[Plaintiff, Appellee] Korean Methodist Church
[Defendant, Appellant] Korean Methodist Church Maintenance Foundation, Incorporated Foundation (Attorney-at-law: Daekyung Comprehensive Law Firm, attorneys in charge Han Jae-young and 3 others)
[Remanded Judgment] Supreme Court Decision 97Da19663, decided August 25, 1997
[Order]
The judgment below is reversed, and the case is remanded to the Daegu High Court.
[Reasoning]
The grounds of appeal are examined.
1. Where a church that has the substance of an unincorporated association is incorporated as a local church affiliated with a particular denomination, organizes its decision-making body in accordance with the denomination's constitution and regulations (헌법·장정), and accepts a pastor dispatched by the denomination as the representative of the local church, the local church is bound by the denomination's constitution and regulations, which it has adopted as an autonomous norm equivalent to its own bylaws, to the extent that its independence or the essence of its religious freedom is not infringed.
Furthermore, so long as a church exists as an unincorporated association, in resolving disputes concerning its legal relations through litigation, the substance of the church must be identified and the ownership of church property determined in accordance with the general theory of civil law concerning unincorporated associations. Accordingly, while church members own and use/derive benefit from church property in the form of collective ownership (총유), if some members withdraw from the church and thereby lose their status as members of that church, whether the withdrawal is individual or collective, they lose, along with such withdrawal, their standing to participate in resolutions concerning the management and disposal of the former church's collectively owned property and their right to use and derive benefit from such property; the former church continues to exist with the same identity, composed of the remaining members, and the property of the former church is in principle held in collective ownership by the remaining members belonging to that church.
Therefore, even where some of the members of a local church affiliated with a denomination resolve to withdraw from the denomination to which they belong, then leave the former church, establish a separate church, and select a separate representative, that new church is to be regarded as a newly established church formed by members who collectively left the former church, newly satisfying the requirements of an unincorporated association, and the members belonging to that new church can no longer retain the right to use and derive benefit from the property of the former church. However, where the withdrawal from the denomination is made through a resolution passed with the consent of at least two-thirds of the members having voting rights, in a manner analogous to an amendment of the articles of incorporation of an incorporated association, the former church continues to exist as the church that has withdrawn from the denomination in this manner, and the property of the former church is to be held in collective ownership by the members of the church that has withdrawn. If, however, the number of members who resolved to withdraw from the denomination does not reach two-thirds of the members having voting rights, the identity of the former church continues to be maintained in the state of remaining affiliated with the former denomination, and therefore members who voted in favor of the resolution to change denominations and, further, collectively withdrew from the former church or joined another denomination, must be regarded as having lost both their status as members and their rights to the property of the former church (see Supreme Court en banc Decision 2004Da37775, decided April 20, 2006).
2. Considering the reasoning of the judgment below together with the record, the following facts are recognized: Korean Methodist Church A Church (hereinafter referred to as the "former church") is a local church affiliated with the Korean Methodist Church denomination, in which Nonparty 1 had served as pastor; around December 1993, Nonparty 1 attempted to transfer the church's denominational affiliation to the Presbyterian Church, which has relatively weaker central control, but this attempt was thwarted by opposition from the elders, resulting in internal conflict; Nonparty 1 then decided to resign from the position of pastor, received money in the nature of severance pay and real property from the church, and submitted a letter of resignation on February 20, 1994, but withdrew his intention to resign shortly thereafter, causing the dispute to resurface between the members who followed Nonparty 1 and the members who wished to remain affiliated with the denomination; the Samnam Annual Conference of the Korean Methodist Church removed Nonparty 1 from the position of senior pastor of the former church on May 10, 1994, and dispatched Nonparty 2 as the senior pastor of the former church on May 23, 1994; subsequently, on June 11, 1994, with respect to the church building and site indicated in the judgment, which had been registered in the name of the former church, the ownership was transferred by registration to the Defendant, the denomination's maintenance foundation, through the disposal procedures for local church property prescribed in the denomination's regulations; in response, Nonparty 1 and the members supporting him held a separate general meeting of members on June 19, 1994, and resolved to withdraw from the denomination, to name the church "A Church," and to designate Deacon Jeong Mun-suk as its representative, and thereafter conducted activities including holding separate worship services under the guidance of Nonparty 1.
If this is the case, the former church is a local church affiliated with the Korean Methodist Church denomination, and even if Nonparty 1 led some of the supporting members to withdraw from the denomination to which they belonged and to engage in religious activities under a separate representative, absent special circumstances, this amounts merely to the collective departure of some members from the former church, and the church composed of members who wish to remain affiliated with the said denomination and in which the pastor dispatched by the denomination serves is to be regarded as the church that continues to exist as the former church while maintaining the identity of its substance.
Furthermore, upon examination of the record, there is insufficient material to find that the general meeting of members held on June 19, 1994, which resolved to withdraw from the denomination, complied with the requirements prescribed in the denomination's regulations regarding the convening procedures, such as notice of convocation of the general meeting, or that at least two-thirds of those entitled to vote consented to the resolution.
Accordingly, the court below should have further examined whether the general meeting of June 19, 1994 was convened in compliance with the prescribed procedures and whether the members who resolved to withdraw from the denomination reached two-thirds of the lawful voting members, and, unless the above requirements were found to be satisfied, should have recognized the church composed of members who wish to remain affiliated with the former denomination and in which the pastor dispatched by the denomination serves as the church maintaining the identity of the former church, and should have rendered its judgment on the Plaintiff's claims, including the standing of the parties with respect to the claim for cancellation of the registration of transfer at issue in this case, accordingly. Nevertheless, the court below upheld the Plaintiff's claim in this case on the ground that the former church had split into a church wishing to remain in the denomination and a church wishing to withdraw from it, and that the disposal of church property therefore required a resolution of the general meeting by the members at the time of the split. The judgment of the court below thus contains errors of misapprehension of the legal principles concerning whether the concept of church division is permissible, the requirements for withdrawal from a denomination, and the relationship between the former church and the Plaintiff church, as well as an error of insufficient deliberation.
3. Therefore, without need to examine the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, in accordance with the unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Lee Kyu-hong (Presiding Justice), Park Jae-yoon, Kim Young-ran (Justice in Charge), Kim Hwang-sik