2014Na51264 Removal, etc. of buildings

A Religious Organization B History

Netcheon City

C Religious Organization B History

Gwangju District Court Decision 2011Gadan10567 Decided April 4, 2014

April 1, 2015

June 3, 2015

1. The defendant's appeal is dismissed.

2. The Intervenor joining the Defendant shall bear the costs incurred by the participation in the appeal, and the remainder shall be borne by the Defendant.

1. Purport of claim

The defendant removes each building stated in the attached Form to the plaintiff, and deliver each site to the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On August 19, 1972, the registration of ownership preservation in the name of “B” was completed on August 19, 1972 with respect to D Forest land D 853, 7 parts of 7, 1973 (hereinafter “instant land”). On September 29, 1972, the registration of ownership alteration was completed by changing the owner from “B” to “A religious organization B” from “B”.

B. On April 22, 2008, the Defendant newly constructed each of the buildings listed in the separate sheet (hereinafter referred to as the “instant building”) on part of the instant land (hereinafter referred to as “the instant land”) and completed the registration of ownership preservation in the name of the Defendant. From that time, the Defendant used the instant building for the purpose of wild tea experience center, etc. from that time to that time.

C. Meanwhile, around March 28, 1970 and March 28, 1970, the Minister of Culture and Arts appointed the head of Si/Gun at the time as a custodian of the above B, pursuant to the Non-School Property Management Act (repealed by the enactment of the Korean Traditional Temple Preservation and Support Act on November 28, 1987) on the ground that there was a division in relation to the operation, etc. of the temple between A religious organization, a religious group, and C religious organization, a religious group, an intervenor belonging to the Plaintiff (hereinafter referred to as the “participating”), and the head of Si/Gun at the time, as a custodian of the above B (around December 28, 1987, the head of

D. Since then, on February 9, 201, the two teams organized a committee for the resolution of the problems in the B, and the Minister of Culture, Sports and Tourism dismissed the net market from the administrator of B, pursuant to Article 16(2) of the former Act on the Preservation and Support of Traditional Buddhist Temples (amended by Act No. 11317, Feb. 17, 201; hereinafter “Korean Traditional Temple Preservation Act”).

The two committees shall jointly take over the property management rights of B from the net market for B. The co-acquisition chairman shall be the recognition of A religious organization B and C religious organization B.

The Committee shall jointly respond to all matters related to the protection of the property rights of B.

The Committee shall jointly investigate the current status of all property owned by B, such as real estate and cultural heritage, in order to normalize B's business.

C. The provisions of the Korean Traditional Temple Preservation Act relating to the instant case are as follows:

Article 8 (Obligation to Manage Notice)

The chief judge of the traditional temple shall preserve and manage the temple with due care as a good manager.

Article 9 (Matters to be Permitted)

(1) Where the chief judge of a traditional temple intends to transfer movable property or real estate (referring to real estate owned by a representative organization of the traditional temple or a representative organization of the traditional temple located within the boundary of the relevant traditional temple; hereafter the same shall apply in this Article), he/she shall obtain permission from the Minister of Culture, Sports and Tourism,

(2) Where the chief judge of a traditional temple intends to perform any of the following acts, he/she shall obtain permission from the competent Mayor/Do Governor. The same shall also apply where he/she intends to modify permitted matters: Provided, That where he/she intends to perform an act referred to in subparagraph 1,

1. Lending or offering movable or real estate as security;

2. New construction, extension, remodelling, or removal of a structure within the boundary of the land;

Article 16 (Appointment of Property Administrator)

(1) Where the chief judge of a traditional temple violates Article 6 (2), 9 (1) and (2), or 15, or where the purpose of this Act cannot be achieved due to its subdivision, the Minister of Culture, Sports and Tourism may appoint an administrator of property of the traditional temple.

(2) Where the Minister of Culture, Sports and Tourism deems that a traditional temple under paragraph (1) has been restored to a state that can achieve the purposes of this Act, he/she shall dismiss an administrator without delay.

Article 20 (Permission for Alteration of Current State of Cultural Heritage)

Where permission for alteration of the current state is obtained pursuant to subparagraph 3 of Article 34 of the Cultural Heritage Protection Act, permission under Article 9 (2) 2 shall be deemed obtained.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, Eul evidence Nos. 10 and the purport of the whole pleadings.

2. Judgment on the main defense of this case

A. As to the plaintiff's party ability

1) As the Defendant and the Intervenor did not have any substance as an organization, the Defendant and the Intervenor’s defense to the effect that they have no capacity to file the instant lawsuit.

2) Inspection is established by combining facilities, such as Buddhist teaching as ideological elements, the law enforcement as an action element, the respect and faith as an organized element, the land as a physical element, and the fire party. It is divided into non-corporate foundations or associations according to the degree that new temples participate in the operation of inspection or the management and disposal of the property. In a case where inspection is recognized as a non-corporate foundation, the property registered in the name of the inspection shall be deemed as the ownership of the inspection, an independent main body (see, e.g., Supreme Court Decisions 93Da4355, Dec. 13, 1994; 94Da41249, Dec. 9, 197).

The following facts or circumstances, which are acknowledged or known after integrating the purport of Gap's statements and arguments in accordance with Gap's evidence Nos. 9, 13, 15 through 18, 22 through 33, 36, 38, and Eul's evidence No. 13 and Eul's evidence No. 13, i.e., the plaintiff registered as a Buddhist organization around Nov. 8, 1965 pursuant to Article 6 of the Non-School Property Management Act (which shall be registered in literature delivery as prescribed by the Cabinet Ordinance). ② The plaintiff is a religious group belonging to A religious organization, and is engaged in religious activities such as Mapo, Mapo, Law, etc. under the constitution, paper, and law of the religious group. ③ Since from 1962 to 192, the plaintiff had been well known to the plaintiff, and ④ since the plaintiff had no reason to register the ownership of the plaintiff's property in his name including the land of this case and the land in his name.

B. As to whether the lawsuit of this case is unlawful in violation of the agreement of this case

1) Since the Intervenor becomes a co-property administrator of the A religious organization’s committees and the C religious organization’s joint property administrator through the agreement in this case, the Plaintiff and the Intervenor’s property management should be jointly carried out or obtained the consent of the other party. However, the instant lawsuit is unlawful as it was unilaterally brought by the Plaintiff.

2) However, in light of the contents of the agreement in this case, it is difficult to view that the agreement in this case has the effect of restricting the exercise of independent right to exclude interference against the plaintiff or the third party of the intervenor with respect to the property of B, and the above assertion is without merit

3. Judgment on the merits

A. Determination on the cause of the claim

1) According to the facts of paragraph (1), the Plaintiff is presumed to be the owner of the instant land, and the Defendant, as the owner of the instant building, occupies the instant part of the land, barring any special circumstance, the Defendant is obligated to remove the said building and deliver the instant part of the land to the Plaintiff.

2) As to this, the Defendant and the Intervenor, as a temple of the C Religious Organization, are the Intervenor’s property of the instant land, etc., and the Intervenor completed the registration of the preservation of ownership of the instant land under the name of B, on the ground that the A Religious Organization had completed the registration of modification to the title holder of the instant land using the registration of a Buddhist organization under the D Religious Organization Act, which was first registered as a Buddhist organization under the C Religious Organization Act, and the registration of modification was completed, the above registration of modification is invalid, but the above assertion is insufficient to acknowledge the above assertion solely on the written evidence Nos. 12 and 13, and there is no other evidence

B. Determination as to the defense of the defendant and the intervenor (hereinafter "the defendant et al.")

1) Defendant et al.’s assertion

A) At the time of the construction of the instant building, the Defendant had the same authority as the administrator, and on March 2, 2004, consented to the construction of the instant building from the Intervenor (the main owner) who was the actual owner of the instant land, and was duly constructed pursuant to Articles 9 and 20 of the Korean Traditional Temple Preservation Act by obtaining permission for alteration of the current state from the Administrator of the Cultural Heritage Administration in relation to the construction of the said building. As such, the Defendant has the authority to possess the instant land.

B) The Plaintiff did not raise any objection against the Defendant’s new construction and use of the building from around 2004 when the new construction of the building of this case started until the time of the instant lawsuit. Since around 2011, a dispute arises between the Plaintiff and the Intervenor, the Plaintiff filed the instant lawsuit in violation of the agreement in this case, and the Plaintiff was required to pay taxes of approximately KRW 4.4 billion with the cost of new construction of the building of this case, and if the building was removed, the Defendant suffered considerable damage compared to the interests that the Plaintiff could gain, the Plaintiff’s claim constitutes abuse of rights against the good faith principle.

2) Determination

A) As to whether the Defendant has the right to occupy the instant building

First, as to whether the Defendant acquired the right to possess and use the land of this case by obtaining the consent from the Intervenor to the new construction of the building of this case, as seen earlier, the fact that the owner of the land of this case is the Plaintiff is the Plaintiff. Therefore, it cannot be said that the Defendant acquired the right to possess and use the land of this case in relation to the Plaintiff only with the consent from the Intervenor.

Next, the Korean Traditional Temple Preservation Act does not provide for an administrator's authority to newly construct the building of this case. However, in light of the term and the purport of the Korean Traditional Temple Preservation Act, an administrator's authority to appoint an administrator is limited to the act of using or improving the building of this case to the extent that it does not change the preservation of the property and the nature of the property (Article 118 of the Civil Act). If an administrator requires an administrator to construct a building of this case to a third party on the land subject to management, it would result in the administrator's disposal of the right to use the building of this case to a third party. Considering that the administrator has the right to dispose of the building of this case, the administrator's authority may not be deemed to be the first day of the authority to notify the administrator. Thus, in order for the administrator to dispose of the right to use the building of this case to a third party, the administrator's authority to newly construct the building of this case and to obtain the right to use the building of this case from the plaintiff and a religious organization, which belongs to B (Article 9 (2)1).2).

Therefore, this part of the defense by the defendant et al. is without merit.

B) As to whether the plaintiff's claim constitutes abuse of rights

In order for a landowner to exercise his/her right to the land to be an abuse of right, the objective of the exercise of the right is to inflict pain on the other party and to inflict losses on the other party, and there should be no profits on the other party. In an objective view, the exercise of the right should not be viewed as a violation of social order. Unless it does not fall under such cases, even if the damage is significantly high to the other party than the profit the right holder gained by the exercise of the right, such circumstance alone does not constitute an abuse of right (see Supreme Court Decision 94Da5458, Nov. 22, 1994). In order for the right holder to exercise his/her right over a long period of time and not allow it as a violation of the principle of good faith, there should be justifiable grounds to believe that the other party as the obligor does not exercise his/her right (see Supreme Court Decision 2001Da6019, Jan. 8, 202).

4. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, the lowest judge;

Judges Kim Jae-hee

Judges Ohyle

1) On September 20, 1971, registration of preservation of ownership was completed in the name of the intervenor on September 20, 1971, when the name of the owner was corrected from the intervenor to the plaintiff on September 29, 1972, and on the site of B (excluding the land in this case), registration of preservation of ownership was completed in the name of B on September 15, 1971, and registration was completed on September 29, 1972, when the name of the owner was corrected from B to the intervenor from B to the intervenor on September 29, 1972.

A person shall be appointed.