[1] Requirements for "abstination of acts of litigation" under Article 60 of the Civil Procedure Act

[2] In a case where not less than 2/3 of the members of a church decided to move to a different order but procedural defects exist, whether the members who agreed to move to an invalid different order lose their status as members of the existing church (negative in principle)

[3] In a case where a resolution to move to a different religious order was passed with the consent of a majority or at least 2/3 of the members of a church, but the above resolution becomes null and void due to a serious defect in the convening procedure, the case holding that a resolution to move to a different religious order cannot be deemed to have reached a resolution to move to a different religious order, and that a resolution to move to a different religious order

[1] In order to become ratification of effective procedural acts pursuant to Article 60 of the Civil Procedure Act, a person who has no legitimate authority to conduct procedural acts must be recognized as valid after recognizing the defective past procedural acts, unless the person who has no authority to do so.

[2] The status of the members of the previous church shall be kept up to 2/3 of the members of the church while leaving the existing religious order and joining the new religious order shall cause changes to the religious order, in cases where some of the members establish a separate church and select a representative from the existing religious order and move to the different order, they shall also move to the different order, and the latter shall be referred to as "progressing from the religious order". Therefore, in a case where there is a valid resolution to move to the religious order, if there is a valid resolution to move to the religious order, only the church shall remain as the members of the existing church, and if there is no validity resolution to move to the religious order, some of the members who agree to move to the religious order shall still remain as the members of the existing church (in a case where it is impossible to move to the religious order but it is difficult to move to the new religious order without the resolution to move to the different order, and if there is no legitimate opportunity for the members to move to the religious order, it shall be deemed that there is no legitimate opportunity for the members to move to move to the church within the different order.

[3] In a case where a resolution to move to a different religious order was passed with the consent of a majority of the church members or at least 2/3 of the church members, but the above resolution becomes null and void due to a serious defect in the convening procedure, the case holding that a resolution to move to a different religious order cannot be deemed to have been made in full view of various circumstances such as the formation of a separate religious community with the existing church, or the circumstance leading up to moving to a different religious order, and the resolution to move to a different order cannot be deemed to have reached a resolution to move to a different religious order, and therefore it shall be null and void since the resolution to move to a different religious order

[1] Article 60 of the Civil Procedure Act / [2] Articles 31, 275, 276, and 277 of the Civil Act / [3] Articles 31, 275, 276, and 277 of the Civil Act

[Defendant-Appellant-Appellee] The Gi National Assembly of Nient Korea (Law Firm Squa Law, Attorneys Kang Jae-sung et al., Counsel for defendant-appellant-appellant-appellee)

Defendant 1 and four others (Law Firm KEL, Attorneys Lee Jae-hwan et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2009Gahap137 Decided December 31, 2009

April 21, 201

1. To dismiss the instant lawsuit that has been changed in exchange at the trial;

2. The total cost of the lawsuit shall be borne by Nonparty 1.

The purport of the claim: The Defendants paid 982,260,00 won to each of the plaintiffs (hereinafter referred to as the "Plaintiff church") and 20% interest per annum from the day following the day of service of a copy of the claim purport and the cause of the claim as of November 4, 2010 to the day of complete payment (the plaintiff church in the first instance without authority between April 2006 and June 2009, the Defendants withdrawn the funds of the plaintiff church and paid 134,806,530 won to the defendant 1 for the purpose of gathering the money and living expenses of the plaintiff church, and used 24,609,804 won as their lawsuit for religious order payment, the Defendants asserted that they received 39,177,240 won as their own litigation expenses for damages from their own church to 198,539,610 and damages from their own building 201,208.610 to 200.610

The purport of appeal is revoked by the judgment of the court of first instance. The defendants pay to each plaintiff 198,593,610 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

(a) Timing for the first branch church (from 1972 to 2002);

The National Assembly of Korea, however, has been established by Nonparty 2 in 1963, and the plaintiff church was established around December 13, 1972 and operated as a branch church of the First School until 2002.

(b) Timing for the branch church of the second branch church (from 2002 to 2006);

(1) Nonparty 2, 3, and 4, who led the first class group, established a new religious order in the same name as the first class group (hereinafter “the second class group”). The second class group established the rules of the Korean Film Council on May 31, 2007, and changed the name on September 17, 2007 to the Korean Film Council. Nonparty 3 of the second class group is the representative of the Korean Private Teaching Institute, which was the first class of the school foundation. The building and land of the Plaintiff church were trusted in trust in the future of the said school foundation for the ownership of the Plaintiff church or the comprehensive inheritance of the said school foundation).

(2) At the time of June 2002, the first class group presented Defendant 1, who was performing the duties of vicariously conducting the affairs of the plaintiff church as a member church, dispatched Nonparty 5 to the new member church of the plaintiff church, and the plaintiff church dispatched the non-party 5 to the new member church of the plaintiff church. On June 29, 2002, the plaintiff church decided to withdraw from the first class group, withdraw from the second class group, join the second class, and join the second class, and on July 2002, the second class dispatched Defendant 1 to the plaintiff church as a member church and operated the plaintiff church as a branch church of the second class until 2006.

(c) Collision between the persons supporting the first school group and the persons supporting the second school group (after 2006);

(1) On March 23, 2006, Defendant 1 summoned Defendant 1 to the Investigation Committee on the ground that Defendant 1 inflicted an injury on Nonparty 6 of the house, and notified Defendant 1 to conduct an audit on the Plaintiff church.

(2) Accordingly, on April 2, 2006, a majority of the members of the Plaintiff church including the Defendants (hereinafter referred to as the “persons supporting the first church”) opened a joint conference and resolved to withdraw from the second church and to claim the return of the church building and land in the name of the said educational foundation. Defendant 1 notified the second church of withdrawal from the religious order on the same day.

(3) On the following day, the second class decided to dismiss Defendant 1 from the position of a pastor and order the removal of Nonparty 1 from the position of a pastor of the second class. On May 8, 2006, Nonparty 7 sent Nonparty 7 to the position of a pastor of the Plaintiff church. However, Nonparty 7 did not perform his duties as a pastor in the Plaintiff church building due to his refusal by the support officers of the first class group, and Defendant 1 continued to perform his duties as a pastor in the Plaintiff church.

(4) On November 5, 2006, the applicants for the first curriculum opened a meeting to resolve the withdrawal of the second curriculum and the re-admission of the first curriculum, and with the written consent of 103 members, filed an application for joining the religious order with the first curriculum on November 6, 2006.

(5) On November 6, 2006, the second church dispatched Nonparty 1 to the plaintiff church's temporary pastor, but the non-party 1 also failed to perform his duties as a pastor in the plaintiff church's building due to the interference of the support group of the first church. Accordingly, the non-party 1 performed the religious affairs against the newly established members of the plaintiff church who support the second church (hereinafter referred to as the "support group of the second church") by designating the building outside the plaintiff church's building as temporary arts distribution. They performed the religious affairs against the non-party 1. This is the minority compared to the support group of the first church.

(6) On November 19, 2006, the applicants of the first school group held a joint meeting with the approval of the holding of the first school group, and re-convened the second school group withdrawal resolution (hereinafter “joint meeting”) and held a joint meeting on April 22, 2007 and re-convened the second school group withdrawal and the first school group withdrawal resolution (hereinafter “joint meeting”).

(d) Related lawsuits;

On July 13, 2007, the representative of the plaintiff church filed a lawsuit against the defendant 1 to confirm the existence of the right to participate in the plaintiff church as Seoul Northern District Court 2007Kahap1306, which was sentenced to the retirement on July 13, 2007. However, on September 25, 2008, in the case of Seoul High Court 2007Na7479 (Seoul High Court 2006, the second church was dismissed on April 3, 2006 and dismissed the defendant 1 from office as the head of the plaintiff church and the non-party 7 on May 28, 2006 and the non-party 1 on November 6, 2006 to the head of the plaintiff church, and the dismissal decision on the defendant 1 was to be respected until it was revoked and changed through the procedure for appeal by the second church, and therefore, the defendant 1 was still to have the authority to convene the plaintiff church and the non-party 2's joint church.

2. Progress of the instant lawsuit

Nonparty 1, as the representative of the Plaintiff church on January 2009, the Defendants withdrawn the funds of the Plaintiff church without authority between April 2006 and June 2009, and paid 134,806,530 won to Defendant 1 under the pretext of the membership in the religious order and the living expenses, etc., and paid 24,609,804 won to the first church as the religious order payment, and used 39,177,240 won as their litigation expenses, the Defendants asserted that they are liable to pay the damages for the tort committed by each Plaintiff church, and that they filed a claim for damages with the Defendants, claiming that they are liable to pay the damages for the total amount of KRW 198,593,610 and the damages for delay.

On December 31, 2009, the court of the first instance rendered a judgment of retirement on the ground that "Unless there are special circumstances, such as that the property of a church belongs to the collective ownership of the members, and that the lawsuit of claim for damages on the ground of the tort in this case or the lawsuit of claim for damages on the ground of unjust enrichment is the act of preserving the property owned by the plaintiff church, which is the collective ownership, and that the articles of association or other regulations prescribe otherwise, it shall undergo a resolution of the joint council of the plaintiff church corresponding to the general meeting of members under Article 276 (1) of the Civil Act. However, the fact that the plaintiff church did not make a resolution of the joint council concerning the filing of the lawsuit in this case by the closing date of argument in the first instance trial is unlawful, since there is no dispute between the

On January 17, 2010, Nonparty 1 issued a call-up for joint conference only to 65 persons with the support of the second group, and held a joint conference in the above temporary arts dividend on January 17, 2010, and confirmed that the name of the church is maintained as the name of the existing church, ② it is a church belonging to the Korea Buddhist church Association of Korea (the second group) by the Plaintiff church; ③ the Defendants who currently occupy the building and land of the church and the Defendants have filed a lawsuit for transferring the building and land (hereinafter referred to as the “age 3”); ④ delegated all rights (including actions related to the lawsuit, such as filing a lawsuit) concerning the property of the Plaintiff church to the senior pastor (hereinafter referred to as “age 4”) with the consent of 48 or 49 persons among 65 persons.

In addition, Nonparty 1, as the representative of the Plaintiff church on November 4, 2010, asserted that the Defendants obtained unjust benefits equivalent to KRW 982,260,00 from May 1, 2006 to August 31, 2010 due to the Defendants’ occupation and use of the building owned by the Plaintiff church without authority, and that Nonparty 1 sought a return of unjust enrichment against the Defendants. The purport of the instant lawsuit and the grounds for the claim were modified.

[Basis] Facts without dispute, Gap's evidence 5 through 10, 16 through 20, Eul's evidence 2, 11, 12, 16, 17, 18, 20, 21 and 22 (each of the items with a separate number)

3. Determination on the legitimacy of the instant lawsuit

A. Whether there was a ratification resolution on the instant lawsuit at the Joint Meeting of January 17, 2010

The plaintiff church asserts to the purport that since at least 2/3 of the members of the plaintiff church ratified the lawsuit of this case at the joint council on January 17, 2010, the lawsuit of this case brought without the resolution of the joint council is legitimate.

Article 60 of the Civil Procedure Act provides that "if a person who has defects in granting the authority to institute a lawsuit has ratified subsequent to the ratification thereof, such procedural acts shall take effect retroactively to the time when they were conducted." Thus, in order to obtain ratification of effective procedural acts, a person who does not have the legitimate authority to do the procedural acts should be recognized as effective after recognizing the defective past procedural acts, unless the person who does not have the authority to do the procedural acts. According to the evidence No. 47-1 through No. 65 and the evidence No. 53 of the plaintiff's assertion, it is recognized that not only the notice of holding the joint meeting of Jan. 17, 2010, but also the lawsuit of this case was not mentioned in the joint meeting of the plaintiff, and the agenda No. 3 is to file a lawsuit seeking delivery of church buildings and land with the defendants, and the agenda No. 4 is to delegate the rights to exercise the authority to institute the plaintiff's church properties to the above joint meeting of the plaintiff 17.10.

B. Whether the opening of the Joint Meeting on January 17, 2010 was duly notified and the quorum was met

(1) Plaintiff church's assertion

The plaintiff church left the plaintiff church after the first branch decided to withdraw from the plaintiff church on November 19, 2006 or April 22, 2007, and these are no longer the members of the plaintiff church, and therefore, it is legitimate for the first branch of the second group of the 65 members to give notice of convening the joint conference on January 17, 2010 to those who are not the members of the plaintiff church, and the decision on the items 3, 4, which is made with the consent of more than 2/3 of them, is legitimate.

(2) The defendants' assertion

The defendants asserted that the support parties of the first school is still the members of the plaintiff church, since they did not withdraw from the plaintiff church, but only decided to withdraw from the second school group and join the first school group.

(3) The distinction between the withdrawal from the religious order (change) and the withdrawal from the church

As a resolution of not less than 2/3 of the members of the church, the status of the members of the previous church shall continue to be maintained, and in the case of leaving the existing religious order and joining the new religious order, the change of the religious order occurs. In addition, in the case where part of the members of the church establish a separate church while leaving the previous church and select a separate representative and join the different religious order from the existing one, the change of the religious order will occur, and in particular, the latter is referred to as the "off from

Therefore, in a case where a resolution to move to a different religious order is passed, if that resolution is valid, the church is maintained to move to a different religious order, but in the case of a resolution to move to a different religious order which has no validity, some members who agree with the resolution to move to a different religious order may still remain as the members of the existing church (if the church attempted to move to a different religious order but fails to achieve its purpose), and they may leave the existing church and become members of the newly established church (in the case of a resolution to move to a different religious order),

Therefore, there is a problem of the status of some of the members who agreed to move to a different religious order, but it is no longer possible for the members of the existing church to hold the rights to the properties of the previous church when they leave the religious order (Supreme Court en banc Decision 2004Da37775 Decided April 20, 2006), and the freedom of assembly and expression of opinion of the members shall be respected within the church, so it is not possible for the members to leave the existing religious order to leave the religious order because it is not possible for them to leave the religious order with the result of infringing on the properties of the members and the freedom of expression, and (2) in the case of the removal of the church from the existing religious order, it is not possible for the members to leave the religious order because it is not possible for them to leave the religious order with the right of the members to leave the religious order and to leave the order without the resolution of the members to leave the religious order, and therefore, it is not necessary for the members to keep the right of properties of the previous church to leave the religious order and to leave the order.

(4) Criteria to distinguish whether a religious order is a resolution to leave the religious order and a resolution to leave the church

Whether the members who agreed to move to a different religious order can be evaluated as withdrawing from the previous church, in accordance with the general legal principles of legal acts, whether they expressed their intent to leave the previous church, whether they abandoned the doctrine of the previous church and the method of worship, and concealed the different doctrine and method of worship, whether they can be deemed to have formed an independent religious community with the previous church by intentionally excluding the members who want to leave the previous church or to follow the doctrine of the previous church, or by putting their new pastors who do not follow the previous doctrine, with their own arguments or acts on the premise that they are organizations different from the previous church, whether they would have formed a separate religious community with the previous church, namely, whether they would simply move to a different religious order of the previous church, whether they would leave the previous church, or not, if they maintain the order of the previous church as they fail to pass a resolution to move to a different religious order, whether they would use the previous church or gain profits from the previous church, or if they fail to pass a new resolution to move to a different order, 200 7.6.

(5) In the instant case:

In this case, first of all, in relation to the formation of a separate religious community with the plaintiff church, the following circumstances recognized based on the above basic facts, i.e., ① the persons supporting the first school group did not express their intent to withdraw from the plaintiff church, ② only withdrawn from the second school group and expressed their intent to join the first school group, ② there was no different doctrines and methods of worships followed by the plaintiff church, and there was no change of religious order again to the first school group in which the plaintiff church belonged for 30 years, and the first and second school group had the most similar doctrine among the religious orders of the first school, ③ there were no religious persons supporting the first school group using the name of the plaintiff church, ④ there was no opinion about what the plaintiff church used, ④ there was no fundamental conflict between the plaintiff church and the first school group, ⑤ it is difficult to view that there was no conflict between the plaintiff church and the first school group in order to maintain the first school group.

Next, as to whether the first church support person argued that he/she is an organization different from the plaintiff church, the first church support person is the pastor of the plaintiff church, despite the notice of dismissal of the second church, and that there is a fact that the pastors newly dispatched from the second church will prevent them from entering the plaintiff church. However, it seems that there is no fundamental change in the religious life of the plaintiff church and the members of the first church according to the approval of which the plaintiff church belongs to a different religious order among the first and the second church, and that the first church support person's above entry and departure can be viewed as a method of expressing his/her intention to leave the order of the first church and those who wish to raise the plaintiff church, but it is difficult to view that there is no reason to view that there is no way to believe that the first church's entrance and removal from the order of the first church is an act of interference with the plaintiff church's own entrance and the first church's removal from the order of the first church.

8. As regards the circumstances leading up to the religious order change, it seems that 1/10 of the members of the 20th church and 2/10 of the 2/100 of the 2/100 of the 1/100 of the 1/100 of the 2/100 of the 2/100 of the 2/100 of the 1/10 of the 2/6/10 of the 2/6/10 of the 100 of the 1/10 of the 2/6/100 of the 1/100 of the 2/6/100 of the 2/100 of the 2/100 of the 1/100 of the 2/6/10 of the 2/100 of the 2/6/10 of the 100 of the 2/6/10 of the 100 of the 1/6/10 of the members of the church.

C. Sub-committee

Therefore, at the joint conference of January 17, 2010 of the plaintiff church's argument, there was no resolution for ratification of the plaintiff church's lawsuit of this case, and even if there was a family ratification resolution, the above joint conference was convened to exclude the support persons of the first church who are the members of the plaintiff church, and it is clear that the quorum does not meet the quorum in light of the number of support persons of the first church, and therefore it is not effective to make a ratification resolution (the dispute surrounding the plaintiff church and the first church is not a method of removing the support persons of the first church from the plaintiff church, but rather a method of removing the support persons of the first church from the plaintiff church, it is subject to participation of the "all the members of the plaintiff church including the first and the second church," and it should be done through the opening and resolution of the joint conference with "the pro-con voting for the change of the church and the taking-out of the result thereof"

4. Conclusion

Therefore, since the lawsuit of this case, which is changed in exchange at the trial of the party is unlawful, it is decided to dismiss it (the lawsuit of this case against the defendants, who are the parties to the lawsuit was withdrawn from the exchange change of the lawsuit at the trial of the party, and the judgment of the court of first instance was invalidated).

Judges Kim Chang-chul (Presiding Justice)