민사소송절차와 교회 내부 징계절차 및 행정쟁송절차의 비교 검토 = Study on the comparison between the procedures of the civil action and that of the inner discipline and the administration contentiousness in the church

다국어 초록 (Multilingual Abstract)

A religious body and theses about the discipline of the church with emphasis on the justice of the disciplinary trial and the legal contentiousness until now. But I closely examined in this study the process of the discipline and the administration contentiousness in the church looking into the Constitution of the Korean Presbyterian Church(unification religious body), one of the most popular Christian organizations in Korea. And by searching the limitation of judicial review to the justice of the inner trial in the church, I tried to prevent the legal dissension which can be created due to ignorance about the process of the inner trial in the church.
The above Constitution amended recently involves the large part of the Civil Proceedings Act except that it is in effect strongly the principle of official authority in the processes and contents because of the property of the religious body. There is a disciplinary trial and an administration contentiousness trial in the Constitution.
As an administration contentiousness, there are an administrative litigation, the litigation of an cancellation or an invalidity of the decision, that of political organizations which exist in the church, that of the cancellation and the invalidity of the election. There are three grades for the court of the individual church, the court of the General Assembly of Elders, the court of the General Assembly of the religious body in the trial. Each court above is comprised of the pastor and the Elders. The parties concerned can apply for the evasion or the exclusion to whom it may be concerned in the church. As a general judicial procedure, the Constitution decides whether they are right or not and informs them of how to write the petition and the preparatory document and how to hand them in. As a pleading procedure, the Constitution provides the process of the examination of the evidence and the questioning of the witness, the right of the elucidation and the command in the legal proceeding of the presiding judge and that of the demand of the question for the parties concerned. And the Constitution stipulates the procedure of the sentence of the judicial decision, the effect of the judicial decision, the appellate trial, the action and the special one for renewal of procedure, etc.
A judicial precedent of the Supreme court takes a stand that the court can't judge about the violation of the procedure of the discipline and the doctrine of the church, if the disciplinary trial is sentenced by the legitimate court according to the Constitution. I think that this judgement has many problems, because it is different from the judgement that the court decides if the procedure of the release from the head priest in a temple is against to the process of the discipline of the Constitution and law of the religious order. The pure religious matters like doctrine as a matter of fact doesn't have the property of a legal contentiousness. But it is very important matters because the dismissal and discharge of the pastor is deprived him from the status of the paster and expels him from the religious body, which makes his life tough.
Therefore, I think that it is right that the court judges whether at least the court in the church against the Constitution and the provisions of the discipline causes the discipline trial and administration contentiousness or not, even though the court guarantees against the right of the self control in the church and isn't involved with the judgement on the decision of the doctrine. But I suggest that the judicature isn't profoundly involved with the problems of the religious body by the principle of the separation of government and religion.
I hope that you'll understand the procedure of the discipline and the administration contentiousness in the church and give the right legal judgement about the troubles of the church through this thesis.

다국어 초록 (Multilingual Abstract)

A religious body and theses about the discipline of the church with emphasis on the justice of the disciplinary trial and the legal contentiousness until now. But I closely examined in this study the process of the discipline and the administration contentiousness in the church looking into the Constitution of the Korean Presbyterian Church(unification religious body), one of the most popular Christian organizations in Korea. And by searching the limitation of judicial review to the justice of the inner trial in the church, I tried to prevent the legal dissension which can be created due to ignorance about the process of the inner trial in the church.
The above Constitution amended recently involves the large part of the Civil Proceedings Act except that it is in effect strongly the principle of official authority in the processes and contents because of the property of the religious body. There is a disciplinary trial and an administration contentiousness trial in the Constitution.
As an administration contentiousness, there are an administrative litigation, the litigation of an cancellation or an invalidity of the decision, that of political organizations which exist in the church, that of the cancellation and the invalidity of the election. There are three grades for the court of the individual church, the court of the General Assembly of Elders, the court of the General Assembly of the religious body in the trial. Each court above is comprised of the pastor and the Elders. The parties concerned can apply for the evasion or the exclusion to whom it may be concerned in the church. As a general judicial procedure, the Constitution decides whether they are right or not and informs them of how to write the petition and the preparatory document and how to hand them in. As a pleading procedure, the Constitution provides the process of the examination of the evidence and the questioning of the witness, the right of the elucidation and the command in the legal proceeding of the presiding judge and that of the demand of the question for the parties concerned. And the Constitution stipulates the procedure of the sentence of the judicial decision, the effect of the judicial decision, the appellate trial, the action and the special one for renewal of procedure, etc.
A judicial precedent of the Supreme court takes a stand that the court can't judge about the violation of the procedure of the discipline and the doctrine of the church, if the disciplinary trial is sentenced by the legitimate court according to the Constitution. I think that this judgement has many problems, because it is different from the judgement that the court decides if the procedure of the release from the head priest in a temple is against to the process of the discipline of the Constitution and law of the religious order. The pure religious matters like doctrine as a matter of fact doesn't have the property of a legal contentiousness. But it is very important matters because the dismissal and discharge of the pastor is deprived him from the status of the paster and expels him from the religious body, which makes his life tough.
Therefore, I think that it is right that the court judges whether at least the court in the church against the Constitution and the provisions of the discipline causes the discipline trial and administration contentiousness or not, even though the court guarantees against the right of the self control in the church and isn't involved with the judgement on the decision of the doctrine. But I suggest that the judicature isn't profoundly involved with the problems of the religious body by the principle of the separation of government and religion.
I hope that you'll understand the procedure of the discipline and the administration contentiousness in the church and give the right legal judgement about the troubles of the church through this thesis.

참고문헌 (Reference)

• 1 한국장로교출판사,
• 2 권영성, "헌법학원론" 법문사 2000
• 3 김철수, "헌법학개론" 박영사 2004
• 4 권형준, "헌법" 법원사 2007
• 5 笹川紀勝, "종교단체의 내분과 사법심사" 유비각 1985
• 6 이영진, "종교단체의 권징결의와 사법심사의 한계" 고시계 2000
• 7 서원우, "제재적 행정처분의 제제기간 경과 후의 소의 이익" 서울대학교법학연구소 37 (37): 1996
• 8 양? 건, "정당내부의 분쟁과 사법심사의 한계" 법문사 1995
• 9 김완섭, "운전면허 정지 기간 도과 후의 취소소송과 소의 이익" 한국사법행정학회 30 (30): 1989
• 10 문광삼, "우리의 정당과 민주주의―관련판례를 중심으로" 부산대학교 39 (39): 1998
• 11 이시윤, "신민사소송법" 박영사 2007
• 12 中野貞一郞, "사법심사권의 한계의 획정기준" 103 (103): 1990
• 13 오시영, "비법인사단으로서의 교회의 실체에 대한 고찰" (40) : 2008
• 14 佐藤幸治, "부분사회론에 대하여" (455) : 1982
• 15 강경근, "부분사회론" 고시계 2001
• 16 전병서, "민사소송법강의" 법문사 2002
• 17 김영진, "민사소송법" 신영사 2003
• 18 김홍규, "민사소송법" 삼영사 2002
• 19 호문혁, "민사소송법" 법문사 2002
• 20 송상현, "민사소송법" 박영사 2004
• 21 오시영, "민사소송법" 학현사 2004
• 22 대한예수교장로회총회헌법개정위원회, "대한예수교장로회(통합) 헌법"
• 23 "대한민국 현행법령+판례 CD-ROM 법률신문사(한국문헌정보기술)"
• 24 한국장로교출판사, "교회주소록, 2007"
• 25 김진현, "교회재산분쟁에 관한 비교법적 고찰 ―소의 이익 내지 재판권의 한계문제를 중심으로―" 강원대학교비교법학연구소 1 : 1985
• 26 趙勇衍, "교회의 분열과 재산의 귀속" 8 : 1986
• 27 김민규, "교회의 분열과 재산귀속에 관한 판례 법리의 변천" 한국재산법학회 2007
• 28 오시영, "교회의 분열과 재산 귀속 관계에 대한 고찰" 대한변호사협회 2006
• 29 변동걸, "교회의 분열과 교회재산의 귀속" 한국사법행정학회 7 : 1993
• 30 이학수, "교회의 분열 및 그에 따른 교회재산의 귀속에 관하여 현재 대법원 판례가 취하는 태도에 대한 검토" 부산판례연구회 1991
• 31 송호영, "교회의 교인들이 종전 교단으로부터 집단적으로 탈퇴하여 별도의 교회를 설립한 경우의 법률관계" (36) : 2007
• 32 양형우, "교회분열에 따른 재산귀속" 24 (24): 2007
• 33 추신영, "교회분열시 재산분할방법" 성신여대법학연구소 (2) : 2002
• 34 박일환, "교회가 분열된 경우의 재산귀속관계"
• 35 김증한, "교회가 분열된 경우의 교회재산의 귀속" 1 (1): 1959