교회 및 종교단체의 자율성과 법원의 판결

Abstract

In principle, a disciplinary trial is a trial within a religious organization. Accordingly, in principle, neither confirmed judgments nor unconfirmed ones are not subject to judicial review under the principle of religious freedom. Exceptionally,* Soowon Lord’s Presbyterian Church in the Reperblic Korea, Senior Pastor. first, when there is a disciplinary trial related to the specific rights, obligations, and legal relationship of individual parties to the lawsuit, and it becomes a premise for judging the fairness of claim, and if the grounds for discipline are not related to the interpretation of religious doctrine, it becomes subject of judicial review. Second, even in this case, if it clearly violates the disciplinary procedures set forth in the rules set by the church itself—and only in this case—it is subject to judicial review. Disciplinary trials are nothing more than regulations within a religious organization. Since it is clear that it does not regulate the legal relationship related to specific rights and obligations of individuals, disciplinary trials conducted by the judiciary itself cannot be the subject of so-called legal disputes. It can be said this comes from protecting the autonomy of religious organizations, which is included in the freedom of religion guaranteed by the Constitution. The Korean constitution guarantees freedom of religion and includes freedom of choice of faith, change or conversion of faith, renunciation of faith, confession of faith, and freedom of faith silence. For freedom of not having faith—direct, indirect or factual in the formation, alteration, or renunciation of this belief—any form of national influence is denied, and in the formation, change or abandonment of faith, any form of national coercion from the government is not conceded. In the formation of a more developed modern democratic country, the recognition of the above rights’ guarantee is not only historical and declaratory but also active and proactive in terms of protection and encouragement of such rights—a mandatory functionality. These functions, in dealing with national legislative actions on religious matters, administrative policy for religious organization, and judicial judgment on religious disputes, are important assignments that need to be implemented respectively. However, these guarantees, when necessary, can be restricted by law for national security, order maintenance, and public welfare. There is a final limit that its essential content cannot be violated, so it cannot be said that any legislative act, administrative policy, or judicial review that rouses suspicion of the existence of a religion is impossible. Church discipline is not a punishment under national law, but is a matter of morality and spirituality; its effectiveness depends on the legitimacy of discipline itself, its public recognition by all people, and the teaching and blessing of Christ, the head of the ecumenical church. On the other hand, the case of litigating church disputes in national law is exemplified in Acts 18:12-16. The accusation is: The missionaries caused commotion by destroying the order and authority of the nation through their proclamation. However, Governor Gallio, having a keen and immediate insight, said that it would be a ‘problem of internal religious debate’ in Judaism. Governor Gallio noticed that their accusation was nothing more than a dastardly ploy of Jews to drive out their enemies with the help of the state power. The accusers were harshly rejected The German constitution forbids the state church and emphasizes the separation of religion and state, but if the state is neutral, the state and religion can work together for the community in the same way that the state can cooperate with other social groups. This is understood as that the state ultimately guarantees and supports individual religious practices. The relationship between the state and the church in Germany is a theoretical organizational realization of the principle of separation of church and state; it did not bring a complete denationalization of the church. The church is conferred public power from the state in its legislation, discipline, and finances. The church is thus supervised by the state; it is recognized as a public corporation, and the church law is recognized as a public law. Germany maintains a cooperative relationship between the state and the church, and made a critical use of recognizing the church's wide privileges in the public sphere. The German Constitutional Court ruled that since the state and the church are essentially irrelevant, and the church is an institution with the right to self-determination, the state must not intervene in the relationship within the church. The governing body in charge of disciplinary trials as an internal discipline for resolving church disputes is the session, meeting, and assembly. When these bodies establish and operate a judiciary and carry out judicial affairs concerning disciplinary matters, first of all, in order to ensure the fairness of the trial, they must secure independence as trial organizations. Their inability to do so is a structural limitation. Even if it is an internal matter of the church, when the matter is related to direct laws or legal relationships of the church, staff, members, etc., they may conduct judicial review. In these cases, however, with regard to specific matters that have already been finalized and resolved, the contents of the resolution shall be respected and its effect shall be recognized. To what extent can the review of disciplinary trials be conducted? Within the scope of the harmonization and balance of guaranteeing the autonomy of the church and the legal interests of the respective parties, judicial trials must be done. Religion and state sometimes stand in tension or maintain cooperative relations. Each religious group has its own unique character, and they compete with one another for power expansion amid continued struggles on the other hand. The mission and tremendous responsibility of the religious organization are its tasks to take on by itself, but the discord and conflict are not irrelevant to the interests of society or the nation. So it will be of special interest. The guarantee of religious autonomy presupposes that each religious organization has the capacity to solve its own problems. It means that when there is a request for judicial review due to the lack of such ability, the state should be involved to the minimum-necessary level. In the future, it is expected that common matters related to internal and external religious organizations will increase as litigation issues. In this case, it is clear that the judicial power will be involved and take charge of ex-post trials, expert knowledge and rich experience are to be requested, and the legal theory viewed in a specific case will be applied to abstract general law with ease.