The Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Korean Association of the Japanese Association of the Japanese Association.

Defendant 1 and 15 others (Law Firm Hannuri, Attorneys Kim Sang-won et al., Counsel for the defendant-appellant)

August 29, 2008

Seoul Central District Court Decision 2006Gahap94333 Decided October 4, 2007

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiff's claim against the defendants falling under the above revocation part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. The plaintiff's purport of claim

(a)(1) The Defendants shall not have access to the real estate (e.g., ind., ind., ind.s.) listed in the Schedule.

(2) The Defendants shall not, on their own initiative or by a third party, commit any and all acts interfering with the Plaintiff’s use of the real estate listed in the separate sheet No. 1.

(3) When the Defendants committed an act in violation of the obligations described in paragraphs (1) and (2) of the above A, the Defendants who committed the act in violation shall pay to each Plaintiff the amount equivalent to KRW 1,00,000 per day of the violation.

(b)(1)No defendant 1 shall have access to the real property listed in paragraph 2 of the Schedule annexed hereto;

(2) Defendant 1 shall not engage in any act interfering with the Plaintiff’s use of the real estate listed in the separate sheet No. 2.

(3) When Defendant 1 committed an act in violation of the obligations described in paragraphs (1) and (2) of the above B, he shall pay to the Plaintiff an amount equivalent to KRW 1,00,000 per day of the violation.

2. Purport of the defendants' appeal

The same shall apply to the order.

Of the grounds for the court’s explanation concerning the instant case, the part on “1. Basic Facts” and “2. argument and judgment of the parties” and “(b) judgment on the cause of the claim” in the “A. B. Judgment” are deleted from the part on the grounds of the judgment of the court of first instance, the part on the “(1,539 members of the church in the ecelock that can exercise voting rights at the time)” in Articles 5, 3, and 4 of the judgment of the court of first instance, and the part on the grounds of the judgment of the court of first instance other than the part on the grounds of the judgment of the court of first instance, in addition to the part on the grounds of the judgment of the court of first instance, the part on the grounds of the judgment of the court of first instance is identical to the corresponding

Therefore, even though the previous church is a branch church that belongs to the order of the Korea Veterans Association, and even though Defendant 1 led to some of the supported members, left the order and established the independent church of this case (hereinafter referred to as the "independent church"), it is nothing more than that of a group of members who want to leave the previous church, and since the plaintiff church consisting of some of the members who want to remain in the above order and is employed by the pastor that is dispatched by the religious order while maintaining the consistency as the previous church, the defendants lost their right to use and benefit from the church building of this case and the church church of this case (hereinafter referred to as the "association building and church church") which are collectively owned by the members of the previous church.

However, according to the facts recognized above, the previous church association entrusted the ownership of church buildings and church houses to the maintenance foundation of the Seoul Labor Association (hereinafter referred to as the "Foundation"), which is the foundation foundation, and since the plaintiff church continues to exist while maintaining its consistency with the previous church, it is the title truster of the church building and church church church's right to request the use of the church building and church church's choice and profit-making to the foundation foundation.

Therefore, unless it is recognized that the Defendants are entitled to occupy the church building and the church church building, in order to preserve the above rights of the foundation foundation, the Defendants using the church building and making profits from the church building without authority can seek the prohibition of access to the church building and the prohibition of the Plaintiff’s interference with the use of the church building, as to Defendant 1 who uses and makes profits from the church building without authority, the prohibition of access to the church building and the prohibition of the Plaintiff’s interference with the use of the church building.

(2) Judgment on the defendants' assertion

(A) As to the non-existence of a resolution of the governing the Plaintiff’s filing of the instant lawsuit

The defendants asserted that the preservation and management of collective ownership property should be governed by the resolution of the general meeting. Although the plaintiff's lawsuit of this case constitutes preservation or management of collective ownership property, there was no resolution of the general meeting of the plaintiff's members concerning the plaintiff's filing of the lawsuit of this case. Thus, the lawsuit of this case is unlawful by lacking the special authorization concerning filing of the lawsuit.

The provisions of Article 265 of the Civil Act concerning the preservation and management of property jointly owned by an unincorporated association cannot be applied to the preservation and management of property jointly owned by a non-corporate association. Under Articles 275 and 276 of the Civil Act, a resolution of a general meeting of members shall be passed unless otherwise stipulated by the articles of association or other regulations pursuant to Articles 275 and 276 of the Civil Act. However, if otherwise stipulated by the articles of

However, comprehensively taking account of the overall purport of the arguments in Gap evidence 1, 13 and Eul evidence 21-1, the real estate of a branch church shall be incorporated and preserved in the maintenance foundation of the Korea Veterans Association but the branch church shall be managed by the party branch church under Article 67 subparagraph 8, Article 93 subparagraph 2, and Article 94 subparagraph 2 of the Constitution of the Korea Veterans Association, which corresponds to the rules of the plaintiff church. The plaintiff church shall have decided to file the lawsuit of this case against the defendants at the regular church meeting attending the lawsuit of this case as of July 30, 2006, which is the day before the lawsuit of this case. Thus, the plaintiff's lawsuit of this case is legitimate because it is in accordance with the resolution of the party council under the rules, and there is no reason for the defendants' assertion.

(B) As to the plaintiff's assertion that the part of the claim against the defendant 1 regarding the church building conflicts with the res judicata effect

Defendant 1, as a title truster of a church building, filed a claim against Defendant 1 for prohibition of access to the church building and prohibition of the Plaintiff’s use of the church building on the ground that Defendant 1, as a title truster of the church building, is illegally occupying the church building, by exercising the right of exclusion of interference based on the ownership of the church building. Since the foundation has already exercised the right of exclusion of interference based on the ownership of the church building against Defendant 1, and the judgment against the losing party becomes final and conclusive, the subject matter of the above two lawsuits shall be the same, and therefore, the Plaintiff’s claim against Defendant 1 for removal of interference based on the ownership of the church building shall be dismissed as it goes against the res judicata effect of the above lost judgment.

According to the records of Eul 5-1 to 3, the Incorporated Foundation filed a lawsuit against the non-party 11 on March 12, 1998 against the non-party 8, 9, 10, and the head of the previous church who agreed to the defendant 1 and the withdrawal from the religious order on March 12, 1998, for the non-party 11, the name of the church building for the non-party 10, for the non-party 8 and 9, for the non-party 10, for the non-party 10, for the non-party 10, for the non-party 10, for the non-party 8 and 9's name of other houses owned by the previous church (hereinafter "the plaintiff's lawsuit"), but on December 11, 1998, the previous church was divided into the plaintiff's association and the independent church, for which the plaintiff's properties against the non-party 1 and the other party's properties against the defendant church were not jointly owned by the plaintiff's properties and the plaintiff's properties.

(C) As to the Plaintiff’s assertion of violation of the Plaintiff’s non-establishment special agreement

The defendants asserts that the plaintiff's lawsuit of this case is unlawful because it violates the non-assignment clause of the Incorporated Foundation on October 24, 1998.

In full view of the overall purport of the pleadings in the statement of evidence Nos. 9 and 30, the Foundation applied for a provisional disposition against Defendant 1, 3, 4, 6, 7 and 12 of this case as Seoul District Court 98Kahap3155 on September 24, 1998. The Foundation received an objection against the above provisional disposition application from the new teachers of the previous church including the above respondent, and Nonparty 12 of the Foundation Foundation delivered to the above respondent of the provisional disposition on October 24, 1998 the withdrawal of "I will withdraw the above provisional disposition application, and will not file a lawsuit even after the above provisional disposition," and issued the withdrawal, power of attorney, certificate of personal seal impression, etc. to Nonparty 11 as the head of the previous church, and accordingly, the above provisional disposition application is acknowledged on behalf of the Foundation.

However, in light of the purport of the above application for provisional disposition, the purport of the above application for provisional disposition, the language and contents of the above withdrawal source delivered by the chief director of the Foundation 12, and the above provisional disposition application was pending in the lawsuit by filing a prior suit against the plaintiff 1 and the defendant 1 and the members of the previous church and the head of the church who agreed to leave the above order, etc., the above withdrawal source is interpreted to the purport that the above provisional disposition corporation should not file an application for provisional disposition against the above respondent, and further, the foundation foundation does not have any reason to acknowledge that the above provisional disposition is not sufficient to acknowledge that the above respondent should not file a lawsuit against the above respondent, including the above respondent, against the independent members of the church association about the prohibition of access to the church building, the prohibition of use of the church company's house, the prohibition of access to the church company and the prohibition of use of the plaintiff's right to the church company. Even if the above evidence and Eul evidence are stated in the above provisional disposition No. 31, there is no reason to acknowledge that the above lawsuit against the above respondent.

(D) As to the assertion of ownership concerning the extension, remodeling and repair of the independent church building and the church church's choice, and the claim of lien based on the necessary cost or the right to claim reimbursement of beneficial cost

1) The defendants' assertion

After withdrawal from the previous church, the independent church occupied the church building and the church church house for ten years until now, and with the contribution of the members' contribution to the money, etc., it extended, remodeled and repaired the church building and the church house as shown in the following table.

However, since the following extension parts, etc. are attached to the independent church members with independent title, they shall belong to the collective ownership of the members of the independent church pursuant to the proviso of Article 256 of the Civil Act, and the plaintiff shall not acquire its ownership. Therefore, the defendants who are the members of the independent church may enter the church building and the church church's house and use them and gain profits therefrom.

In addition, in order to preserve, manage, or increase the utility of the church building and the church church church housing, the independent church association has the right of possession of the church building and the church housing according to the right of retention until the time when the expenses are repaid, and the defendants who are members of the independent church have the right of possession of the church building and the church housing according to the right of possession of the independent church, and have the right of access to the church building and the church housing and to prohibit the plaintiff's use of the plaintiff, since there is an increase in the value of the plaintiff church.

(2) 11,50,00 won in the extension and management of a parking lot on September 4, 2003; 33,000,000 won in the remodeling work, such as the extension of a restaurant construction on April 2003; 4, 2000 won in the number of real estate units included in the main sentence; 10,767,640 won in the cafeteria on April 4, 2004; 4, "10,935,90 won in the cafeteria construction work on April 4, 2004; 4,000 won in the remodeling work on April 1, 2003; 4,000 won in the cafeteria construction work on May 10, 199; 8,05,00 won in the cafeteria construction work on December 4, 2004; 9,45,000 won in the floor floor construction work on December 9, 2004;

2) Fact finding

(6) It is true that Gap 20 units were 6,7,8,10,15, 16 (part of them are 23,24,25, 26, 28) and Eul 20,227, and 29 Eul 21 to 30.4, the construction cost of the above apartment 2000, 180, 206, 306, 300, 400,000,000 won of the above apartment 20, 30,0000,000 won of the above apartment 20,0000 won of the above apartment 20,000,000 won of the above apartment 30,000,000 won of the above apartment 30,000,000 won of the above apartment 30,000,000 won of the above apartment 20,000 won of the church building and its construction cost.

3) As to the assertion on the acquisition of ownership regarding the above part of construction

Article 256 of the Civil Act provides that "the owner of an immovable property shall acquire the ownership of an article attached to such real estate. However, the same shall not apply to an article attached by another person's title." In order to change ownership due to a combination, attachment and combination should reach a certain degree. In case of an extension of a building, not only the physical structure attached to the existing building, but also the extension should be seen as belonging to the existing building. In addition to the physical structure attached to the existing building, the use and function of the extension should be determined by considering the existence of a separate transaction object with economic utility independent of the existing building in terms of its use and function, and the intention of the owner of the extended building, regardless of whether the extension is attached to another person's title.

However, as seen earlier, the Defendants did not assert and prove the title of the church building and church church building, which belongs to the collective ownership of the members of the Plaintiff church, while occupying and using them, and providing extension, remodeling, and repair services. Even if the independent church has the above title, the Defendants asserted that the independent church association's extension, remodeling, and repair works for the church building and church church building as above were consistent with the church building and church church church building's house, and there is insufficient evidence to acknowledge that the above construction works are independent of the church building and church church's house, and there is no other evidence to support this.

Therefore, the defendants' assertion that the independent church acquired ownership of the above extension, remodeling, and repairing part of the church building and the church church building.

4) As to the claim of lien based on the right to demand reimbursement of the above construction cost

A) The remainder of the construction cost, excluding the construction cost specified in paragraphs (3) through (9), falls under the cost of the church building and the church church's housing for the preservation and management of the church building and the church's housing and for the enhancement of its utility. In full view of the purport of the arguments adopted earlier, it is recognized that the above cost of the utility of the church building and the church's housing for the purpose of preserving and managing the church building and the church's housing for the purpose of increasing the value of the church building and the church's housing for the above purpose is recognized. Therefore, the independent church has the right to claim reimbursement of the necessary or beneficial cost of the above construction cost (the above 2) (1), (2) it is deemed that the construction cost stated in the port falls under the necessary or beneficial cost of the church building and the church's housing for the purpose of increasing the value of the church building, but the defendants did not claim reimbursement of the above cost of the church building and the church's housing for the above purpose. Thus, the independent church may refuse the right to claim reimbursement based on the right to claim reimbursement of the above expenses.

B) Of the construction costs set forth in paragraphs (3) through (9), those set forth in paragraphs (3) through (9), (7) installation costs of paragraph (8), (9) interior decorations, furniture and household appliances installation costs are merely for the convenience of the use of the church buildings and church houses of the independent church members including the Defendants, and therefore, do not constitute a beneficial cost incurred for the preservation or improvement of the church building and church house itself, and there is no other evidence to support this point. Accordingly, there is no reason to believe that the Defendants’ claims for the necessary cost or the beneficial cost reimbursement for each of the above parts of construction costs are without merit.

C) Furthermore, with respect to whether the defendants' right of retention against the above church's own church or the above church's right of retention against the plaintiff church's separate church's right of retention is possible, the plaintiff church's independent church's right of retention and the above church's independent church's right of retention against all of the plaintiff church's separate church's separate church's properties and right of retention against the plaintiff church's separate church's properties and right of retention against the plaintiff church's separate church's properties and right of retention against the plaintiff church's separate church's properties and right of retention against the plaintiff church's separate church's properties and right of retention against the plaintiff church's independent church's properties and right of retention against the plaintiff church's properties and right of retention against the plaintiff church's independent church's properties, if the plaintiff's independent church's properties and right of retention against the plaintiff church's properties and right of retention against the plaintiff church's properties and right of retention against the plaintiff's independent church's properties.

D) Therefore, the defendants are entitled to take possession of the church building and church house by entering the church building and church house and excluding the acts of using the plaintiff's church building and church house until they repay the increased amount of the necessary or beneficial expenses or the increase in the church building and church house value due to the expenses indicated in the above paragraph (a) against the plaintiff's claim for prohibition of entry into the church building and church church house and the plaintiff's claim for prohibition of obstruction of use of the plaintiff's right to reimbursement of the expenses stated in the above paragraph (a). Thus, the defendants are entitled to take possession of the church building and church house by not later than the plaintiff's claim for prohibition of entry into the church building and church church house and the plaintiff's claim for prohibition of obstruction of use of the plaintiff's above claim for prohibition of use of the church building of this case and church house

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. Since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, the appeal by the defendants is accepted, and the part against the defendants in the judgment of first instance is revoked, and the plaintiff's claim against the defendants in the judgment of first instance is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Gangnam-gu (Presiding Judge) Kim Yang-hee Kim Jong-hee