2006년도 주요 민법(民法) 관련 판례 회고

Abstract

This paper reviews 33 korean cases on Civil Law decided in 2006. Among

these cases, 2 cases are the most important.

1. On April 20, 2006, the Korean Supreme Court overruled its own precedents

regarding the split of a church. According to the former precedents, the members

of a church at the time of the split were collective owners of the property of

the church regardless of the split. But these precedents were much criticized

because the court could not resolve the dispute of the church members. So the

new decision denied the split of a church as a legal concept. Rather, the

decision declared, the so-called split of a church is nothing but a collective

secession. So the seceded members cannot assert any right upon the church's

property. But the church can change the denomination with the approval of more

than two-thirds of the members. In my opinion, this new decision comports with

the purpose of the law for the resolution of the dispute.

2. The majority opinion of the Korean Supreme Court decision on June 22,

2006 declared that the sex of a woman in the family register who received a

transsexual operation could be changed from woman to man by way of the

family register correction. But the minority opinion asserted that the transsexual

operation should not be a cause of the family register correction as a matter of

interpretation of law. According to the minority opinion, the legislature, not the

court, had the competence to decide whether transsexual operation should be the

cause of the change of sex in the family register.

This decision can be compared with the decision of the House of Lords of U.

K on April 10, 2003. In Bellinger v. Bellinger, [2003] 2 W.L.R. 117 the House...