법인 아닌 사단에 유추 적용되는지 여부와 종교단체에서의 제한 가능성 (대상결정 : 대법원 2009. 11. 19.자 2008마699 전원합의체 결정)

Abstract

This thesis analyzes the subject case breaking the precedent case set by Supreme Court. The precedent case denied the application of the Art. 63 of Civil Act to an unincorporated association. However, the subject case approved that the Art. 63 of Civil Act could be applicable to an association which is not a juristic person. Moreover, the case ruled that if an unincorporated association is one of the religious organizations, the application of the Art. 63 has some limitations. The well-established Supreme Court's view has been maintained that Civil Act articles regulating a corporate, except premised articles of corporation entities, could be applicable to juristic relations of an unincorporated association, such as the substance and establishment of incorporated association, the acquisition and loss of qualification for membership, the operation of general meeting, and causes for dissolution. Because Civil Act regulates only ownership and operation of an unincorporated association's property by Art. 275, 276 and 277, thus it is not good enough to supervise the entity.(Supreme Court en banc Decision 2004Da37775 Decided April 20, 2006). Therefore, the subject case decided that Art 63 of Civil Act could apply by inference to an association which is not a juristic person as well as an incorporate foundation, because Art. 63 regarding appointment of provisional directors is regulating juristic person of organization and activity. And it does not premise corporation entities. So, the subject case changed Supreme Court Decision 4293MinJaeHang431 Decided November 16, 1961 which denied the application by inference of Art. 63 to an unincorporated association. The subject case decision has assessed a certain validity considering the conventional theory, the juristic reality of an unincorporated association, and comparative law. However, the subject case ruled that, even though the Art 63 could apply by inference to an unincorporated association, if an association which is not a juristic person is one of the religious organization, there might be some restrictions in order to appoint provisional directors at the religious organization. The Supreme Court has pointed out that courts requires to consider the constitutional rights of religious organization based on the freedom of religion clause and the concept of church and state shall be separated. And courts should consider that there is a substantial danger that the state will become entangled in essentially religious controversies. So, courts require to defer to the resolution of issues of religious essential doctrine or polity as well as not to intervene excessively. Therefore, courts are subject to these limitations ruling to appoint provisional directors considering the requirement of the role of provisional directors and their specific authorization and allocation of power. Especially, if courts have to appoint provisional directors to the religious organization which needs filling a vacant representative, the courts should examine whether the provisional directors are entitled to the same religious belief. Thus, court below judgment which elected provisional directors extrinsic to the their religion was annulled by the subject case decision. The subject case decision has been keeping up with the Supreme Court view where resolution of religious disputes cannot be made without extensive inquiry by careful approach. Moreover, this case presents a standard solution regarding the appointment of provisional directors to religious organization, which has substantial danger of the state intervention, considering freedom of religion rights of the religious groups.