon-si (Law Firm Locom, Attorney Lee Ha-woo, Counsel for defendant-appellant)

Korea Buddhist High-Class ○○○ (Law Firm Subdivision, Attorneys Kang Jong-chul et al., Counsel for the plaintiff-appellant)

April 1, 2015

Gwangju District Court Decision 2011Gadan10567 Decided April 4, 2014

1. The defendant's appeal is dismissed.

2. The Intervenor joining the Defendant shall bear the costs incurred by the participation in the appeal, and the remainder shall be borne by the Defendant.

1. Purport of claim

The defendant removes each building stated in the attached Form to the plaintiff, and deliver each site to the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On August 19, 1972, the registration of the preservation of ownership in the name of “○○○○” was completed on August 19, 1972 with respect to the “YYYYYYYYYYYYYYYYYYYYY 853, 7, 7, and 200 (hereinafter “instant land”). On September 29, 1972, the registration of the alteration was completed by changing the owner from “○○○” to “○○○○○○○○○○○.”

B. Around April 22, 2008, the Defendant newly constructed each building on the instant land (hereinafter “instant part”) as indicated in the separate sheet (hereinafter “instant building”) and completed registration of preservation of ownership in the name of the Defendant. From that time, the Defendant used the instant building for the purpose of wild tea experience center, etc. from that time to that time.

C. On the other hand, on March 28, 1970, the Minister of Culture and Arts appointed the head of Si/Gun at the time as an administrator of the above ○○○○○○ History pursuant to the Buddhist Property Management Act (amended by the Act on the Preservation and Support of Traditional Temples, Nov. 28, 1987) on the ground that there was a division in relation to the operation, etc. of the temple between the Buddhist Cho Jong-sung, who belongs to the Plaintiff and the Defendant joining the Defendant (hereinafter referred to as the “ Intervenor”).

D. Since then, on February 9, 2011, a committee was established for the resolution of the problems of ○○○○○○○○○○○○, the Minister of Culture, Sports and Tourism dismissed the net market from the administrator of ○○○○○○○○○○○○ on February 22, 2011, pursuant to Article 16(2) of the former Act on the Preservation and Support of Traditional Buddhist Temples (amended by Act No. 11317, Feb. 17, 2012; hereinafter “Korean Traditional Temple Preservation Act”).

The two committees jointly take over the right to manage the property of ○○○○○○ from the net market. The co-acquisition chairman shall be the chief of Chocheon-type ○○ and the chief of ○○○.

The two committees shall jointly respond to all matters related to the protection of ○○'s property rights.

In order to normalize the ○○○○○, the Committee shall jointly investigate all the current status of property owned by the ○○○○○○○○○○.

E. The provisions of the Korean Traditional Temple Preservation Act relating to the instant case are as follows:

Article 8 (Obligation to Manage Notice)

The chief judge of a traditional temple shall preserve and manage the temple with due care as a good manager.

Article 9 (Matters to be Permitted)

(1) Where the chief judge of a traditional temple intends to transfer movable property or real estate (referring to real estate owned by a representative organization of the traditional temple or a representative organization of the traditional temple located within the boundary of the relevant traditional temple; hereafter the same shall apply in this Article), he/she shall obtain permission from the Minister of Culture, Sports and Tourism,

(2) Where the chief judge of a traditional temple intends to engage in any of the following activities, he/she shall obtain permission from the competent Mayor/Do Governor. The same shall also apply where he/she intends to modify permitted matters: Provided, That where he/she intends to engage in any activity referred to in subparagraph 1, he

1. Lending or offering movable or real estate as security;

2. New construction, extension, remodelling, or removal of a structure within the boundary of the land;

Article 16 (Appointment of Property Administrator)

(1) The Minister of Culture, Sports and Tourism may appoint an administrator of property of a traditional temple, where it is deemed that the chief judge of the traditional temple violates Article 6 (2), 9 (1) and (2), or 15 or the purpose of this Act cannot be achieved due to its subdivisions.

(2) If the Minister of Culture, Sports and Tourism deems that a traditional temple under paragraph (1) has been restored to a state that can achieve the purpose of this Act, he/she shall dismiss an administrator of property without delay.

Article 20 (Permission for Alteration of Current State of Cultural Heritage)

Where permission for alteration of the current state is obtained pursuant to subparagraph 3 of Article 34 of the Cultural Heritage Protection Act, permission under Article 9 (2) 2 shall be deemed obtained.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence Nos. 10 and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. As to the plaintiff's party ability

1) As the Defendant and the Intervenor did not have any substance as an organization, the Defendant and the Intervenor’s defense to the effect that they have no capacity to file the instant lawsuit.

2) Inspection is established by combining facilities, such as Buddhist teaching as ideological elements, the law enforcement as a behavioral element, the respect and faith as a structural element, land as a physical element, and the Buddhist church. It is divided into non-corporate foundations or associations according to the degree that new temples participate in the operation of inspection or the management and disposal of property. In a case where inspection is recognized as a non-corporate foundation, the property registered in the name of the inspection shall be deemed as the ownership of the inspection, which is an independent main body (see Supreme Court Decisions 93Da43545, Dec. 13, 1994; 94Da41249, Dec. 9, 197).

In light of the following facts or circumstances, the plaintiff was registered as an Buddhist organization around November 8, 1965 pursuant to Article 6 of the Non-School Property Management Act (as prescribed by the Cabinet Ordinance), ② as the subordinate group of the Korea Buddhist Cho Jong-chul, the plaintiff was engaged in religious activities, such as Korean Buddhist Cho Jong-chul and the law. ③ Since from around 1962, the plaintiff was engaged in religious activities from around 1962 to around 33, 36, 38, and Eul's 13, and the purport of the entire statement, images, and pleadings as stated in the evidence Nos. 9, 13, 15 through 18, 22 through 33, 36, 38, and Eul's evidence No. 13, the plaintiff's assertion that the plaintiff had no reason to register the ownership of the plaintiff's property including the land in this case under his own name, and the plaintiff's assertion that the plaintiff had no reason to register the ownership of the plaintiff's property in his name including the land in this case.

B. As to whether the lawsuit of this case is unlawful in violation of the agreement of this case

1) Since the Intervenor and the Committee affiliated with the Korean Buddhist Cho Jong-sung was a joint property administrator of the ○○○○○ company’s joint property administrator through the agreement in this case, ○○○○○ Company’s property management should be jointly carried out by the Plaintiff and the Intervenor or with the consent of the other party. The instant lawsuit was unilaterally brought by the Plaintiff, and thus, the instant lawsuit is unlawful.

2) However, in light of the contents of the agreement in this case, it is difficult to view that the agreement in this case has the effect of restricting the exercise of independent right to exclude interference against the plaintiff or the third party of the intervenor with respect to the property of the ○○○○○○○,

3. Judgment on the merits

A. Determination on the cause of the claim

1) According to the facts of paragraph (1), the Plaintiff is presumed to be the owner of the instant land, and the Defendant, as the owner of the instant building, occupies the instant part of the land, barring any special circumstance, the Defendant is obligated to remove the said building and deliver the instant part of the land to the Plaintiff.

2) As to this, the Defendant and the Intervenor asserted that the above alteration registration is null and void, but it is insufficient to recognize the above assertion only with the entries in the evidence Nos. 12 and 13 alone, and there is no other evidence. Thus, the above assertion is without merit, since the Defendant and the Intervenor asserted that the above alteration registration is null and void, since the Defendant and the Intervenor, as the inspector of the Republic of Korea, are the Intervenor’s property of the instant land, etc., including the instant land, and the Intervenor completed the registration of ownership preservation on the instant land under the name of ○○○○○○○○○○, and the registration of alteration was completed by using the fact that the registration of ownership preservation was completed on the instant land in the name of

B. Determination as to the defense of the defendant and the intervenor (hereinafter "the defendant et al.")

1) Defendant et al.’s assertion

A) At the time of the construction of the instant building, the Defendant had the same authority as the administrator at the time of the construction of the instant building. On March 2, 2004, the Defendant consented to the construction of the said building by the Intervenor (the main owner Nonparty 3) who was the actual owner of the instant land, and obtained permission from the Administrator of the Cultural Heritage Administration for the alteration of the current state from the Administrator of the Cultural Heritage Administration in relation to the construction of the said building. As such, the Defendant has the authority to occupy the instant part of the land.

B) The Plaintiff did not raise any objection against the Defendant’s new construction and use of the building from around 2004 when the new construction of the building of this case started until the time of the instant lawsuit. Since around 2011, a dispute arises between the Plaintiff and the Intervenor, the Plaintiff filed the instant lawsuit in violation of the agreement in this case, and the Plaintiff was required to pay taxes of approximately KRW 4.4 billion with the cost of new construction of the building of this case, and if the building was removed, the Defendant suffered considerable damage compared to the interests that the Plaintiff could gain, the Plaintiff’s claim constitutes abuse of rights against the good faith principle.

2) Determination

A) As to whether the Defendant has the right to occupy the instant building

First, as to whether the Defendant acquired the right to possess and use the land of this case by obtaining the consent from the Intervenor to the new construction of the building of this case, as seen earlier, the fact that the owner of the land of this case is the Plaintiff is the Plaintiff. Therefore, it cannot be said that the Defendant acquired the right to possess and use the land of this case in relation to the Plaintiff only with the consent from the Intervenor.

Next, the Korean Traditional Temple Preservation Act does not provide for an administrator’s authority to construct a new building of this case. However, in light of the terms and the purport of the Korean Traditional Temple Preservation Act, an administrator’s authority to appoint an administrator is limited to the act of using or improving the relevant property to the extent that it does not change the preservation act and the nature of the relevant property (Article 118 of the Civil Act). If an administrator requires an administrator to construct a new building on the land of this case to a third party, it would result in the administrator’s disposal of the right to use the relevant land to a third party. Considering that the administrator has the right to dispose of the relevant property, the authority to know may not be deemed to have been derived from the administrator’s authority. Thus, in order for the administrator to dispose of the right to use the land of this case to a third party, the Administrator of the Cultural Heritage Administration’s authority to newly construct a new building of this case and the right to use a new building of this case shall not be applied to the case where the defendant acquired the right to use the land of this case to a third party (Article 9(2).

Therefore, this part of the defense by the defendant et al. is without merit.

B) As to whether the plaintiff's claim constitutes abuse of rights

In order for a landowner to exercise his/her right to the land to constitute an abuse of right, the objective of the exercise of the right should be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. objectively, the exercise of the right should not be viewed as a violation of social order. Unless it does not fall under such cases, even if the loss of the other party is significantly high than the profit the person has gained by the exercise of the right, such circumstance alone does not constitute an abuse of right (Supreme Court Decision 94Da5458 delivered on November 22, 1994). In order for the right holder to exercise his/her right for a long time and not allow it as a violation of the principle of trust and good faith, there should be justifiable grounds to believe that the other party, who is the obligor, would not exercise his/her right (Supreme Court Decision 2001Da6019 delivered on January 8, 202).

However, just because the defendant et al. asserts that the claim in this case satisfies the above subjective and objective requirements of abuse of rights, or it is difficult to conclude that there is a justifiable reason to believe that the plaintiff was not exercising the right to the land in this case from the defendant's point of view, this part of the defense is without merit.

4. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

(attached Form omitted)

Judges Choi Young-Nam (Presiding Judge) (Presiding Judge)

1) On September 20, 1971, registration of preservation of ownership was completed in the name of the intervenor on September 20, 1971, with respect to several buildings, such as ○○○○, ○○○, etc., and registration of correction of the name of the owner from the intervenor to the plaintiff was completed on September 29, 1972, while registration of preservation of ownership was completed in the name of ○○○○ on December 8, 1971 with respect to the site (excluding the land in this case) for ○○○○○○, the registration of correction of the name of the owner from ○○○○○ to the intervenor was completed on September 29, 1972.