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대법원 1994. 10. 25. 선고 94다28437 판결
[소유권이전등기][공1994.12.1.(981),3101]
Main Issues

(a) Whether it is subject to a resolution of the general meeting even in cases of conducting procedural acts as an act of preserving the church property;

(b) The case holding that the lawsuit claiming the preservation of ownership, which is instituted by the representative of a church for the preservation of church property, is unlawful only by a resolution of a joint meeting corresponding to the general meeting of members;

Summary of Judgment

A. The provisions of Article 265 of the Civil Code concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned. Barring special circumstances, a resolution of a general meeting of members under Article 276(1) of the Civil Code shall be passed unless there are special circumstances, such as that the articles of incorporation otherwise provide for the act of preserving property jointly owned by a non-corporate group, the representative of which is designated, in the name of the representative, conducting procedural acts in the name of the representative

(b) The case holding that the lawsuit claiming the preservation of ownership, which is instituted by the representative of a church for the preservation of church property, is unlawful only by a resolution of a joint meeting corresponding to the general meeting of the members;

[Reference Provisions]

Article 276(1) of the Civil Act

Reference Cases

A. Supreme Court Decision 80Da2045,2046 decided Dec. 9, 1980 (Gong1981, 13461) (Gong1986, 2941)

Plaintiff-Appellee

The Korea National Assembly of Egymnasium and the Korea National Assembly of Egymnasium

Defendant-Appellant

Defendant 1 and 1 other Defendants, Counsel for the defendant-appellant

Judgment of the lower court

Suwon District Court Decision 93Na3728 delivered on May 4, 1994

Text

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

Reasons

We examine the grounds of appeal.

On the first ground for appeal

According to the reasoning of the judgment below, the court below rejected the lawsuit of this case on March 9, 192, on the ground that the plaintiff church opened a removal council on the ground that the lawsuit of this case should be dismissed in violation of the intention of the majority of the members, and recognized the fact that the plaintiff church would bring the lawsuit of this case and delegated all of its authority to the non-party. Accordingly, the above non-party is entitled to bring the lawsuit of this case as the representative of the plaintiff church.

However, the provisions of Article 265 of the Civil Act concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned. Barring special circumstances, a resolution of a general meeting of members under Article 276(1) of the Civil Act shall be passed unless there are special circumstances, such as that the church, which is a non-corporate group, with the representative's act of preserving property jointly owned, conducts legal acts under the name of the representative, as the act of preserving the property jointly owned (see Supreme Court Decision 84Meu6, Sep. 23, 196).

Therefore, in order to legally file a lawsuit only with the resolution of the board of directors of a plaintiff church as recognized by the court below, there should be special provisions on the resolution of the board of directors of the plaintiff church. Furthermore, when examining the rules of the plaintiff church (the evidence No. 2-1 of the plaintiff church), the council of the plaintiff church has the authority to decide on the overall policies and policies of the church and the rules of the plaintiff church, but with respect to each of its authority, the council provides that "the council of the parties shall decide on the overall policies and policies of the church, the authority and rules, the appointment of the church, the deliberation of the deceased, the appointment and the appointment of the deceased, the deliberation of the opinion, the unconstitutional policy and the time of the contribution, and each department shall guide each of the departments." The council of the plaintiff church shall research, revise and implement all the religious affairs or the administrative affairs of the church (Article 7 (2) and (3) of the rules), since the council of the plaintiff church shall cooperate in cooperation with the church of the church and shall not legally stipulate the rules No. 15 of the church members, "the resolution of the church's."

Therefore, in this case where there is no other evidence to support that the representative of the plaintiff church had a resolution of the general meeting of the members of the plaintiff church in filing the lawsuit in this case, the court below's rejection of the defendants' main defense for the above reasons is erroneous in the misunderstanding of legal principles as to the act of preserving collective ownership, which affected the conclusion of the judgment. Thus, the ground for

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)

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심급 사건
- 수원지방법원 1994.5.4.선고 93나3728

따름판례

- 수원지방법원 1997. 12. 23. 선고 97노277 판결:상고기각 [하집1997-2, 650]

- 대법원 1998. 2. 24. 선고 97다45327 판결 [공1998.4.1.(55),847]

- 대법원 2011. 7. 28. 선고 2010다97044 판결 [공2011하,1771]

관련문헌

- 송호영 교회의 교인들이 종전교단으로부터 집단적으로 탈퇴하여 별도의 교회를 설립한 경우의 법률관계 민사법학 35호 / 한국사법행정학회 2007

- 이영진 사법권과 종교단체의 내부분쟁 : "부분사회론"의 소개와 종교단체내분에의 사법심사에 관한 각국 판례의 비교 . 사법논집 33집 / 대법원 법원행정처 2001

- 정구환 검사의 불기소처분에 대한 헌법소원 청구인적격 연구 , 상 저스티스 34권 6호 / 한국법학원 2001

- 정정미 촌락공동체(자연부락)의 재산에 관한 소송 실무연구자료 7권 / 대전지방법원 2006

- 주인 종중 명의신탁부동산의 환수 고시계 50권 10호 (2006.10) / 국가고시학회 2006

- 이찬우 총유물의 보존행위 재판과 판례 15집 / 대구판례연구회 2007

- 박해성 종교단체에 대한 법적 규율 민사판례연구 19권 / 박영사 1997

- 민유숙 법인 아닌 사단의 보존행위를 위한 소의 원고 적격 대법원판례해설 57호 (2006.07) / 법원도서관 2006

참조판례

- 대법원 1980.12.9. 선고 80다2045,2046 판결(공1981,13461) (변경)

- 1986.9.23. 선고 84다카6 판결(공1986,2941)

참조조문

- 민법 제276조 제1항

원심판결

- 수원지방법원 1994.5.4. 선고 93나3728 판결