(영문) 서울중앙지방법원 2016.1.29. 선고 2014가합49499 판결

The plaintiff (appointed party, hereinafter referred to as the "Plaintiff") and 60 designated parties listed in the A, B, and attached list (hereinafter referred to as "Plaintiffs" in total of the plaintiffs and designated parties) confirm that the plaintiff is a creative owner of C religious organization F located in the 76.56m square of 36m in each of the Hanam-si, E, E-ground brick structure, brick, and roof, and brick 18.50m2 (hereinafter referred to as "the real estate in this case"). The defendant will cancel the registration of a creative owner in the name of G on April 22, 2013 of the above C religious organization F.

Reasons

1. Facts of recognition;

A. The Inspection Act (established on September 20, 201 and came into force on April 18, 201), which is an internal norm of the defendant, provides for matters concerning the registration and management of the definitions of the terms of inspection, is defined as follows:

1. An inspection institute: An inspection institute that leases and operates real estate without ownership (Article 2 (4) );

2) Private cancer: A temple (Article 2(2)) recognizing the right of creativeism as a private cancer that is registered and operated as a "C religious organization C (C) master" at the end of the defendant's respect or belief created by him/her (Article 2(2));

3) Public inspection: The following inspections (Article 2(1)), the ownership of the inspection property and the right to personnel, operation and management of which belongs to the final group:

Inspection (No. 4) which belongs to the final group by a person having the right to the creation of a private cancer;

4. Changju: A person who has built a temple and is registered in the factory register of the temple at the time of registration of a private master cancer (Article 3(1)).

5) Person holding a right to be found: A person holding a right to recommend a chief engineer of the relevant inspection and succeeding to the right at the time of registration of the inspection (Article 3(2));

6) Second Lieutenant: A person who has the right to recommend a chief inspector of the Korean traditional temple (Article III(3));

B. Case history

1) Nits and Nits, a member of C religious organization H around April 1998, wished to open the legal party under the name of "K by leasing a building located in Gangdong-gu Seoul Metropolitan Government J." On March 2002, K registered as the Seoul B religious organization L (hereinafter referred to as "L") which is the Defendant’s head office in the 7 principal office of the Defendant, and then appointed G from L which is the principal director of the said branch office of the said branch office at that time, as the representative of the said branch office.

2) Upon the termination of a lease agreement on a building being used as a legal basis on October 2002, G and the said Posium, the said Posium acquired the instant real estate and transferred it to the said Posium. Accordingly, on March 5, 2003, the sales contract was concluded in the name of G on the instant real estate, and the ownership transfer registration was completed in the name of G on April 10, 2003. The total amount of KRW 700 million was required for the purchase of the instant real estate. Of these, the KRW 40 million was the Sils of Shindo, and the KRW 100 million was the lease deposit for the said Posium building, and KRW 200 million was each appropriated for the money loaned as a security for the instant real estate.

3) On May 2003, G and the said Korean War guard decided to register the said Korean War guard as L’s horse, donate the instant real estate to the Defendant, and change the name of the inspection to “C religious organization K”.

4) On June 17, 2003, G was registered as inspection of “C religious organization K” with its own initiative as a private master cancer belonging to the Defendant. On June 26, 2003, G completed the registration of ownership transfer in the name of C religious organization K (representative ML) with respect to the instant real estate.

5) On May 2004, the above K, which became the Defendant’s private death, had been registered as the Defendant’s official inspection on June 22, 2004 as G resigned and applied for registration conversion of the official inspection route. On June 14, 2007, the inspection name was changed into “C religious organization F” (hereinafter “the inspection in this case, including the time of the registration of private and public inspection and the time of the change of name before and after the change of name”), and is managed and operated as L.C.

6) The Inspection Act was repealed by the former Private Cancer Registration and Control Act (hereinafter referred to as the “former Act”). The former Act was enforced as of April 18, 2012. The former Act only provides for guaranteeing the right to create a new site in the event that a Buddhist temple was registered and operated as a private master, but the Inspection Act also provided that, in the following cases, a specific person has the authority to recommend a new site after undergoing a public examination by the Committee for Deliberation of the Head of the Central Office of Civil Affairs to recognize the status of a new site and to have the right to recommend a specific person until his/her name is entered (Article 23).

A) Where an inspection is created and registered as a public inspection (No. 1)

(B) where the old site is restored and registered as a public bid (as referred to in subparagraph (ii).

C) if the right of possession has been established upon the end of the non-occupant inspection (No. 3)

D) In the case of registration conversion (No. 4) due to a public bid by a person holding the right to create a new site in a private car, because the person holding the right to create a new site belongs to a third class or a principal building of a school.

7) On October 2012, G applied for recognition of the status of the owner of the instant temple based on Article 23 subparag. 2, 3, and 4 of the Inspection Act, G applied for recognition of the status of the owner of the instant temple. L, a member of the instant temple, was confirmed as the owner of the instant temple, based on subparagraphs 3 and 4 of the same Article, based on the result of a public examination through a final council in accordance with the procedures under the Inspection Act and subordinate statutes, G sent G to the Defendant’s general inspector as the owner of the instant temple, based on subparagraphs 3 and 4 of the same Article. On April 22, 2013, the Defendant’s general secretary opened the Central Council for Recognition of the owner of the instant temple, and registered it as G as the owner of the instant temple as the owner

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8, 11, 12, 13, 16 evidence, Eul evidence 1 through 4 (including additional evidence ; hereinafter the same shall apply), witness G testimony, plaintiff's N Party Examination Results, the purport of the whole pleadings

2. The plaintiffs' assertion

On April 26, 1998, a four-year period prior to the appointment of G as a representative, the instant temple was created in the name of "K in the legal branch located in Gangdong-gu Seoul, and it purchased the instant real estate to G with the price of new Dos, including the Plaintiffs, and then donated it to the Defendant, and registered the instant temple as a private car. Accordingly, the instant temple was a new car, including the Plaintiffs, and G was arbitrarily registered as a creative house on June 17, 2003 by stating it on November 20, 201, and on that basis, the date of the instant temple was recorded as the creative house on November 20, 201, and was recorded as the Defendant on April 22, 2013.

Accordingly, the plaintiffs seek against the defendant the confirmation that the plaintiffs are in the status of creating the instant temple, and also seek the cancellation of the registration of the middle owner in G.

3. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

The plaintiffs' lawsuit of this case is unlawful for the following reasons.

1) The issue of whether to recognize the status of a creative owner or a middle owner is a matter belonging to the freedom of religion by an internal resolution of the defendant, and thus is not subject to judicial review.

2) As a non-corporate body, a lawsuit concerning the collective ownership of a non-corporate body is filed in the name of the non-corporate body, subject to a resolution of the general assembly in the name of the non-corporate body, or as an indispensable co-litigation. The lawsuit in this case was filed only part of the members of the non-corporate body as a party.

3) Since the inspection of this case was already registered as a public inspection, the lawsuit of confirming the status of a creative owner based on the premise that it is a private master cancer is related to the past legal relations, and thus there is no interest in confirmation.

B. Determination

1) Whether it is subject to judicial review

A) Since religious activities guarantee the State’s freedom from interference with the freedom of religion and the principle of separation of religion and religion under the Constitution, the court, a State agency, should, in principle, guarantee the autonomy of the pertinent religious organization by failing to conduct substantive deliberation and determination, insofar as matters concerning the internal relations of the religious organization are not regulated by the rights and obligations or legal relations of the general public (see, e.g., Supreme Court Decisions 2009Da32386, Oct. 27, 201; 2013Da7890, Dec. 11, 2014; 2013Da20311, Apr. 23, 2015).

Meanwhile, unless there is an internal regulation within a religious organization that takes disciplinary action or sanction against a person of corruption as a member of the society, it shall not be always excluded from judicial review because it is an act under the organization law that affects the status of individuals enjoying within a religious organization. Meanwhile, even if it is an internal regulation within a religious organization, such as a resolution of disciplinary action, if there is a dispute over specific rights or legal relations with regard to the validity of such disciplinary action and it is necessary to determine the propriety of such disciplinary action prior to the determination of the propriety of such action, the court shall determine the legitimacy of such disciplinary action (see, e.g., Supreme Court Decisions 91Da41026, May 22, 1992; 2008Da17274, Nov. 27, 2008; 2010Da89012, May 26, 2011).

B) According to the provisions of the Inspection Act as seen in paragraph (1), the inspector has the right to recommend the director of the inspection who intends to take the initiative of the inspection or to take the right to take the initiative of the inspection, and the representative of the inspection shall have the right to recommend the director of the inspection only for the party. The temple registered in the Buddhist inspection team constitutes an unincorporated association or a foundation, and the chief of the inspection shall not only be a religious status but also have the right to manage and dispose of the property as the representative of the inspection which is an unincorporated association or a foundation. In light of the fact that the dispute over the establishment of the inspection and the status of the initiative of the inspection of this case has the nature of dispute over the specific rights and duties or legal relations as a general citizen, beyond what is about the interpretation of the mere religious status or the doctrine, it is reasonable to deem that the dispute over the establishment of the inspection of this case

2) Whether it constitutes an essential co-litigation

The plaintiffs filed a lawsuit on the establishment of the instant temple and the status of the main owner of the instant temple, which affect the rights and obligations of individuals who enjoy within the religious organization in the personal position of the defendant, as well as on the property, etc. of the instant temple as a representative of the organization or a member of the organization. Thus, the instant lawsuit cannot be deemed to constitute an indispensable co-litigation.

3) Existence of benefits to seek confirmation of the status of a creative owner

A) Although a lawsuit for confirmation is permitted to eliminate risks or apprehensions with respect to the present rights or legal status, even in the past legal relations, if it is affected by the present rights or legal status, and if it is deemed that obtaining a judgment on confirmation of the said legal relations is valid and appropriate means to eliminate risks or apprehensions with respect to the present rights or legal status (see, e.g., Supreme Court Decision 2010Da36407, Oct. 14, 2010).

B) In addition to the plaintiffs' assertion itself and even according to Article 23 subparagraph 4 of the Inspection Act as seen earlier, G's mid-to-date position is based on the status of creative owner. Since who is the owner of the instant temple is also directly affected by the status of the owner of the instant temple, it cannot be said that there is no benefit in confirmation because it merely concerns past legal relations. Accordingly, the defendant's prior defense on the merits cannot be accepted.

4. Judgment on the merits

(a) Relevant legal principles;

In light of the fact that the Constitution guarantees the freedom of religion and strictly separates religion and state function, the organization and operation of a religious organization shall be guaranteed autonomy as much as possible. Thus, in order to determine that various resolutions or dispositions that affect an individual’s status in a religious organization are null and void as a matter of course, it is insufficient to say that there is a defect in the procedure to the extent that such resolutions or dispositions taken by a general organization that is not a general religious organization are null and void, and if such defect is so serious that it is left as it is, it is clearly contrary to the concept of justice (see, e.g., Supreme Court Decision 2003Da63104, Feb.

B. Determination on the claim to verify the status of a creative owner

In full view of the facts acknowledged in Paragraph 1 and the following circumstances recognized by the evidence, the Plaintiffs’ claim for the confirmation of the status of the owner of the instant temple under the Inspection Act cannot be accepted, since the Plaintiffs cannot be deemed to have the status of the owner of the instant temple.

1) Examining the provisions on the inspection registration of private carcers under the Inspection Act, in a case where a deceased person or a new person intends to build a temple, the inspection may be registered as a public or private carcers after preliminary registration and principal registration. A person who intends to obtain the registration of a temple shall register all the property necessary for the maintenance and development of the temple in the name of a "C religious organization company" or the head of a school affiliated therewith (Article 14 and 16), and the registration conversion shall be made in the name of a public or private carcers when he acquires the ownership of the property (Article 17).

Therefore, in order to recognize the construction of temple property as a private building, which is a type of temple property management right through the recommendation right to notify a creative building under the Inspection Act, it shall possess human and material substance, and accordingly, the above property shall be registered in the name of the relevant temple or its principal engineer at the time of registration of the inspection. Accordingly, when it is possible to construct the instant temple as a private building, the ownership of the instant real estate shall be acquired after March 200, and when G had already been appointed as the representative of K, which is the type of temple, as a private building.

2) It is true that the money collected by the believers K as the main source of funds for the instant real estate was purchased, and it was possible to register the instant real estate as a private master. However, it is true under the Inspection Act, however, it is the person who has built the temple and was registered in the inspection division at the time of the registration of the private master cancer, and it is not merely a new inspection by bearing the expenses, but a registration shall be made as a private master and a new owner at the time of the registration. However, the instant inspection is registered as a private master under the name of "C religious organization K," and the person who was registered as a private master in the inspection division at the time of the registration shall not be G.

3) In addition, according to the Inspection Act, the right to create a private master cancer is recognized only for one person who has applied for the establishment of a foundation at the time of the registration of the foundation (Article 20), and according to the Enforcement Decree of the Inspection Act, where the inspection of a private master cancer is registered, the owner of the foundation shall apply for the registration, and where the owner of the foundation and the owner of the property are different, the owner of the property shall submit a certificate of donation of the property of the temple and a certificate of personal seal impression (Article 10, 11). Thus, the owner of the foundation and the owner of the property for the registration of the private master cancer are not necessarily the same (Article 10, 11).

4) The registration of the instant temple’s private cancer is not naturally made by acquiring the instant real estate and applying for the registration thereof, but is made only by the Defendant’s general secretary through a resolution of the religious affairs council at the principal office of the school. The Defendant’s general secretary general determined the appropriateness of the registration of the new temple, and approved by the resolution of the religious affairs council.

C. Determination as to the request for cancellation of the registration in the Middleju

1) As acknowledged earlier, the plaintiffs cannot be deemed to have the status of creation of the instant temple, and there is no assertion or proof as to the fact that the plaintiffs have legitimate title to claim against the defendant for cancellation of the registration of the middle owner in G, or that the defendant has a duty to comply therewith.

2) In addition, considering the overall circumstances as seen earlier, the Defendant’s act of registering the instant temple, which is a private master, by the application of G, who is the original owner of the instant temple, and of recognizing and registering G as a private master through a public examination by Ltypeless Council, which is the principal owner of the instant temple under Article 23 subparag. 3 and 4 of the Inspection Act, and a resolution by the Defendant’s committee for deliberation on the formation of a general secretary general, the Defendant’s act of recognizing and registering G as a private master shall not be deemed to have a serious procedural and substantive defect to the extent that it is difficult to see the concept of justice, or that there is a serious and obvious defect that significantly lacks validity by social norms. Accordingly, the Plaintiffs’ claim for cancellation of the registration of a private master among the plaintiffs cannot be seen as either a mother or acceptable.

5. Conclusion

The plaintiffs' claims are dismissed for all reasons.