천주교유지재단인 「교구」와 소속 「본당」의 교회법-민법적 성격과 재산귀속문제에 관한 고찰

Abstract

The study focuses on the relationship between canon law and civil law in terms of legal character of civil law and management of church properties between a diocese as a upper grade class and a parish as its belonging. Parish is an organization of the faithful and yet the legal character is various in accordance with each denomination. The legal character decides church properties’ belonging. And self-norms from each denomination and national law might collide. In civil law, protestant denominations and individual churches can register corporation and foundation through registration of a juristic person and both can be an unincorporated juridical organization without registration of a juristic person. However, almost every protestant denominations are maintenance foundations and its individual churches are incorporated juridical organizations without registration of a juristic person. However, they can act as independent legal persons. Therefore, they are called as legal persons, who are not registered juristic persons. Church has different forms of possession according to legal characters. In following the precedent, individual church becomes the sole owner in case of registering incorporated juridical organization. If individual church exists as an unincorporated juridical organization, real estate can be registered in the name of the individual church and properties belong to all the members of Christians collectively without registration. Like most Protestant denominations and individual churches in Korea, the diocese, which is a denomination, is registered as a maintenance foundation, and the parish, which is an affiliated individual church, is not registered as a corporation. However, Catholic Church of Korea, as a maintenance foundation establishes a parish by herself not like Protestant Church that establishes a parish first and then transfers it to the church and the foundation through gift and contract. A Catholic parish does not have corporate and foundational juridical characters so it cannot be a corporation or a foundation. The precedent also does not recognize the admissibility of a party to legal proceedings from a parish. Thus rules about collective ownership on an unincorporated juridical organization does not apply. Therefore a real owner of parish properties in civil law is a diocese as a maintenance foundation. Although disputes between a foundation and a parish or among members of the parish could arise, a parish and the parishioners cannot claim ownership of properties of a parish. However, since church properties are originally formed through the faithful’s offering, diocese should not sell or claim the right of the properties against the will of the members of the church. Since the canon law and articles of association of a maintenance foundation are recognized as legislation of self-government, the Episcopal Conference and dioceses should establish and faithfully follow the detailed provisions corresponding to the catholic church values and the national law. If a conflict arises, the church should solve it through not national judiciary but the canon law. For this, an organization for reconciliation, compromise, and mediation according to Article 1714 of the Canon Law is highly recommended.