Plaintiff Incorporated Foundation (Law Firm 2, Attorneys Choi Jong-hwan et al., Counsel for the plaintiff-appellant)

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

June 13, 2006

Seoul Eastern District Court Decision 2004Gahap11573 Delivered on June 24, 2005

1. The judgment of the court below is revoked.

2. The Defendants order each of the buildings listed in the separate sheet to the Plaintiff.

3. The total costs of the lawsuit shall be borne by the defendants.

The decision is as follows (the plaintiff reduced the purport of the claim in the trial).

1. Basic facts

The reasons for the decision that a party member should explain this part of the decision of the court below are as follows: (a) deleted the 7th 2nd 7th 7th 2th son; (b) revised the 7th 4th 7th 7th 4th 7th 7th 7th 7th 7th 7th 7th 8; (c) deleted the 7th 7th 16th 7th 7th 7th 16 to Nonparty 2; and (d) the 2nd 9th 2th 9th 9th 2nd 9th 2nd 2nd 2003Na80927 on the part of the party member who appealed against this and dismissed the application for provisional disposition; and (d) revised the 7th 7th 8th 8th 8th 7th 7th 7th 7th 200 as the corresponding part of the decision of the court below.

2. Determination on the defendants' main defense

A. (1) The Defendants asserted that the lawsuit of this case brought by Nonparty 1 as the representative of the Plaintiff is unlawful since it was filed by the non-party 1, who had no power of representation, even though the term of office of the chief director does not fall under the case of “the dismissal of the chief director,” which is necessary for the acting director under Article 9 of the Articles of Incorporation.

According to the plaintiff's articles of incorporation, 1, 6 directors, 2 auditors (Article 5), 4 years of office of the director (Article 7), 8 director's chief director's appointment and exercise overall control over the affairs (Article 9). 2. The defendant 4 was appointed as the plaintiff's chief director, 2. The non-party 6 director's appointment and the non-party 9's appointment and the non-party 6 director's appointment and the non-party 6 director's appointment and the non-party 9's appointment were non-party 9's appointment and the non-party 6 director's appointment and the non-party 9's appointment and the non-party 1 were non-party 6's appointment and the non-party 6 director's appointment and the non-party 9's appointment were non-party 1's appointment and the non-party 4's appointment and the non-party 9's appointment and the expiration of the term of office of the plaintiff 1 and the non-party 1's appointment were non-party 9's appointment.

According to the above facts, after the expiration of the term of office of Defendant 4, Nonparty 1 was in the position of the representative representative as the oldest director among the directors, and the term of office of Nonparty 5, Nonparty 6, and Nonparty 1 expired on December 8, 2001, the entire term of office of the Plaintiff expires, and no director was appointed to act as the representative, and the Plaintiff was forced to suspend his normal activities. Thus, unless there are special circumstances to deem it inappropriate for the former director whose term of office expires to act as the representative of the corporation, unless the former director is unable to act as a normal corporation due to the absence of appointment of the former director even after the expiration of the term of office of all the directors of the corporation, the former director may act as the former director, and therefore, Nonparty 1, who served as the chief director as the oldest director, has the authority to continuously represent the Plaintiff even after the expiration of the term, and the defense above is without merit.

(2) Even if the Defendants may become an acting representative, they are individually recognized as an acting representative only when it is necessary to resolve urgent circumstances in light of the purport of Article 691 of the Civil Act, and Nonparty 1 has avoided the election of the chief director after the expiration of the term of office of Defendant 4, and filed the instant lawsuit in order to let Nonparty 2, who is under dispute with the Defendants’ leading authority, take the initiative of the Defendants and the Religious Order, and there is no urgent circumstance for the Plaintiff to receive the name of each of the instant real estate, and therefore, Nonparty 1 does not have a legitimate acting representative to file the instant lawsuit for the sake of the above name.

On the other hand, in light of whether Nonparty 1 followed Nonparty 2 as alleged by the Defendants and avoided the act of election of directors or chief director, it is not sufficient to acknowledge it only with the descriptions of evidence Nos. 5 and 66, and there is no other evidence to acknowledge it. Rather, in light of the fact that the Defendants, as seen earlier in the basic facts, occupy each of the instant real estate exclusively and do not have to be elected for a considerable period, there is a specific need to receive such name, and the above assertion is not justifiable without any further need to examine.

B. The defendants asserted that the lawsuit of this case filed by the acting director without the permission of the court under Article 60-2 of the Civil Act is unlawful, but Article 60-2 of the Civil Act provides that the acting director under the provisional disposition order under Article 52-2 of the Civil Act shall obtain the permission of the court in cases where the acting director performs an act in excess of ordinary affairs. Thus, the defendants who are not the acting director who is not the acting director authorized by the provisional disposition order under Article 1 are also the same as long as the above claim is without merit.

C. (1) The Defendants asserted that the articles of incorporation Article 14 of the Act provides for “matters concerning the management of property” and “other important matters of the Plaintiff corporation,” and that the act of filing a lawsuit in this case constitutes “matters concerning the management of property” or “other important matters of the Plaintiff corporation,” which falls under the category of the “general matters of the board of directors,” and thus, is unlawful

According to the evidence Nos. 67 and 14 of the articles of incorporation, Article 14 of the articles of incorporation provides that "the management, acquisition, disposal, and disposal of property, and other important matters of this corporation" and "other important matters of this corporation" shall be referred to the board of directors. However, according to the evidence, the plaintiff is the business for the propagation, edification, water supply, and the central headquarters incidental thereto, and the maintenance and management of each local community center. Article 14 of the articles of incorporation lists the budget, settlement of accounts, the appointment of executives, the amendment of articles of incorporation, etc. as one of the important matters of the corporation and requires a resolution of the board of directors among these important matters of the corporation. Article 17 subparag. 1 of the articles of incorporation provides that when it intends to establish or dispose of fundamental property, it shall obtain the approval of the Minister of Culture and Tourism with the resolution of the board of directors. In light of the purport of each provision, the act of the above articles of incorporation to prevent damage to property management, etc. requiring the resolution of the board of directors, and to seek the aforementioned illegal possession.

(2) The Defendants asserted that since each of the instant real estate is jointly owned by the believers and merely property under title trust in the future of the Plaintiff, the Plaintiff’s act of preserving the property must undergo a resolution by the board of directors of the Foundation in accordance with the resolution of the general meeting.

In light of the above, there is no specific evidence to regard each real estate of this case as collective ownership property of the believers. Rather, the above basic facts include the Plaintiff’s establishment purpose, provisions of the articles of incorporation, each provision of the Do Constitution and the organization of the Do Constitution such as Do electric power, the president, the head of religious affairs office, the central branch office, the Board of Audit and Inspection, etc., and the Do electric power has the right to appoint executives of each level, the right to execute duties, and the seal belonging to the closing group are merely a religious establishment belonging to the headquarters, not in the form of each branch office, but in the form of each branch office, there is only a person in charge of seal belonging to the headquarters, and in particular, the head of the headquarters receives 60% of the Do sexuality from each branch office, and the head of the headquarters receives 60% of the Do sexuality from each branch office to manage the real estate of this case, and the Plaintiff appears to have the right to manage the property of this case under the premise that each of the parties in this case’s new property management unit and its status were within the central court.

Therefore, each real estate of this case cannot be deemed to belong to the collective ownership of the believers, or to fall under the title trust of the plaintiff, and there is no reason to deem otherwise that the preservation of collective ownership property requires a resolution of a general meeting, as in the act of preserving collective ownership. Therefore, the above assertion based on this premise is without merit.

3. Judgment on the merits

(a) Occurrence of the duty to explain;

Article 100 of the Do Constitution provides that "the plenary session shall preserve the real estate as the ○○ Foundation." The plaintiff corporation was established for the overall management of the attached property, and the attached seal, hall, vehicle, etc. is registered in the name of the plaintiff, and accordingly the registration of ownership transfer has been completed in the name of the plaintiff. Accordingly, each of the real estate in this case was completed in the name of the plaintiff. The defendants, on July 16, 1999, went away from Non-party 2 and the new islands he had followed on Non-party 1, 3, 4, 6, 31, 37 through 45, 67, 137, 139, 139, 203 through 439, 209, 300, 300, 1000, 300, 300, 1000, 1000, 1000, 100, 200.

According to the above facts of recognition, the Defendants are obligated to order the Plaintiff, the owner of each of the instant real estate unless they prove the source of possessory right.

B. Determination as to the defendants' defense

(1) The Defendants asserted that since they had the title to possess and use each of the instant real estate owned by new Dos in the qualification of new Dos, they cannot comply with the Plaintiff’s request for evacuation. However, as seen earlier, the Defendants cannot be deemed to have collectively owned each of the instant real estate. The Defendants cannot be deemed to have exclusively occupied and used each of the instant real estate solely based on the fact that they were new Dos. Therefore, the above assertion is without merit.

(2) The Defendants asserted that since each of the instant real estate was entrusted to the Plaintiff by the end group only, the Plaintiff, the title trustee, cannot seek the name of the Plaintiff’s building against the Defendants, the officers of the end group, who are the title trusters.

As seen earlier, each real estate of this case cannot be seen as being completely owned by the Plaintiff and title trust from the end group. Thus, the above assertion is without merit.

(3) The Defendants asserted that since they use each of the instant real estate as the believerss of the Religious Order, the Plaintiff, an incorporated foundation established for the purpose of managing religious property with the existence of the Religious Order, cannot seek a surrender of each of the instant real estate used in accordance with the purpose of its use against believers.

In this regard, the defendants are the believers belonging to the Religious Order, and each of the instant real estate is a variety of religious-related facilities located in the female headquarters. However, it is necessary to use it together with all the believers of the Religious Order, and it is not possible for specific believers to occupy it exclusively. The defendants exclusively occupy each of the instant real estate and refuse to comply with the plaintiff's request for the surrender, which is a legal owner and the managing body within a specific level, is an act exceeding the scope of the right to use religious facilities of the believers. Thus, the defendants' assertion that only the believers belonging to the Religious Order belongs to the Religious Order is not acceptable.

4. Conclusion

Therefore, the defendants are obligated to order the plaintiff to present each real estate of this case, and the plaintiff's claim is justified, and the judgment of the court below that concluded differently shall be revoked, and the above order shall be ordered to the defendants, and as long as there is a possibility of separate resolution of the dispute of this case through the selection of a new representative in light of the progress of the dispute inside the end group, the provisional execution declaration shall not be attached until this judgment becomes final and conclusive. It is so decided as per Disposition by the court below.

[Attachment]

Judges Lee Sung-sung (Presiding Judge) (Presiding Justice)