교회분열로 인한 교회재산의 귀속에 관한 연구 - 분열부정의 원칙과 소수자의 권리를 중심으로 -

Abstract

Since the early church, the Christian church had conflicted for various reasons. In the past, the church had a strong tendency to divide due to doctrinal disputes, but recently, the church had frequently been led to disputes over the attribution of church property due to the capitalism rather than the disputes over doctrinal issues. However, in resolving church disputes in the Korean church, canon law and church trials are arbitrary and less binidng which differs from normal judicial trials. The phenomenon is expanding. The church has a special character as a community of faith and has been recognized to enjoy a mutual independence - -independence in relation to national law and national system by the principles of freedom of religion and separation of state and church.. However, the modern church and state had fallen in a state of confrontation and tension as they began to intervene. In particular, in 2006, the Supreme Court in Korea inferred and applied the Civil Act on incorporated corporations to deny church division in a case related to the attribution of church property rights, and affirmed that the Korean church had the right to vote. The ruling upheld that the entire property of church belong to the condition of approval by more than two-thirds of the church members. The judgment of the Supreme Court in 2006, which inferred and applied the civil law on corporate bodies to the church, is a positive decision in that it provided the final standard for disputes over church property caused by church disputes. However, the Supreme Court's decision is regrettable and concerned in several respects. First, it overlooks the special nature of church, which is a community of faith that is established without permission or registration with an administrative agency, unlike a corporation under the Civil Code. And even if the law related to incorporated associations had been inferred and applied, our Civil Act recognizes the withdrawal or dissolution of members in an incorporated association. However, according to the court opinion the members of an incorporated association are divided into two corporations, each remaining as independent corporations and reverting to the former corporation. In principle, the division of an incorporated association in the way of owning the property that has been established had been proscribed, but the Supreme Court made a contradictory ruling that supported the division of the church in more than two-thirds cases. Second, if the purpose is to prevent denominational change or church division, more than three-quarters by inferring and applying Article 78 of the Civil Act rather than by analogy and application of Article 42 (1) of the Civil Act and requiring more than approval of two-thirds church members. It can be said that if it is made as a requirement, the legitimacy of church and property rights needs to be ensured more than court opinion. Third, by judging only the church's active property rights, and not mentioning or withholding any obligations for the church's passive debt, the debt is reduced due to the division of the church, resulting in losses to the creditors who have a right to claim to the church in the future. It was decided that it could be brought. Fourth, without considering the contribution to the formation of church property, the right to own, use, and profit all church property is granted to more than two-thirds of the church members, and the remaining members are completely deprived of the right to property rights. The result is against the justice of property right, even if they are a minority. By depriving the right to property rights at all, it limits and infringes with the freedom to choose and withdraw from religion according to differences in doctrine or beliefs, thus violating the Constitution. The reality requires the courts to address the church disputes in many cases. Provided that the court conducts a judicial review on church division and church property, it is mandated to recognize the autonomy and independence of church and state, respects the church law and state laws, and needs to follow the constitutional principle of Establisment clause for the separation of church and state. In dealing with the church disputes, it should be kept to the minimal extent of judicial intervention, meaning that judgments need to be scruplous in view of the specificity of religious organizations and canon laws. In other words, such special conditions or laws should be respected and applied first. The universal order that Christianity pursues is to achieve peace between the church and state through harmony rather than an antagonistic relationship. It is the attitude that the church will take as well as the policy direction that the state or the courts, which are state judicial institutions, will take.