교회정관에 관한 민사법적 연구 -교회분쟁 해결을 중심으로

Abstract

A Study of Civil Law on Articles of Church - Focusing on the Resolution of Church Schisms -

So, Jae-Youl Advisor : Prof. Kang, Hyuck-Shin, Ph.D. Department of Law Graduate School of Chosun University

An association is a personal organization for which many people gather for joint purposes and if it acquires legal personality based on the registration of corporation, it can be a corporation and if not, it becomes an association without legal personality. The organizations which are regarded as non-legal association follow precedents-oriented theories. One of non-legal associations which are recognized by precedents is church. The court identifies its reality based on the general theories of the Civil Law on non-legal association to settle discords on legal relations and decides whether it has to be judicially reviewed as church is a non-legal association. However, legal relations of church has lots of problems. As our Civil Law has a special institution of Gesamteigentum on revert of its property, its complication is increasing. As church is a personal organization, continuous discords happen. The discords lead to property disputes and defects in judgement and procedures cause discords. One of important reasons of such discords is illegal behaviors of church. The standards to judge such illegal behaviors are the church articles and constitutions which are regarded as self-governing regulations. The problems are lack of recognition on importance of the articles, vagueness and imperfection of regulations, and ignorance of legal relations of the articles which are reasons of church discords. In considering the precedents of the supreme court, the internal relations of church as a non-legal association shall follow the regulations on corporation unless there are no regulations in other articles except the cases in respect to legal personality, or as long as there are no special conditions such as articles of corporation or regulations on specific projects, except cases which are not remarkably valid in social common concepts or whose decision procedures are remarkably against justice, the articles are important data for judicial reviews of the court on the church discords. For the judicial review in church discords in accordance to the American Judiciary Law, peculiarity of church was respected, but now, they are being considered the same as property discords of general organizations, and whether a solution of discords follows the positive law is strictly examined. That is, Japanese and Korean precedents tend to deal with discords depending on the concept of the benefit in Civil Law or 'judicial discord' rather than constitutional viewpoints while American precedents consider the freedom of religion or the principle of the separation of religion and politics in the Constitution. Our country has a judicially negative position on religious situations(interpretation of religious doctrines, religious judgement and positions in religious organizations) while it is based on a judicial activism on property discords(positions of representatives in religious corporations and property disputes according to church discords and division). However, most of the cases involving religious organizations or churches have suffered discords on church property rather than purely religious problems or religious doctrines, or they need judgement on religious parts as the first consideration to settle property discords. In particular, in respect to legal relations on property discords or revert, previous judgements have recognized church divisions approximately for 50 years and when a church was divided into two, it has been considered that the property of previous church is owned by church members at the time of division. As church members can use and have profits from church property within the range of church activities, one part can not ask to quit the church building to the other. However, unanimity judgement negated church division against the previous supreme court's judgement in 2006, and it was declared that if members withdraw from their religious society, more than two thirds of church members with rights to vote shall agree to it. The judgement was meaningful in that a social phenomenon of church division was dealt with not through a legal approval, but general legal principles of the Civil Law. The articles have legal functions to prevent church discords and normative nature which regulates legal relations as self-governing regulations as they restrict those who joined newly after the articles were made as well as those who participated in making them. The court judges based on the standards presented by the Civil Law and the court itself rather than the regulations of the articles for the cases which remarkably violate the concept of justice. In considering that reasonable and objective articles are effective as standards to prevent and deal with church discords, it can be said that the articles are a useful means for more reasonable management of churches, not suppressing church activities. They should include the contents to control absolute power and corruption of church organizations. If conscientious management of church can not be expected based on human nature, it is suggested that rather the articles can protect churches and the members.

key words : church polity, non-legal association, Gesamteigentum, judgement, judicial review, church schisms, church division, foundation, revert of church property, articles of church, change of articles, principle of decision by majority