사찰의 독립한 단체로서의 법적 성격과 실체성에 관한 소견

Abstract

Buddhist temple, as a Buddhist organization, is subject to regulation under the Korean Traditional Temples Preservation and Support Act unlike other religious organizations. Buddhist temples can be categorized into personal, general and traditional temples. Traditional temples are those subject to regulation by the Preservation of Traditional Buddhist Temples Act. Personal temples are religious purpose facilities established by individuals and does not carry substantiality as an independent organization. Personal temples are void of legal capacity, and thus cannot be the subject of rights and obligations. On the other hand, general temples have the substantiality and legal capacity as an independent organization. Temples typically advance from personal to general temples. With regard to the legal nature of general temples, the Korean Supreme Court views them as an unincorporated association or foundation, while the Korean Civil Law merely acknowledge two type of organizations such as an association or a foundation, and denies an interim form between an association and a foundation. When a Buddhist community plays a pivotal role in establishing a personal temple, the resulting general temple becomes an unincorporated association, whereas, if an individual contributes his/her fortune to establish a personal temple, the resulting general temple becomes an unincorporated foundation. In this sense, most of the general temples are unincorporated foundations. The transition from personal to general temple should be seen as an ownership transfer of the temple properties from an individual to a temple itself. During the ownership transfer, the previous religious purpose facility ought to be seen to be transformed into an independent organization. It cannot be seen that, as with the decisions rendered by the Korean Supreme Court, temples are acknowledged as independent organization when registered on the religious body or the administrative office in charge.