[1] In a case where the members withdraw collectively from a church, whether the church, which is an association which is not a juristic person, is recognized as belonging to the division of a church in the form that the properties of the previous church are collectively owned by the members of each divided church (negative), and in a case where the members withdraw from the 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)

[2] The requirement for resolution to leave a religious order or move to a different religious order (=the agreement of 2/3 or more of the members with voting rights) and where a church leaves a religious order or moves to a different religious order after meeting the above resolution requirements, the ownership of the properties of the previous church (=collective ownership of the withdrawing members of the church)

[1] [Majority Opinion] The Civil Act recognizes the withdrawal or dissolution of members of an association incorporated in the Civil Act, but it does not recognize the division of an association which owns the properties belonging to the previous association while its members are divided into two corporations, each of which exists independently. The legal principles also apply to associations which are not legal entities, and it is not permitted to divide an association in the form of collective withdrawal from the members of an association which is not a legal entity, which brings about the result that the properties of the association before the division are divided into two and collectively owned by the members of each association which is not a legal entity. As long as a church exists as an association which is not a legal entity, the division of an association which is not a legal entity shall be determined by the general theory of the Civil Act concerning an association which is not a legal entity to grasp the substance of the church and to determine the division of the properties of the association, and accordingly, the legal principles concerning the property relations of an association which is not a legal entity and the rights of members of the previous church to leave the previous church and the effects of collective withdrawal from the church, which shall belong to the remaining members of the church.

[Concurring Opinion by Justice Park Si-hwan] Since the Civil Code does not specifically prohibit the division of an association and there is no special reason to prohibit the division of an association, the division of an association shall also be deemed permitted under the Civil Code of the Republic of Korea. In addition, in a case where the situation of the division of an association is not attributable to the voluntary will of the members, but for any other reason, and it is no possibility that the association can be recovered into one association, recognizing the situation as the fact of the division, and arranging the legal relationship as it is does not permit. It is reasonable to form a legal reasoning explaining church disputes under the premise that the division of a church is recognized, and in a case where the division of a church is permitted, the rights and obligations belonging to the previous church shall be deemed to be inherited separately in the form of co-ownership with each divided church (any debt shall be deemed to be borne by each divided church), and it shall be reasonable to determine the share of each church by each registered church at the time of the division.

[Dissenting Opinion by Justice Shin Shin-chul] The previous precedents allow the concept of division and recognize the collective ownership of the members before the division only for churches among various associations which are not juristic persons. In essence, in the case where a church is a religious organization, which is a group of the members based on the same religious faith and has a manager separately from the difference of religious service routes and where the members are divided into groups that carry out religious activities or different religious orders, it is no longer the fundamental foundation of the religious organization as a religious organization. Therefore, even if some members withdraw from the previous church, even if some members have contributed to the formation of the properties of the previous church, it is difficult to view that the previous precedents are inconsistent with the provisions on incorporated associations under the Civil Act or the legal principles on associations which are not juristic persons, and therefore there is no need to revise the previous precedents, so long as they reflect the actual operation of a church, it is desirable to reasonably maintain the legal relationship of the previous church after the division of rights and interests of the members.

[Supplementary Opinion by Justice Kim Young-ran]

(A) The conclusion according to the previous precedents has been merely because it does not interfere with the church's internal disputes and calls for autonomous resolution between the parties, and has lost the function of resolving the actual disputes, and as long as the church has lost its persuasive power as to whether to apply various theories different from the basic principles of the organization law only to the church, it shall be determined about the church's properties according to the general theory of an association which is not a juristic person and thereby, shall be resolved legally.

(B) In the Concurring Opinion, the sharing theory is weak in theoretical grounds and does not function to resolve disputes in reality. Even if an association receives a divided social reality, as a legal effect granted to each association, unless stipulated by the articles of association, etc. of the previous association, Articles 275 through 277 of the Civil Act are applied to the property relationship as a legal effect granted to each association divided, and the right to the properties of the previous association is not determined by the status of its member. This is an inevitable result as long as the Civil Act of Korea provides that the properties of an association which is not a juristic person are collectively owned as its property form.

(C) It is also difficult for the Dissenting Opinion to agree with the fact that the freedom of religion of the minority is required for the reason that the previous precedents should be maintained. As long as the minority members can enjoy freedom of religion by choosing a church on their own or withdrawing from the church selected by them and finding a church they wanted, it would be an denial of the principle of organization law that protects the characteristics of the members to determine the ownership of church properties based on the freedom of religion of individual members.

[2] [Majority Opinion] In a case where it is recognized that a branch church which has joined a specific religious order has accepted the constitution of the religious order as its rules, changes to the religious order result in the changes of the rules of the branch church, and if the branch church has its own rules, changes to the religious order entails changes to the matters included in the rules of the branch church, such as the name and purpose of the branch church, and therefore the withdrawal from the religious order or changes to the religious order requires a resolution with the consent of 2/3 or more of the members with voting rights, as it involves changes to the articles of incorporation of the incorporated association. In a case where the branch church that has joined the religious order withdraws from the religious order or changes to the different order, the previous church exists as a church that has left the religious order, and the properties of the previous

[Concurring Opinion by Justice Son Ji-yol, Justice Park Jae-yol, Justice Kim Yong-dam, and Justice Kim Ji-hyung] A church changes to a different religious order not only from the point of view of a religious community, but also from the point of view of changing the purpose or name of an association, the church does not merely change the purpose or the form of worship, which is the core element of the existence of a church, or the form of worship, which is the expression of a religion, but also brings about fundamental changes to the common route and the activity system concerning missionary work and the church administration, which shall be evaluated as seriously affecting the identity and consistency of the church which is a religious community. From the legal point of view, changing a church to a different religious order is not only a church belongs to the previous religious order but also a church that has the nature corresponding to the articles of incorporation of an association, but also a church that has a new organization that belongs to a new religious order. Thus, if a church changes to a different religious order as such, it is reasonable to legally apply Article 42 (1) of the Civil Act to move to a different religious order, and to the general assembly.

[Supplementary Opinion to the Majority Opinion] Moving to a different religious order is naturally premised on the premise that the previous church continues to exist while maintaining its consistency, and that only the provisions of the Civil Act concerning the requirements for the resolution of dissolution of an incorporated association shall not apply to a change to a different religious order, as a logical conclusion that there is no room for applying the procedural provisions for the extinguishment of a corporation to the change to a different religious order.

[1] Articles 31, 275, 276, and 277 of the Civil Act / [2] Articles 40, 42, 78, and 275 of the Civil Act

[1] 대법원 1957. 12. 13. 선고 4289민상182 판결 (변경) 대법원 1962. 1. 11. 선고 4293민상395 판결 (변경) 대법원 1970. 2. 10. 선고 67다2892, 2893 판결 (집18-1, 민58)(변경) 대법원 1970. 2. 24. 선고 68다615 판결 (집18-1, 민101)(변경) 대법원 1971. 2. 9. 선고 70다2478 판결 (변경) 대법원 1973. 1. 16. 선고 72다2070 판결 (변경) 대법원 1976. 2. 24. 선고 75다466 판결 (변경) 대법원 1985. 2. 8. 선고 84다카730 판결 (공1985, 416)(변경) 대법원 1985. 9. 10. 선고 84다카1262 판결 (공1985, 1323)(변경) 대법원 1987. 6. 30.자 86마478 결정 (공1987, 1512)(변경) 대법원 1988. 3. 22. 선고 86다카1197 판결 (공1988, 669)(변경) 대법원 1989. 2. 14. 선고 87다카3037 판결 (공1989, 412)(변경) 대법원 1990. 12. 7. 선고 90다카23561 판결 (공1991, 436)(변경) 대법원 1990. 12. 21. 선고 90다카22056 판결 (공1991, 586)(변경) 대법원 1992. 10. 9. 선고 92다23087 판결 (공1992, 3113) 대법원 1993. 1. 19. 선고 91다1226 전원합의체 판결 (공1993상, 712)(변경) 대법원 1995. 3. 24. 선고 94다47193 판결 (공1995상, 1729)(변경) 대법원 1995. 2. 24. 선고 94다21733 판결 (공1995상, 1430)(변경) 대법원 1995. 4. 21. 선고 94다42686 판결 (변경) 대법원 1995. 5. 12. 선고 94다54696 판결 (변경) 대법원 1995. 6. 16. 선고 95다5905, 5912 판결 (공1995하, 2506)(변경) 대법원 1995. 7. 11. 선고 95다4100, 4117 판결 (변경) 대법원 1995. 9. 5. 선고 95다21303 판결 (공1995하, 3356)(변경) 대법원 1998. 2. 24. 선고 97다45327 판결 (공1998상, 847)(변경) 대법원 1998. 7. 10. 선고 98도126 판결 (공1998하, 2174)(변경) 대법원 2000. 11. 14. 선고 99다20667 판결 (변경) 대법원 2001. 6. 12. 선고 2000다32420 판결 (변경) 대법원 2001. 6. 26. 선고 2000도2222 판결 (변경) 대법원 2002. 12. 6. 선고 2002도5216 판결 (변경) 대법원 2005. 10. 28. 선고 2005도3772 판결 (공2005하, 1902)(변경) [2] 대법원 1978. 10. 10. 선고 78다716 판결 (공1979, 11549)(변경) 대법원 1980. 2. 12. 선고 79다1664 판결 (공1980, 12648)(변경)

1. The term "the term" means "the term "the term" means "the term or "the term" means "the term or "the term" means

Party A church (Law Firm Bupyeong General Law Office, Attorneys Choi Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na48701 delivered on June 22, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Legal nature of a church

When a church completes registration for incorporation with the permission of the competent authority, it shall be established as a non-profit corporation under the Civil Act. In addition, even if a church does not acquire the legal personality, if it is recognized that many people who believe the doctrine of the doctrine of the reading form an aggregate for the purpose of joint religious activities, establish rules and other norms, organize a decision-making institution and organize a representative, and perform social and economic functions as an independent organization, such as the management of the church properties, and that it satisfies the general requirements of an association which is not a juristic person, the church shall be established and continued as an association which is not a juristic person. In the intention to widely disseminate the doctrine of the reading, the church shall be established and continued as an association which is not a juristic person, without strictly reviewing the qualification of the members, and as a result, allowing the church to participate in the worship, as a result, it is free to join or withdraw a church, and even if the members of the church

Meanwhile, in a case where a new church with the substance of an association which is not a juristic person (hereinafter referred to as the "association") is incorporated as a branch church that belongs to a specific religious order and forms a decision-making body in accordance with the constitution of the religious order and receives the representatives of a branch church that belongs to the religious order, there exists no difference according to the constitution of the religious order, but in principle, the branch church is an association that is not a juristic person that is independent from the religious order and the religious order is only the higher organization of the branch church in its internal relations. However, even if the branch church does not establish its own rules or meets its rules, the Constitution of the religious order prescribed by the religious order can be accepted as an autonomous norm corresponding to its rules, but it is bound by the constitution of the religious order to the extent that it does not infringe on the independence of the branch church or the essence of the religious freedom (see Supreme Court Decisions 4291Sang467, Feb. 25, 1960; 207Da2202, Dec. 18, 1967).

2. Legal relations of an unincorporated association;

A. Our Civil Act only has Articles 275 and 277 that stipulate the form and management of property ownership in relation to the legal relations of an unincorporated association. As such, with respect to other legal relations such as the substance and establishment of an association, acquisition and loss of employee qualifications, method of representation, operation of a general meeting, reason for dissolution, etc., the remaining provisions of the Civil Act, except for the provisions premised on the legal personality, are applied by analogy in principle (see Supreme Court Decision 92Da23087, Oct. 9, 192, etc.).

Therefore, since an association which is not a juristic person has the substance of an association but does not register its incorporation, it shall continue to exist independently from the personal activities of the members in the organization and structure, and the acquisition and loss of the membership of the association shall be made in accordance with the rules of the association (Article 40 subparagraph 6 of the Civil Code). However, an association which is not a juristic person shall not lose the identity by the withdrawal or joining of the members, and shall continue to exist while maintaining its substance. Since the above legal principle applies equally to the case where the members of an association which is not a juristic person withdraw collectively, the above persons lose their membership in group, while the organization which is not a juristic person still maintains the substance of an association which is not a juristic person.

The property of an association which is not a juristic person is jointly owned by its members (Article 275(1) of the Civil Act), and the members of an association which is not a juristic person shall have the right to use and benefit from the property as prescribed by the rules, etc. inside the association (Article 276(2) of the Civil Act). As such, the status of members of an association which is not a juristic person to participate in the resolution on the management and disposal of the property owned by the association, or the right to use and benefit from the property of the association, is premised on the status of members of the association. Thus, the members lose their right at the same

Meanwhile, since a member of an unincorporated association only has the right to use and benefit from an association and has the right to share in an association property beyond this is not recognized, not only disposal and management of collective ownership property but also preservation activities should be made in the name of an association which is not a juristic person (see Supreme Court en banc Decision 2004Da44971, Sept. 15, 2005). Unless otherwise provided by an association agreement, a resolution of a general meeting as a decision-making body should be adopted (Article 276(1) of the Civil Act). Unless otherwise provided by an association agreement, a resolution of a general meeting shall be made in the presence of a majority of members and a majority of the members' right to attend (Article 75(1) of the Civil Act). However, in cases where the rules stipulate the details of property in accordance with an association or where the existence of property is directly related to the accomplishment of the purpose of an association and the name and location of an association, the disposal of the property should be interpreted to require the consent of more than 2/3 of members by analogy.

B. The Civil Act recognizes the withdrawal or dissolution of a member in the case of an incorporated association, but it does not recognize the division of an incorporated association in the way that the members of an incorporated association are divided into two incorporated associations, and continue to exist as an independent corporation and owned property belonging to the previous incorporated association. Therefore, the legal principles are equally applied to an unincorporated association, and the division of an unincorporated association is not allowed in the form that, with the collective withdrawal of the members of an unincorporated association, an association is divided into two associations and the property of the association before the division results in the collective ownership of each member of the divided association.

Meanwhile, the members of an association which is not a juristic person naturally allow the withdrawal of an association collectively from the association and the formation of a new organization by meeting the requirements for establishment of the association, but in this case the newly established association is separate from the previous association, and as seen earlier, the members lose their status as members of the association and their rights to the properties of the association when they withdraw from the previous association. Therefore, unless there exist separate legal acts such as agreement between the members of the newly established association and the members of the previous association on the properties of the previous association, the members who withdraw collectively from the previous association lose all rights to the properties of the previous association, and as such, the concept that the newly established association composed of those who withdraw from the previous association shares the properties of the previous association with the previous association or that the members of the newly established association share their co-ownership.

3. Details and problems of the previous Supreme Court precedents concerning the legal relations of a church

A. Until now, Supreme Court precedents have held that among various associations which are not juristic persons, the division of a church is permitted and the property relationship at the time of the division is collectively owned by the members at the time of the division, unlike the legal principles that apply in principle to associations which are not juristic persons only to associations which are not juristic persons.

After the sunset, the church, in particular, after the division of a branch church, had been divided several times from the 1950s to the 1960s, which led to the natural division of a branch church due to the difference in the number of the members of the branch church that belongs to the religious order, as well as the difference in the number of the members of the branch church that belongs to the religious order, which resulted in the division of the branch church naturally. In Supreme Court Decisions 4289Da182 Decided December 13, 1957, Supreme Court Decision 4289Da569 Decided August 14, 1958, which recognized the division of the branch church due to the division of the religious order, and the property relationship is the joint ownership of the members at the time of the division, and Supreme Court Decision 70Da2478 Decided February 9, 1971, which ruled that the properties of the church shall be jointly owned by the members at the time of the division, which has been established by the Supreme Court precedents.

At that time, the members did not experience the phenomenon of the division of a church or a religious order, but did not predicted or predicted, contributed to the formation of the church's properties through annual reports and money, and the religious order division led to a situation in which it was extremely difficult to maintain one religious community because the religious route has changed due to the division of a religious order. In addition, it is necessary to allow the division of a church but consider all of them to lead a religious life on the basis of the previous church. In addition, in light of the population, social and economic level at the time, branch churches were small size churches, and their market price was not high, so only a somewhat abstract decision that recognizes the rights of the members of both divided churches could expect the parties to resolve disputes autonomously.

B. The previous precedents held that if a church is divided, the properties of the previous church shall collectively belong to the members at the time of the division, and on the other hand, since each divided church can accept new members in light of the nature that the members of the church are changed continuously, they recognized that not only the members at the time of the division but also the members who newly joined after the division can exercise their right to use and benefit from the properties of the previous church (see Supreme Court en banc Decision 91Da1226, Jan. 19, 1993, etc.).

It is recognized only on the basis of the existence of an association which is not a legal entity and the qualification of its members that can participate in a resolution on the management and disposal of the property owned by an association which is not a legal entity, or that the right to use and profit from the property of an association is recognized only on the basis of the existence of an association which is not a legal entity and the qualification of its members. However, while the previous precedents recognize that the previous church is divided and the remaining church and the newly established church exist together with respect to the property of the previous church, since the previous church is deemed to exist before the division, and therefore, they have a logical contradictory structure as a member of the previous church, and as a result, they have lost their status as a member of the previous church by establishing the new church after withdrawing from the previous church and establishing the new church, as well as the members of the remaining church or the newly established church after the division, which are not a legal entity. Moreover, the previous precedents recognized that the right to benefit from the properties of the previous church can be exercised by the members of the association and the right to benefit from the use of the properties as a legal entity.

In addition, the previous precedents held that the lawsuit concerning the management and disposal of the properties of the previous church, as a logical conclusion of the above legal principles, shall be filed by the resolution of the general meeting of the members composed of the members at the time of the division (see Supreme Court Decision 95Da21303, Sept. 5, 195, etc.), and that as if the previous church and its members still exist at the time of the division of the previous church, the previous church and its members demand convocation of the general meeting and resolution as if they still exist at the time of the lawsuit. However, it is difficult to determine the members who have the right of resolution at the time of the division in the past in the real society, and it is difficult to expect the representative of the previous church to obtain a notice of convening a general meeting and to undergo a series of procedures for holding a resolution, even if it is impossible for the members to use the properties of the previous church without any legitimate resolution to resolve any disputes arising from the division of the church, and it is also impossible for them to use the previous church in the name of the church.

In addition, the changes in the religious order and the social and economic changes surrounding the religious order and the branch church have been caused to maximize the problems of the previous precedents. Since the 1960s, many different religious orders have existed, and there are many cases where there are many different methodology differences without essential and fundamental differences in the doctrines, so it is possible to sufficiently anticipate the withdrawal from or changes to the religious order for the members of the branch church that belongs to a specific religious order, and most of the cases in which disputes have occurred due to the division of the branch church and the change of the religious order are brought about due to the division of the branch church, the branch church's problems of the operation of the church, even if the branch church's religious order and the church even if they are in conflict with the religious order and the church's own interest even after leaving the religious order and joining the religious order that fit for their interests have been raised, and the disputes over the church properties have been raised, and the disputes have been raised, and there have been considerable difference between the church properties and the church properties.

Despite the division of many religious orders, the increase in the value of church properties, and the conflict of interests among many people, if the Supreme Court has held previous decisions to recognize all rights of the members of both divided and divided in the same way as before, it would lose its function to resolve disputes, and rather, it would result in further promotion of disputes between religious orders and members by recognizing property rights to those who have left their previous church.

4. The direction of the new legal doctrine

A. As long as a church exists as an association which is not a juristic person, in resolving disputes surrounding its legal relations by means of a lawsuit, it shall grasp the substance of the church and determine whether to vest in the properties of the church in accordance with the general theory of the Civil Act on an association which is not a juristic person. Accordingly, the above legal principles on the property relations of an association which is not a juristic person, the rights of the members of the association and the withdrawal of the members, in particular, the effects

Therefore, the members shall jointly own the church properties and use them and gain profit from them, and if some of the members leave the church and lose their status as the members of the church, whether the withdrawal is individual or collective, or not, and the status of participating in the resolution on the management and disposal of the properties jointly owned by the previous church or the right to use and gain profit from such properties, and the previous church shall continue to exist with its remaining members as its members while maintaining the consistency of its substance, and the properties of the previous church shall jointly belong to the remaining members of the church.

In addition, in cases where some of the members of a branch church that belongs to a religious order decide to leave the religious order and then establish a separate church and select a separate representative and join another 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 no longer hold the right to the properties of the previous church.

B. As seen earlier, if it is recognized that a branch church that has joined a specific religious order has accepted the constitution of the religious order as its own rules, changes to the religious order result in changing the rules of the branch church substantially, and if the branch church has its own rules, changes to the religious order entailing changes to the matters included in the rules of the branch church, such as the name and purpose of the branch church, and therefore the withdrawal from the religious order or changes to the religious order requires a resolution with the consent of 2/3 or more of the members with voting rights, in accordance with the amendment of the articles of incorporation.

(1) If a resolution on the withdrawal from or change to a religious order (hereinafter referred to as the “resolution on the change of a religious order”) was passed, but the number of members who agreed thereto does not reach 2/3 of the members with voting rights, the identity of the previous church still belongs to the previous religious order. Therefore, the members who agreed to the resolution on the change of a religious order and left the previous church collectively or joined a different religious order shall be deemed to have lost their status as members and their rights to the properties of the previous church.

(2) In a case where the above requirements for resolution to move to a different religious order are met and the entity of the previous church exists as a church that leaves a different religious order, and the properties of the previous church shall jointly belong to the members of the church that left the religious order.

Since the right to manage and dispose of the property of an association which is not a juristic person belongs to an association and the decision-making on the right to manage and dispose of it is made by a resolution of the general meeting, even if a person who does not agree with the above resolution about religious order change is placed in an unfavorable status as a result of the democratic decision-making of the association composed of a large number of members, it shall be recovered in accordance with the

Even if a resolution to move to a different religious order is made, the consistency of the previous church is maintained, so the status of members who oppose the resolution to move to a different religious order still remains maintained, and the loss of the status of members who are members of the church is determined by their own free will. Even a church that leaves a different religious order through a resolution to move to a different religious order may move to a different religious order through a resolution to move to a different religious order. Therefore, members who oppose the resolution to move to a different religious order can secure a number of members who agree with them through consultation with other members of the church and return to the previous religious order if they meet the requirements for a resolution to move to a different religious order.

As such, the area to which the new legal principles concerning resolution for religious order change apply is limited to the legal relations concerning the operation of a church or the properties of a church. Members may enjoy the freedom of religion by freely choosing a church, or withdrawing from a church selected by themselves in accordance with the doctrine of the doctrine that they believe. In addition, if a resolution for religious order change has been adopted lawfully, the opposing members may maintain their religious faith by finding out the church that belongs to the religious order they want.

(3) However, a resolution to change a religious order has an inherent limit in terms of the freedom of the branch church as well as the maintenance of the purpose of existence of the branch church. Accordingly, even in cases where the constitution of the religious order provides otherwise with regard to the permit and requirements for leaving the religious order (see the proviso of Article 42(1) of the Civil Act), if such provision harms the independence of the branch church and the essence of the freedom of religion, the binding force on the branch church shall not be recognized. On the other hand, in fact, a resolution to change a religious order that entails contradictory results in the maintenance of the church, such as the dissolution of the branch church, and a resolution to change a religious order that violates the essence of the purpose of existence of the church, such as changing a religious order to a new organization that

C. Therefore, Supreme Court en banc Decision 91Da1226 delivered on January 19, 193, which held that the division of a church is recognized and that the properties of the previous church belong to the collective ownership of the members at the time of the division, and Supreme Court Decision 78Da716 delivered on October 10, 1978, which held that the religious order of a church shall be changed only by the intention of all the members, and Supreme Court Decision 78Da716 delivered on October 10, 197, which held that the religious order of a church shall be changed to the extent that it is inconsistent with this opinion.

As the Supreme Court changed its previous opinion, while recognizing both the characteristics of a church as a religious organization and as an association, the characteristics of a church as a religious organization shall be entrusted to the unique area of a religion, and with respect to the characteristics of an association, it shall be able to achieve the unity of judicial order by regulating the characteristics of an association in accordance with the general principles of the Civil Act by directly considering the substance as property dispute. Furthermore, in the future, in the event a dispute arises in the church inside the church about the withdrawal from a religious order and changes to a religious order, it is required that the members who intend to leave the religious order be supported by at least 2/3 of the resolution right holder and go through a resolution in accordance with legitimate convening procedures. On the contrary, if a resolution is made by meeting the above requirements, it is required that a church can be operated in accordance with the principles of democracy and the general principles on associations which are not legal entities of the Civil Act, and that a church can perform the preventive function of a church dispute.

5. Judgment of this case

Comprehensively taking account of the facts admitted by the court of first instance as cited by the court below, the original church A of the Korea Emotionology is a branch church belonging to the Korea Emotionology, and the non-party is a member church of the Korea Emotionology and operated the church by arbitrarily organizing the planning committee with the heads of the parties who have a conflict, and due to this, he left the religious order after gathering the support members on August 26, 2001 and decided to establish the independent church and form the name of the defendant church (the Gangwon Emotionology Association dismissed the non-party on October 11, 201 and dispatched the remaining pastor). The defendant church, even though it actually purchased the church and the site of the church in the name of the Korea Emotion constitution A on November 21, 201, prepared documents related to the registration of transfer of ownership in its name, such as the above church, and completed the registration of the transfer of ownership.

Therefore, the previous church is a branch church that belongs to the order of the Korea Emotioninessiness Association, even though the non-party led part of the supported members, left the order and established an independent church, unless there are special circumstances, it is merely that some members leave the previous church collectively, and the plaintiff church consisting of the members who want to remain in the above order and is dispatched to the religious order, is a church that survives while maintaining the consistency as the previous church.

In addition, even after examining the records, there is no evidence to recognize that the convening process of the General Assembly on August 26, 2001, which decided to leave the religious order, complied with the requirements stipulated in the constitution of the religious order, such as the notice of convening the General Assembly, or that at least 2/3 of the persons with voting rights

Therefore, the court below reviewed whether the above assembly of August 26, 2001 was convened through the prescribed procedure and whether the members of the church who decided to leave the religious order were 2/3 of the legitimate members of the voting right, and as long as the above requirements are not acknowledged, the court below rejected the plaintiff's claim for change of the religious order without making any judgment on the validity of the above registration on the grounds that the plaintiff church after the division cannot request the cancellation of the general assembly property of the previous church on December 2, 2001, as stipulated in the Constitution of the Korea Emotioninessinessinessiness Association, in this case where the plaintiff was decided to bring a lawsuit at the church meeting of which the three members are present, and it shall be deemed that the plaintiff was admitted as the previous church and the previous church was divided into the plaintiff church composed of the non-party and the remaining members on the basis of the precedents before the change, and therefore, the court below rejected the plaintiff's claim for change of the religious order without making any judgment on the validity of the above registration.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Son Ji-yol, Justice Park Jae-sik, Justice Kim Yong-dam, Justice Park Si-hwan and Justice Kim Ji-hyung and a dissenting opinion by Justice Shin Shin-chul, and there is a supplementary opinion

6. Separate opinion by Justice Son Ji-yol, Justice Park Jae-sik, Justice Kim Yong-dam, and Justice Kim Ji-hyung is as follows.

A. We agree with the majority opinion on the fact that the provisions on legal relations of an association which is not a juristic person, except the provisions on the premise of legal personality in the Civil Act, are applied mutatis mutandis in principle to the legal relations of an association which is not a juristic person, and that the Civil Act recognizes the withdrawal of members or the dissolution of an association, but in the case of an association which is not a juristic person, it does not recognize the division of a church, as it is applied mutatis mutandis to the case of a church which is an association which is not a juristic person, and therefore, if some members leave a church and lose their status as members of that church, even if such withdrawal is a group, they lose their right to use and gain profit from the properties of the previous church, and the previous church continues to exist while maintaining the consistency of its substance with the remaining members, and the properties of the previous church belong to the joint ownership of the members of

However, I cannot agree with the view that the change of a church that belongs to a different religious order is similar to the change of the purpose of an association, and that there is the consent of 2/3 or more of the members with voting rights by applying Article 42 (1) of the Civil Code to the amendment of the articles of incorporation of an association.

B. A church, in essence, is a religious community, which is a group of members based on the same religious faith. The essential and core elements of a church, which is a religious community, are the contents of a common religious principle or a religious confession, and the formation of a church is merely a legal evaluation of the characteristics of the social organization existing among these religious communities. Meanwhile, a religious order is a higher-class religious organization organized by many churches, which share the essential and key elements of a religious doctrine or a religious confession, and jointly conduct external missionary work and internal church administration.

Therefore, from the point of view of a religious community, changing a church to a different religious order does not merely mean that the church does not simply change the purpose of its activities or the name of an association, but also brings about changes to the contents of the doctrine which is the core element of the existence of the church or the form of the worship, which is the expression of the religion, and also causes fundamental changes to the common route and the activity system concerning missionary work and the administration of the church, which shall be evaluated to have a significant impact on the identity and consistency of the church which is a religious community. In addition, from the legal point of view, changing a religious order by a church is not only a church that belongs to the previous religious order but also a church that only changes the purpose of its activities, but it shall be evaluated that the members of the previous church that belonged to the previous religious order are to dissolve the church and newly organize the church that belongs to the new religious order.

If the nature of changing a religious order is evaluated as above, Article 42 (1) of the Civil Act concerning the change of the religious order of an association shall not apply mutatis mutandis to the change of the religious order of an association, but Article 78 of the Civil Act concerning the resolution of the dissolution of an association shall apply mutatis mutandis. Therefore, it shall be reasonable to view that a church may legitimately leave or move to a religious order only when it obtains the consent of 3/4 or more of the members with voting rights at a general meeting convened through legitimate procedures stipulated in the rules of a church, etc.

C. According to the majority opinion, if it is possible to move to a different religious order with the consent of 2/3 or more of the members with voting rights at a general meeting convened through legitimate procedures, as pointed out by the dissenting opinion by Justice Shin Shin-chul and the separate opinion by Justice Park Si-hwan, it is likely to result in an unreasonable result which infringes on the freedom of religion of minority members who reach the 1/3 of the number of members or deprives of property rights, and it is not appropriate to apply the principle of majority that applies to general incorporated associations to the decision-making of religious communities related to the doctrines and services, as it is, it is impossible to deny that it is inappropriate to apply the principle of majority that applies to general incorporated associations to the decision-making of religious communities related to the doctrine and services. However, if it is deemed that a church’s change to a different religious order can move to a legitimate religious order only with consent of 3/4

D. He returned to this case, and according to the facts recognized by the court below, the previous church, which is the previous church, is a church belonging to the religious order, of the Korea Emotional Society A, which belongs to the order of the Korea Emotional Society, and the non-party, who was employed as a member of the religious order, left the religious order and established an independent church by leading some of the support members on August 26, 2001. Unless it is recognized that the above general assembly of the members on August 26, 2001, which decided to leave the religious order had gone through the convening procedure prescribed in the religious order constitution, etc., and obtained the consent of 3/4 or more of the members with voting rights at that general assembly, this is merely a collective break away from the previous church, and it is merely a church where the plaintiff church consisting of the members who want to remain under the above religious order and is in charge of the plaintiff church, who is going to move to the religious order, exists while maintaining the consistency of the substance of the previous church.

Therefore, the court below should further examine whether the above assembly was convened through the prescribed procedure and whether the members who decided to leave the religious order are 3/4 of the legitimate resolution right holder, and if it is not recognized that the above requirements are not met, the plaintiff church should be recognized as the previous church and the legitimate resolution of the general assembly concerning the filing of the lawsuit shall be deemed to have been passed. Nevertheless, the court below judged that the previous church was divided according to the precedents before the change and rejected the claim in this case on the ground that there was no resolution of the general assembly of the members at the time of the division. In so doing, the court below erred by misapprehending the legal principles concerning the permission of the concept of division of a church and the requirements for changing the religious order.

E. Therefore, the judgment of the court below should be reversed due to such illegality, and we agree with the conclusion of the majority opinion that is the same purport, but with respect to the reasons for the reversal, it is different from the majority opinion in that Article 78 of the Civil Act concerning the dissolution of an incorporated association should be applied by analogy, since the change of the religious order to which a church belongs is similar to the dissolution of

7. The separate opinion by Justice Park Si-hwan is as follows.

A. The Supreme Court has consistently recognized the division of a church, and has maintained the view that in this case, the properties of the previous church belong to the collective ownership of the members at the time of the division, and that in this regard, the division of a church shall be recognized, but the properties belonging to the previous church shall be jointly owned by each church after the division, and the properties belonging to each divided church shall belong to the collective ownership of the members of each divided church (share theory) and that in the inside of each divided church, the division of an association under the Civil Act shall not be recognized, and the church shall not be allowed to be divided within a legal meaning, and there has been conflicting opinions, such as the opinion that all properties belonging to the collective ownership of the members of the previous church shall remain jointly owned by the members of the previous church while maintaining the consistency with the previous church (the theory of division theory).

B. The majority opinion denying the division of a church in this case, in case where some of the members establish a separate church or move to a different religious order and deem that they lose the status of the members of the previous church after leaving the previous church, and that they lose all the rights to the properties of the previous church, and the previous church is in the status of belonging to the previous religious order and maintains its consistency and its properties belong to the joint ownership of the members of the previous church, but in applying Article 42 (1) of the Civil Act to the amendment of the articles of incorporation of an incorporated association, it is possible to leave the religious order and move to a different order by a resolution of 2/3 or more of the members with voting rights at a general meeting convened through legitimate procedures stipulated in the rules of the church, etc., and in this case, the previous church exists as a church that leaves the religious order, and its properties belong to the joint ownership of the members of the church who left the religious order.

In other words, if the members who agreed to the resolution for religious order change fail to reach 2/3 of the members with voting rights, the members who agree to the resolution for religious order change, leave the previous church in group, or join the other religious order lose their status as members and their rights to the properties of the previous church. On the contrary, if the resolution for religious order change is adopted, even the members who oppose the resolution, the loss of their status as members shall be decided by their own free will, so if they meet the requirements for resolution for religious order change by securing a number of members who agree with them through consultation with other members of the church, they may return to the previous religious order.

C. However, I differ from the majority opinion for the following reasons.

First of all, we cannot agree with the majority opinion that our Civil Act does not permit the division of an incorporated association. Although our Civil Act does not have any provision regarding the division of an incorporated association, it is not readily concluded that our Civil Act does not intend to prohibit the division of an incorporated association, on the ground that there is no provision regarding the division of an incorporated association. The provisions concerning incorporated associations in our Civil Act only stipulate the minimum matters necessary to regulate incorporated associations, and the rest is allowed to be decided voluntarily between the members of an incorporated association and the parties, unless it is contrary to the nature of the incorporated association in private autonomy or it does not infringe upon any third party’s interest.

Therefore, since our Civil Code does not specifically prohibit the division of an incorporated association and there are no special reasons to prohibit the division of an incorporated association, it shall be deemed that the division of an incorporated association is permitted under our Civil Code. In reality, there is no reason to prohibit the members of an incorporated association from voluntarily dividing an incorporated association by a resolution or agreement (in this case, it shall be permitted by the competent authorities in accordance with the case of the establishment of a corporation or the modification of the articles of incorporation) and to remain members of one of the divided associations. In addition, if the division of an incorporated association is possible by a voluntary resolution of the members, it shall not be based on the voluntary will of the members, but for any other reason, it shall not be deemed that the status of the incorporated association is recognized as the fact that the corporate association is actually divided and the possibility of its recovery is no longer possible.

The division of a church is in the same state where one church continues to be in dispute due to the conflict of opinions on the methods of the church and the operation of the church or the right to lead the operation of the church, and the pastor and the members are divided into two groups, and it is in fact appropriate to deem that one organization is divided into two, which is entirely different from the withdrawal of one of the members individually or collectively, and the majority opinion is evaluated to be in violation of its essence by organizing it as an individual or collective withdrawal of the members.

Therefore, I cannot agree with the logic of the majority opinion that, since the division of an association under the Civil Act is not permitted, such legal reasoning shall apply to an association which is not a juristic person, and as a result, the division of a church shall not be permitted.

D. In a case where the division of a church is not permitted as stated in the majority opinion, the properties of the previous church shall be maintained, the properties of the previous church shall belong to the surviving church, and the rest of the members who oppose the division shall be entitled to choose only one of the remaining members or the withdrawal from the church, there are unreasonable results in various aspects as follows.

(1) The difference in the doctrine which is the cause of the division of a church or the change of a religious order is deemed to be the core part of our religious order, and the main cause of the division of the majority church seems to be disputes over the right to lead the church properties or the church. In the case where a resolution for religious order change is adopted, if the majority opinion fails to obtain the consent of 2/3 or more, the opposing members of the resolution can remain or leave at their own discretion. The remaining meaning of this matter is nothing more than that of giving up the assertion about the right to lead the church or the right to lead the operation of the church and being forced to follow other religious life against their faith, and therefore, in order to make their faith properly, the members are bound to choose from the previous church regardless of their faith, and eventually, the result of the division of the majority church is deprived of their right to jointly own properties regardless of their own faith, which eventually results in the deprivation of their right to share the properties of the previous church beyond the majority of the minority members, which is the majority of the previous church's properties.

(2) From a religious point of view, in a case where a large number of members want to move to a different religious order, if the number of members who want to move to a different religious order does not exceed 2/3, the entities of the previous church shall remain in the status of the previous religious order and shall not leave the religious order. In such a case, there is a side effect that the governing power over the branch church that belongs to the religious order shall be strengthened more than necessary, and the meaning of the church as a religious community and a place of religious life of the members shall be reduced, and as a result, there is an unreasonable result that many members move from the religious community and a place of religious life of the members.

(3) The majority opinion states that a branch church that belongs to a religious order may leave or move to a different religious order by a resolution of 2/3 or more of the members in terms of the fact that a change in the religious order constitutes a change in the articles of association, but in the case of a church dispute that does not change a religious order or a dispute of an independent church that does not belong to any different religious order, it is not helpful to resolve the dispute if there is no explanation as to the decision of the church that maintains the consistency of the previous church in accordance with the criteria. If a resolution of 2/3 or more of the branch church that belongs to a religious order is requested as the same as that of

(4) In a case where a resolution to move to a different religious order is adopted, the remaining members of the previous church shall be deemed to have forced the previous church to leave from the previous church regardless of their own will by maintaining and maintaining the consistency of the church that left the religious order, even though they did not have any intention to leave the religious order from the previous church.

In addition, as a way to resolve church disputes, new representatives (paths), removal of existing representatives (paths), expulsion of members (paths), etc. In this case, if the church rules provide for the appointment and dismissal of representatives and the quorum for expulsion of members, it shall be followed. If there is no other quorum, a resolution shall be passed with the attendance of a majority of members and the consent of the majority of members present. In this case, there may be confusion and conflicts as to which quorum is the basis for resolution of church divisions, if the quorum for the appointment and dismissal of representatives and the expulsion of members are different.

(5) The criteria presented by the Majority Opinion are difficult to become a practical way to resolve church divisions.

The majority opinion does not allow the division of a church itself, depending on whether the number of the members who leave the church secure 2/3 or more or not, and if it is secured, the right to the properties and operation of the church shall be granted to the groups of the members who have secured it, so that the opposing groups (the remaining groups of the previous church) shall force them to waive all their rights held in the previous church or to lead a religious life against their faith, and if the separated group fails to secure 2/3 or more, it will result in the same number and even if it exceeds half. Considering that a large number of church disputes are actually disputes over church properties, it is doubtful how much the above conclusion is accepted and net.

In addition, whether a member withdraws from a religious order or not shall be determined on the basis of cases where the member expresses his/her intention to withdraw from the religious order or where the member performs the services of a different religious order. However, unless the minority opposing members in cases where a church is divided and a resolution to move to a religious order is adopted, unless the minority opposing members and the supporting members in cases where a resolution to move to a religious order is made but they form a completely separate religious community from the previous religious community or express their intention to withdraw from the church, it is very difficult to judge whether the above members withdraw from the religious community. In fact, it is questionable whether it is feasible to force the members of the previous church to leave the church and exercise their authority to operate the church, and ultimately, it is difficult to say that the disputes between the members continue to continue to exist, without resolving them.

(6) The majority opinion requires a resolution at a general meeting convened through legitimate procedures by means of a resolution of 2/3 or more. However, in the event that a dispute is so serious that a church may actually be divided, there is no authority to convene a general meeting to permit the convocation of a general meeting to resolve the division of a church. Of course, it is difficult to expect that a general meeting convened by such method will work in an effective dispute resolution method that reflects the total value of the whole members.

The strict requirement of the Majority Opinion cannot be ruled out that the social phenomenon that actually exists as a separate organization may not be easily and appropriately used to resolve disputes, instead of making it difficult to use the dispute resolution method, the possibility that the dispute itself can be divided into suppressions or that it may be linked to an unexpected situation in which excessive concession is forced.

E. As seen above, there are various problems in the majority opinion, and it is reasonable to form a legal principle that explains church disputes on the premise that the division of a church is recognized by respecting the social phenomenon that has been divided and completed.

Furthermore, in the case of permitting the division of a church, since the division of a church is divided into a separate church and the previous church does not exist, it shall not be deemed that the rights and obligations belonging to the previous church belong to the collective ownership of the members at the time of the division, such as the previous precedents, but it shall not be deemed that the rights and obligations belonging to the previous church belong to the collective ownership of the members at the time of the division, and it shall not be deemed that the obligations are divided into the collective ownership of each divided church (the obligations shall be deemed that each divided church bears the joint and several relations), and it shall be reasonable to determine the share ratio of each church by the number of the three members registered with each divided church at the time of the division.

Although there is criticism that there is no legal basis to recognize the establishment of the sharing relationship or the comprehensive succession, or that it is practically difficult to grasp the number of the persons who are registered with a church, the above criticism is not acceptable in light of the fact that it would be the most natural to allow the comprehensive succession of rights and obligations in the case of permitting the division of a church, and that the formation of the legal reasoning in the form of the joint ownership would be the most compatible with the equity among the members of each divided church, the fact that the disputes over church properties can be minimized and resolved promptly according to the legal principles based on the sharing relationship such as the division of co-owned property, the fact that the status of the minority members can be protected, and the fact that it is not impossible to grasp the number of the persons who are registered with a church, unlike the case of a temple, is not the case

F. Ultimately, among the previous precedents, the part concerning the reversion of the property at the time of the division of a church shall be modified, and in this case, the court below recognized that the previous church A of the Korea Emotional Diplomatic Association has been divided into the plaintiff church and the defendant church, the court below should have determined the shares of each church after investigating the number of the entire three times of the division and the number of the three times of the members and both of the plaintiff and the defendant church at the time of the division, and have accepted the claim for cancellation of the registration of transfer of ownership equivalent to the shares of the plaintiff church from among the registration of transfer of ownership completed in the future of the defendant.

Therefore, the judgment of the court below should be reversed due to such illegality, and the majority opinion agrees with the conclusion of the judgment with the same conclusion, but it is different from the reasoning for the reversal, thereby clarifying the separate opinion.

8. Dissenting Opinion by Justice Shin Shin-chul is as follows.

An association which is not a juristic person existing in our society is difficult to be regulated by a single legal doctrine due to diverse forms, depending on the purpose and form of existence, the relationship and degree between members, and the formation of an association's property, and there are no separate provisions in the Civil Act. The previous precedents, such as Supreme Court Decision 92Da23087 Decided October 9, 192, which the majority opinion cited, also apply mutatis mutandis to the relevant provisions of the Civil Act concerning incorporated associations to the extent that does not go against the characteristics of the organization, and do not mean to deny the application of a separate legal doctrine according to the characteristics of the

The Supreme Court has consistently allowed the division of a church for a period exceeding half the century, and in this case, it has been decided by the legal reasoning that the properties of a church belong to the collective ownership of the members at the time of the division. But the previous precedents allow the concept of division only for the church from among various associations which are not juristic persons, and recognize the collective ownership of the members before the division, in essence, as a religious organization, which is a group of the members based on the same religious faith, the church is essentially a group of the members on the basis of the same religious faith, and in the case where the church conducts religious activities under its delivery or divides the church into a group with different religious orders, it is no longer the essential foundation as a religious organization, and therefore it is judged that the church properties are divided. Furthermore, even if some members leave the previous church, as long as some members have contributed to the formation of the properties of the previous church, it is derived from the point that the status of collective ownership right holder and the right to use and profit from such properties should be guaranteed.

Therefore, the previous precedents cannot be deemed inconsistent with the provisions on incorporated associations under the Civil Act or the legal principles on unincorporated associations, and rather, as long as the previous precedents reflect the actual operation of churches, there is no need to revise the previous precedents.

Furthermore, I would like to point out that there may be problems that infringe on the freedom of religion of the minority.

All citizens have freedom of religion (Article 20 (1) of the Constitution) and this includes freedom to engage in religious activities according to the doctrine that they believe, so the members of a branch church that belongs to a certain religious order have the right not to be forced to move to a religious order which opens another doctrine against their will.

However, according to the majority opinion, the members are deprived of their right to use and benefit from church properties unless 2/3 or more even in a case where they leave a church collectively because they are unable to use the crossing or vision for any reason, for example, they are deprived of their right to use and benefit from the church properties, so they do not allow their members to enter the church building. On the other hand, if they obtain the consent of 2/3 or more of the members, they can rest with the previous religious order and join the different religious order, and if they refuse to participate in such a strike and want to remain in the previous religious order, they are deprived of their right to use and benefit from the church properties, even though they believe that they are maintaining the consistency of the previous church, so long as they do not pluck up their religious faith, it cannot be said that it is difficult to recognize that it clearly infringes on the freedom of religion of the minority.

In addition, in accordance with the majority opinion, in the case of a church, the church is a person with the power who is supported by 2/3 or more of the members, and the person with the power can not only drive away the minority of the members who are opposing him from the church, but also join a different order by meeting the above requirements and leave the order by a resolution of 2/3 of the members without the mind, so it is likely to encourage the division of the church and cause confusion in legal relations.

The majority opinion shall accept the legal principles of an association under the Civil Act, which is based on the principle of majority, even a church, which is a religious organization, without disregarding its characteristics, thereby infringing on the freedom of religion of minority members concerning the doctrine of doctrines and worship, as well as encouraging the division of a church by majority, and therefore, even if a church has been divided, the members at the time of the division still hold the right to use and gain profit from the church properties as collective ownership holders, and also make it impossible to dispose of the church properties unless the resolution of the general meeting consisting of the members at the time of the division is passed.

The majority opinion does not deny that the previous precedents are based on the position that the previous precedents are closed that does not function to solve disputes over church properties, and there are parts to be heard. However, it is desirable to maintain the previous precedents and find and develop legal principles that can reasonably regulate legal relations or legal relations with respect to the properties of the previous church after the division in the future specific cases in the future, so that it is more strict interpretation of the requirements for allowing the division of a church and can more easily handle church properties by the total of the members, and develop the theory of precedents in the direction of proposing specific methods such as the scope of the members with voting rights at the general assembly, the convening authority and convening authority of the general assembly, the method of meeting, and the method of meeting. Therefore, it is desirable to maintain the previous precedents in the direction of denying the phenomenon of church division, such as the majority opinion, but to believe that it is desirable to find and develop the previous precedents in the future.

For the above reasons, the previous precedents on the division of a church and the reversion of the property should be maintained, and the majority opinion that should be modified is not acceptable. Accordingly, the judgment of the court below in accordance with the previous precedents should be maintained.

9. Concurrence with the Majority by Justice Kim Young-ran

A. In view of the previous precedents that allow the division of a church as an association which is not a juristic person, and there is no clear theoretical basis for the alteration of the general legal doctrine of an association which is not a juristic person with respect to the property relationship in that case without applying it as it is. From a historical point of view, the Supreme Court Decisions 4289No182 Decided December 13, 1957 and 4289No569 Decided August 14, 1958, which were sentenced at the time of the division, decided that the church was collectively owned by the members at the time of the division, which is not a juristic person, by holding that the church was owned jointly by the members at the time of the division, and that the church still belongs to the collective ownership of the members at the time of the division, including the church properties which were collectively owned by the members at the time of the division, and that it still belongs to the collective ownership of the members at the time of the division (see Supreme Court Decision 207Da17497, Jul. 27, 197).

As to the attitude of such precedents, the theory of intellectual property and precedents where the identity of the members is buried or the distinction between the division and the withdrawal or the secession is ambiguous has been applied. As a result, the actual members and the collective ownership right holder is divided into two churches where the identity of the previous church is different, it is not only the theoretical problem that the existing church still permits the legal situation that exists as the subject to the ownership of the properties, but also it is not possible to make a resolution at the general meeting of the members at the time of the division, but also it is possible to use and profit from the properties of the previous church to the extent that each divided church does not interfere with the use and profit-making of the other party, but it is actually impossible to actually use and gain profit from the properties of the previous church, other than the church building, the resolution on how to use and profit-making of the specific properties, such as the company house and the claim of the pastor, etc. In this regard, it has to be pointed out in the majority opinion, and it has to be more persuasive and to resolve the dispute between the previous church and the association, which has lost its function.

B. The separate opinion argues that a resolution of 3/4 or more of the members shall be required to move to a different religious order is not acceptable in that it is a teleological interpretation that can prevent the division of a church by strict requirements for moving to a different religious order, but it is difficult to accept the legal basis.

The above separate opinion states that Article 78 of the Civil Code concerning the dissolution of an incorporated association shall apply mutatis mutandis to a resolution for religious order change on the premise that the religious order change has a significant impact on the identity and identity of the branch church which is a religious community, so it shall be evaluated that the previous church is dismantled and the new church that belongs to the new religious order is organized.

If a religious order change has a significant impact on the maintenance of consistency as the previous church, it is not different from the interpretation that the resolution for religious order change has the same legal meaning as the resolution for dissolution, so the legal effect of the resolution shall also be applied by applying Article 80 of the Civil Act concerning the dissolution of an incorporated association to the liquidation procedure and dispose of the church properties and extinguish the substance of the previous church ultimately (see Supreme Court Decision 2001Da32687 delivered on November 14, 2003, which applied Article 82(1) of the Civil Act with respect to the liquidation procedure of a church by applying mutatis mutandis to the liquidation procedure of a church). However, a religious order change is naturally premised on the premise that the previous church maintains its consistency while maintaining its consistency, but only the religious order shall continue to exist (the above separate opinion does not seem to deny it) and therefore, the Civil Act provisions concerning the requirements for the resolution for the dissolution of an incorporated association shall not be applied by analogy.

Therefore, the above separate opinion is difficult to avoid criticism that the purpose of requiring strict requirements to leave the religious order is to set up first and to attract unreasonable provisions for this purpose.

C. The separate opinion points out that there is little theoretical basis for the sharing theory, and it cannot be pointed out that it does not function as a dispute resolution in reality.

(1) As pointed out in the above separate opinion, the act of the members of an association which is not a juristic person dividing the previous association through a separate resolution or agreement, and the act of the members of the previous association to collectively withdraw and establish a new church is naturally permitted in accordance with the principle of private autonomy, and the majority opinion also assumes this premise. In addition, the basic position of pursuing the method of directly and appropriately resolving the social phenomenon of multiple churches through the division of a church is that the majority opinion or the above separate opinion is not different.

(2) As for the reversion and change of ownership, the court shall not recognize the change of ownership, which is not based on the provisions of law or legal action of the parties, as the core of the order of the Property Law.

However, our Civil Act adopted a unique legislation that provides for the collective ownership of the property of an association which is not a juristic person with respect to the form and management of the property among the legal relations of an association which is not a juristic person, and adopted a unique legislation that sets forth the collective ownership of the property of an association which is not a juristic person. In collective ownership, the ownership is divided into the power of management and disposition and the power of use and profit, and the power of management and disposition is allocated to the members, and the power of management and disposition is required to be exercised only in accordance with the resolution of the general meeting of an association. Therefore, even if an association is divided into social reality, unless the articles of association of the previous association are stipulated in relation to the property relationship as the legal effect granted to each divided association, the Civil Act is applied, and the right to the property of the previous association cannot be determined by accompanying the status of its member. This is not a matter of interpretation of the current law but a matter of interpretation of the current law.

The logical structure of the above separate opinion consists of three-dimensional logic: “I must accept the social reality of the division of a church,” “I would most natural to allow the comprehensive succession of rights and obligations to the extent that the division of a church is permitted,” and therefore, I would like to question whether the members of the previous church can enforce the legal effect of forcing the members of the previous church to succeed to the property to another person, without thoughting the need to recognize the social reality of the division of a church and for the reason that the comprehensive succession of the property is natural.

Ultimately, in a case where the church established as a result of the division of the previous church satisfies the requirements of an association which is not a separate juristic person, it is the subject of rights and obligations different from the previous church, and there is no ground to view that the rights and obligations belonging to the previous church are automatically divided and succeeded to the church that has been automatically divided. According to our organization law theory, it is recognized that the comprehensive succession by the merger of an organization is recognized, but it does not refer to the comprehensive succession by the division of an organization unless for the example of the company division under the Commercial Act which is recognized explicitly, and therefore, it is necessary to

(3) The above separate opinion assumes that the previous church is extinguished and two new churches are established. However, even if any organization is extinguished as a theory under our organization law, it shall continue to exist as an organization in the course of liquidation within the scope of the liquidation work (see Supreme Court Decision 2001Da32687 delivered on November 14, 2003, which is prior to the liquidation procedure of a church).

(4) The above separate opinion points out that according to the majority opinion, the members who fail to secure more than 2/3 of the voting right holder are deprived of their property rights and forced to leave the church, which goes beyond the limit that can be determined by majority majority as deprivation of the minority's property rights.

First of all, the above separate opinions do not deny the basic principles of the decision-making of an incorporated association, which is the basic principles of the organization law that is buried in the association by majority, and the disadvantage of minority members is a matter that may arise in all collective law relations to which the principle of majority applies, and therefore, it is not necessary for the state to create a new theory without express provisions only in case of churches, and to protect them by a judgment. It is necessary to consider that the previous precedents are pointed out that they violate the principle of equality in other religious organizations than the general opinion, rather than because they are pointed out in violation of the principle of equality in other religious organizations.

Rather, according to the above separate opinion, the right to use and benefit from the properties of a church may be vested exclusively in the result of the principle of majority. Determination of specific methods to use and benefit from the properties jointly owned by the co-owners should be made with respect to the management of the jointly owned properties by the majority of co-owners (Articles 263 and 265 of the Civil Act). Thus, even if there was no agreement with the other co-owners on the method of management of the jointly owned properties in advance, matters concerning the management of the jointly owned properties can be independently determined, and it is legitimate for the majority of co-owners to decide to use and benefit from the specific parts of the jointly owned properties as the method of management of the jointly owned properties (see Supreme Court Decision 2002Da9738, May 14, 2002, etc.). Accordingly, where two divided churches intend to exclusively occupy each time church building and exclude the possession of the other party, one of the most divided churches can be secured, but the majority of the above 3% exclusive right holders can be excluded from the exclusive properties.

(5) The above separate opinion points out that if the number of members in conflict with the previous church exceeds half of the total number, but does not reach 2/3, it would result in the deprivation of the rights of the majority members of the previous church surviving with the minority members exceeding half of the total number, and it would result in an unreasonable side effect so that the dominance of the religious order is too serious and that it is more strengthened than necessary to control the religious order.

However, as long as a change in a religious order must meet the requirements for the change in the articles of incorporation, it is difficult to view that the dominance of the religious order is more strengthened than necessary because it is difficult to obtain a quorum valid for the change in the articles of incorporation, and it is not unreasonable to regard that a change in the religious order is forced to leave the religious community due to the minor differences in the doctrine of the doctrine of the doctrine that a change in the religious order was made without birth and caused to leave the religious order.

(6) The above separate opinion points out that if a divided church claims that it should remain as a member of the previous church and exercise the property right, it cannot be forced to exclude it from forced execution, and it cannot be easily distinguished from whether it leaves the previous church or is only a dispute within the church, the majority opinion cannot be a dispute resolution method.

However, the decision on whether or not the members left the previous church is the natural duty of the court which examines the case, and the difficulty of fact-finding or compulsory execution is in accordance with the previous precedents, or there is no difference in accordance with the majority opinion or the above separate opinion.

Furthermore, the adoption of the above separate opinion does not actually resolve disputes.

It is difficult for two divided churches to maintain the state in which they share the same church properties and eventually one party has to institute a lawsuit for partition of co-owned properties. Since the method of partition of co-owned properties which can be divided within the framework of the current law cannot guarantee the right satisfactory to both parties, the result of allowing two churches to share the properties of the previous church should be considered not to resolve the dispute but rather to commence a new dispute. Moreover, it is not free even if there is concern that the division will be more easily promoted by allowing two churches to institute a lawsuit for partition of co-owned properties at any time, regardless of the number of members of the divided church.

(7) Although the majority opinion pointed out that a church dispute that does not change a religious order or a dispute of an independent church cannot present any answer, it will be necessary to determine in a specific case whether there was a change in purpose according to a resolution that satisfies a quorum valid in such dispute.

In addition, the question is raised about the majority opinion, such as whether the concept of withdrawal is ambiguous or not, and in that case, what quorum should be applied, and there is a practical way to predict the majority opinion. However, in the resolution of such procedural problems, I would like to emphasize that the previous precedents need to faithfully apply the principle of organization law as they go beyond the limit to introduce and apply the theories of special nature of a church.

(8) Ultimately, while the sharing theory presented by the above separate opinion guarantees divided churches the right to the properties of the previous church, it is difficult to accept as another theory replacing the previous precedents because of its theoretical defects and actual problems.

D. It is also difficult to agree with the Dissenting Opinion that the Dissenting Opinion requires freedom of religion of a minority as the reason for maintaining the previous precedents.

As shown in the majority opinion, in the dispute over church properties, the freedom of religion shall not be guaranteed only when individual members are guaranteed the right to use and benefit from the church properties.

In order to achieve the freedom of religion of individual members as pointed out by the Dissenting Opinion, the majority opinion as well as the previous precedents are insufficient, and the disputes of the church should be separated into the religious area and excluded from the subject of judicial review.

However, the issue of how to intervene in the dispute between religious organizations, such as churches, has different degrees according to the history of each country and the judicial system. However, today, there is no particular theory that we need to affirm active jurisdiction of the state court, unless it relates to the core part of the unique internal matters that should be left to the autonomy of the religious organization. From this point of view, our court has concluded a ruling that the validity and execution of the right disciplinary decision imposed by a church against a person who is a member of the church in a religious way should be left to the autonomy of the church within the church (see Supreme Court Decision 81Da276, Sept. 22, 1981, etc.). However, the court has affirmed the ruling that the church is subject to judicial review on the premise that it is no longer an internal problem of the church that a person who is subject to disciplinary action and going to move to a different order from the previous church after being subject to the disciplinary action after being subject to it and then is no longer an internal problem of the church that belongs to it.

As such, insofar as the court has not abandoned church disputes due to the conflict between the members, such as leaving a religious order, and has interfered with the legal disputes subject to judicial review, the legal principles applicable to associations which are not legal entities shall be faithfully applied. In such application, the concept of division without any grounds under our law shall not be presented in light of the freedom of religion of individual members or the essence of religious organizations, or the different interpretation of the property-related laws and regulations applicable to associations which are not legal entities, so that the members who left the religious order in group and the members of the newly established organization shall not be allowed to be granted the rights of members who left the religious order as members recognized in the previous organization.

As a result of the application of the principle of majority, even the minority members can enjoy freedom of religion by choosing a church by themselves or withdrawing from the church they selected by themselves in accordance with their doctrine of faith, so long as they can enjoy freedom of religion, it goes beyond this principle and determine the ownership of church properties based on the freedom of religion of individual members is denying the principle of organization law in which the identity of the members is buried, and thus it has already lost its justification.

E. Therefore, the previous precedents should be changed, but since the members of the previous church can leave the religious order with the consent of at least 2/3 of the persons with voting rights, I express my concurrence with the majority opinion as above.

Justices Lee Yong-hun (Presiding Justice)