[1] Whether in a case where a church files a lawsuit as an act of preserving its collective ownership property, it shall undergo a resolution of the general meeting of the members (affirmative), and in this regard, whether Article 75 (1) of the Civil Code may apply mutatis mutandis to an association which is not a juristic person (affirmative)

[2] Where the members leave a church and lose their status as the members of the church, the ownership of the properties of the previous church (=collective ownership of the remaining members)

[3] Where part of the members of a branch church that belongs to a religious order establish a separate church that leaves the previous church and joins another religious order, the elements for the properties of the previous church to belong to the members of the church that leaves the religious order and the burden of proof as to whether they meet

[1] Articles 31, 75(1), 265, and 276(1) of the Civil Act / [2] Articles 31, 275, 276, and 277 of the Civil Act / [3] Articles 31, 275, 276, and 277 of the Civil Act; Articles 288 of the Civil Procedure Act

[2] [3] Supreme Court en banc Order 2004Da37775 Decided April 20, 2006 (Gong2006Sang, 851) Supreme Court Order 2003Ma1321 Decided June 9, 2006 (Gong2006Ha, 1309) / [3] Supreme Court Order 2007Ma224 Decided June 29, 2007 (Gong2007Ha, 1176)

[Defendant-Appellee-Appellee-Appellee-Appellee-Appellant (Law Firm LLC, Attorneys Kim Han-dae et al., Counsel for defendant-appellee)

[Plaintiff-Appellee] The Korea Telecommunication Association (Law Firm Hannuri, Attorneys Kim Sang-won et al., Counsel for plaintiff-appellee)

Seoul High Court Decision 2006Na39654 decided Feb. 2, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The provisions of Article 265 of the Civil Act concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned. Barring special circumstances, a resolution of the general meeting of members pursuant to Article 276(1) of the Civil Act is required (see Supreme Court Decision 94Da28437, Oct. 25, 1994). Thus, in a case where a church which is an unincorporated association files a lawsuit as an act of preserving property jointly owned by the members, barring special circumstances, a resolution of the general meeting of members shall undergo a resolution unless there are special circumstances. In this regard, Article 75(1) of the Civil Act that “The resolution of the general meeting of members shall be the attendance of a majority of the members and the voting rights of the members present shall be the majority of the members present,”

In light of the above legal principles and the records, the court below is just in holding that the plaintiff's lawsuit of this case is legitimate as it is in accordance with the resolution of the general meeting of shareholders, since the plaintiff's general meeting of July 30, 2006 at the plaintiff's 244 members of the plaintiff church decided to file for the cancellation registration of this case against the defendant.

The court below did not err in the misapprehension of legal principles or the rules of evidence as asserted in the grounds of appeal.

On the other hand, the court below's finding that there was a resolution of the general meeting as above was based on Gap evidence No. 21, but Gap evidence No. 19-1 through No. 3. Thus, the ground of appeal on the premise of a different position is without merit.

2. As to the third ground for appeal

The members shall jointly own the church properties and use them and gain profits from them, and if some of the members leave the church and lose their status as the members of the church, the previous church shall continue to exist while maintaining the consistency of the essence of the church, and the properties of the previous church shall belong to the joint ownership of the remaining members of the church. In addition, even though some of the members of the branch church who belong to the religious order decided to leave the religious order after leaving a separate church and appointed a separate representative and then joined the different religious order, the church shall be deemed to be a new church established by meeting the requirements of an association which is not a juristic person by the members who left the previous church in group, and therefore the members of the church shall not hold the right to the properties of the previous church any longer: Provided, That where 2/3 or more of the members of the previous church who left the religious order leave the religious order or agreed to move to the religious order, the previous church shall continue to exist as a church that left the religious order, and the properties of the previous church shall belong to the joint ownership of the members of the church who left the religious order.

In light of the above legal principles and the records, although there are some inappropriate parts in the reasoning of the court below, the conclusion of the court below's decision that it is difficult to recognize that not less than 2/3 of the members of the previous church left from the KCA on March 30, 2003 by the evidence submitted by the defendant as having consented to the resolution that the previous church shall be an independent church not belonging to a religious order by withdrawing from the KCA (integrated).

The court below did not err in violation of the rules of evidence.

3. Regarding ground of appeal No. 2

As long as the lower court’s aforementioned determination is justifiable, whether the Nonparty was authorized to convene a general meeting on March 30, 2003 may not affect the conclusion of the judgment. Therefore, the allegation in the grounds of appeal on this issue is without merit without further review.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)