Plaintiff Incorporated Foundation, Law Firm two others, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 13 others (Law Firm Lee & Lee, Attorneys Lee Jae-in, Counsel for the defendant-appellant)

June 10, 2005

1. The plaintiff's claim against the defendants is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendants deliver to the Plaintiff each building listed in the separate sheet.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the following facts: Gap 1 through 33, 36 through 46, 48, 49, 52, and 65; Eul 1 through 13, 19, 20, 23, 24, 29 through 32 (including each number; hereinafter the same shall apply); Eul 10 witness witness witness witness witness witness witness witness; and defendant 4's result of the personal examination.

(a) Establishment of a religious group;

The ○○○○○○ Association of the Religious Order (hereinafter referred to as “the Religious Order”) enacted the Do Constitution, which is the highest norm on February 7, 1972, as a religious organization that was established around April 1969 by Nonparty 7, which declared the Dolsan to declare the Dolsan (hereinafter referred to as the “Dolsan”) and established the Dolsan to change the Doldo to the Doldo, which led to the settlement of accounts following the Doldo.

(b) Main agencies of attached teams;

(1) According to the Do Constitution, the main bodies of the Religious Group are as follows:

㈎ 도전 : 종신제로서 종단을 대표하고 영도하며, 도헌 기타 규정에 의하여 필요한 지시를 하고 각급 임원을 임명하며, 종단의 각급기관은 제반 의결사항과 업무사항에 관하여 도전의 동의를 얻어야 하고, 도전 유고시는 종무원장, 중앙종의회 의장 순으로 그 직무를 대리한다.

㈏ 종무원장 : 도전이 임명하고, 도전의 지시에 따라 종무원 업무 전반을 관장하면서 종단의 대외적 업무를 종무원장 명의로 시행하며, 임기는 제한을 받지 아니하나 중앙종의회의 불신임이 있으면 해임된다.

㈐ 종무원 : 종단 본부의 업무집행기관으로서 산하에 기획부, 총무부, 교무부, 수도부가 있고 각 부의 부장, 차장 등의 임원은 중앙종의회에서 선출, 추천으로 도전이 임명한다.

㈑ 중앙종의회 : 최고의결기관으로서 선감, 교감, 보정급 임원으로 구성되고, 의장과 부의장은 호선하며, 재적의원 과반수의 찬성으로 의결한다.

㈒ 감사원 : 종단의 제반업무와 신도의 수행을 심사검토하고, 감사원장과 감사위원은 중앙종의회의 선출, 추천으로 도전이 임명한다.

(2) However, as a creativeist of the Order, the Do governor has not only the right to appoint executive officers of each level in the Do Constitution as well as the right to execute duties, but also the speech of the Do governor, whether religious matters or administrative matters, is respected by the doctrine or law, and the president, vice-chairperson, and vice-chairperson of the Central Association of Species are elected by its members, but in fact the Do governor was designated.

(c) Organization of attached teams;

Each Do Governor is a religious facility belonging to the headquarters, not all branch offices of the headquarters, and the head of the Do at which the headquarters is located, directly manages the head office and has a person in charge of management on the other seals. The head of each Do branch was the head of each Do at which the head office was located. The head of each Do branch was the head of each Do at which the head office was the head of the central office in Seoul, Gwangjin-gu, Seoul, but the head of each Do branch was the head of each Do, but the head of each Do was the head of each Do at the direction of the non-party 7 in the Gyeonggi-do, which had moved the head office to the head office of each Do. In this case, the head of each Do, the head of each Do, the head of each Do, and the head of each Do, transferred the head office to the head office of each Do, and the head of each Do branch to the head office of each Do.

The local organization of the Sejong Group is operated mainly by each room (the average number of 1,000 teachers), and the person in charge of the room is disadvantageous to him, the deputy principal or the correction, and the center, the virtue, etc. was installed at the location of the room.

D. Appointment, etc. of the Chief of the Female Headquarters by Nonparty 2

소외 7은 도헌 제정 후 최초의 종무원장으로 처남인 소외 8을 임명하고 소외 8이 사업자등록과 부동산등기부 등 각종 공부상 종단의 대표자로 등재되어 왔는데, 1995. 8. 15.경 여주도장의 별장에서 주요 간부를 모아놓고 구두로 종전에 각 도장의 관리책임자를 지칭하던 호칭인 '소장'을 '원장'으로 변경하고, 여주본부도장의 원장에 소외 2를, 포천도장의 원장에 소외 4를, 강원 고성군 토성면에 소재한 토성도장의 원장에 소외 11을 각 임명하면서, 소외 2를 비롯한 위 3인의 원장들에게 자신이 맡은 도장의 관리 등 업무 이외에 타 도장의 업무에는 관여하지 못하도록 하고, 다만 그 동안 종단의 종무원장이 해오던 성금의 관리는 여주본부도장의 원장이 맡아 관리하되, 다른 도장에서 요청하면 지출하도록 지시하였다. 소외 7은 위와 같이 3곳의 도장에 원장을 새로 임명하면서 소외 8에 대하여 “나와 몇 살 차이밖에 아니다. 이제부터 자유롭게 둘란다.”, “나이도 먹고 했으니 들던 날던 상관없다.”, “나이가 있으니 자유롭게 놔둬라.”라는 등의 말을 하였다.

E. The status and role of Nonparty 2 in the end group

In addition to the head of the branch office of the branch office of the branch office, the head of the branch office of the branch office of the branch office did not have the head of the branch office of the branch office of the branch office, and the head of the branch office of the branch office directly directed the heads of the branch office of the branch office of the branch office and carried out the overall affairs of the branch office of the branch office of the branch office. The head of the branch office of the branch office of the branch office of the branch office kept the seal of Nonparty 8, the head of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office. Nonparty 8, who is the head of the branch office, reported

However, around August 15, 1995, Nonparty 7 appointed Nonparty 2 as the president of the Women's Headquarters and ordered Nonparty 2 to manage the money of the Plaintiff's Order. Nonparty 2, upon receiving the order of the Do governor, ordered the head of the headquarters to take overall charge of the affairs of the Order, and received and managed the money from each room, and the head of the headquarters took charge of the affairs of distributing the money at the request of each stamp, school, hospital, etc.; and Nonparty 7 took charge of the affairs of the Order; and Nonparty 7 took charge of the affairs of distributing the money externally. On the other hand, after August 15, 1995, Nonparty 2 took charge of the affairs of the Head of the Order as the head of the religious Affairs Office. Nonparty 2 did not appear in the column of the final resolution of all the slips, such as the disbursement resolution of the head of the Women's Headquarters on August 15, 1995; Nonparty 2, after that time, approved Nonparty 2 to the "Director" column, and Nonparty 2 was appointed as the head of the Order 8.

While Nonparty 7 was in an old age, he died without designating the latter on January 23, 1996 when he was in a sick condition, Nonparty 2 was living for three years (or three years). Nonparty 2 continued to engage in the duties of the head of the religious affairs center, who was in the past, and was working as the representative of the religious affairs center in various external events.

F. The non-party 2's stable and the defendant's main hall;

The non-party 7 died (including death) without designating the Do governor, and there is no procedure to select the Do governor again.

The end group has made it the subject of a religious belief and faith in the field (place where he or she is fluorily fluorily fluorily fluorily fluorily fluorily fluorily fluorily fluorly fluorily fluor). From November 197, some executive officers, including Nonparty 2, such as the non-party 2, she was fluorily fluorly fluorily fluorily fluorily fluorly fluorily fluorly fluorly fluorly flu

In the course of such conflict and dispute, Defendant 4, as his representative, changed his business registration to Nonparty 2’s name on June 7, 1999, and Nonparty 8’s representative on the business registration of the Magjin-gu Seoul, Seoul, but voluntarily restored to the original state upon Nonparty 8’s claim. At around 02:00 on July 16, 1999 during the period of lectures, Defendant 4 and his other Defendants and believers were to change the name of the Magsan’s representative and set up Nonparty 2, on the ground that Nonparty 2 and Nonparty 2 had an exclusive right to reply from the Magdong-si, which was closed by Nonparty 2, and Nonparty 2 and Nonparty 2 had an exclusive right to reply from the Magjin-si. Nonparty 2 and Nonparty 2 were to arbitrarily occupy the Mag-si’s name on the ground that Nonparty 2 and Nonparty 3 had an exclusive right to reply from the Magdong-si.

(g) Disputes and confrontations between the end group;

On August 27, 1999, the employees of the non-party 2 and the non-party 2 moved to the Yando head of Sincheon-do head of Sincheon-do head of Sincheon-do head of Sincheon-do head of Sincheon-do, who opened a central conference and occupied the women's house, such as the Defendants, etc., as an illegal organization, and the non-party 8 and the non-party 8 were expelled (the non-party 2 changed the name of the representative on his own and the non-party 4 again on August 26, 1999, but the head of Sincheon-do head of Gu tried to find out the above business on September 9, 199 after receiving the petition from the non-party 8 and the defendants' side on Jan. 6, 200, but failed to do so.

After that, Non-party 2 and Non-party 8, who occupied Non-party 2 and Non-party 1, who moved in a rice farm, had followed the unity of each end group, and maintained the organization of the organizations and organizations determined by the Do Constitution of each end group, and supported them (in lieu of Non-party 2, Non-party 2 were supported by the Non-party 8, the Do governor, the Do governor, the Do governor, the Do governor, the Do governor, the Do governor, and the Do governor of Gangnam-do, and the Do governor of Busan, supported Non-party 8).

In addition, the non-party 2, who gets a stone to the field and gets a stone to the field of the field, gets a stone to the field of the Do, changed the status of 's aide to the summer of the Jind' into the status of 's aide to the summer of the Do,' and changed into the status of 's aide to the summer of the Jind' into the status of 's aide to the summer of the Do, which was being raised 3 times as a parallel to the Jind' in the field, while the non-party 8 is now implementing the previous field, the Jind' and the worship of the Do, while the non-party 8 is enforcing the law as is.

On November 200, some of the executives of the Religious Order were gathered and formed the Joint Council for the Normalization of the result of the religious branch's resolution, but they failed to independently resolve the religious branch's resolution, and in a series of lawsuits to be seen below, Nonparty 2 and the Defendants asserted that the religious group was divided, but the court did not accept it.

H. Nonparty 8’s withdrawal

On the other hand, on October 13, 200, Nonparty 8 dis-party 8 dis-party 1, 200, dis-party 1, 202, dis-party 3, 3, 4, 5, and 6 were appointed as the new president of the brigade by rejecting this and excluding Nonparty 8. On June 27, 2001, Non-party 8 opened a central meeting and dismissed Non-party 8 from office at the head of the religious affairs office, and elected Defendant 1, 2, 3, 4, 5, and 6 as the representative of the religious affairs division.

(i) Progress of a series of lawsuits related to the order;

In the process of the above-mentioned division and the non-party 8 and the non-party 2's suit were filed with the court. (1) The non-party 2 filed an application against the defendants on behalf of the defendant, but the non-party 2 rejected the non-party 2's power of representation and confirmed the non-party 2 (Seoul High Court Order 200Ra17 dated July 12, 200), and (2) the non-party 2 was ordered to suspend the performance of duties by the president of the ○○○○○○○○ 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2 and the non-party 2, the non-party 2, the non-party 2, the non-party 2 and the non-party 2, the non-party 2, the non-party 2 and the non-party 2, the non-party 2, the non-party 2 and the non-party 2, the defendant 2 and the non-party 2, the defendant 2.

(j) Establishment of the plaintiff

The plaintiff was established on December 14, 1987 in accordance with Article 100 of the Do Constitution, which is the highest norm of the religious order, "the plenary session shall preserve the real estate in the name of the ○○○○○ Foundation," which provides that the property, such as seals of the religious order, halls, etc. including the buildings in the attached list (hereinafter referred to as "each building of this case") was managed in the name of an individual or religious group, the property of the religious group was contributed to the plaintiff and used as religious facilities of the religious group after transferring ownership in the name of the plaintiff, by transferring ownership to the plaintiff.

C. Status of the Plaintiff’s representative and the Defendants

The representative of the plaintiff corporation, who is the representative of the plaintiff corporation, was assigned to the position of the assistant principal before the birth of the non-party 7, and the defendants were the non-party 2. The defendant was appointed in the training support committee as the chairman of the Board of Audit and Inspection disciplinary committee, the chairman of the Board of Audit and Inspection's situation, the chairman of the central branch council, the defendant 5, and the chairman of the Board of Audit and Inspection's circumstances, and the defendant 6 were all the defendants, such as the defendant 1, 2, 3, 4, 5, and 6 were appointed as the senior director of the subordinate organization, and the defendant 1, 2, 3, 5, and 6 were again elected as the representative of the subordinate group.

Other, the nature of the building of this case

Each of the instant buildings that the Plaintiff sought to deliver to the Defendants are religious facilities located in the brigade headquarters, such as written in the attached Table ○○○○ Council’s comprehensive arrangement drawings. The instant buildings are religious facilities located in the brigade headquarters, and are religious facilities, such as the main field where the subject of the religion was enclosed, the non-permanent building of the religious branch, the office of the religious branch, the office of the religious branch, the office of the religious branch, the office of the training institute, the Si court, and the office of the Si court, the parking lot, and the gate for the convenience of the believers, the office of the religious branch, the office of the religious branch, the office of the religious branch, the office of the religious branch, the office of the religious branch, the representative of the religious branch, the office of the religious branch, the office of the religious branch, the office of the religious branch, the office of the religious event, and various religious events, which are held.

2. Determination as to the defendants' main defense

A. Judgment on the lack of authority to act on behalf of the Plaintiff’s representative due to the expiration of the term

(1) Summary of the defendants' defense

The Defendants, according to the Plaintiff’s articles of incorporation, shall perform their duties on behalf of the oldest director. Nonparty 1 lost the Plaintiff’s director’s office due to the expiration of the term of office, so there is no authority to act on behalf of the president of the Plaintiff. Accordingly, Nonparty 1’s lawsuit filed by Nonparty 1 as the representative of the Plaintiff, which was filed by a person without the power of representation, is unlawful.

(2) Determination

According to the plaintiff's articles of incorporation, 1, 6 directors, 2 auditors (Article 5), directors' terms of office shall be 4 years (Article 7), the chief director shall represent the corporation and exercise overall control over its affairs (Article 8), and the chief director's appointment shall be prescribed as the maximum director's acting for his duties (Article 9), 2. Defendant 4 on February 20, 1993 as the plaintiff's chief director, 2. Non-party 2 was appointed as the director for his temporary organization on November 22, 1995, and the term of office expires on December 7, 1999; 3. Non-party 3, Non-party 4, the term of office of which expires on December 7, 199; 4, the term of office of which expires on December 7, 199; 5, Non-party 18, the term of office of which expires on April 14, 197, respectively; 197.

In principle, the relationship between a corporation and its director is the same as the legal relationship between the delegating and the delegated person, and when the term of office expires, the delegated relation should be terminated once the term of office of the director expires. However, if there is no director until the appointment of the succeeding director, the corporation is placed in a situation where the normal activity of the current director cannot be discontinued. This can be seen as the time when there are such urgent circumstances as stipulated in Article 691 of the Civil Act. Thus, even if the term of office expires or the resignation is a director, the director can continue to perform his duties until his new director is appointed (see Supreme Court Decision 95Da40915 delivered on January 26, 1996, etc.). According to the above recognized facts, the appointment of the director cannot be viewed as being inappropriate until the expiration of the term of office of the plaintiff on April 28, 201, because the term of office of all the directors expires, and the director is no longer in a situation to suspend his normal activity. Thus, the appointment of the plaintiff cannot be viewed as the non-party 1.

Therefore, the above safety defense of the defendants is groundless.

B. Determination on the assertion beyond the scope of the authority to act as an agent

(1) Summary of the defendants' defense

The Defendants, even if they have the authority to act on behalf of Nonparty 1 on behalf of Nonparty 1, seeking delivery against the Defendants, who are the believers using each of the instant buildings that are religious facilities, in accordance with the doctrine of religious order, cannot be deemed as going against the Plaintiff’s purpose of establishment and constitutes a violation against the Plaintiff’s purpose of establishment, and thus, cannot be deemed as falling under the ordinary business of a corporation that can be said to have been permitted by an acting representative under Article 60-2 of the Civil Act without the permission of the court. Ultimately, the instant lawsuit filed by the acting representative on behalf of

(2) Determination

On the other hand, the acting representative provided for in Article 60-2 of the Civil Act refers to the acting representative who has the authority to act on behalf of the court in accordance with Article 52-2 of the Civil Act, and it does not apply to the case where the acting representative has the authority to act on behalf of the court in accordance with the articles of association as in the case of this case. Thus, the defendants' defense of this safety does

C. Judgment on the absence of a board of directors resolution

(1) Summary of the defendants' defense

The Defendants, according to Article 14 of the Plaintiff’s articles of incorporation, stipulate matters concerning the management, acquisition, disposal, and collection of the property as the agenda of the board of directors’ meeting. The instant lawsuit seeking the delivery of each of the instant buildings, which are the subordinate properties, against the Defendants, who are the believers of the attached group, falls under the matters concerning the management of the subordinate properties, and is subject to the resolution of the board of directors, and thus, the Plaintiff filed the instant lawsuit without going through the resolution of the board of directors.

(2) Determination

According to the statement of evidence No. 1, Article 8 of the plaintiff's articles of incorporation provides that "the chief director shall represent the corporation, exercise overall control over the affairs of the corporation, and preside over the affairs of the board of directors," and Article 14 provides that "matters concerning the management, acquisition, disposal, and collection of property" shall be referred to as "matters concerning the board of directors' meetings to be resolved by the resolution of the board of directors." Thus, other than the resolution of the board of directors stipulated in Article 14, the affairs other than the resolution of the board of directors shall be interpreted as the chief director's inherent authority, and therefore, it is a question whether the plaintiff alleged that the defendants illegally occupied each of the buildings of this case owned by the plaintiff and the religious facilities of the religious group and filed a lawsuit against the defendants to deliver each

As to the common property mentioned in Article 264 of the Civil Code, the act of preservation, management, disposal, and alteration of the common property is distinguished. The act of preservation refers to a factual and legal act to prevent the destruction or damage of the common property and to maintain its phenomenon, and the act of repairing the object is the representative example of repairing the object, and the act of using or improving the object is interpreted as an act of leasing the object to the extent that the act of management does not reach the disposal or alteration of the object. Since the meaning of the "management" is not clearly defined in the articles of incorporation, the objective meaning should be rationally interpreted. Since the act of taking charge of the affairs of all corporations is unique authority of the board of directors, it cannot be interpreted as all acts concerning the property of the foundation, and as such, the act of using or improving the object beyond the preservation of the object for the purpose of maintaining its phenomenon, which is just like the interpretation of Article 265 of the Civil Code, and therefore, it does not constitute the "management" of the object to be used or improved beyond the board of directors' meeting. Therefore, it is without merit against the Defendants' defense against each of this case.

3. Judgment on the merits

A. The parties' assertion

(1) The Plaintiff, even though the Defendants were the believers of the Religious Order, was led to some believers and 2,50 persons of violence around July 16, 1999 in the course of the conflict between the division and the inside of the Religious Order, and occupied each of the of the of the instant buildings located in the Religious Order's execution agency and the employees of the Religious Order's execution agency, and controlled other believers' entry, and interfere with the execution of the Religious Order's execution and the religious life of the believers. The Plaintiff is the owner of each of the instant buildings as an incorporated foundation established for the management of the religious Order's properties, and it is not possible for the Plaintiff to maintain and preserve the property on its own due to the dispute over the status of the representative. Accordingly, the Plaintiff asserted that only the Plaintiff can take charge of it and a neutral institution, as a claim for the return against the Defendants based on ownership.

(2) As to this, the Defendants asserted that ① the Plaintiff is merely a trustee who entrusted only the name of real estate, vehicle, etc. to preserve the property, and thus, the Plaintiff, the title trustee, could not seek delivery of each of the instant buildings against the Defendants, an executive officer of the Religious Order, the title truster, and ② the Defendants, as the believers of the Religious Order, are using each of the instant buildings in line with the doctrine of the doctrine, and the other new methods are freely accessible to the mother Headquarters and are participating in the course of participation, etc., so the Defendants do not illegally occupy each of the instant buildings.

B. Determination

The following facts are revealed: ① the Plaintiff was established for the purpose of maintaining and managing the property of the Order; ② the end group was contributed to the Plaintiff after the Plaintiff’s establishment of a new individual or paper group, and the seals, community centers, vehicles, etc., which were managed under the name of the Order; ② each of the buildings of this case is a religious facility located within the mother Headquarters, and each of the buildings of this case is also subject to the registration of ownership transfer under the name of the Plaintiff except for the buildings indicated in the attached Table 14 through 16 (16) (excluding the buildings of paragraph (14) are unregistered, 15, 16 under the name of the Defendant 4); ③ the Defendants and their believers following the Defendants were removed from Non-Party 2 and each of them, and Non-Party 2 and Non-Party 3, 41 through 2, and the testimony, evidence, evidence, evidence, evidence, evidence, and evidence Nos. 30 to 361, 47, and 51 of the Defendant’s testimony and evidence No. 2.

그러나 한편, ㉮ 원고의 정관에 의하면, 원고는 이사장과 이사로 구성된 이사회를 두며(제12조), 정기이사회는 연 1회, 임시이사회는 이사장이 필요하다고 인정할 때나 재직이사 과반수 이상의 요구가 있을 때 소집되며(제13조), 이사장 1인, 이사 6인, 감사 2인의 임원을 두고(제5조) 임원은 이사회에서 선출하되 문화관광부 장관의 승인을 받아 취임하며(제6조) 각 그 임기가 정해져 있는 사실(제7조), ㉯ 그런데 원고는 1982. 12. 설립된 이래 단 한 번도 이사회가 개최된 사실이 없고, 임원 및 직원의 임명 및 해임은 도전 소외 7에 의해 전적으로 이루어졌으며, 도전의 사망 후 현재는 모든 이사들의 임기가 만료된 사실, ㉰ 원고의 정관에 의하면, 원고는 종단의 포덕, 교화, 수도 사업 및 이에 부대한 중앙본부를 비롯한 각 지방회관의 유지관리, 국민을 위한 구호자선사업 및 국가를 위한 사회복지사업 전개 등의 사업을 경영한다고 규정되어 있으나, 실제로 담당한 업무는 종단이나 각 방면에서 구입한 부동산 및 차량의 명의를 원고 앞으로 해 놓고, 주무관청인 문화관광부에 1년에 한 번씩 부동산 증감 상황을 조사·보고하는 것과 도전(도전 소외 7 사망 후에는 각 방면의 책임자들로 구성된 도정실조회임원회의)의 결정에 따라 그 명의로 수재의연금, 장학금을 기부하는 것에 그치고, 종단이나 각 방면의 부동산, 차량의 명의를 원고로 이전한 후에도 그 사용, 각종 세금·비용 등의 지출, 관리는 기존과 마찬가지로 종단 총무부나 각 방면에서 담당하고 있는 사실, ㉱ 종단의 최고 지도자인 도전 소외 7은 생전에 직접 또는 도정실조회임원회의를 통해 종단의 모든 업무 및 재단법인, 학교법인, 의료법인의 제반업무에 관하여 상세하게 지시하였는데, 위와 같은 원고의 업무 역시 원고의 기관에 의하여 자체적으로 이루어지지 않고 모두 도전의 지시에 의하여 이루어졌으며, 이사회나 이사장이었던 피고 4가 도전의 지시없이 단독으로 결정하여 진행한 업무는 없었던 사실, ㉲ 원고의 사무실은 서울 중곡동에 소재한 것으로 등기, 등록되어 있으나, 실제로 원고의 유일한 직원인 사무국장 소외 1(원고의 이사이면서 사무국장을 겸직한 것으로 보임) 및 직원인 소외 12는 여주본부도장 내 종무원의 1층 사무실을 도전, 종단의 총무부, 수도부와 함께 사용한 사실, ㉳ 소외 1과 소외 12는 이사장과 이사들의 도장을 보관하면서 도전의 지시를 받은 이사장의 지시에 따라 그에 필요한 이사회회의록 등 각종 서류를 형식적으로 만들어 주무관청에 보고하는 방법으로 업무를 처리한 사실, ㉴ 원고는 자체적인 재정수입원이 없이 오로지 종단으로부터의 자금전출에 의해 모든 비용을 감당하였고, 사무국장 소외 1과 직원 소외 12의 급여도 종단의 총무부에서 지급된 사실, ㉵ 종단의 방면이었다가 종단으로부터 징계를 받거나 스스로 독립하여 나간 용암방면(선감 소외 13)과 상도방면(선감 소외 14)은 그 소유의 회관, 회실, 차량 일부가 원고의 명의로 되어 있으나, 종단으로부터 독립한 후에도 각 방면에서 이를 사용하고 있고, 이에 대해 원고가 이의를 제기한 적이 없는 사실은 당사자 사이에 다툼이 없거나, 갑 5·32·34·35·46 내지 51·56·59·60호증, 을 1·27 내지 34호증의 각 기재, 증인 소외 10의 일부 증언, 피고 4의 본인신문결과에 변론 전체의 취지를 종합하여 인정할 수 있다.

살피건대, ㈎ 종단의 창시자인 도전 소외 7이 후임 도전을 지명하지 아니한 채 사망하였고, 도헌상 도전을 새로 선출하는 절차는 없으며, 종단의 대표자로 자처하면서 신도들이 대립하게 한 소외 2와 소외 8에 대하여 대법원이 종단의 대표자로 볼 수 없다고 판시함(피고들에 대하여는 항소심에서 종단의 대표자가 아니라고 판시하였고, 상고심에서 소를 취하함으로써 확정되었다)으로써 이 사건 변론종결일 현재 적법하고 정통성 있는 종단 대표자는 존재하지 아니하는 점, ㈏ 이 사건 각 건물 등의 종교시설은, 종단이 이를 관리하기 위해 원고를 설립하고 그 소유명의를 원고로 하였지만, 도전 소외 7의 지시에 따라 권한을 위임받은 임원들과 신도들에 의하여 종단을 운영하고 종교행사를 하는데 사용되어 왔던 점, ㈐ 원고는 이 사건 각 건물의 등기부상 소유자임에도 불구하고 도전 소외 7의 생존시 위에서 본 바와 같이 실질적 권한을 전혀 행사하지 못하였으며, 그의 사후에는 이사 전원의 임기가 만료되었으나 후임 이사가 선출되지 아니함으로써, 소외 2를 지지하는 소외 1이 이사장직무대행자이기는 하나 이사회가 정상적으로 운영되지 못하고 있는 점, ㈑ 도전 소외 7의 사후에 소외 8을 지지했던 피고들이 무력으로 소외 2측 임원들을 이 사건 각 건물에서 몰아내고 이를 점거하였으며, 그후 자기들측 신도들만을 선별하여 출입시키면서 종교활동을 하고 있는데, 종단의 신도들이 파를 나누어 대립하고 있으나 아직 '분열' 상태로는 나아가지 않았으므로 피고들도 신도의 자격으로 종교활동을 하기 위하여 이 사건 각 건물을 점유할 권한이 있는 점 등을 종합하여 보면, 종단 신도의 일부에 불과한 피고들이 이 사건 각 건물을 배타적으로 점유할 권한이 있는지 여부는 별론으로 하고, 종교재산을 법적으로 관리할 목적으로 설립된 원고가 종단의 신도로서 종교활동을 하고 있는 피고들을 상대로 하여, 이 사건 각 건물에서 퇴거하고 이를 원고에게 인도할 것을 구할 수는 없다고 할 것이다.

4. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit.

[Attachment]

Judges Park Jong-nam (Presiding Judge)