Where part of the members of an independent church not belonging to a religious order pass a resolution to enter a specific religious order, the legal relationship concerning the substance of the previous church and the ownership of the property thereof;

In a case where the members of a branch church that belongs to a religious order agree to leave the religious order through a resolution of 2/3 or more of the members with voting rights to leave the religious order, the previous church remains as a branch church that belongs to a specific religious order, and a separate representative is established and the properties of the previous church belong to the joint ownership of the members of the above church, according to the amendment of the articles of association. In a case of an independent church that does not belong to a religious order, where part of the members of the previous church decided to leave the religious order and join the specific religious order, the previous church remains as a branch church that belongs to a specific religious order, and the properties of the previous church continue to belong to the joint ownership of the members of the above religious order, but if they do not reach 2/3 of the members with voting rights, the previous church still maintains the status of the members of the previous church as an independent church, and there is no change in matters to be stipulated or to be decided by the rules of the church, such as the name or purpose of the church.

Articles 40, 42, 275, 276, and 277 of the Civil Act

Supreme Court en banc Decision 2004Da37775 Decided April 20, 2006 (Gong2006Sang, 851)

The Korea Amateur Association (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant-appellee)

Respondent 1 and 2 others

Seoul High Court Order 2002Ra437 dated June 18, 2003

Of the judgment of the court below, the part against the respondent 1 seeking prohibition of performing the duties of pastors and pastors, and the part demanding prohibition of access and worship against the respondent shall be reversed, and this part of the case shall be remanded to Seoul High Court. The remaining reappeals of the applicant shall be dismissed.

1. The part on the Respondent 1’s president and the part on the prohibition of performing the duties of pastors or worships, and the part on the Respondent’s claim for prohibition of access and worship

The grounds for reappeal are examined.

A. As long as a church exists as an association which is not a juristic person, in resolving a dispute over its legal relations through a civil lawsuit, the essence of the church shall be determined in accordance with the general theory of the Civil Act concerning an association which is not a juristic person and the ownership of the properties of the church shall be determined. Therefore, the members shall jointly own the properties of the church and use them and gain profit from them. Therefore, if some members leave the church and lose their status as the members of the church, whether the withdrawal is individual or group or as a group, they shall lose their status to participate in the resolution on the management and disposal of the properties jointly owned by the previous church, or their right to use and gain profit from such properties. The previous church shall continue to exist with its members as its members while maintaining the consistency of its substance, and the properties of the previous church shall be jointly owned by the remaining members of the church (see Supreme Court en banc Decision 2004Da37775 delivered on April 20, 206)

B. However, in case where the members of a branch church that belongs to a religious order agree with the resolution of 2/3 or more of the members with voting rights to leave the religious order, the previous church remains as a branch church that belongs to a specific religious order, and a separate representative is appointed and the properties of the previous church belong to the joint ownership of the members of the above church, according to the amendment of the articles of association, in case where the previous church exists as a church that leaves the religious order, and the properties of the previous church belong to the joint ownership of the members of the above church (see the above en banc Decision). In case of an independent church that does not belong to a religious order, if part of the members decide to leave the previous church and join the specific religious order, they cause changes in the matters to be stipulated or to be determined by the rules of the church such as the name or purpose of the church, and as such, the essence of the previous church exists as a branch church that belongs to the above religious order and the properties of the previous church belong to the joint ownership of the members of the previous church, but if they do not reach the status of the previous church as an independent church.

C. Comprehensively taking into account the reasoning and records of the first instance court decision as cited by the court below, the applicant church was a branch church of the Korea War Veterans Association, which belongs to the Korea War Veterans Association, and left the religious order on June 2001 due to internal disputes and left it as an independent church. After that, the applicant church's member who is the head of the church and the respondent conflict with each other on September 1, 2001, the respondent 1 led their support members, such as the rest of the respondent on September 1, 2001, and he moved to the Korea War Veterans Association, which belongs to the Korea War Veterans Association, as a branch church belonging to the Korea War Veterans Association, and the applicant church was a member of the Korea War Veterans Association, and the applicant church became a member of the Korea War Veterans Association, and the applicant church became a member of the Korea War Veterans Association, which became a member of the Korea War Veterans Association after taking measures for the respondent on October 14, 2001, and became a member of the Korea War Assembly after opening the two general assembly.

Therefore, the court below should further examine whether the respondent 1 obtained the consent of the general assembly of the members called up with legitimate procedures for joining the religious order from 2/3 of the persons with voting rights, and then should have confirmed the church which maintains the consistency of the substance as the previous church and judged accordingly the respondent's status as the members of the previous church and the right to collective ownership of the church properties. However, the court below determined that the previous church was divided and the respondent has the right to use and profit from the church building as members at the time of the division, and therefore, the court below erred in the misapprehension of legal principles as to the permission of the concept of church division and the requirements for joining the religious order in the independent church and the misunderstanding of facts as to the requirements for joining the religious order, etc. due to the violation of the rules of evidence.

2. The part demanding the prohibition of interference with the performance of duties or worship by the representative of the applicant, and by the representative of the applicant

The Claimant did not state the grounds for reappeal as to the above part in the reappeal and reappeal.

3. Conclusion

Therefore, among the order of the court below, the part that seeks to prohibit the performance of duties by the president of the party branch and pastors against the respondent 1 and the part that seeks to prohibit access and worship to the respondent, which is remanded to the court below for further proceedings consistent with this Opinion. The reappeal on the part that seeks to prohibit interference with the performance of duties and worship by the petitioner representative 2 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)