敎會紛爭時 敎人의 地位와 財産歸屬에 關한 硏究

Abstract

ABSTRACT

A Study on the Status of Church Members and Reversion of？Church Property at Schism

So, Jae-Youl Advisor : Prof. Park, Woon-Kil, Ph.D. Department of Law Graduate School of Chosun University

Associations are categorized into incorporated associations and unincorporated associations according to the civil law, and this study involves churches that belong to the latter and examines the status of members and reversion of the property at schism of churches. By regulating that "in case members of a unincorporated association possess property as aggregate, it shall be Gesamteigentum" though it regulates the forms and contents of incorporated associations？(Section 1, Article 275, Civil Law) in the incorporated association. our present civil law on the reversion of？church property formulates the special system such as Gesamteigentum of the incorporated associations. When schism occurs at church and a suit is attempted to solve it, the Supreme Court presents a system of Gesamteigentum for a unincorporated association. ？ Gesamteigentum ？ regulates that ？its management and disposal shall depend on associations, and its use and profits shall be given to members？. However, continuous schism is occurring in the unincorporated associations due to the Gesamteigentum system and its interpretation added confusion to the schism. Therefore, this study examines to whom property has to be reverted and who legally decides the reversion of the property when schism occurs. First, churches are categorized into the episcopal polity, presbyterial polity, and congregational polity according to the political forms and we discuss the understanding of churches according to the political forms, concepts of theological meaning, laws and precedents on the legal nature of churches and their members (Chapter 2). Second, this study examines the transitional processes of precedents on the reversion of church property in case of schism of churches. The Supreme Court changed its legal principle Unanimously Agreed Verdict that had been maintained for about 50 years. Therefore, this study discusses the transitional history of the legal principles for 50 years.(Chapter 3). Third, while theories and precedents on the recognition of the split of churches are in sharp disagreement, the Supreme Court applied a legal principle that does not accept split after the unanimously agreed verdict was made in 2006, though it had recognized split of churches. We discuss theories with the different opinions.(Chapter 4). Fourth, according to the unanimously agreed verdict of the Supreme Court, it decided Gesamteigentum of the members at the split in 2006, deciding not to intervene in schism of churches. However, new precedents of the Supreme Court discussed as follows: when members secede from their churches, they lose their status as members and the property of church is reverted to the remaining members as Gesamteigentum. And with the application of Section 1, Article 42 of the Civil Law, a requirement to be decided for the secession from churches or change of the religious bodies and with the requirement satisfied with an approval of more than 2/3 of members who have rights to decide, in case a church secedes from its body or moves to another body, reversion of property of the previous church shall belong to its remaining members (Chapter 5). In conclusion, the court judges the nature of churches as the social organizations legally and identifies the true nature of churches according to general theories of the civil law to decide the reversion of church property. However, the Supreme Court should let the internal conflicts of the property reversion in religion be dealt with based on the judiciary judgement of the Church Law. It is suspected whether the supreme court insisted that judgement and decision by higher religious party carry no legal binding force and only local churches are recognized as a legal unit to actively intervene in the management of churches. The principle of separation of church from the state guaranteed by the Constitution seems to begin collapsing by the judgement principle of the Supreme Court. The Constitution of the higher religious party that specifies the requirements of the collection and decision became meaningless in the reversion of the property and revision of the constitution of religious bodies that is used as norms of self-administration according to the judgement of the Supreme Court is forced. As it is a result of identifying true nature of church law according to the general theories of the civil law, it should be corrected. That the remaining articles except those which consider incorporation as a prerequisite by interpreting church property as Gesamteigentum of the unincorporated association are applied is a contrary evidence that there is no written regulation to be applied. So, it is assumed that its application is arbitrary, random and not objective. This study suggests that the vague Gesamteigentum system should be eliminated in the unincorporated association and its legislation is necessary according to the incorporated association. That is, to solve legal and internal problems of the religious bodies, additional legislation to clearly organize their structures and property is needed.

Keywords : church polity, schism of the church, split of a church, split of a association, Gesamteigentum, joint ownership, congregational meeting, incorporated association, unincorporated association, estate in trust, amendment of judment legal principles of Supreme Court