[1] The scope of the authority of the administrator appointed under Article 12 of the Preservation of Traditional Buddhist Temples Act

[2] Whether Article 12 of the Preservation of Traditional Buddhist Temples Act concerning an administrator is unconstitutional (negative)

[3] The case concerning the specification of the application for provisional disposition filed by the chief executive officer of the religious group excluded from religious activities to recover his/her religious authority and the purport of the application

[1] In light of the purposes and purport of the Traditional Temple Preservation Act, an administrator appointed pursuant to Article 12 of the same Act shall have the authority to manage all the property belonging to the temple on behalf of the inspector, and within the scope of the authority of the chief secretary shall be suspended until the administrator is dismissed. However, the administrator shall have the authority to manage the intangible affairs relating to the property within the necessary scope in order to preserve the cultural value of the traditional temple, and it does not belong to the authority of the administrator, which is a religious unique affairs, such as the declaration of a church with the chief administrator of the temple, the enforcement of law and consciousness, and the edification and fostering of believers.

[2] Since the traditional temples of our country merely exceed the meaning of the transfer of private ownership or the foundation for religious activities and beyond the meaning of a special historical and cultural value, if there is a risk of damage to the traditional temples due to a division, etc., the intervention of the country is deemed inevitable within a certain extent. The authority held by the administrator is limited to the detailed duties of property management and does not extend to the religious matters. In addition, the period of the administrator's holding office is limited to the time it is recovered to the time it can achieve the purpose stipulated in the Preservation of Traditional Buddhist Temples Act, and if the administrator is not dismissed even after the reasons for appointment have been terminated, the interested party may file an administrative suit against the rejection disposition if he/she is dismissed. Considering these various circumstances, Article 12 of the Preservation of Traditional Buddhist Temples Act on the administrator provides the minimum restriction for public welfare, and thus, it cannot be deemed as violating the principle of excessive prohibition and thus infringing on property rights or the freedom of religion or violating the principle of equality.

[3] The case holding that, where an administrator is appointed due to the division between two religious groups surrounding the ownership of traditional temples, the chief executive officer of the religious order excluded from religious activities may either seek confirmation of his/her legitimate well-knownness or request an administrator of property to allow entry and leave within the temple to perform his/her religious duties by asserting that he/she is legitimate well-known, or request the administrator of property to allow entry and leave within the temple to perform his/her religious duties by asserting and proving that he/she is legitimate well-known, the chief executive officer of the religious order may not make a claim against the current chief executive officer or his/her subordinate officer to allow his/her religious activities within the temple or by subrogation of an administrator of property.

[1] Article 12 of the Preservation of Traditional Buddhist Temples Act / [2] Article 12 of the Preservation of Traditional Buddhist Temples Act, Articles 11(1), 20(1), and 23 of the Constitution / [3] Article 12 of the Preservation of Traditional Buddhist Temples Act

[1] Supreme Court Decision 78Da292 delivered on April 11, 1978 (Gong1978, 10823)

Applicant (Law Firm Sami General Law Office, Attorney Kim Jin-jin, Counsel for plaintiff-appellant)

Respondent 1 and one other (Seo Law Firm, Attorneys Park Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Order 98Ra318 dated February 20, 1999

The reappeal is dismissed.

1. As to the unconstitutionality of Article 12 of the Preservation of Traditional Buddhist Temples Act

Article 12 (1) of the Preservation of Traditional Temples Act provides that "the Minister of Culture and Sports may appoint an administrator of a property of a traditional temple if he/she deems that the chief temple violates this Act or the purpose of this Act is impossible to achieve due to its division." Article 12 (2) of the Korean Traditional Temple Preservation Act provides that "the Minister of Culture and Sports shall dismiss an administrator of property without delay if he/she recognizes that the traditional temple under paragraph (1) has restored to the state where the purpose of this Act can be achieved." In light of the purpose and purport of the same Act, the administrator shall have the authority to manage all the properties belonging to the temple on behalf of the temple. The administrator shall have the authority to manage the properties on behalf of the temple until the administrator is dismissed (see Supreme Court Decision 78Da292, Apr. 11, 1978). The administrator shall have the authority to perform detailed business affairs within the extent necessary to preserve the cultural value of the traditional temple, and the administrator shall not have the authority to do so within the scope of the teaching awareness of the Buddhist, declaration of law and the law enforcement.

Since the traditional temples of our country merely exceeds the meaning of the mere transfer of private ownership or the foundation for religious activities and is a national heritage of special historical and cultural value, if there is a risk of damage to the traditional temples due to the division, etc., it seems that the intervention of the State is inevitable within a certain limit. As seen above, the authority held by the administrator is limited to the affairs of the property management and does not extend to the religious matters, and it is limited to the matters of the religious nature. In addition, if the administrator is dismissed even after the reasons for appointment have been terminated, the interested parties may file an application for dismissal against the administrator and file an administrative lawsuit against the rejection disposition if they are rejected. Considering these various circumstances, Article 12 of the Preservation of Traditional Temples Act on the administrator provides the minimum restriction for public welfare, and thus, it cannot be viewed as violating the principle of excessive prohibition, thereby infringing on the property rights or the freedom of religion or violating the principle of equality.

Therefore, the judgment of the court below on the premise that Article 12 of the Korean Traditional Temples Preservation Act does not violate the Constitution is just, and even if the court below did not make an explicit judgment on the petitioner's assertion of violation of the Constitution, it cannot be said that there is an error of law that affected the result, and therefore, the grounds for reappeal on this point

2. As to the authority, recognition, etc. of the administrator

The court below rejected the application of this case on the ground that, in this case, the applicant filed a claim against the respondent 2, who is widely known by the first order of the inspection of this case, who had been appointed as a legitimate chief of the inspection of this case from the non-applicant non-applicant, and who had been appointed by the first order of the inspection of this case, interfered with the execution of religious duties as a chief of the inspection of the temple and the building within the temple, the administrator shall have the right to manage all the property belonging to the inspection on behalf of the inspection of the inspection of this case, and that, if the inspection is appointed as an administrator, the administrator shall have the right to manage the property on behalf of the inspection of the inspection of this case and that the authority of the representative officer shall be suspended until the administrator is dismissed, the applicant shall not exercise the right to represent or manage the inspection of the inspection of this case. Accordingly, the applicant

First, even though the appellant has reduced the purport of application by a petition of appeal to the effect that it does not obstruct the performance of his/her religious duties, such as Buddhist and Buddhist conduct, edification of believers, etc., the court below erred by understanding that it does not obstruct the purport of application to enter or leave the temple building in light of the premise, and that the custodian's authority is limited to the detailed duties concerning the management of property. As such, even if the administrator is appointed, the applicant has the authority to carry out his/her religious duties while entering and leaving the temple. Thus, even if the administrator is appointed, the court below determined that the applicant has no legal right to enter or leave the temple, or leave the building of the temple, even if the administrator does not have a legal right to enter or leave the temple. However, according to the records, it is not proper to determine the court below that the applicant does not have a legitimate right to request an administrator of the temple from his/her religious property within the scope of his/her religious authority's official duties, and it can be acknowledged that the applicant does not have a legitimate right to request an administrator of the temple from his/her religious property.

Therefore, the application for provisional disposition of this case cannot be dismissed, and the court below's inappropriate interpretation as to the purport of the application does not affect the conclusion of the judgment, and therefore, the ground for reappeal as to this point is rejected.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)