교회의 분열과 재산귀속에 관한 판례법리의 변천 - 대상판결 : 대법원 2006. 4. 20. 선고 2004다37775 전원합의체 판결

The Problem of Determining the Ownership of the Properties of a Church caused by the Schism of the Church

&nbsp;&nbsp;Supreme Court on April 20, 2006( No. 2004Da37775 Unanimously Agreed Verdict ) on the property ownership caused by the schism of a church. It also aims to illuminate the change process of the relevant cases and the development of a theory.<BR>&nbsp;&nbsp;According to the aforementioned Supreme Court verdict, the split of a church is not admitted. In addition, when the religious sect of a church is changed, it is judged that the properties of the church would belong to the joint ownership ( Gesamteigentum in Germany) of the remained church members the seceded members from the church cannot hold the property rights.<BR>&nbsp;&nbsp;However, the verdict of the Supreme Court has some problems:<BR>&nbsp;&nbsp;(1) The dominating jurisprudential theory has taken a position that it is inevitable to acknowledge the schism of a church. Therefore, the aforementioned Supreme Court verdict is purely a jurisprudential interpretation without considering the peculiarity of a religion.<BR>&nbsp;&nbsp;(2) With regard to the properties of a church, there are several cases; it can be registered as a juridical foundation or it can be in the form of a trust or an estate in trust. Since the Supreme Court verdict considers only the churches in the form of an incorporated association, it cannot be generalized as a standard to solve the problems of appointing properties of a church after its split.<BR>&nbsp;&nbsp;(3) The reasons of a split of a church can be classified into two cases: the schism can be originated from a religious conflict caused by divergent doctrines or methods of church service. Or it can be originated from a depravity of the clergy. Particularly in the latter case, if the reverend still belongs to the church, the seceded members of the church will lose its foundation of properties and facilities.<BR>&nbsp;&nbsp;Therefore, with regard to the determining the ownership of the properties of a church caused by a split of the church, it may be desirable to make a judgment after considering both realistic and jurisprudential analysis of each individual church.