(영문) 서울고등법원 2016.10.27. 선고 2016나4237 판결

The judgment of the first instance is revoked. The defendant also filed a lawsuit to the effect that the plaintiff (only hereinafter referred to as the "Plaintiff") was the first "Plaintiff" and the designated parties (hereinafter referred to as the "Plaintiffs") confirmed that the plaintiff and the designated parties (hereinafter referred to as the "Plaintiffs") were the creative owner of the C religious organization F in the name of the C religious organization located in the Republic of Korea on April 22, 2013, which was located in the 76.56m of the C religious organization of the Republic of Korea (hereinafter referred to as "the real estate in this case") of the Hanam-si and E, the third party of the C religious organization of the Republic of Korea, and the third party of the C religious organization of the Republic of Korea."

Reasons

1. Facts of recognition;

(a) Definitions of terms

The Inspection Act (established on September 20, 201 and enacted on April 17, 201), which is the defendant's internal norm, stipulates matters concerning the registration and management of the inspection team, is defined as follows:

(a) An inspection institute: An inspection institute that leases and operates real estate without real estate owned (Article 2 (4));

2) Private master cancer: A temple that recognizes the right to create a house, which is registered and operated as a "C religious organization ○○ (OOam) master" at the end of the defendant's worship or scarcity created by the defendant (Article 2(2)).

3) Public inspection: The following inspections (Article 2(1)), the ownership of the property of the inspection and the right to personnel, operation and management of which belongs to the end group:

5. A temple, the right of which belongs to the final group by a person having the right to the creation of a private cancer.

4. Changju: A person who has built a temple and is registered in the factory register of the temple at the time of registration of a private master cancer (Article 3(1));

5) Person holding a right to a new inspection: a person holding a right to recommend a chief inspection of the inspection concerned and succeeding to the right at the time of registration of the inspection (Article 3(2));

6) Second Lieutenant: A person who has the right to recommend a chief inspector of the Korean traditional temple (Article III(3));

B. Case history

1) At around April 198, 1998, Ngs and Ngs, a member of C religious organization H, wished to open the legal party under the name of "K by leasing a building located in Gangdong-gu Seoul Metropolitan Government J." From March 2002, K registered as the Seoul B religious organization L (hereinafter referred to as "L") which is the Defendant’s head office in the 7 principal office of the Defendant, as the Seoul B Religious organization L (hereinafter referred to as “L”) and then appointed G (legal name BV) from L (the principal office of the school), which is the principal office of the above BBV, as the representative of the above BS.

2) Upon the termination of the lease agreement on the building in use as the law around October 2002, G and the said Posium, the new Posium purchased the instant real estate and transferred it to the Posium. Accordingly, on March 5, 2003, the sales contract was concluded in the name of G on March 5, 2003, and the ownership transfer registration was completed in the name of G on April 10, 2003. The total amount of KRW 700 million was required for the purchase of the instant real estate. Of these, the KRW 40 million was 10 million as the purchase deposit for the said Posium building, and KRW 200 million as the amount loaned as a security.

3) On May 2003, G and the said Korean War guard decided to register the said Korean War guard as L’s horse, donate the instant real estate to the Defendant, and change the name of the inspection to “C religious organization K”.

4) On June 17, 2003, G was registered as inspection of “C religious organization K” with its own initiative as a private master cancer belonging to the Defendant. On June 26, 2003, G completed the registration of ownership transfer in the name of C religious organization K (representative M M) with respect to the instant real estate.

5) On May 10, 2004, K, which became the Defendant’s private death, had been registered as the Defendant’s official inspection on June 22, 2004, when G resigned from his office as a widely known agent and applied for registration conversion as a public bid. On June 14, 2007, the name of inspection was changed to “C religious organization F” (hereinafter “the instant inspection”), and is managed and operated as L until now.

6) The Inspection Act was repealed by the former Act on the Registration and Management of Private Teaching Cancer (hereinafter referred to as the “former Act”). The former Act was enforced as of April 17, 2012. The former Act only provides for guaranteeing the right to a construction of a building in a case where a building of a temple was registered and operated as a private master. However, the Inspection Act also provided that a building of a building of a building in a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a building of a

A) Where an inspection is created and registered as a public inspection (No. 1)

(B) where the old site is restored and registered as a public bid (as referred to in subparagraph (ii).

C) if the right of possession has been established upon the end of the non-occupant inspection (No. 3)

D) In the case of registration conversion (No. 4) due to a public bid by a person holding the right to create a new site in a private car, because the person holding the right to create a new site belongs to a third class or a principal building of a school.

7) On October 2012, G applied for the approval of the main owner of the instant temple based on Article 23 subparag. 2, 3, and 4 of the Inspection Act to the Defendant, and L, the main owner of the instant temple, was registered as G in the Defendant’s public inspection division by opening a committee for the approval of the main owner of the instant temple on April 22, 2013, based on Article 23 subparag. 2, 3, and 4 of the Inspection Act, as a result of a public examination through a final council in accordance with the procedures under the Inspection Act and subordinate statutes on November 19, 2012, G sent G to the Defendant’s general inspector as the main owner of the instant temple, based on Article 23 subparag. 3 and 4 of the Inspection Act.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8, 11 through 13, 16, 18, Eul evidence 1 through 4 (including paper numbers; hereinafter the same shall apply), G witness G of the first instance court, the plaintiff N examination result of the first instance court, the purport of whole pleadings

2. The plaintiffs' assertion

On April 26, 1998, a four-year period prior to the appointment of the instant temple as a widely known agent, the instant temple was created in the name of "K in the legal branch located in Gangdong-gu Seoul, Gangdong-gu, Seoul." The instant temple purchased the instant real estate as the market price of new Dos, including the Plaintiffs, and sold it to the Defendant, and registered the inspection as a private master cancer.

Therefore, the construction of the instant temple is to be one of the Nits or the plaintiffs, and G voluntarily entered himself/herself on June 17, 2003 and registered as the temple on November 20, 2001, and on its basis, he/she belongs to the defendant and was registered as the middle owner on April 22, 201, and therefore the registration of the middle owner in the name of G should be cancelled.

3. Determination

A. The plaintiffs sought the cancellation of the registration of Hegrgr or one of the plaintiffs on G on the premise that he was the owner of the instant temple. Thus, in full view of the facts alleged by the plaintiffs, first of all, it cannot be deemed that Igr or one of the plaintiffs is the owner of the instant temple under the Inspection Act, taking into account the following circumstances acknowledged by the aforementioned facts and the evidence.

① Examining the provisions regarding the registration of inspection of private carcers under the Inspection Act, if a deceased person or a new deceased person intends to build an inspection, the inspection may be registered as a public inspection or private carcers after preliminary registration and principal registration. A person who intends to obtain the registration of inspection shall register all the property necessary for the maintenance and development of the inspection in the name of C religious organization ○○○ (Crance) or its principal school physician (Article 14 and 16). If a deceased person acquires the ownership of the property, he/she shall make a registration conversion into a public inspection or private carcers (Article 17). Accordingly, when a deceased person or a new carcers whose right to manage the inspection property is recognized through the right to recommend the establishment of the inspection under the Inspection Act, his/her personal and material property is to be acquired, and thus, it is possible to register the ownership of the property under the name of the deceased person or its principal office in the name of the deceased person after the registration of the inspection. As such, it is possible to register the property under the name of the deceased person or its representative.

② It is true that the money collected by K as the main source of funds for the instant real estate was purchased, and it was possible to register the instant real estate as a private master. However, it is true under the Inspection Act, however, it means a person who has built a temple, who was registered in the inspection division at the time of the registration of the private master cancer, and thus, it is not a 'register' but a 'register as a private master' and 'register as a new master' at the time of the registration. However, the instant inspection is registered as a private master' under the name of 'C religious organization K' and the person who was registered in the inspection division as a private master at the time of the registration is not GI or the plaintiffs.

③ In addition, according to the Inspection Act, the right to create a private master cancer is recognized only for one person approved as the owner of the building at the time of the registration of the clan (Article 20(3)). According to the Enforcement Decree of the Inspection Act, in the case of the inspection of the private master cancer, the owner of the building shall apply for the registration, and in the case of the owner of the building and the owner of the property, the owner of the building shall submit a certificate of donation of the property and a certificate of personal seal impression. Thus, (Articles 10 and 11), the owner of the building and the owner of the property for the registration of the private master cancer are not necessarily the same.

④ The instant temple’s registration is not a matter of course by acquiring the instant real estate and applying for the registration thereof. It is not a matter of course but a matter of course by the Defendant’s general secretary following a resolution of the plenary council in the main office of the school. The Defendant’s general secretary determined the appropriateness of the registration of the instant temple, which was conducted by the Defendant’s general secretary, and approved the inspection through a resolution of the plenary council.

⑤ According to Articles 94(1)3-1 and 4(1)2 of the Inspection Act, etc. of the Defendant’s religious constitution, etc., the Plaintiffs asserted to the effect that Nits and Nits that Nits, which established K, which is a Posium around April 1998, are in the origin of the instant temple. However, each of the above provisions is merely that “Nits or one of the Plaintiffs constitutes the Defendant’s temple,” and it is not directly related to whether the instant temple was the origin of the instant temple. According to the Defendant’s religious Order and Inspection Act, the Defendant’s religious Order and Inspection Act established the temple by Nits or Nits and Nits, which established the temple, which is a Posium, and Nits and Nits, which established the inspection under the name of the Defendant or Kitsian, guarantees the establishment of the inspection only after the inspection was registered under the name of the Defendant or Kitsian, and thus, it cannot be deemed that Nits or Nits, which participated in the establishment of the inspection.

B. As above, I Nits or one of the plaintiffs cannot be deemed to be in the status of the creation of the instant temple, and there is no assertion or proof as to the fact that there is no legitimate right to claim against the defendant for the cancellation of the registration of the main owner of G, or that the defendant has a duty to comply with it.

In addition, in light of the fact that the Constitution guarantees the freedom of religion and strictly separates religion and state functions, the organization and operation of a religious organization shall be guaranteed autonomy as much as possible. Thus, in order to determine that various resolutions or dispositions that affect an individual's status within a religious organization are null and void a year, it is insufficient to say that there are procedural defects in the extent that such resolutions or dispositions taken by a general organization, which is not the general religious organization, are null and void, and if such defects are very serious and they are left without any justifiable reason, it should be called a case that goes against the concept of justice (see, e.g., Supreme Court Decision 2003Da63104, Feb. 10, 2006). In full view of all the above circumstances, the defendant's act of registering the instant temple, which is a private death, by the application of G, the main owner of the right to create the temple, and the procedural defect and the procedural defect that the plaintiffs should be found to have not been able to have any substantial and procedural grounds for registration in light of social norms.

C. Therefore, the Plaintiffs’ assertion is difficult to accept.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, associate judge and assistant judge

Judges Gin Jae-in

Judges Min Il-young

Note tin

1) Article 94 of the Religious Constitution (Evidence A No. 16)

(1) Inspections of this kind shall be as follows:

1. Buddhist temples and sites that belong to the origin of the species, based on the records and transmission of the Buddhist temples and sites of the Republic of Korea;

2. Inspections registered in this Order after the consolidated inspection team (1962);

3. Central cancers and spawress established by species group and paper schools;

(ii) Article 4 of the Inspection Act (Evidence A No. 5-1)

(1) Inspection of the final team shall be generally classified as follows:

1. Public inspection;

2. Private cancer;

3. Bridges;

4. A cancer in a mountain;