session 1 : ideological background of the constitution ... filedaniel mitidiero (brazil)...

Session 1 : Ideological Background of the Constitution,

Constitutional Rules and Civil Procedure

1.2. Religious Aspects, including 2 sub-topics: religion before the courts

in secular States and procedure within non secular States

Call for Papers under the supervision of Prof. Oscar CHASE (USA)

Paper Submitter (*Speaker)

Prof. Soraya AMRANI MEKKI, Professeur à l'Université Paris Ouest -

Nanterre La défense, France

Prof. Luiz Guilherme MARINONI, Federal University of Paraná, Brazil and

Prof. Daniel MITIDIERO*, Federal University of Rio Grande do Sul, Brazil

Prof. Hunje SUH*, Chung-Ang University Law School, Korea and President of

the Korea Church Law Association, and Dr. Guihag HWANG, Represantative

of Law and Church (http://lawnchurch.com), Researcher of Church Law

institute

Prof. US dr hab. Kinga FLAGA-GIERUSZYŃSKA, University of Szczecin,

Poland

Prof. Shimon SHETREET*, Hebrew University of Jerusalem, Israel

Daniel MITIDIERO (Brazil)

International Association of Procedural Law Seoul Conference 2014 49

Luiz Guilherme MARINONI

Daniel MITIDIERO

Religious Culture, Predictability and Unity of the Law

Through the Rule of Precedent*

1. Lack of rationality and predictability in Brazilian law; 2. The impact of the

Counter-Reformation values in the Iberian countries and in the colonization of America;

3. The patrimonialism in the formation of the Brazilian culture: from Weber to Buarque

de Holanda; 4. The culture of personalism, lack of social cohesion and weakness of the

institutions; 5. To whom does irrationality matter?; 6. Patrimonialism versus the

generality of the Law and the system of precedents; 7. The authority of the precedents,

respect for the Law and personal responsibility.

1. Lack of rationality and predictability in Brazilian law

Considering the reality of Brazilian civil justice, it seems clear that the public,

who is subject to jurisdiction, has great difficulty to predict how will a legal case be

decided. This is due to the fact that the judges and the courts most of the time do not

observe minimal models of rationality in their decisions. It is obvious that the use of

general clauses and the adoption of constitutional principles to interpret the legal rules,

by itself, broadened the power of the judges’ latitude, or rather, the incidence of

subjectivity in the solution of legal cases. After all, in one case the judge is called to

define what was left undecided by the legislature and on the other, he has the power to

deny validity to legal rules in face of the Constitution or even to make these rules

conform to the constitutional rule. However, even when he is simply applying a rule, the

judge is faced with the need to evaluate and decide, by choosing one of several

possibilities when assigning meaning to the legal text, which means that it has to draw,

in any case, an argumentative reasoning that carries rationality. Only rational

argumentation offers acceptable justification to the interpretive activity1.

Frequently, even in judicial decisions that merely apply legal rules, there is little

concern in the explanation of the reasons, for example, justification could be given for

choosing a particular interpretive option. In fact, there is often lack of reasoning to

justify the evaluative choices made in the judicial reasoning. It is as if, in spite of having

* This essay is based on the book “A É tica dos Precedentes” (The Ethics of the Precedents), by Luiz Guilherme

Marinoni, published by Ed. Revista dos Tribunais in 2014. Written for the IAPL Seoul Conference 2014 –

Constitution and Proceedings to be presented in the panel Civil Procedure and Religion, coordinated by Professor

Oscar Chase. 1 On the subject, according to the doctrine of Roman-canonical tradition, Giovanni Tarello, L Interpretazione della

Legge. Milano: Giuffrè, 1980; Riccardo Guastini, Interpretare e Argomentare. Milano: Giuffrè, 2011; Pierluigi

Chiassoni, Tecnica dell Interpretazione Giuridica. Bologna: Il Mulino, 2007; Michele Taruffo, La Motivazione della

Sentenza Civile. Padova: Cedam, 1975.

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil

Procedure

50 International Association of Procedural Law Seoul Conference 2014

decided based on evaluations, the judge could cover these values by using reasoning

lines that only alludes to the letter of the law and to doctrinal and jurisprudential lines

that indicate nothing about the evaluative content that is implicit in the decision. There

is no argument strong enough to convince, to make the decision rationally acceptable.

Such acceptance, of course, is related to the public opinion and, especially, to the

contenders involved in the case2.

In fact, the Brazilian judicial practice reveals that, even if we start from the

premise that the act of deciding is not simply to reveal the norm contained in the legal

text, the act of motivating a decision did not (yet) become an act of rational

argumentation to justify the decision-making options - including the final decision – that

have been made in the development of the reasoning that lead to the decision. That is to

say, if the judge has the power to apply the law starting from the legal text, through

interpretation, we still must walk a long way for the Law to become an argumentative

practice and, in this dimension, to have rationality and legitimacy.

In any event, argumentation imparted with rationality does not substitute another

kind of rationality, one that relates to the application of the Law by the judiciary. The

judicial system, internally, has bodies that are responsible for eliminating interpretive

doubts, exactly because it is incoherent and irrational to apply "multiple Laws" in face

of conflicting cases. It is the responsibility of the Supreme Court through the

extraordinary appeal and of the Superior Court through the special appeal to define,

respectively, the meaning of constitutional law and that of infra constitutional federal

law, expressing a norm that is endowed with autonomy in the face of the law, which,

consequently, incorporates the legal system. Now, a legal system that, despite the

intervention of the Supreme Court admits different interpretations is completely

incapable of managing its role of distributing "justice" to specific cases. This structure

does not provide consistency to the legal system, equality before the law, freedom and

predictability; in addition, it does not include a method that enables the Law to develop

rationally and in a gradual way as it faces new cases that require new legal solutions.

Disrespect to the precedents issued by the Supreme Courts is an open door to an uneven

and random distribution of "justice", with all its perverse consequences.

In Brazil, a significant portion of the judges of lower courts, and of the Courts of

Justice and federal courts, do not respect the precedents issued by the Supreme Court

and Superior Court. In fact, these judges and courts do not even justify the non-

compliance to the decision of the Supreme Courts. And even worse: the Supreme Court

and the Superior Court, themselves, at times pronounce different conclusions

concerning identical cases. This occurs not only when one Circuit Court differs from

another. The same Circuit Court, frequently, does not confer stability to a given decision.

This happens because the Supreme Court and the Superior Court still function as Court

of rectification of the ordinary (lower) courts decisions – i.e., as a court of control and

jurisprudence. They are not yet the face of the Court of interpretation and the Court of

2 Michele Taruffo, La Motivazione della Sentenza Civile, cit., p. 371; Loïc Cadiet, Jacques Normand e Soraya

Amrani Mekki, Théorie Générale du Procès, 2. Ed. Paris: PUF, 2013, p. 685.



precedents, which defines the normative interpretation that should govern future cases,

including those that reach their hands.

On the other hand, in spite of the fact that the extraordinary appeal to the

Supreme Court is subject to the requirement of "general repercussion" of the

constitutional issue – pointing to a Court of Precedents -, discussions still exist about the

obligatory effect - also called binding – of the decisions rendered in extraordinary

appeals. There have even been arguments stating that the binding effect would be

restricted to the decisions rendered in cases related to the direct control of

constitutionality, which is obviously an absurd, especially when the binding effect, for

those who so defend, is limited to the disposition (final) part of the decision.

It is interesting to compare the Brazilian system of general control of

constitutionality, tied to the absence of binding effect of the constitutional precedents, to

the American system. It is true that in the U.S. the idea of constitutional precedent did

not arise at the same moment of the creation of the theory of judicial review of

legislation. However, the control of constitutionality, in Brazil, besides not having been

subject to detailed discussion in the legal community - derives from the personal efforts

of Rui Barbosa -, it had its meaning and consequences simply ignored by society. Or

rather, here the idea of control of constitutionality owes nothing to the values of society,

differently from what occurred in the United States3.

When it is stated that: “all laws which are repugnant to the Constitution are null

and void” it does not depict a result extracted from a simple exercise of structured logic

derived from a pyramid idea, since the Constitution, to the settlers and to the founders

of the American constitutionalism, contained a meaning that transcended that of the

legal boundaries4. The American constitutionalism was the first to be born because it

was the first written constitution, apart from some English Calvinist inspired

experiences. As stated by Fernando Rey Martínez, the traditional American emphasis on

a writing Constitution owes much to the persistence of the Puritans that the higher law

should be a written law5. The Puritan settlers not only reproduced the theory of Calvin,

in the sense that the law had to be written, the lex scripta - seen as proof of the natural

law6 - but they also had present the experience of the Reformation, characterized by the

3 On the values of the American Society, Oscar Chase, Law, Culture, and Ritual – Disputing Systems in Cross-

Cultural Context. New York: NYU Press, 2005, pp. 47 et seq.; also refer to Robert Kagan, Adversarial Legalism –

The American Way of Law. Cambridge (Mass.): Harvard University Press, 2001, pp. 99 et seq. 4 See Sanford Levinson, Constitutional Faith. Princeton: Princeton University Press, 1988. 5 Fernando Rey Martínez, La ética protestante y el espíritu del constitucionalismo, Bogotá: Universidad Externado

de Colombia, 2003, p. 55 et seq; Gordon Wood warns that, “just like all Englishmen, the colonists were familiar with

written documents as barriers to unlimited power” (Gordon S. Wood, The Creation of the American Republic: 1776 –

1787, North Carolina: The University of North Carolina Press, 1998, p. 268). 6 The “declaration of independence”, adopted by the Continental Congress on July 4, 1776, refers, in its first

paragraph, to the “Laws of Nature” as grounds for the act of political separation between American colonies and

England. Next it affirms that: “We hold these truths to be self-evident, that all men are created equal, that they are

endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of

Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the

consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right

of the People to alter or to abolish it, and to institute new Government”. The acceptance of “jus naturalistic”

principles is explicit, specifically in John Locke’s statement: “when one or more persons take unto themselves the

creation of laws, not being legitimately appointed by "the people’s” choice, hence these persons create law without


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affirmation of the text of the Bible as means to free the men in the face of "divine

power" created by the Catholic Church. Remember that one of the most important

victories of the Puritans on English soil occurred in 1628, when the famous Petition of

Rights was imposed upon Charles I, which clearly emphasized the Calvinist theory of a

higher Law which subjected both, the legislature and the judiciary7.

This means that, if the idea of constitutional precedents took some time to

emerge in the United States, this is probably due to the deliberate caution with which

the Constitution was applied8. The Constitution, due to its nature as a supreme law,

almost sacred in character, should be applied literally, without giving opportunity for the

judiciary to apply rules that conflict with it. However, when signs of doubt in

interpretation come to surface, the logic of the authority of the Supreme Court

precedents arise, even because the judicial control of constitutionality of the laws has,

intrinsically, the unifying force of the Law, to the exact extent that, in a system of

reciprocal control between the powers - checks and balances – one cannot conceive the

fragmentation of what is said by the judiciary – resulting in different legal decisions

about the validity of the laws.

In Brazil, many judges still believe they can assign meaning to the texts that

protect the fundamental rights as they please - as if the Constitution were an outlet for

the expression of their own personal values and desires – and, thus, decide without any

commitment to the constitutional precedents, in a clear demonstration of the lack of

understanding of the institution.

Behind the lack of respect for the precedents are rhetorical arguments of legal

nature, cultural values and even a clear interest in an inconsistent legal system that is

open to sudden changes. It is important to understand that the lack of authority of the

decisions of the Supreme Courts derives not only from the theoretical rejection of the

idea that its decisions must define the meaning of the Law and, therefore, guide the

other courts, but also from the indifference of people holding significant social positions

in the rationalization of the distribution of the Law in the country.

After taking a closer look at how things work, with multiple “key position

holders” within the marketplace, as well as in government, plus a number of judges and

some lawyers, themselves, may be more interested in the inconsistency and irrationality

than otherwise. This topic, though never approached before, has great relevance in

the authority of doing so, consequently, "the people" are not obliged to obey such laws; in such conditions, "the

people" are again not obliged to submit themselves to it, and are entitled to constitute a new legislature as they deem

appropriate, having complete freedom to resist the enforcement of those who, without authority, want to impose any

thing unto them” (John Locke, Second Treatise of Government. Hackett: Indianapolis, 1980 [1690] p. 80). 7 Fernando Rey Martínez, La ética protestante y el espíritu del constitucionalismo, cit., p. 57-61. 8 The Framers, in spite of having had experience with the precedents of the common law, have certainly not known

precedents of constitutional nature, that is, interpretive precedents to the constitutional law. The constitutional

jurisdiction was something totally new. The theorization of the constitutional precedents must have required at least

the beginning of a discussion about constitutional interpretation. In 1958, in the case Cooper v. Aaron, the Supreme

Court held that "the interpretation of the 14th. Amendment announced by this Court in the Brown case is the supreme

law of the country and the art. VI of the Constitution gives this decision binding effect to the States. See Michael J.

Gerhardt, The power of precedent, New York: Oxford University Press, 2008, p. 48 e ss.



countries of the civil law system marked by cultures that are contrary to rationality and

impersonality in the public administration, including in the administration of justice.

2. The impact of the values of the Counter-Reformation in the

Iberian countries and in the colonization of America

The Reformation, which was led by Luther and later by Calvin, showed

deviations of the Catholic Church that, from Propagating Faith, had become a vehicle of

manipulation of political and economic power. The Reformation emphasized, among

other things, the need to read the Bible as means of demystifying the dogmas of the

Church, stressing the invalidity of the sacraments of salvation as well as of work as

means of salvation, all this served to strengthen the Church, politically and

economically.

Remember that the Calvinists eventually understood that the proof of salvation

would be born through the rational control of the acts performed within the mundane

life. The sacraments of salvation and of working hard were seen as magnification9. In

this sense, the Reformation has contributed to rationalize mankind’s life and,

consequently, to the rationalization of its groups and of life in society itself. Hence the

Reformation has given rise - as demonstrated by Weber in "The Protestant Ethic and the

Spirit of Capitalism" – to a way of life centered on the intra mundane ascesis, whence

derives the understanding of work as a religious duty, stimulating the development of

capitalism and of the need for a legal system endowed with formal rationality, to which,

predictability was inherent10

.

Rome and the Latin peoples connected therein felt the need to respond to the

attacks of the Protestant Reformation. The resistance of the Pope and its court to a

conciliation lead Rome to manipulate a Council that became inevitable - called the

Council of Trent -, whence came the so-called Counter-Reformation, an absolutist

option that strengthened the orthodoxy and stiffened the discipline of the Church,

establishing values that were responsible for the decay of the peninsular peoples.

The Catholicism contained in the Council of Trent, in essence, rejected the great

achievement of the Reformation: the moral freedom that led to the examination of the

individual consciousness, responsible for the strong emphasis on personal responsibility,

all this being essential to the posture assumed by the Protestants in their lives. The

9 The Framers, in spite of having had experience with the precedents of the common law, have certainly not known

precedents of constitutional nature, that is, interpretive precedents to the constitutional law. The constitutional

jurisdiction was something totally new. The theorization of the constitutional precedents must have required at least

the beginning of a discussion about constitutional interpretation. In 1958, in the case Cooper v. Aaron, the Supreme

Court held that "the interpretation of the 14th. Amendment announced by this Court in the Brown case is the supreme

law of the country and the art. VI of the Constitution gives this decision binding effect to the States. See Michael J.

Gerhardt, The power of precedent, New York: Oxford University Press, 2008, p. 48 e ss. 10 Max Weber, A ética protestante e o “espírito” do capitalismo (The Protestant Ethic and the Spirit of Capitalism)

(Ed. of Antônio Flávio Pierucci), cit; Max Weber, Essais de Sociologie des Religions (Essays of Sociology of the

Religions), Paris: Gallimard, 1996.


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Council of Trent condemned human reasoning and the free thought, considering it a

crime against God. The prohibition of reading the Bible, for example, is nothing more

than to qualify human reasoning as sin and to question the cognitive ability of mankind,

forcing men to have a way of life guided by the "understanding" of a few enlightened

people.

Note that the impossibility of questioning the religious dogmas and the magic

solution coming from the salvation sacraments, like the confession, do not stimulate the

examination of conscience to investigate personal responsibility but, instead, they

eliminate the reason for a life guided by a rational agenda11

.

The Catholic values of the Trinity are not only distinct from those of Calvinism.

They had opposite impacts upon the way man conducts his personal life and, therefore,

upon the development of society. While Catholicism has forbidden the free thought and

made men dependent on the church - for example, with the obligatory confession to the

priest, underlined on Session 14 of the Council of Trent - Calvinism, based on God's

sovereign will and on predestination, forced men to look for signs of salvation in daily

acts of life, especially in the exercise of one’s profession, which required the

rationalization of one’s way of life, with the methodical investigation of consciousness

and a very strong feeling of personal responsibility12

.

3. The patrimonialism in the formation of the Brazilian

culture: from Weber to Buarque de Holanda

Sérgio Buarque de Holanda, in his classic "Roots of Brazil"13

, analyses the

foundations and fundamentals of our history from the typological criterion of Max

Weber14

. Buarque de Holanda always uses two contrasting ideal types (hard-working

and adventurous, impersonality and emotional impulse, etc.) in order to extract the main

essence and understand our historical destiny by comparing and contrasting these ideal

types 15

. Holanda uses Weber’s concepts on patrimonialism and bureaucracy in order to

demonstrate the meaning of the "cordial man," a personal behavioral prototype that is

typical to the formation of the Brazilian culture, hostile to impersonality and to formal

11 Antero de Quental, in a speech given in Lisbon in 1871, argued that the Catholic Council of Trent was not only a

major contributor to the decline of the peninsular peoples of the seventeenth, eighteenth and nineteenth centuries, but

also had adverse effect on the colonization on American soil. (Antero de Quental, Causas da decadência dos povos

peninsulares nos últimos três séculos (Causes of decay of peninsular peoples in the last three centuries). Speech

given in the premises of Casino Lisbonense in Lisbon on May 27, 1871, during the first Session of the Democratic

Conference). 12 In a suggestive analysis, David Landes, Professor Emeritus of Economics at Harvard University, highlights the

different impact that the values of Protestants and Catholics had upon social behavior and links it to the economic

development of nations (David S. Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So

Poor , New York: W. W. Norton, 1999). 13 Sérgio Buarque de Holanda, Raízes do Brasil (The Roots of Brazil), São Paulo: Companhia das Letras, 1995

[1936]. 14 To Weber, the ideal types, outlined based on deliberate exaggeration of characteristics of the investigated

phenomenon, are tools for the analysis of reality. 15 Antonio Candido, O significado de “Raízes do Brasil” (The Meaning of “The Roots of Brazil”), in: Raízes do

Brasil (The Roots of Brazil), (Sérgio Buarque de Holanda), São Paulo: Companhia das Letras, 1995, p. 13.



rationality, clearly related to the model of institutions and public administration in

Brazil - which still remains in the Brazilian culture16

.

It is important to recall that Weber, in addressing the legitimacy of the

domination relationships, presents three foundations - considered as ideal types - for its

legitimation, which are classified as: i) rational or legal-bureaucratic, ii) traditional and

iii) charismatic. Traditional domination is founded on the belief in the "life long sanctity

of the existing traditions, and on the legitimacy of those who, by virtue of these

traditions, represent the authority (traditional domination)."17

This kind of domination,

when contrasted with the rational domination, has very clear characteristics. As Weber

says, rational domination is based on statutes, so that an impersonal order, objectively

established by the law, along with the leaders legitimated by this order, are obeyed. In

the traditional domination, however, obedience is given to the Master, recognized as

such by tradition, what is done out of respect for the customs18

.

In the traditional domination, the impersonality and the rationality of the form of

domination do not matter, unlike what happens in the rational or legal-bureaucratic

domination, as also the charismatic qualification of the leader who exercises it does not

matter either - charismatic domination - since obedience is shown to the person

appointed by tradition and to customary habits19

. When speaking about the traditional

domination, Weber indicates as primary types, gerontocracy and patriarchalism. None

foresee employees for the master in his administrative staff. In gerontocracy, the elders

are the ones to perform the domination inside the association as they, presumably,

possess a greater knowledge of the tradition. In the primary patriarchalism domination

is attributed to a subject according to rules of succession20

.

The study of the main types, primary patriarchalism and gerontocracy is

important to the understanding of the notion of patrimonialism. For Weber, only when

the master starts counting on a personal administrative and military staff support,

domination will tend to patrimonialism and, when the power of the master is extreme, it

16 Sérgio Buarque de Holanda, Raízes do Brasil (The Roots of Brazil), cit.; Sérgio Buarque de Holanda, O Homem

Cordial (The Cordial Man), São Paulo: Companhia das Letras e Penguin Group, 2012. 17 Max Weber, Economia e sociedade (Economy and Society: An Outline of Interpretive Sociology), v. 1, Brasília:

Editora UnB, 2000, p. 141. 18 "In case of domination by rule-based Statutes, obedience is to the impersonal, objective and legally established

order and to the sovereign leaders that it foresees by virtue of formal legality and within the scope of its provisions.

In the case of traditional domination, obedience is to the person of the master nominated by tradition and linked to it

(within the scope of its provisions), by virtue of devotion to customary habits " [Max Weber, Economia e sociedade

(Economy and Society), v. 1, cit., p. 141]. 19 Aristeu Portela Júnior, Florestan Fernandes e o conceito de patrimonialismo na compreensão do Brasil, Revista do

Programa de Pós-Graduação em Sociologia da USP, v. 19.2, 2012, p. 12. (Florestan Fernandes and the Concept of

Patrimonialism in the Understanding of Brazil, USP Sociology Graduate Program Review, v. 19.2, 2012, p. 12). 20 "The most primitive types of traditional authority are the cases where a personal administrative staff of the chief is

absent: a) gerontocracy and b) patriarchalism. The term gerontocracy is applied to a situation where so far as

imperative control is exercised in the group at all it is in the hands of 'elders' (which originally was understood

literally as the eldest in actual years), who are the most familiar with the sacred traditions of a group. This is common

in groups that are not primarily of an economic or kinship character. Patriarchalism is the situation in which, within a

(domestic) association, usually predominantly based on economy and family, as a household, authority is exercised

by a particular male individual who is (usually) designated by preset rules of succession" (Max Weber, Economy and

Society, vol. 1, cit, p 151).


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will tend to sultanism21

. The difference between patrimonialism and sultanism is fluid,

and Weber appoints as patrimonial the domination that is exercised "from full personal

legitimate right."22

The essential note of this ideal type is the personalism of the decisions of the

master due to the expression "full personal right", employed by Weber. Therefore we

can say that patrimonialism is the form of domination in which the master acts upon

personal considerations without being submitted to objective or impersonal criteria

taken from statutes.

In patrimonialism, legitimacy - grounds for obedience - is based on a sacred

authority, which has existed since immemorial times. "Its archetype is the patriarchal

authority. Because it is based on an atavistic power and, at the same time, on an

arbitrary and compassionate power of the patriarch, it is manifested in a personal and

unpredictable manner that depends on the whims and subjectivity of the dominator. The

political community, which expands from the domestic community, takes from the latter,

by analogy, the forms and, specially, the spirit of 'piety' [the spirit of purely personal

devotion to the sovereign or pater related to the reverence to the sacred and the

traditional] to unite the dominator and the dominated."23

As explained, unlike gerontocracy and primary patriarchalism, patrimonialism

requires an administrative staff because, once the domestic community - foundation of

patriarchalism - is decentralized, that is, once the community members start to inhabit

properties that are dependent on the patriarch’s assistance, an organized administration,

hence, a group of employees shall be required – that is, the patrimonial functionalism24

.

This, however, does not observe the separation between private and official spheres

because administration, in the patrimonialist domination, concerns exclusively – and it

is exclusive patrimony of - the master. It is his choice, based on purely subjective

criteria, to choose the staff and to limit the powers. In the patrimonialist functionalism,

because jobs are filled based on personal relationships and on trust, it does not matter

the ability of the selected person and neither does matter a prior definition of the tasks

to be performed. As Weber said, "all service orders that, according to our conception,

are 'rules', along with all public order of the patrimonially governed States in general,

therefore, ultimately form a system of rights and privileges that are purely subjective to

certain persons, which originate in the concession and grace of the master. The objective

order and the objectivity of the impersonal purposes that is present in the life of the

21 "With the development of a purely personal administrative staff, especially a military force under the control of the

chief, traditional authority tends to develop into patrimonialism. Where absolute authority is maximized, it may be

called sultanism. [Max Weber, Economia e Sociedade (Economy and Society), v. 1, cit., p. 151]. 22 “We call patrimonial all domination that, originally oriented by tradition, is exercised by virtue of full personal

right, and we call sultanist all patrimonialist domination that, with its forms of government, lies, first, in the realm of

free will, unlinked to tradition. The difference is entirely fluid” (Max Weber, Economia e Sociedade (Economy and

Society), v. 1, cit., p. 151). 23 Rubens Goyatá Campante, O patrimonialismo em Faoro e Weber e a sociologia brasileira (Patrimonialism in

Faoro and Weber and Brazilian Sociology), Revista de Ciências Sociais (Social Sciences Review), v. 46, n. 1, 2003, p.

162 e 190. 24 Aristeu Portela Júnior, Florestan Fernandes e o conceito de patrimonialismo na compreensão do Brasil, Revista do

Programa de Pós-Graduação em Sociologia da USP, v. 19.2, 2012, p. 13. (Florestan Fernandes and the Concept of

Patrimonialism in the Understanding of Brazil, USP Sociology Graduate Program Review, v. 19.2, 2012, p. 13.)



bureaucratic State, here, do not exist. The job position and the exercise of the public

power are at the service of the person of the master, on one hand, and of the employee to

whom the job was awarded, on the other, and not to the service of 'objective' "tasks25

.

It is important to reiterate that primary patriarchalism, gerontocracy,

patrimonialism and sultanism are ideal types, not found in historical reality, as

highlighted by Weber himself26

. They are, like all ideal types, instruments to observe

reality. Therefore, when we speak of "patrimonialism", there is reference to a form of

domination based on personalism and, consequently, on the lack of objectivity and

generality. In patrimonialism decisions follow personal criteria of the master, which

completely ignore the impersonality that predominates in the rational domination.

Therefore, when we link patrimonialism to the Judiciary, reference is made to

the personal nature of the decisions, stimulated in a system where there is no respect for

the precedents of the Supreme Courts. Holanda alludes to several points of great

importance to the understanding of how patrimonialism and, particularly, the idea of the

"cordial man" are rooted into the Brazilian culture.

Accustomed to the way of living of the family circle - in Weber’s typology

primary patriarchalism, converted into patrimonialism after the insertion of an

administrative staff -, where the relations of affection and mere preference take place,

the Brazilians, when faced with the outside world, can not see it in an impersonal and

rationalized manner, seeking to shape all relationships and places, especially public

administration, based on affective and personalized criteria. At this point the Brazilian

projects himself as a "cordial man", that is, as someone who does not tolerate

impersonality and tries to reduce it at the cost of an affective behavior that is merely

apparent, not genuine, which always seeks sympathy, personal benefits and amenities.27

Holanda points out how difficult it was for holders of public positions of

responsibility, constituted within the primitive type of the patriarchal family

environment, to understand the fundamental distinction between areas of private and

public, which is why "they are characterized precisely by what separates the

‘patrimonial’ employee from the pure bureaucrat official as defined by Max Weber28

.

"After all, Holanda continues, "to the 'patrimonial' employee political management itself

is presented as a matter of his particular interest; functions, jobs and benefits that he

enjoys are related to personal rights of the employee and not to objective interests, as it

happens in the bureaucratic State, where specialized jobs and the effort to ensure legal

guarantees to the citizens prevail. The choice of the men who will hold public office is

made according to the personal trust earned by the candidates, and not according to

25 Max Weber, Economia e sociedade (Economy and Society), v. 2, Brasília: Editora UnB, 2004, p. 255. 26 “The fact that none of the three ideal types, to be examined next in more depth, usually exist, historically, in a

really 'pure' form, should not, on any occasion, prevent the attempt of setting concepts in the purest way possible "”

(Max Weber, Economia e Sociedade (Economy and Society), v. 1, cit., p. 141, footnote 2). 27 Holanda says that the temper of the average Brazilian admits reverence formulas, but only as long as it does not

suppress the possibility of coexistance with the familiar type. "The normal manifestation of respect for other peoples

has, here, its reply, as a general rule, in the desire to establish closeness” (Sérgio Buarque de Holanda, Raízes do

Brasil (Roots of Brazil), cit., p. 148). 28 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 146.


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their own abilities. In all there is a lack of personal order that characterizes life in the

bureaucratic State. The patrimonial functionalism can, with the progressive division of

tasks and with rationalization, acquire bureaucratic features”. But the more we

characterize both types, in essence, this kind of functionalism severs itself from the

bureaucratic functionalism29

.

This means that the family environment, transposed to the public sphere, makes

the employee and those who with him should establish contact, behave in detriment to

the impersonality and prevent legal rationality to prevail. The public sphere is invaded

by flavor of the family circle, the private, making the employee behave as if he had a

job of which he should make use, even in favor of those who are close to him, and

making those who are close to him claim for benefits, and, interestingly, also for its

inner rights, always based on artifices of warmth, animated by gestures of sympathy and

the pursuit for intimacy.

Holanda continues: “it can be said that, only in exceptional cases we had an

administrative system and a body of public employees that were dedicated to purely

objective interests and grounded in those interests. As a general rule, one can witness

along our history the continued prevalence of particular wills, which find its own

environment within closed circles that are inaccessible to an impersonal order. Among

these circles, the family was, undoubtedly, the one that achieved the strongest

expression and development in our society. And one of the key deficiencies of the

unquestionable supremacy, absorbent, core of the family - par excellence the sphere of

the so-called 'primary contacts', ties of blood and heart - is in that the relationships that

are created in the domestic life have always provided the essential obligatory model to

any social composition between us. This occurs even in cases where democratic

institutions, founded in neutral and abstract principles, intended to establish a society

based on anti particularistic norms".30

This all certainly penetrated the administration of justice, leading, for example,

to the formation of the famous "groups" in the courts, when what starts to prevail is the

ethics of the “all in favor of the colleague that is aligned with the ideas” and, worse than

that, the manipulation of the decisions in favor of those - including governments and

individuals and corporations linked to the political power – those who hold relationships

with the persons occupying the “positions”. Undoubtedly, there is no reason to

presuppose that the administration of justice would not be contaminated by the logic

and impulses that, since the dawn of our history, seem to indicate that the public space

should be enjoyed not only in favor of the employee, but also of those who deserve his

trust, or better, his esteem and sympathy.

There, “the cordial man” had his place, and still has it: the judge and the

prosecutor who act based on the old motives that presided over the patriarchal family

where everything revolved around “the personal”. The lawyer is also vested in this

figure, becoming the "flatterer" who ceases to be a defender of the rights to become a

29 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 146. 30 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 146.



lobbyist for private interests, for which, the most effective relationships are the so-called

"find a way" or "way"31

rather than technical legal knowledge or capacity to convince

the judge.

A product of the Brazilian patrimonialism, the "cordial man", dressed as part,

lawyer or judge, evidently prevented the equal application of the law, since the law

should be neutral and abstract only to those who did not have "good reasons" – that is,

those who were not part of the "inner circle" - to be treated in an individualized manner.

In fact, the logic of law enforcement in a culture that is marked by patrimonialism and

dominated by the citizen who responds to it - the "cordial man" -, can only be that of the

manipulation of its application and interpretation, well summarized in the known and

popular expression: "to my friends, all; to my enemies, the law!" Note that this

expression, whose authorship is controversial, has certainly been expressing the

Brazilian environment, besides confirming the aversion of our culture to the

impersonality and rationality, becomes evidence that the equality and, more clearly and

specifically, the uniform application of the law have always been ghosts to whom our

people got used, therefore, getting used to living in a world devoid of boundaries

between what is public and what is private, believing in the logic of "personal"

relationships.

However, if the universality of the rules is something essential to a society that

intends to develop and not favor a few, it is necessary to stop and think to whom has the

irrationality always interested and what can be done to eliminate the chaos into which is

submerged our justice management. Straightforwardly, we need to decide if we want to

cease the use of the "find a way" practice and give preference to the universality of the

law and the authority of the Judiciary Power. In short, if we want to be a "family" or a

nation.

31 The "find a way" or "arrangement", is a nice, often touching or even desperate way, to relate the impersonal to the

personal, so as to allow the juxtaposition of a personal problem to an impersonal one in order to solve this one using

that one as a ladder or ram. Usually one invokes a personal relationship, regionalism, taste, religion and other outside

factors to the formal/legal bureaucratic problem to be faced through which one obtains the sympathy of the

representative of the State and, consequently, a satisfactory solution. The distance between the written law and its

practical application makes of the "find a way" method a highly quoted 'paralegal' institution in Brazil, a rooted part

of our culture, to the point that, in many areas of the law, it is a rule. The "find a way", to assuage the rigor of the law,

is potentialized by sentimentality, probably based on the Catholic ethics of forgiveness, on the cultural tendency to

conciliate, and on the proverbial "friendliness" of the average Brazilian. The "find a way" method is the friendly

variant of the "do you know who you are talking to" method because both are grounded in one's personal

relationships network, that gives support to the claim of the trickster, either when he is friendly (the one who uses the

(typically Brazilian) "find a way method") or when he is arrogant (which can be the same person, after a frustrated

attempt of obtaining an arrangement). In both cases, there is an extrapolation of the egalitarian and impersonal formal

structure through - for example - the invocation of relatives (find a way) or authorities ("do you know who you are

talking to") and the mockery of the law assumes airs of "honorable exception”. In short, the same law is applied

differently to identical cases as a result of the (typically Brazilian) "find a way method" and of the personal

relationships network of each person. (According to Luiz Guilherme Marinoni and Laércio A. Becker, “The influence

of personal relationships on litigation and Brazilian Civil Procedure”, Work presented on the XX World Congress of

Procedural Law, city of México, 2003). See Keith S. Rosenn, O jeito na cultura jurídica brasileira [The “jeito”

(“find a way”) in Brazilian Legal Culture], Rio de Janeiro: Renovar, 1998; Roberto Damatta, Carnavais, malandros

e heróis (Carnivals, tricksters and heroes). 6ª ed. Rio de Janeiro: Rocco, 1997; Roberto Damatta, O que faz o brasil,

Brasil? (What does brasil do, Brazil?) 12ª ed. Rio de Janeiro: Rocco, 2001.


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4. The culture of personalism, lack of social cohesion and

weakness of the institutions

One of the characteristics of the Iberian peoples is personalism: the exaltation of

autonomy or the exclusive concern with the individual assertion and the lack of

commitment to goals that do not relate, specifically, to personal interests32

.

The culture of personalism is the opposite of that marked by cooperativism, in

which the interests of the community prevail and bring together the efforts of the

participants on behalf of the achievement of common goals. The cooperative method is

motivated by the value of solidarity, which, for some reason, stimulates the individual to

be concerned with his peers and with a common environment.

The community vision, focused on the achievement of common goals, naturally

contributes to social cohesion and, therefore, requires the organization of the wills of

the individuals within the group. In other words, the relationship is established between

solidarity, social cohesion and organization.

According to Sergio Buarque de Holanda, the theories that deny free will

(predestination theories, Calvinist theories), have always been regarded by the Spanish

and Portuguese with suspicion and dislike. This happens because, as they deny the

individual's ability to change what God predestined to them, these theories could only

be despised by a culture that is defined by personalism. This personalistic mentality that

is typical to the Spaniards and Portuguese peoples, "would have been the biggest

obstacle to the spirit of spontaneous organization, which is distinctive to the Protestant

people, and especially to the Calvinists. In the Iberian nations, in face of the lack of this

rationalization of life, which was soon experienced by some Protestant lands, the

governments always represented the unifying principle. Hence the incessant

predominance of the political organization type that was artificially maintained by an

outside force, which, in modern times, has found one of its characteristic forms in

military dictatorships."33

Remember, moreover, that the Protestant asceticism, that is, the concern with the

correction of the acts practiced in everyday life, gave a peculiar notion of what work is,

since its performance in a dignified and adequate manner was a duty and would

represent proof of election34

. However, the intra mundane asceticism was not only

related to a form of work focused on personal achievements. What mattered, after all,

was the fulfillment of the duties (amongst them, work) indispensable to the proof of

predestination35

. These duties related to daily life, could not fail to be linked to the effort

32 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 32-40. 33 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 37-38. 34 “In the approach of Beruf, therefore, that central dogma of all Protestant denominations who condemn the Catholic

division of moral imperatives in 'pracepta' and 'consilia' and recognizes that the only way of life that pleases God is

not to supplant worldly morality with monastic ascension, but, instead, solely to comply with the inner worldly duties,

as it happens with the individual's position in life, which, exactly for this reason, becomes this individual's

'professional call'” [Max Weber, A ética protestante e o “espírito” do capitalismo (The Protestant Ethic), cit, p. 72]. 35 “The part of the Catholic moral, therefore, that essentially distinguishes the puritan moralism is that the active zeal

of the Calvinist is stimulated by the single and unshakable certainty that he is saved by the one and sovereign decree

of God, while the Catholic person feels he must act morally to influence the final decree of God. And what



required to achieve the interests of the group or the community. The work, making a

difference as a value, is linked to solidarity, which encourages social cohesion and

requires organization and order.

As underlined by Buarque de Holanda, it turns out that a fact that cannot be left

out of consideration while examining the psychology of the Iberian peoples is the

invincible disgust that any morality founded on the cult of work has always caused them.

This disdain for the value of work generates a reduced capacity for social organization.

"In effect, the humble, anonymous and selfless effort is a powerful agent of solidarity of

interests and, as such, it encourages the rational organization of men and maintains

cohesion between them. Wherever any form of work ethics (moral) prevails, there will

be no absence of order and tranquility among the citizens, because one is necessary to

the other in the harmonization of interests. What is certain is that between Spanish and

Portuguese, the moral of work always represents an exotic harvest. It is not to surprise

that, among these people, the idea of solidarity was precarious."36

The culture of personalism, not leaving an open door for agreements and

commitments to benefit the community, along with the contempt for the value of work

when discouraging the rational organization for the benefit of "all", obstructed solidarity

and social order. This inhibited social cohesion, preventing the association and

cooperation towards the achievement of common interests.

In public administration, where the position was exercised in favor of the

employee and to benefit those with whom he was connected, there was no possibility of

joint efforts to achieve the objective interests of the institution. Besides being

considered as a private matter, the combined efforts could only happen to achieve the

desires of those who periodically would organize themselves to the achievement of their

personal interests, which obviously had nothing to do with the general interest that

should guide them.

5. To whom does irrationality matter?

In a patrimonial culture that is marked by personalism, judges tend to treat

identical cases with a different solution. As it is evident, there is no intention, here, of

accusing anyone of transgression of conduct or something of that nature. In the same

manner that it is defended, on a theoretical level, the need to safeguard the right of the

litigant to adequately participate in the law suit - so that, consequently, obscurantism

distinguishes this asceticism from the medieval one is that, then, the believer sought loyalty on a rigid moral that

should not be polluted by the activities of the century; Luther had fully removed the barriers of the convent; his

ascepticism, however, maintains the traditional reluctance against the activities of a particular political and

professional world. Calvinism, on the contrary, introduced an ascetic ideal in the century (innerhalb des weltlichen

Berufslebens), and even in the most profane professional activities. It goes even further: it is in the probation of the

temporal activities that faith is proven. If he is to be reproached, the man will visibly appear as such on his behavior

in profane tasks; conversely, if he is elected, all his activities will externalize the mark of divine blessings". (André

Biéler, O pensamento econômico e social de Calvino (The economics and social thought in Calvino), São Paulo:

Editora Cultura Cristã, 2012, p. 590). 36 Sérgio Buarque de Holanda, Raízes do Brasil (Roots of Brazil), cit., p. 39.


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and partiality do not take place -, it is intended to make it clear, at this moment, that to

avoid the manipulation of the decisions it is imperative to give the proper and natural

authority to the precedents issued by the Supreme Courts, removing from the judges and

ordinary courts the "option" of not taking them into account when resolving conflicting

court cases.

In fact, when taking into account the reasons that conspire against the respect for

the precedents of the Supreme Courts, it is impossible not to notice the obvious fact that

a judge that does not adopt an impersonal standard of conduct cannot feel at ease in a

system where there is a previous definition of decisional criteria. It is clear that, in this

case scenario, the subjective margin and, therefore, the discretionary power of the judge

is limited. At least in what it pertains to the application of the law, he has not means to

behave in a way that would privilege any of the litigants.

Evidently, a precedent may be disregarded when the case under trial has

particularities that distinguish it from the case that led to this precedent. However, the

judge or the court has a heavy argumentative burden to explain the reasons for the

choice of not to apply such precedent which, according to the argument of one of the

parties, in theory, is applicable to the case being resolved.

Furthermore, the Supreme Courts are bound to apply a precedent whenever the

prerequisites that justify its non-application are not present. Remember that not agreeing

with a particular interpretation or solution of the question of law does not open the

opportunity to repeal that precedent. Anyhow, what matters is that the logic of the

mandatory precedents prevents the manipulation of the decisions to favor one litigant.

On the other hand, it is also true that lawyers may not feel at ease in a system

where the solution of cases cannot vary in relation to questions of law already decided

by the Supreme Courts. There is no doubt that they will be left with less space - if any -

to defend the position of their clients37

. This, however, unlike the assumption of a

corporate point of view, of a flawed defense of the profession, is absolutely rational and

ethical.

The Supreme Courts exist exactly to give unity to the Law, so that, after its

intervention and decision, the lawyers are in charge of informing their clients about the

contents of the precedent of the Court, explaining the possible risks in face of a

subsequent judicial conflict. It is the lawyer’s duty to warn of possible losses when

filing a law suit or of possible losses when resisting a claim that is well founded. With

that being said, naturally, agreements may be encouraged, inhibiting the expansion of

the litigation and all its unfortunate consequences.

In addition, there is neither rationality, nor ethics - as there should be - in

reserving market share to the lawyer at the expense of the unpredictability of the judicial

decisions. Predictability, besides being a natural result of the unity of Law and of the

37 The lack of predictability resulting from the lack of respect for the rule of precedents is a stimulus to the "warmth"

and, therefore, at least to the proliferation of lobbyists disguised as lawyers.



due performance of the constitutional role of the Supreme Courts, is not only an element

of great importance to optimize the administration of justice, but also an absolute pre-

requisite to the development of society in an environment of respect for the Law.

That does not mean that there are no social positions interested in lack of

predictability, or better, in the irrationality of the distribution of justice. It is true that

certain litigants have no concern with predictability. They prefer to believe in the

relations of sympathy, esteem and personal influence, reproducing the “cordial

mentality” that marked the person who, coming from a patriarchal family, started to

occupy the public sector without abandoning these habits.

Remember that the trajectory of the "cordial man" starts when he realizes his

difficulty living in a rational and impersonal space, where personal relationships do not

matter to his integration into the social environment. His fear in face of this place, led

him to use the affective appearance to seduce and seek intimacy in order to achieve his

purposes. This apparent friendliness that characterizes him, obviously, could not provide

any form of association or congregation nor any form of respect for the law, since he

showed only an individual concern that, as a result, generated repulsion to any law that

can contradict him. The law, due to its impersonal nature, “is not for the cordial man”;

he presupposes a world that, like the family, must be presided by personalistic traits and,

therefore, naturally allows him to avoid the rules that harm him.

Precisely, the cordial man is the antithesis of the idea that the law is equal for all

and, as a mere consequence, the patrimonialism that was incorporated into the Brazilian

culture is completely averse to a coherent legal order and to a rational system of

distribution of justice. Authoritarian governments, the social positions that have always

been privileged, the deformed environments of the magistrates’ and the lawyers’

professional activities, not only do not need predictability, but also do not want equality,

and much less coherence and rationality. Hence, they pretend not to see the

indispensability of a theory that privileges the authority of the role played by the

Supreme Courts.

6. Patrimonialism versus the generality of the Law and the

system of precedents

The subjects involved in a patrimonial culture, averse to impersonality, see in the

"generality of the law" a hindrance to the development of their aspirations. In this

culture the subject does not feel obliged to behave according to the law and, therefore,

supported in his relationships, must escape the law that brings him harm. This is the

habitat of the "cordial man", the person unable to live amongst organizations and

institutions that are characterized by rationality and by impersonality.

There is a clear connection between the inability to coexist with the

impersonality – and, thus, with the generality of the law - and the irrationality of the

distribution of justice. Anything that can affect the uniformity of treatment of the cases


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is welcome by those who are interested in the prevalence of personal relationships.

From this point of view, the maxim that "identical cases should be treated in the same

manner" is unbearable to those who consider themselves entitled to have their claims

treated in a particular way.

It is worth saying that if there is a clear association between the generality of the

law and the treatment of similar cases in the same manner, there is also a clear

relationship between personality and irrationality in law enforcement. A patrimonialist

culture abdicates not only from the calculability or predictability, but also benefits from

a legal practice that undermines rationality. Applying the same legal norm in various

different ways or deciding similar cases differently is something that is consistent with

the logic of that culture.

The culture of the “cordial man” is not only not interested, but, more than

anything, frightened of a system of precedents. Such a culture does not see the unity of

the Law, the generality or even the equality before the Law as ideals or as values. After

all, the “cordial man” is the man of the tricks, expert in manipulating, devoid of any

behavioral ethics; who does not care for the strengthening of the institutions, for the

predictability, for the rationality of behaviors, for the economic rationalization and the

benefits of a society where men are conscious of their responsibilities.

A legal system that is characterized for its respect for the precedent is far from

being a system with a merely technical feature. Respecting precedents is a way to

preserve indispensable values to the Rule of Law, as well as means to enable a way of

life in which the Law is in charge if its due dignity, to the extent that, besides being

applied in an equitable way, it can determine behaviors and generate a way of life that is

marked by personal responsibility.

7. The authority of the precedents, respect for the Law and

personal responsibility

The uncertainty about the interpretation of a legal text or about the solution of a

question of Law dilutes the sense of personal responsibility. Nobody feels responsible

for a conduct when there is doubt about its illegality. When the State itself, through the

bodies in charge of applying the law, demonstrates insecurity and is contradictory, at

times saying one thing and at others declaring another, it becomes impossible to develop

a social conscience that is guided by the feeling of responsibility or by the respect for

the Law.

A life based on the Law, in which a person feels responsible for his or her

conducts, presupposes an identifiable Law that does not leave room for doubts and,

therefore, that does not leave room for personal excusing justifications. Conflicting

decisions remove the authority of the Law, that is, deny the intrinsic strength of the Law

to stimulate and avoid behaviors and, thus, its ability to make men feel responsible.

There is no doubt that any penalty, when applied without any commitment to the unity



of the Law, sounds more like a discretionary act than an act of accountability; but the

most severe point of this situation is that, when one takes into account responsibility as

behavioral ethics, is that no one can steer their life based on a Law that can not be

identified or that is applied by the courts in a contradictory way.

It is interesting to recall that, as shown by Weber38

, the Protestant asceticism

gave rise to a way of life in which the acts of daily life, particularly those linked to the

performance of work should comprise contents that could dignify God. Especially the

Calvinists, believers in the doctrine of predestination of man, felt constrained to make

introspective self-evaluations to verify if they were really behaving like the elected ones.

This control of men by men itself, as per the bible contents, gave rise to a personal

responsibility that was endowed with an enormous weight, in which the characters of

accuser, defender and judge were vested into a single person. The Protestant ethics,

besides having turned work into a religious duty, has had great influence upon personal

responsibility, so that is was possible to confuse a Protestant behavior with a behavior

that was marked by an almost unbearable personal responsibility.

Somebody could ask what connection does this have with a behavior guided by

the Law. Is it really necessary to make it clear that a life based on the Law is obviously

far from that behavior of a man who lives in a way so as not to be reached by the Law.

The latter, instead of giving value to a life that is based on law, is solely interested in

enjoying life in a way so as not to be surprised by the Law. The Calvinist, it is clear, was

afraid of not being saved, but lived according to the precepts of the Bible in order to,

convincing himself - and someone else - feel worthy before God. The man who decides

to have a life based on the Law is not worried about not being punished, but wishes to

have a life in tune with law due to an imperative of moral and personal nature. He leads

a way of life that, to be worthy to himself can only be consistent with State rules

governing life in society.

It happens that a life under the Law and, therefore, permeated by responsibility,

is only viable in a State that safeguards the coherence of the legal system. The

multiplicity of different decisions for identical cases undermines the respect for the law,

with which the responsibility over the subject weakens or disappears.

Even when one considers the advantages of a behavior that observes the Law for

fear of punishment, it becomes clear that, the more diverse are the decisions about a

question of law, the lower the burden of psychological pressure on the subject. Here it

no longer matters if a man can have an ethically oriented behavior, but only if the Law

has the ability to inhibit behaviors and, thus, the authority to make the rule of law itself

respected.

There is no doubt that the Law loses authority in direct proportion to its

uncertainty. The fluidity of the meaning of the Law conspires against its authority, and it

is able to remove its power of social regulation. The Law, as a threat, the more it opens

opportunities for men to think it as not applicable, the more it becomes less effective. In

38 Max Weber, A ética protestante e o ‘espírito’ do capitalismo (The Protestant Ethic), cit.


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this sense, naturally, the Law lacks authority to avoid the distortion of social behavior.

Note, moreover, that even if a person feels constrained by one of the interpretations that

the courts give to the Law, it is still possible that he prefers to choose not to abide to it

and take the risk in regards to its application.

Therefore, whether for having a life that is based on the Law, or for the Law to

have strength to regulate it, the unity of the law is fundamental and, consequently, that

the Supreme Courts act as Courts of Precedent39

. The individualization of the Law is

indispensable to its authority and it contributes to the development of personal

responsibility, although in different manners, in either of these cases.

39 Luiz Guilherme Marinoni, Precedentes Obrigatórios (Binding Precedents), 3a. ed., São Paulo: Ed. Revista dos

Tribunais, 2013; Luiz Guilherme Marinoni, O STJ enquanto Corte Suprema (STJ as a Supreme Court), 2a. ed., São

Paulo: Ed. Revista dos Tribunais, 2014; Daniel Mitidiero, Cortes Superiores e Cortes Supremas (Superior Courts and

Supreme Courts), 2a. ed., São Paulo: Revista dos Tribunais, 2014.

Hunje SUH (Korea)


Hunje Suh* and Guihag Hwang**

Religion Related Lawsuits of Korea - Focusing on the Legal

Status of Religious Organizations and their Divisions

I. The religion of Korea and religion related lawsuit

1.The religion of Korea

The Korean society is one of the most diverse societies which many religions

have coexisted without a religion war unprecedentedly in the history. Korea has about

50 religions, 500 denominations and 630 religious incorporations including traditional

religions. In South Korea, there are three major religions; Buddhism, Protestantism and

Catholicism. No other group can occupy the main position of the top religions in Korea’

s society.

According to the 2005 census, around 53.1 percent of the Korean population

participates in religious activities. Around 22.8 percent of the religion population are

Buddhists that amounts to 10,726,000, around 18.3 percent are Protestants that amounts

to 8,616,000, and 10.9 percent are Catholic Church members that amounts to 5,146,0001.

1995 2005 increase/decrease

population ratio population ratio population ratio

total population 44,554 100.0 47,041 100.0 2,488 5.6

religious

population 22,598 50.7 24,971 53.1 2,373 10.5

Buddhism 10,321 23.2 10,726 22.8 405 3.9

Protestantism 8,760 19.7 8,616 18.3 -144 -1.6

Catholicism 2,951 6.6 5,146 10.9 2,195 74.4

Confucianismm 211 0.5 105 0.2 -106 -50.4

Won Buddhism 87 0.2 130 0.3 43 49.6

1* Prof. of Law, Chung-Ang University Law School, President of the Korea Church Law Association

** Seoul National University (B.A), Presbyterian Theological Seminary(MDiv), Kangwon National

University(Ph.D), Represantative of Law and Church (http://lawnchurch.com), Researcher of Church Law institute

1) Ministry of Culture, Sports and Tourism, 2009 White Paper, Adminstration of Religion, 2010.12, pp.11∼13.

http://lawnchurch.com/


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others 268 0.6 247 0.5 -21 -7.7

non-

religious

population

21,953 49.3 22,070 46.9 117 0.5

(Table) Religious Population Trend of Recent 10 Years (1995~2005)

This overall ratio of the religion population is different when compared to the

year of 1995. Instead, the religion population increased moderately. As seen in the

above table, the Roman Catholic Church, one of the three main religions has developed

faster than any other religion because of Cardinal Stephen Kim Su-hwan's popularity

and other reasons.

According to a survey relating to religion, results showed that Korean people

personally tend to regard the importance of religion as more optimistic than pessimistic.

Most Koreans, beyond religious people or non-religious people, think religion itself has

a deeper social impact regardless of the positive side or the negative side.

In Korea, most cultural assets were made for religious purposes and to show the

cultural meaning of religion in the Korean society. Therefore, you cannot understand the

Korean way of thinking without an understanding of Korean religion. In this

regard,religion in the Korean society holds an important place in the personal lives of

the people or in the entire society. And religion can take its position as having a huge

influence on the Korean society.

Thus, religion holds a key position in the Korean society. It is difficult to say

that religion in the Korean society invariably plays a positive role. Religion contributes

to regional peace and stability by enhancing cooperation in diverse fields through

religious teachings, such as love, compassion, and tolerance. And it may serve as a

peacemaker against social conflict. At times, religion contributes to stabilize the

incorporated but encourages social conflicts.

2. The dispute of intra-religion

It is difficult to find violent conflicts or lawsuits between the different religions

in the Korean society. Most religious conflicts occur within the same religion. Notably,

the Korean Protestant Church experienced remarkable growth within 130 years since

the American missionaries have arrived in Korea, but recently many conflicts have

occurred. The conflicts are related to church property as a side effect of economic

growth. The reason for such church conflict is based on individual churchism and the

appearance of a super mega church which amounts to several thousand people when

compared with other religions, such as Buddhism or Catholicism.

In addition, the main issue of the Korean church conflict is a father-to-son

succession of power, misappropriation of church offering and ownership of church

property. These encourage the conflicts in the church.

Hunje SUH (Korea)


3. The types of the religion related lawsuits

As the influence of religion in the Korean society increases, many church

members get involved in many lawsuits to resolve church problems. These kinds of

religion related lawsuits have been classified as lawsuits of freedom of religion, the

separation of religion and state, the administrative regulation and church property.

(1) Lawsuits on the Freedom of Religion and the Separation of Religion and State

This category includes many lawsuits; the rejection of saluting to the national

flag2, the defamation of character about heresy critique

3, the conscientious refusal of

military service for religious activity4, the Lee government's alleged religious bias

5, the

critique of a certain religion by military religion officers for the violation of the

constitutional division between religion and the state6, the violation of mandatory levy

for an admission fee of cultural assets of Buddhist temples7, the violation of religious

freedom of Christians because of Sunday national examination8, the violation of the

constitutional division between the religion and the state about the holiday decision of

Christmas and Buddha's Birthday9, and so on.

(2) Lawsuits on the religion and taxation and religion education

This section includes various kinds of lawsuits as follows; the lawsuit of

violation of taxation exemption about acquisition of the religious organization

property10

, open information of income tax liabilities of a clergyman11

, disapproval

disposal of a charnel house under a Catholic temple because of the violation of the

2 Supreme Court Decision of 1976.4.27., 75누 249【제적처분취소 청구】; 1975.5.13.,74도 2183【국기비기】

3 Supreme Court Decision of 1996.09.06., 96 다 19246, 96 다 19253【손해배상(기)】; 1997.8.29., 97 다 19755

【손해배상(기)】; 2010.9.9., 2008 다 84236【손해배상】; 2007.02.08., 2006 도 4486【명예훼손】; 2007.10.26.,

2006도 5924【명예훼손】

4 Supreme Court Decision of 2004.07.15., 2004 도 2965(all members)【병역법위반】; Constitutional Court

Decision of 2004.08.26, 2002헌가 1 【병역법 제 88조 제 1항 제 1호 위헌제청】etc.

5 Constitutional Court Decision of 2008.11.18., 2008 헌마 661【선출직 공무원 종교편향행위 위헌확인】;

2011.4.19., 2011 헌마 171 【선출직 공무원의 종교행위 위헌확인 등】; 2008.1.8., 2007 헌마 1391【성공회신부

통일부장관 임용 위헌확인】; 2001.10.9., 2001헌마 650【통일교교주 국회의원회관내 강연허가 위헌확인】

6 Supreme Court Decision of 2007.04.26., 2006다 87903【손해배상】

7 Eujongbu District Court Decision of 2008.6.4., 2007가단 29379【부당이득금반환】

8 Constitutional Court Decision of 2001.09.27., 2000 헌마 159 【제 42 회 사법시험 제 1 차시험 시행일자

위헌확인】; 2010.6.24., 2010 헌마 41 【전원재판부 사법시험일자 위헌확인】; 2010.4.29., 2009 헌마 399

【2010 학년도 법학적성시험 시행일자공고 위헌확인】; 2010.11.25., 2010 헌마 199【2010 학년도 서울특별시

교사 임용시험 위헌확인】

9 Constitutional Court Decision of 2010.5.25., 2010헌마 277【관공서의 공휴일에 관한 규정 제 2조 위헌확인】

10 Supreme Court Decision of 1983.11.22., 83 누 456【재산세등부과처분취소】; 1991.5.10.,

90 누 4327【재산세등부과처분취소】; 2008.6.12., 2008 두 1368【과세처분취소】; 2009.5.28.,

2009두 4708【과세처분취소】; 2009.6.11., 2007두 20027【등록세등부과처분취소】

11 Seoul Administrative Court Decision of 2012.8.16., 2011구합 36838【정보공개거부처분취소】


Procedure


cultural country principle and freedom of religion as a country that was influenced by

Buddhism and Confucianism12

, the violation of freedom of religion which permits only

Christians as entry requirements of a certain religion college and earning of chapel

credits to graduate13

, the violation of compulsory religion education under compulsory

assignment in Christian middle and high schools(so called "Kang-yiseok lawsuit")14

,

status of refugees who were persecuted as Christians in a Moslem nation15

etc.

(3) Lawsuits on religious property

There are various kinds of lawsuits on religious property; the lawsuit on the

litigant parties of a religious group16

, the nullity lawsuit on a vote of confidence of a

pastor and an elder17

, the lawsuit on a church discipline decision18

, the nullity lawsuit on

the election of the Chairman of Methodist General Assembly19

, a laborer lawsuit of a

church pastor20

, the nullity lawsuit about charitable trust to denomination21

, the lawsuit

about church polity related to church property22

, the lawsuit about church property

12 Constitutional Court Decision of 2009.7.30.,. 2008헌가 2(all members)【공사중단 및 원상회복명령처분취소

위헌확인】

13 Constitutional Court Decision of 1997.3.27., 94 헌마 277(all members)【신입생자격제한조치 위헌확인】;

Supreme Court Decision of 1998.11.10., 96다 37268【학위수여이행】; Constitutional Court Decision of 2007.3.13.,

2007헌마 214【시정명령 등 불행사 위헌확인】

14 Supreme Court Decision of 2010.4.22., 2008다 38288【손해배상청구】

15 Seoul Administrative Court Decision of 2007.1.9., 2006 구합 28345【난민인정불허처분취소】; 2010.4.1.,

2009 구합 38312 【 난 민인정불허처분취소 】 ; Supreme Court Decision 2012.3.29., 2010 두 26476

【난민인정불허처분취소】

16 Cases on the legal status of the church - Supreme Court Decision of 1991.11.26., 91다 30675【소유권확인】;

1999.9.7., 97누 17261【법인세부과처분취소】; 2001.6.15., 99두 5566【주택개량재개발조합설립】 ; 2003.11.14.,

2001 다 32687【소유권확인】; 2008.2.28., 2007 다 37394, 2007 다 37400【소유권이전등기말소ㆍ건물명도】;

2003.11.14., 2001 다 64127【부당이득금】; Chongju District Court Decision of 2009.12.11., 2009 가합 4050

【교회폐지처분무효확인】 etc. : Cases on the legal status of the Catholic temple - Supreme Court Decision of

1966.9.20., 63 다 30【보수금】: Cases on the legal status of the Buddhist temple - Supreme Court Decision of

1988.3.22., 85 다카 1489【소유권이전등기말소등】 ; 2005.6.24., 2003 다 54971【건물명도등】 ; 1999.6.11.,

98다 60903【등기명의인표시변경등기말소】 etc.

17 Supreme Court Decision of 2006.2.10., 2003다 63104【공동의회결의무효확인】

18 Cases on the discipline decision on the church pastor - Supreme Court Decision of 1981.9.22., 81 다 276

【직무집행방해금지등】; 2011.10.27., 2009다 32386【제명처분무효확인청구】; Daegu District Court Decision of

2007.11.14., 2007가합 2569【명예훼손】: Cases on the discipline decision on the chief monk of Buddhist temple -

Supreme Court Decision of 2005.6.24., 2005 다 10388【주지해임무효확인】 ; 2011.5.13., 2010 다 84956

【징계제명결의무효확인】

19 Supreme Court Decision of 2012.2.9., 2011다 104413【선거무효】

20 Seoul Administrative Court Decision of 2005.12.27., 2005구합 13605【부당해고구제재심판정취소】; 2006.3.29.,

2006구합 7249【요양불승인처분취소】

21 Supreme Court Decision of 2000.6.9., 99다 30466【교회출입금지가처분】

22 Supreme Court Decision of 1991.12.13., 91다 29446【소유권이전등기말소】

Hunje SUH (Korea)


ownership23

, the lawsuit on non-Christianity of the Unification Church24

, the lawsuit

about the status of a Buddhist temple25

, the lawsuit on church offering26

, the copyright

lawsuit on the Hymnal and the Bible27

, etc.

(4) Lawsuits on criminal and civil liability of a religious organization

There are many lawsuits on criminal and civil liabilities of religious

organizations;

The claim for damages of injured children whilst playing in a church yard28

, the

claim for damages of female discrimination in the YMCA Seoul Branch29

, the lawsuit

related to a charge of embezzling public money to appease cheating and fraud of a mega

church pastor30

, the lawsuit on fraud of state subsidies31

, etc.

4. Religious dispute and the national court

A dispute of religious organization was classified by a dogma conflict, an

administration and management conflict, a disciplinary judgment conflict, and a church

property dispute, etc. In such disputes, most religious organizations make the disputes

of peaceful settlement organizations be solved autonomously in operational matters.

However, as many religious organizations file lawsuits to a court against the decision of

autonomous organizations, the judicial power's intervention of church dispute is in

question.

Compared to the American court, the Korean court approaches the judicial

power's intervention concerning the church dispute in the perspective of the legal

dispute rather than the constitutional dispute.

However, the court does not regard dogma, worship, discipline, legal position in the

23 Supreme Court Decision of 1980.12.9., 80 다 2045, 80 다 2046【방해배제등】; 1989.3.14., 87 다카 1574

【소유권이전등기말소】

24 Supreme Court Decision of 1980.1.29., 79다 1124【사회단체등록취소절차이행】

25 Supreme Court Decision of 1994.12.13., 93 다 43545【주지직무집행정지】 ; 2000.5.12., 99 다 69983

【소유권이전등기말소등】

26 Seoul District Court Decision of 1993.12.9., 93나 8923【약정금】; Seoul High Court Decision of 1981.3.31.,

80나 4577【소유권이전등기청구】; Supreme Court Decision of 2009.9.24., 2009다 37831【지분이전등기등말소】;

1975.7.30., 74다 1844【토지소유권이전등기】

27 Cases on the copyright of the Bible - Supreme Court Decision of 1994.8.12., 93다 9460【저작권소멸확인】;

대법원 1993.6.8., 92 도 2963 【저작권법위반】 ; Seoul High Court Decision of 1998.8.18., 97 라 235

【저작권침해금지가처분】; 1996.8.21., 96 라 95【저작물복제및배포금지가처분】: Cases on the copyright of the

Hymnal - Seoul District Court Decision of 1998.9.3., 98카합 2050【출판및판매금지가처분】; Seoul High Court

Decision of 2011.1.19., 2010나 1205【출판금지청구】

28 Supreme Court Decision of 1987.5.12., 86다카 2773【손해배상(기)】; 2008.4.24., 2006다 80650【손해배상(기)】

29 Supreme Court Decision of 2011.1.27., 2009다 19864【손해배상(기)】

30 Supreme Court Decision of 2006.4.28., 2005도 756【특정경제범죄가중처벌법위반】

31 Supreme Court Decision of 2007.12.27., 2006도 8870【업무상횡령·사기 등】


Procedure


church as the trial's target32

. The court should defer the inner decision of religious

organizations except the legal relationship related to private rights and duties.

If religious organizations clearly violate the important process against notions of

rights and justice and infringe on their rights unreasonably, the court should deal with

them as the trial's target33

. In addition, the dispute of property or the disputes of

representatives’ rights are contained in judicial views of legal issues. In this paper, I

will study the legal status of the Protestant church(hereinafter, "church"), the Buddhism

temple and the Catholic temple and analyze religious lawsuits regarding the ownership

of property of religious organizations.

II. The legal status of religious organizations

1. Standing to legal proceedings

A natural person and an incorporated organization only under Korean law has

the legal capacity only under Korean law. But, there are many unincorporated

associations that seek social or economic activities without a legal personality during

business transactions.

Since these unincorporated associations make it impossible to avoid dispute of

business transactions, they want to solve their problems through a lawsuit of a court. In

this case, the one who files a lawsuit against a group will occasionally hesitate about the

identity of the one who should be the defendant. The Article 52 of the Korea Civil

Procedure Code defines that the unincorporated association and the foundation which

has representatives or an administrator can be a party in the name of the unincorporated

association and the foundation, and the court can give a standing to legal proceedings if

the unincorporated association were subject to certain requirements.

In addition, the Registration of Real Property Act admits the registration right of

an unincorporated association and a foundation, and regulates that they can make the

registration of the ownership conservation in the name of an unincorporated association.

The Korea Civil Code regulates all regulations in relation to an incorporated body

except the assumption of a legal personality.

Therefore, most of the Protestant churches, Buddhist temples and Catholic

churches did not feel the need for the registration of incorporation. They are in a state of

an unincorporated association and a foundation. Only 630 incorporations among 90,000

religious organizations finished a registration of incorporations34

.

32 Supreme Court Decision of 1981.09.22., 81 다 276;ﾠ1984.7.24.,ﾠ83 다카 2065; 2007.6.29., 2007 마 2242;

2011.10.27., 2009다 32836 etc.

33 Supreme Court Decision of 2006.2.10., 2003다 63104

34 Hunje Suh, A study on the Relision Related Disputes, Vol 2- Relision and Property, 2013, pp 32∼33

Hunje SUH (Korea)


2. Church as an unincorporated association Referred to as an unincorporated body with a certain purpose, the church can be

measured as an unincorporated association to decide and execute the business by the

representative or the manager by a combination of several members35

.

2.1. Legal status of the church

The case of the Korean Supreme Court regards the legal nature of the church as an

unincorporated association, since the Supreme Court recognized the Shinchang church

as an unincorporated association according to the Korea Civil Procedure Code, since

the year of 196236

. The most important leading case on this point was the Supreme

Court Decision(all members) of "2006.4.20 선고 2004다 37775(hereinafter referred as

"2006 Decision")

2.2 Bylaw of the church

From the perspective of the cases mentioned above, the local church needs a

bylaw in order to an achieve unincorporated character. But most churches do not have a

bylaw. A bylaw is the basic factor of a church as well as the standard for conflict

resolutions which the court can consider as the utmost priority.

Recently, although many churches adopted the idea, it is different from the Book

of Order of the denominations. The court judges separate religious organizations over

church and denominations separately. Since the church bylaw controls only the local

church, the Book of Order controls only the General Assembly. If the local church

accepts the Book of Order as an autonomous regulation within a range that does not

infringe the essence of religious freedom and the independence of the local church, this

effect is in the local church37

. This method is suitable for a congregation church, but the

court tends to disregard the hierarchical church identity.

2.3. Type of church property: The collective ownership("Chongyoo")

The property of the unincorporated association belongs to the members (Art.

275-1 of the Korea Civil Code), who have the right of using and a beneficiary right (Art.

276-2 of the Korea Civil Code). Thus, church members can participate in meetings for

the management disposal of the church property, and lose their status if they leave their

church (Art. 277 of the Korea Civil Code).

3. Buddhist temple as an unincorporated foundation

3.1. Concept of the temple

35 Supreme Court Decision of 1991.5.28., 91다 7750; 2009.1.30., 2006다 60908 etc.


37 Supreme Court Decision of 2006.4.20., 2004다 37775(all members)


Procedure


The temple of a Buddhist is a foundation with priests, Buddhists, a building and

religious rites as a religious organization. This temple is classified as a traditional

temple, a general temple and a private temple38

. The traditional temple is registered by

the Article 4 of the Traditional Temple Act. The general temple is a temple apart from

the traditional temples which is registered by a denomination and a municipal

organization. The personal temple is a temple which was created made by a priest or

Buddhist for private purposes.

3.2. Private temple and general temple

Since the private temple does not have any status of legal personality, the

property which was donated by a Buddhist belongs to the representative priest of the

temple. But if the representative priest has disposed of the temple, the position of the

temple disappears39

. Compared to the private temple, the general temple is the temple

which takes the position of a religious organization. Therefore, only a general temple

can be litigants.

3.3. Legal status of a temple: an unincorporated association or a foundation ?

The legal opinion about the legal status of a temple is classified by various

opinions, such as opinions appearing as an unincorporated association40

or a

foundation41

. The Korean Supreme case does not define evidently the legal nature of the

organization. It is reasonable for us to look at the Buddhist temple as an unincorporated

foundation.

4. Legal status of the Catholic temple

Cases of the Supreme Court regarding the identity of the Catholic Temple show

that the Catholic Temple cannot be an unincorporated association or a foundation

because the Catholic polity does not have the autonomous organization to decide group

opinions42

.

To sum up, although the Catholic Temples uses the name as the church for

convenience, the legal nature is not a church property subject but solely a church

building, the Catholic Temple itself is not a property which a local church arbitrarily

owns or runs. The Catholic Temple members can participate in worship but were not

guaranteed the right to be able to participate independently in operating the Catholic

Temple. Therefore, the general meeting of the church members cannot be an


39 Supreme Court Decision of 1988.3.22., 85 다카 1489【소유권이전등기말소등】; 2005.6.24., 2003 다 54971

【건물명도등】 etc.

40 Supreme Court Decision of 1997.12.9., 94다 41249: 1982.2.23., 81누 42


42 Supreme Court Decision of 1966.9.20., 63다 30【보수금】

Hunje SUH (Korea)


unincorporated association because it was not being presented legally. The reason being

that the property style of the Catholic Church differs from that of the Korean Protestant

church.

III. The division of a religious organization and its property

ownership

1. The division of a church and its property ownership

1.1. Type of church division

The cause of the Korean church division is because of senior pastors. They are

in the midst of division in church. Most Korean churches have conflicts between pro-

retired pastors and pro- successor pastors.

In addition, the church is also involved in the property ownership dispute with a

denomination though the property that is registered in a denomination trustee

organization. The style of the church property trust is different from that of the United

States’ church which the denomination has the property ownership. The trust of the

Korean church is not an express trust but an official trust which the denomination does

not have the ownership of property.

1.2. History of case law

The Court has ruled the type of joint ownership of a church property as the

collective ownership("chongyoo") of church membership since 1957. In the background

of this case, there was a dispute of church property after the liberation from the Japanese

colonial period. The Presbyterian Church went through several denominational

divisions from 1950 to 1960. The denominational division has caused problems

concerning local church property. Therefore the theory of collective ownership was to

support the legal division of the congregation. However, recently church divisions have

been related to dense patterns of wealth and status of the pastor rather than doctrinal

issues.

This criterion which was referred to as 'a collective ownership'(chongyoo) of the

members during the division made the resolution of church property dispute impossible,

mainly because of the reasons that the rapidly growing numbers of church and their

wealth. In 2004, the Supreme Court had changed the position of the church property

belonging to the two-thirds of the church members if they made the decision of more

than two-thirds of the church membership during the withdrawal from the

denomination(as mentioned before, hereinafter referred as "2006 Decision"). The 2006

Decision has a meaning as a tool of resolution of church disputes and a comprehensive

prescription for the local church by establishing a judicial doctrine on many issues

which were discussed, including the case law and the legal nature of the church.


Procedure


Meanwhile, the court has respected the authority of the Church as a religious

organization. Therefore, disgrace upon the Korean church eventually admitted that there

is no difference between church conflict and worldly conflict related to property

ownership. The 2006 Decision of two-thirds with the majority vote was expected to be a

rapid resolution and precaution of church disputes as presenting the objective criteria.

However, the 2006 Decision's criteria of two-thirds with the majority vote was proved

to be an unrealistic criteria, mainly because of the reason that the most Korean churches

do not keep any book of precise membership. Therefore there is no means of proving

the total numbers of a church members which is required to win the case.

In particular, the case of the Kwangsung Presbyterian Church43

is a good

example. The Supreme Court dismissed the majority's allegation of two-thirds with the

majority vote in the general meeting of the church members, based on the failure of

submitting the evidence of the precise numbers of church member. In addition to it, the

Supreme Court gave the Kwangsung Church membership to people who left the

denomination, because withdrawal from the Kwangsung Church has to be distinguished

from the denomination withdrawal. This ruling is to induce a prolonged dispute of

Kwangsung Church for more than ten years.

1.3. The theories: collective ownership("Chongyoo"), co-ownership, no division

(1) The theory of collective ownership(chongyoo) admits the division of the church, and

that the church's true ownership belongs to the church members that remained in the

time of division44

.

(2) The theory of co-ownership admits the division of the church and presents that the

property of the church belongs to each congregation after the division45

.

(3)The theory of 'no division' based on the Korea Civil Code does not mean the division

of the property. The theory is that all property of the church belongs to the church

members with the same identity as the previous church46

.

1.4. The Case of Kwangsung Church

(1) Kwangsung Church

The incident of Kwangsung church as a mega church is a conflict between the

pro-senior pastor group and pro-successor pastor group for occupying the church

property.

When viewed from the judicial perspective, though the 2006 Decision has been

expected to present a clear reference to the resolution of church disputes, the

43 Supreme Court Decision of 2007.6.29., 2007마 224【예배방해금지가처분】; 2010.5.27., 2009다 67665,67672

【명도청구․건물명도】; 2010.5.27., 2009다 67658【공탁금출급청구권확인】

44 Supreme Court took this theory before 2006 Decision.

45 Dissenting Opinion of the 2006 Decision took this theory.

46 The 2006 Decision took this theory.

Hunje SUH (Korea)


Kwangsung church case showed that the church conflict was not easy to be resolved

after the 2006 Decision.

(2) The ruling of Kwangsung Church

The Kwangsung Church cases can be summarized into two relevant issues47

.

First, as the resolution of the church withdrawal is invalid, Kwangsung church belongs

to the previous denomination. Second, as the court determined the church withdrawal

and the denomination withdrawal separately, the church members who left the

denomination possessed Kwangsung Church membership48

.

The Kwangsung Church decisions deemed unfair if the resolution of the quorum of two-

thirds of the voting members has a great defect because of the invalid procedure or the

method of the congregation meeting for church withdrawal or denomination withdrawal.

1.5. Analysis of Cases

(1) Unreality of cases

As noted above, it appears difficult to solve church property disputes by the Supreme

Court cases. Because the court does not recognize a division of the church (two groups),

and decides that church members for withdrawal do not have church property ownership

without the quorum of the two-thirds49

. The 2006 Decision intended to make the two

groups split in order to avoid causing further conflict. But if the church's withdrawal is

invalid, the withdrawn members go back under one roof. Then, the disputes of the

church members who have different opinions are keep on continuing endlessly. It is to

go back to the negative effect of the previous case law.

Therefore, I doubt whether the Supreme Court cases is a reasonable criteria to solve

church conflicts or not. I believe that the Supreme Court case has to present the feasible

criteria for actual resolution of church disputes.

(2) Change of the denomination and the withdrawal from the church

The most important signs of the church withdrawal are to deny the commonality of the

church. The criterion to deny the church community is not to follow the ritual and

doctrine that the church and the denomination sought so far.

47 Kwangsung Church cases refer to the 50 court decisions relating Kwangsung Church disputes, especially to the

Supreme Court Decision. of 2007.6.29., 2007 마 224【예배방해금지가처분】; 2010.5.27., 2009 다 67665,67672

【명도청구․건물명도】; 2010.5.27., 2009다 67658【공탁금출급청구권확인】 etc.

48 Supreme Court Decision of 2010.5.27., 2009다 67665, 67672; 2010.5.27., 2009다 67658; Seoul High Court

Decision of 2007.1.23., 2005 라 989,999,1000; Seoul Dongbu District Court Decision of 2008.1.11.,

2005가합 2453; 2009.4.2.,2009카합 198

49 Supreme Court Decision of 2009.7.23., 2008다 44085,44092; 2011.12.13., 2009다 5162 판결; Seoul High

Court Decision of 2007.9.21., 2006라 902; 2007.8.22., 2006라 860; 2011.5.19.,ﾠ2010나 20442; Daegu High Court

Decision of 2007.2.2., 2006나 6387 etc.


Procedure


Thus, the most important criterion for judging the church withdrawal is whether the

church members follow the same type of the doctrine and rite or not. The Korean court

is similar to the US court in which they cannot decide the issue of religious areas due to

the principle of separation of the church and the state. The area of religion and religious

issues should be committed to the denomination.

Generally, the disputes of the Korean church which are occurring in the Presbyterian

Church are mainly disputes regarding church property and personnel operation rather

than disputes over the doctrine or worship in the Korean church. Therefore, the court

has to judge most church disputes as disputes related to a dogma and a rite about what

the withdrawal members have changed in the denomination. The court needs to

determine which part has legitimacy because church disputes consist of a religious

relationship with the theology such as a dogma or a practice-like worship.

2 The division of the Buddhist temple and the property ownership

2.1 Cases of the Temple

The Supreme Court does not admit the division of the temple such as the division of the

church. The Supreme Court case is as follows, "in other words, unlike the foundation or

the unincorporated association, since the temple was established as the combination of

facilities, the Buddhist doctrine, an ideological element, enforcement memorial service

as behavioral factors, organizational factors such as monks and believers and a land as a

physical element, although a part of the Buddhist left the temple, the temple was not

divided"50

2.2. Difference between the church and the Buddhist temple

(1) While the church has a general meeting consisting of church members, the Buddhist

temple has no general meeting with Buddhists. The chief monk decides everything.

(2) Church property is established by the offering of church members and the Buddhist

temple property has mostly been accumulated and handed down hundreds of years ago.

(3) The Buddhist temple is managed independently without being dependent on

Buddhist organizations.

(4) The Buddhist temple has no regular meeting with a certain number of Buddhists.

If the court deals with the church and the temple separately, religious

discrimination would be abated. But the differences of the judicial rulings between the

Church and the Buddhist temple is due to the fact that the court regards the legal status

of the temple as a foundation, whereas the legal status of the church as an

unincorporated association. Therefore the court recognized the division of the church

and instead does not recognize the division of the temple itself because there are no

congregations. But after the 2006 Decision, as the court does not admit the division of

the church and the temple, the issue of religious discrimination becomes an invaluable

discussion.

50 Supreme Court Decision of 1995.9.26., 93다 33951; 1997.12.9., 94다 41249【소유권이전등기】

Hunje SUH (Korea)


IV. Conclusion

As noted above, I insisted that the division of the temple was not recognized, the

Catholic Church has no legal position of an admissibility of the party, only the

Protestant church has church property ownership when the church splits. To catch two

rabbits of solving both the guarantee of freedom of religion and the resolution of church

disputes, the court should seek the following ways:

Suggestion 1: The division of the church property

The church property should be divided in proportion to the number of the

congregation to continue the life of faith with the same doctrinal beliefs when the

church has been split. Although this suggestion based on the theory of co-ownership has

a theoretical problem, in my opinion, it is the most realistic way to resolve church

property disputes respecting the church as a belief community. As sharing of the church

property consists of a difficult and complicated procedure, many churches with church

disputes are trying to solve the problem of the church property by calculating a

monetary amount in proportion over the actual number of the members instead of

leaving the church.

Suggestion 2: The deprivation of church property

It is wise that the court deprives property ownership from one of the two groups

when two conflict groups are beyond "profit" which can be achieved through a focus on

property. Therefore, it is wiser for the court to make a fresh start as a new faith

community, by losing the property of one out of the two groups.


Procedure


Kinga Flaga-Gieruszyńska1

Institutionalized forms of religiousness (churches and

religious associations) and their doctrine in the Polish civil

procedural law

I. Preliminary issues

In Poland, as in many post-communist countries, the relationship between the

State and churches and religious associations is largely conditioned by historical factors,

relating primarily to the active involvement of, especially, the Catholic Church in the

defence of freedom in a totalitarian regime. This meant that in some aspects, the balance

in these relationships was upset. The Church, due to its merits, sometimes even gaining

the shade of martyrdom for faith, and more broadly - for freedom, obtained a more

privileged position than in other countries with a secular nature. Speaking about the

influence of religion (more broadly: freedom of religion) on civil procedure and the law

of civil procedure, one should consider both, the institutional aspects (relating to the

legal and procedural status of churches and religious associations, especially the

Catholic Church), as well as issues of an individual nature, relating to protection under

the civil procedural law of religious beliefs of individuals (parties to proceedings and

third parties). These aspects permeate one another, creating a conglomerate difficult to

be separated.

This paper will only present issues most important for the demonstration of the

actually existing impact of constitutional freedom of conscience and religion on the

Polish civil procedural law.

1. Evolution of constitutional State – Church regulations

The problem of the relationship between the structures of the Catholic Church

and other churches and religious associations is not a new problem. Already in the

Government Act, that is the first Polish Constitution of 3 May 1791, which was the first

written constitution in Europe (and second in the world – after the Constitution of the

United States of America) a provision appeared in point I indicating the Roman Catholic

religion as the official and national religion, along with guaranteeing freedom for other

religions and rites2. Another constitution established on 22 July 1807 for the Duchy of

Warsaw defined in art. 1 the Catholic, Apostolic and Roman religion as the state religion,

while pointing in art. 2, that any religious part is free and public3. The Constitution of

the Kingdom of Poland, dependent on the Russian Empire, of 27 November 1815,

stated that the Roman Catholic religion, practised by the largest part of the residents of

1 Chair of Civil Procedure, Faculty of Law and Administration, University of Szczecin, Poland 2 www.law.uj.edu.pl/~khpp/fontesu/zuword/1791.rtf , 15.01.2014 3 http://www.law.uj.edu.pl/~khpp/fontesu/1807.htm, 15.01.2014

http://www.law.uj.edu.pl/~khpp/fontesu/1807.htm

Kinga FLAGA-GIERUSZYŃSKA (Poland)


the Kingdom of Poland, will be subject to specific care from the government, not

lessening by this the freedom of other religions which can practice their rites, all and

without exclusions, fully and publically under the protection of the government4.

Then in 1921, already in independent Poland, the so-called March Constitution

was passed, which in a definitely broader manner defined the status of churches and

religious associations. Its art. 113 said that each religious association, recognized by the

State, has the right to arrange collective and public services, can independently conduct

their internal affairs, may possess and acquire movable and immovable property,

manage and dispose of it, remain in the possession of and use their foundations and

funds or establishments for religious, scientific and charitable purposes. No religious

association could, however, stand in contradiction with the laws of the State. However,

the Roman Catholic religion which was the religion of the majority of the nation, took a

supreme position among the religions with equal rights in then Poland. The Roman

Catholic Church ruled by its own laws. The State’s position towards the Church was

defined by an agreement with the Holy See, which was subject to ratification by the

Sejm (lower house of Parliament) (art. 114). However, according to art. 115 of the

March Constitution, churches of religious minorities and other legally recognized

religious associations also ruled themselves with their own regulations whose

recognition the State dis not refuse, unless they contained provisions contrary to the law.

The State’s position towards these churches and denominations was established by

legislation, after consultation with their legal representations5. The Constitution of April

1935, the last one before World War II, did not refer at all to the status of religious

associations, only forming in art. 7 par. 1 the principle of equality, according to which

neither the origin, nor religion, nor sex, nor nationality could be the reason for limiting

the rights of the citizen6.

After World War II, Poland became "People's Republic of Poland", dependent on

the Soviet Union, which directly affected the perception of the relations between the

State and churches and religious associations. The Constitution of 22 July 1952 focused

in art. 70 primarily on how to "protect" the citizen from religious practices. In fact it

declared that "freedom of conscience and religion" is granted to citizens. The Church

and other religious associations could (purely theoretically) freely exercise their

religious functions. The practice was quite different, aimed at minimizing the social

activity in this regard, including restrictions as to consecrating new places of worship.

The Constitution stipulated that neither can citizens be forced not to take part in

religious activities and rituals, nor can they be compelled to participate in them. In

practice, religious practices, in particular of those in power and members of the party,

armed forces, civil servants, etc., and even scientists were not welcome, and in fact were

the cause of repression. The State’s attitude to the Church and the legal and financial

situation of religious associations were also to be regulated in this period by acts of law,

which was, however, not performed. According to the provisions of the Constitution,

abuse of freedom of conscience and religion for purposes prejudicial to the interests of

the People's Republic of Poland was punishable7.

4 http://www.law.uj.edu.pl/~khpp/fontesu/1815.htm, 15.01.2014 5 http://www.law.uj.edu.pl/~khpp/fontesu/1921.htm, 15.01.2014 6 http://www.law.uj.edu.pl/~khpp/fontesu/1935.htm, 15.01.2014 7 http://www.law.uj.edu.pl/~khpp/fontesu/1952.htm, 15.01.2014






Procedure


Speaking about the influence of religion (more broadly: freedom of religion),

one should consider both the institutional aspects (relating to the legal and procedural

status of churches and religious associations, especially the Catholic Church), as well as

issues of an individual nature, relating to the protection of religious beliefs of natural

persons (parties to proceedings and third parties) under the civil procedural law.

This state was changed by the currently valid Constitution of the Republic of

Poland of 19978, compliant with the standards of a democratic legal state, which in art.

25 provides that churches and other religious organizations shall have equal rights.

Public authorities in the Republic of Poland shall be impartial in matters of religious,

ideological or philosophical beliefs, ensuring their freedom of expression in public life.

In particular, the relationship between the State and churches and other religious

associations is based on the principle of respect for their autonomy and the mutual

independence of each in their own realm, as well as cooperation for the good of man

and for the common good.

2. Dominant significance of the Catholic Church

Today Poland (at least in the light of the law) is not a mono-religious state, as in

practice a number of different churches and religious associations operate in our area.

Currently there are 158 entities in the register of churches and religious associations,

maintained by the Minister of Home Affairs. Alongside them are those churches that

affirmed their status in the relationship with the State under separate legislation9.

However in practice, the Roman Catholic religion dominates for now. All

religions other than it have a far less important significance in the social and religious

life. As indicated in the literature, the Catholic religion continues to be an important

element of self-identification of Poles, and as a result, a constitutive element of the

national identity of citizens. Invariably, for many years now, about 90% of the Polish

population considered themselves to be Catholics. There is a small - but growing –

percentage of those who do not feel affiliated with any religion.

However, not only the kind of religion, but also the religious involvement

associated with it is a characteristic element of the identity of Poles. Religiousness, as it

turns out, is one of the main features socially ascribed to a typical Pole. Such conviction

is expressed by as many as 89% of Poles surveyed on this matter10

.

What is your religion?

Respondents’ answers according to dates of surveys

VII 2005 II 2009 I 2012

in percentage

Catholicism 94,6 94,7 93,1

8 Journal of Laws of 1997, No. 78, item 483 9 a) Catholic Church, b) Polish Autocephalous Orthodox Church, c) Seventh Day Adventist Church, d) Baptist

Church, e) Evangelical-Augsburg Church, f) Evangelical-Methodist Church, g) Evangelical-Reformed Church, h)

Mariavite Catholic Church, j) Mariavite Old-Catholic Church, k) Polish Catholic Church, l) Eastern Church of Old

Believers, m) Pentecostal Church, n) Karaim Religious Union, o) Muslim Religious Union, p) Jewish religious

communities 10 R. Boguszewski, Polak – na zawsze katolik? Polska religijność w latach 1989-2008 na podstawie badań CBOS,

http://laboratorium.wiez.pl/teksty.php?polak_na_zawsze_katolik, 15.01.2014.

http://laboratorium.wiez.pl/teksty.php?polak_na_zawsze_katolik



Protestantism 0,1 0,4 0,8

Orthodox Church 0,7 0,4 0,2

Other religion 0,7 0,4 0,8

Non-religious, atheism,

agnosticism

1,5 2,1 4,2

Christianity (generally) 2,2 1,2 -

Difficult to say 0,2 0,4 0,3

Refusal to answer 0,0 0,4 0,7

Source: CBOS (Centre for Public Opinion Research) research „CHANGES IN

THE SCOPE OF FAITH AND RELIGIOUSNESS OF POLES AFTER THE DEATH

OF JOHN PAUL II”, April 2012, http://cbos.pl/SPISKOM.POL/2012/K_049_12.PDF,

15.01.2014.

The specificity of regulation of relations with the Roman Catholic Church does

not only lie in its dominant presence in the Polish society, but also in the extended scope

of regulation of relations with it, both on the grounds of the act of law and on the basis

of the Concordat. This diversity is a consequence of the recognition by the Polish State

of legal international subjectivity of the Holy See. Thus, we are dealing in this case with

an international agreement which coexists with the ordinary law specifying

constitutional norms. These, in turn, in accordance with art. 8 par. 2 of the Constitution

of the Republic of Poland may also have a direct application in the field of freedom of

conscience and religion, and their institutional exemplification.

As a result, Poland is officially a secular state, however, with the clearly exposed

(actually and legally) role of the Catholic Church in society, and even politics. One of

the reasons is that after 1989, with the initiation of democratization of the public life, a

strong need to honour and award that Church with an appropriate position emerged.

This state was also strengthened by the uniqueness of Pope John Paul II, whose strong

personality largely influenced the attitude of Church hierarchs, as well as

representatives of the State during this period. But gradually, together with the

weakening and then the death of the Polish Pope, the attitude of some Church officials

often began to take the forms that - using legal language - can be described as "abuse of

law". Today, the young generation of Poles does not see the Roman Catholic Church

from the perspective of its martyrdom and struggle for human rights, but as an entity

economically (e.g. in access to property) and legally (e.g. in the area of tax law)

privileged in an unacceptable manner, especially in the time of crisis and reducing state

spending for public purposes. Some hierarchs of the Church by their non-cautious

statements as well as leading a lifestyle sometimes ostentatiously standing out in terms

of their material status strengthened this trend even more. Hence, with the support of the

image of the Catholic Church created by Pope Francis, as more and more bolder are

considered actions of Polish state authorities to curb the privileges of church legal

persons, perceived by society as excessive (for example, in terms of the taxation of

income, social security or limitation of legal liability of the clergy and legal persons).

These changes generally do not apply to civil procedural law. In this regard,

solutions arousing public opposition do not appear in a wider scope. At most, in the area

of this law, one can talk of constructions arising interpretation doubts and demanding

specifications in terms of the participation of forms of religiousness institutionalized in

http://cbos.pl/SPISKOM.POL/2012/K_049_12.PDF


Procedure


the country (churches and religious associations) and respect for their doctrine in civil

proceedings.

Ⅱ. Legal and procedural capacity of churches, religious

associations and church legal persons.

1.Capacity to be a party in court proceedings and capacity to perform

actions in court proceedings of church legal persons

In the perspective of civil material and procedural law particularly important is

the civil and legal status of churches and religious associations. In accordance with art.

28 of the Act of 17 May 1989 on the guarantees of freedom of conscience and religion11

,

in matters of property churches and other religious associations operate through their

legal persons. Legal persons of churches and other religious associations, their bodies,

the competence scope, the method of appointment and representation are defined by

statutes (internal law). As indicated by the Supreme Court, internal church law plays

only the same role as a statute does, which is referred to in art. 38 of the Civil Code12

(hereinafter CC) in relation to other legal persons13

. This means that the way a church

legal parson operates through their authorities is decided on by both, the provision of

the Act, as well as the internal law of the Church which plays the roles of a statute

within the meaning of art. 38 of the CC.14

Art. 33 of the Civil Code provides that legal persons are the State Treasury and

those organizational entities upon which special provisions of the law confer legal

personality. Polish legislature adopted a general rule recognizing the right of the

Catholic Church to act in the course of civil law under its own organizational form,

which required the determination of the legal personality of its organizational units15

.

But to say that churches and religious associations - as legal persons – have the capacity

to be a party in court proceedings and capacity to perform actions in court proceedings

on the grounds of Polish civil procedural law would be too great a simplification. Some

of these entities are in fact particularly complex in their design. An example is the

Catholic Church, which includes, depending on the specifics, legal persons with a

nation-wide, territorial and personal range, as well as universities16

.

As highlighted in Polish literature, the legal personality of individuals is

essential to the Catholic Church exercise of its mission, also through the participation in

the course of civil law. Church organizational units having legal personality do not

operate in full autonomy and independence. They are part of a larger structure, which is

the Catholic Church. As a consequence of this assumption it should be taken into

11 Journal of Laws of 1989 No. 29, item 155. 12 Journal of Laws of 1964 No. 16, item 93. 13 The term ‘statute’ should not be identified with only those acts that are directly named by the law, e.g. the statute

of a stock company or a statute of a cooperative. 14 HC judgement of 13 April 2012, I CSK 451/11, LEX No. 1168535. 15 M. Pietrzak, Prawo wyznaniowe, wyd. 3, Warszawa 2005, p. 260. 16 Ibidem, p. 205.



account in the course of civil law. What's more, if the Catholic Church can govern its

own affairs with its own law, then, a maiori ad minus, its organizational units may, or

even should, be governed by this law. If they have a legal personality, they may govern

their civil law relationships with its internal law (e.g. as regards representation).

Furthermore, individual legal persons belonging to the Catholic Church are interrelated,

and these ties are the result of norms of the canon law (e.g. a parish is part of a diocese

which is in turn a part of a metropolitan area). Between church organizational units

there also occur legal relationships of the nature of dependence, which in legal

transactions at the level of the Polish law should be taken into account. And finally – it

must be accepted in legal transactions that the organizational units of the Catholic

Church perform certain tasks provided for by the mission of the Church (such as the

establishment and maintenance of cemeteries)17

. In summary, the Catholic Church as a

whole is not a legal person in the Polish legal system, but legal personality is held by

individual elements of its organizational structure, which allows them to carry out a

variety of tasks, also those beyond religious activity, relating to charitable, educational,

etc., but also economic activities.

The Act of 17 May 1989 on the relationship between the State and the Catholic

Church in the Republic of Poland18

(hereinafter referred to as the religion law)

exhaustively lists the legal persons being part of this Church: 1) Polish Bishops'

Conference as a church legal person of a nationwide range19

; 2) territorial organizational

units of the Church: metropolitan areas, archdioceses, dioceses, apostolic administration

and parishes. In addition, legal persons include also rector churches (rectories), as well

as entities engaged in charity activities: Caritas Poland, diocesan Caritas and the

Pontifical Mission Societies. This status is also held by personal organizational units of

the Church (such as to whose scope of activities the criterion of territoriality is not

applied): Field Ordinariate of the Polish Army, chapters, personal parishes, the

Conference of Major Superiors of Male Religious Orders, the Conference of Major

Superiors of Female Religious Orders, institutes of consecrated life (order institutes and

secular institutes) and societies of apostolic life, the provinces of religious orders,

abbeys, independent cloisters, religious order houses, higher and lower diocesan

theological seminaries, as well as higher and lower religious order theological

seminaries, if they are, under the provisions of the given order, of an autonomous nature.

Similarly, legal personality is held by the universities run by the Church and

enumeratively listed in the religion law. The best-known include the Catholic

University of Lublin.

The complexity of the problem is aggravated by the fact that on the basis of art.

11 of the religion law a church legal person is not liable for the obligations of another

church legal person. This applies to both, public law liabilities (in particular in the field

of tax and social security law) and private law ones. This applies equally to the

obligations of a pecuniary character, as well as non-pecuniary obligations (e.g. relating

17 B. Rakoczy, Komentarz do art. .5 ustawy o stosunku Państwa do Kościoła Katolickiego w Rzeczypospolitej

Polskiej, zbiór elektron. LEX 2014. 18 Journal of Laws of 1989, No. 29, item 154. 19 As determined by canon 447 of the Code of Canon Law, the Bishops’ Conference, which is a permanent institution,

a gathering of bishops of a country or specified territory, fulfilling together certain pastoral tasks for the faithful of its

territory for greater good provided to the people by the Church, especially by properly adapted to the current

circumstances of time and place forms and manner of the apostolate with respect to the provisions of law;


Procedure


to the protection of personal rights). It must be recognized that this exclusion applies to

the liability of both, the contractual regime, as well as the tort one.

Consequently, any church legal person may sue and be sued in disputes of a civil

law base. In the case of church organizational units without legal personality (such as

publishers, schools, and educational and training institutions) we deal with the use of

the attribute of legal personality of those entities by which these units exist. It is worth

noting that this kind of "atomization" of legal personality in the structure of the Catholic

Church generates a theoretical possibility of a civil dispute between church legal

persons. In practice, this is a problem that does not exist due to the organizational

(centralization) and ideological (the principle of hierarchical obedience) consistency of

the structure.

2.Church legal persons’ capacity to go bankrupt

Referring to the capacity to be a party in court proceedings and capacity to

perform actions in court proceedings of church legal persons, one should mention the

problem clearly embedded in the procedural law, i.e. the capacity to go bankrupt. On the

one hand there is no doubt that the key task of ecclesiastical structures is to perform

various forms of religious services, but on the other – one cannot ignore the fact that

church legal persons may operate a nonreligious activity - including an economic one20

.

This does not only result from art. 52 of the religion law (according to which the Church

and its legal persons have the right to acquire, hold and dispose of movable and

immovable property, to acquire and dispose of any other rights and to the management

of its assets), but also from further provisions of this law setting out ways of taxation of

the economic and non-economic activity of the Church. The only relative limitation of

operating a commercial activity are the provision of canon 286 of the Code of Canon

Law21

, which prohibits clergymen from practicing trade or transactions personally or

through others, whether on their own benefit or the benefit of others, except with the

permission of the lawful ecclesiastical authority. Thus, one can speak of church legal

persons as entrepreneurs within the meaning of the Act of 28 February 2003 -

Bankruptcy and Restructuring Law22

.

However, what has been said does not close the issue of the capacity to go

bankrupt. Polish Bankruptcy and Reorganisation Law provides for two modes of

conduct: a) with the possibility of concluding an arrangement - aiming to keep the

entrepreneur in the course of legal transactions; b) involving the liquidation of assets -

ending in the termination of the individual’s status of an entrepreneur, and in the case of

legal persons and organizational units without legal personality - termination of their

legal existence. And it is the latter case that is problematic. And this is so because in

relation to those provisions, the provisions of art. 59 of the religion law are of a lex

specialis character. According to it, in the event of the abolition of a church legal person,

the property is passed to the senior church legal person, and if that person does not exist

or does not operate in Poland, the property is passed to the Polish Bishops’ Conference

20 There is also no doubt that under the Act of on the freedom of establishment, church organizational units can be

entrepreneurs. 21 http://www.trybunal.mkw.pl/Kodeks%20Prawa%20Kanonicznego.pdf 22 Journal of Laws of 2003, No. 60, item 535.



or the Conference of Major Superiors of Religious Orders. Therefore, it should be

considered that in relation to legal persons belonging to the Catholic Church, only the

bankruptcy mode with the possibility of concluding an arrangement may be used. This

possibility does not apply to organizational units without legal personality acting

through church legal persons, as these - in the absence of the capacity to be a party in

court proceedings - will also not hold the capacity to go bankrupt. Another reservation

in this regard is the restrictions on the assets forming part of the bankruptcy estate

(according to art. 63 par. 1 of the Bankruptcy and restoration law, property that is

exempt from execution by the Code of Civil Procedure, including items for the exercise

of religious practices, is not entered into the bankruptcy estate).

Consequently, one needs to accept the position noticeable in the doctrine that the

announcement of bankruptcy of a church legal person is to allow the satisfaction of

liabilities towards all of their creditors, which of course does not rule out the possibility

of abolishing the church legal person under said art. 59 of the religion law, where this

abolition depends on the decision of the competent ecclesiastical authority23

. Such an

approach is consistent with the basic premise of civil procedural law under which

termination of legal existence of an entrepreneur is not the principal purpose of

bankruptcy proceedings; therefore it should only be applied in justified cases of the

inability to continue an economic activity in the conditions of free competition. It

allows for the use towards church legal persons of bankruptcy proceedings with the

possibility of an arrangement with creditors, seeking to restructure and repay debts.

Ⅲ. The problem of restrictions on the admissibility of legal

action

One of the fundamental institutional issues of the freedom of conscience and

religion is the problem of admissibility of legal action. The general rule does allow

church legal persons to sue and be sued. However, this rule is not of an absolute nature.

Restrictions on the admissibility of legal action emerge on the grounds of the

Code of Canon Law, and also due to the provisions of the Polish state law restricting the

admissibility of legal action in civil cases involving church legal persons.

The Polish legislator clearly indicates the art. 2 of the religion law that the

Church is governed in its matters by its own law, freely exercises its spiritual and

jurisdictional power and manages its own affairs. The literature distinguishes cases in

which the authority of the Church is exclusively competent, as well as those that belong

to the sphere of private law regulations. The first group of cases include those falling

under the exclusive jurisdiction of the Catholic Church. In this realm of affairs the

Church can freely manage such matters, settle them, lead and freely seek the set adopted

target. Catholic Church's own affairs include matters relating to the independence of

23 B. Rakoczy, Zdolność upadłościowa kościelnych osób prawnych Kościoła Katolickiego, Przegląd Sądowy 2006,

No. 3, p. 92.


Procedure


Church from the State, the freedom of shaping organizational structures and free

staffing of church posts24

. And in this group legal action in civil cases is cannot be used.

The second group is formed of cases that belong to the realm of rei mixti fori, in

which the authority of the Church and the one of the State are both competent, but

which have the character of private law. The source of the Church's freedom to exercise

their powers here is not only standards governing the relation of the state to the Catholic

Church (the principle of independence and autonomy), but also the regulations of the

civil law. Church legal persons are free to exercise their powers of a private law

character, as does any other entity in civil law. In this respect, the autonomy and

independence is enjoyed by them so much as an organizational unit of the Catholic

Church, whose functioning in the State is set out in separate regulations, but legal

persons25

. Only in this category of cases can one talk of the admissibility of legal action

on the grounds of a civil procedure.

Under the Polish law, an exception justifying the inadmissibility of legal action

is primarily the provisions of the so-called regulatory proceedings. It is a specific

procedure characteristic not only of the religion law, but also other laws governing the

relations between the State and churches and other religious associations. Its subject

may be either restoring ownership rights or the transfer of ownership. It is worth noting

that the regulation of ownership rights may not violate the rights of other churches and

other religious associations. The idea is that the restitution of ownership rights does not

lead to the formation of religious disputes, especially when another religious

organization uses the immovable property for their religious needs.

Referring to the legal nature of regulatory proceedings, it must be recognized

that it is a sui generis procedure, not having a fully administrative, nor the civil law

character. Placing this procedure among other procedures existing in the Polish legal

system one should recognize that regulatory proceedings are closest to proceedings

before an arbitration court, to a large extent shaped by the parties to the dispute.

Currently, the construction of regulatory proceedings is at a crossroads, as the Property

Commission, which used to resolve applications of church legal persons filed in this

procedure, has been abolished. The irregularities associated with the processing of

applications or the subsequent transactions with the real estate recovered or acquired by

those entities of the Catholic Church, culminating in the presentation of criminal

charges to certain members of the Commission, were not the only reason for this. A

significant problem from the perspective of the right to justice was also the fact that the

Property Commission settled in one instance, which was an apparent violation of

constitutional rules of procedure.

By way of signalling, attention should be drawn to the fact of church entities’

failure to participate in court proceedings of a registration character, despite the

presence on their side of features obliging them to such participation. It regards the

registration procedure provided for legal persons engaged in economic activity. Despite

the obvious features of operating such an activity26

(e.g. tourism and pilgrimage,

24 B. Rakoczy, Komentarz do art. 5 ustawy o stosunku Państwa do Kościoła Katolickiego w Rzeczypospolitej

Polskiej, zbiór elektron. LEX 2014. 25 Ibidem. 26 See more: R. Sowiński, Ewidencja i rejestracja działalności gospodarczej i przedsiębiorców, Wrocław 2007.



publishing, etc.) church entities (e.g. parishes of the Catholic Church)27

do not report to

the National Court Register recording entrepreneurs holding the status of legal persons.

This allows them to avoid the obligations that rest on other entrepreneurs (e.g.

disclosure of the method and the persons representing a legal person). This kind of

behaviour is consented to rather than criticized in the Polish literature.

In summary, the specifics of the Catholic Church and church legal persons

forming it (just like churches and religious associations with a complex legal structure)

caused the need for a different design of the admissibility of legal action, which

sometimes creates interpretational difficulties. However, an unquestionable aspect in the

doctrine is the admissibility of legal action in cases concerning the economic activity of

church legal persons, including cases relating to practices restricting competition (e.g. in

the scope of cemetery services) recognized by the court of competition and consumer

protection (it is a civil court).

Ⅳ. Limitation of evidence related to the respect of freedom of

conscience and religion.

While the previous considerations apply to the institutional aspects of the

religion law, limitation of evidence aim to respect the fundamental values expressed in

the doctrine of the Church or religious organization, relevant to an individual who,

being a follower of a particular religion, participates in these liturgical celebrations.

In the Polish procedural law, a decision of this kind is art. 261 § 2 in fine, which

provides that a clergy person may refuse to testify as to the facts entrusted to them in

confession. Thus, the seal of confession was aligned with professional secrecy, whose

protection refers to the so-called free professions.

The literature argues that for the seal of confession to become the basis for the

clergyman’s refusal to answer questions, the following conditions must cumulatively

occur:

a) they must represent a religion legally recognized in Poland, i.e. one acting

lawfully; this recognition may take the form of a law or the form of the act of

registration by the Minister of Internal Affairs;

b) the church or religious association must stipulate the category of the clergy to

which the witness belongs; this issue must be resolved explicite by the internal law of

such a religious association (its canon law);

c) the witness claiming to be a clergy person must document their status in the

church or religious organization;

d) the faith represented by the witness must use confession as a sacrament; the

confession must be both individual and “ear-to-ear” and not e.g. general confession or

another form of contact of a penitent with a clergy person; the decision in this regard is

taken by the court familiarizing itself with the internal law of a given church or religious

association28

.

27 It concerns here operating economic activity directly by church legal persons such as parishes, not organizational

units created by these legal persons (e.g. commercial companies). 28 K. Knoppek, Komentarz do art. 261 Kodeksu postępowania cywilnego, zbiór elektron. LEX 2014.


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It must be noted, however, that the lack of a clear understanding of the concept

of "a clergy person" and "confession" in Polish law does not provide certainty as to the

scope and nature of the information subject to protection. The literature points to the far-

reaching consequences of this condition. One cannot exclude that undermining the seal

of confession will not cause animosity to the penitent’s confidential communication

with a clergy person, or even its total abandonment. .

In relationships of this type great importance is held by the penitent’s belief that

information communicated in confidence will remain undisclosed. In the case of

passing information on religious grounds, apart from a sense of betrayal, an element of

violation of religious freedom would additionally occur here29

.

It is worth noting that a clergyman’s violation of the seal of confession by failing

to take advantage of the right to refuse to answer a specific question, does not bear any

negative procedural consequences on the ground of civil procedural law, while the priest

puts the canonical responsibility at risk, for instance a Catholic Church priest in this

case will be subject to excommunication imposed on him by law (canon 1388 § 1 of the

Code of Canon Law).

Ⅴ. Objective limitations of court execution

In enforcement proceedings, at the stage of execution of the enforceable title (in

the cases specified in the law – enforcement order) there appeared a solution in the

Polish law designed to protect the material sphere of religious practices of churches and

religious associations, church legal persons and other organizational units operating in

these organizational structures. It may also apply to natural persons who perform these

practices using certain objects or on the premises intended for such purposes.

In accordance with art. 829 of the Code of Civil Procedure (hereinafter CCP)

objects used for religious worship are not subject to execution. As indicated, this applies

to both movable and immovable property (churches, chapels, etc.), regardless of

whether these objects are in the possession of natural persons or religious associations,

or possibly secular legal persons. Understanding of the term "immovable property

which is the object of religious worship" on the grounds of art. 829 point 6 of the CCP

must be accurate and should not include the property that is owned by churches and

religious associations but not used directly and exclusively to the exercise of worship,

but for broadly understood economic or administrative purposes. With regard to the

execution against real estate it should be noted that indeed the exclusion will cover real

estate property or premises (i.e. temples sensu largo), but it is difficult to include land

property in this category, with the exception of cemeteries30

. The practice shows that

such items exempted from execution when the debtor is a parish (and more broadly an

organizational unit) of any church or religion include things out of the sheer purpose

used to the exercise of religious practices (religious worship), and thus such as places of

29 M. Jurzyk, Ochrona spowiedzi w postępowaniu dowodowym a prawa penitenta i duchownego, Radca Prawny

2004, No. 2, p. 67, zbiór elektron. LEX 2014. 30 J. Opatowska-Rynkowska, Wyłączenie spod egzekucji w toku egzekucji z nieruchomości, Radca Prawny 2005, No.

3, p. 25.



worship themselves (prayer houses), the furnishing of the place of worship (including

the vestry), liturgical vestments and vessels, figures, crucifixes, etc.31

It is worth noting that exemption from execution of objects used for religious

practices is independent from the fact which practices are in question and what faith the

debtor is. In addition, the material or possibly artistic value of objects which are subject

to those provisions is not relevant. Nevertheless, excluded items should be functionally

linked to the liturgy (rituals) of a given church or religious organization affiliation to

which the debtor or any other person remaining in the household with him declares (if

the debtor is a church legal person, key significance is played by the link with the

liturgy (rituals) of the church to whose structure the person belongs). The restriction

may not, however, be used for items which the debtor trades, manufactures or collects32

,

or treats as an investment.

This does not mean, however, that with respect to this exclusion all aspects are

clear and do not raise doubts of interpretation. Certainly, an important problem in

practice and one unnoticeable in literature, is the issue of objects which by their nature

are not used for religious worship, but when placed in a particular place and used in a

particular way can serve such a function (the organ, the sound system of the place of

worship or a church bell not yet installed, etc.). Particular caution should be exercised in

this regard and in practice Polish bailiffs avoid taking such items over in execution

proceedings, also for fear of social ostracism, which can affect the bailiff and the

creditor who filed the request for the initiation of this type of execution.

It is worth noting that the issues referred to here are becoming more and more

important in practice, due to the increasing activity of church legal persons in legal

transaction, resulting in an increase in obligations of these persons, not always fulfilled

within the deadline. It is particularly noticeable in connection with church legal persons’

use of EU funds dedicated to the renovation of religious monuments or projects of a

social and cultural range.

Ⅵ. Conclusions

The Constitution of the Republic of Poland constructs in the current sounding

the organizational and functional independence of State and local government bodies

and institutions from the bodies and institutions of religious associations, which is a

basic feature of the separation of the State and these organizations33

. The State and the

Church in Poland are institutions, not each other’s subjects in the hierarchy, but at the

same time not isolated from each other, but mutually complementary34

. This

complementariness can also be seen on the grounds of substantive civil law and civil

procedural law. A clergyman of the Catholic Church, keeping the conditions laid down

by law, serves as the head of the registry office and sanctions contracting marriages also

31 HC resolution of 17 November 1969, II CZP 68/69, OSNCP 1970, No. 2, item 29. 32 Kodeks postępowania cywilnego. Komentarz, ed. Z. Resich, W. Siedlecki, Warszawa 1969, p. 1137. 33 M. Pietrzak, Prawo wyznaniowe, Warszawa 2003, p. 230. 34 R. Sobański, Niezależność i autonomia Kościoła i państwa podstawową przesłanką konkordatu, Ateneum

Kapłańskie 1996, vol. 1, p. 17.


Procedure


in the light of the secular family law. On the other hand, canon law determines in which

case we can speak of the existence of the seal of confession within the meaning of Code

of Civil Procedure concerning evidence proceedings.

Separation of borders between the state order and the order appropriate for

churches does not mean isolation, or all the more competitiveness35

. This approach to

relations between the State and religious associations is the only one possible on the

grounds of Polish legal culture. The legislature is trying to create, in the legal order,

standards defining the rules for the participation of churches, religious associations and

church legal persons in legal transactions, taking into account the specificity of

structures of these entities, as well as specific elements of the liturgy.

This problem is further complicated because of Poland’s participation in both,

the legal system of the Council of Europe (extremely important for the development of

standards of freedom of conscience and religion), as well as in the legal system of the

European Union. In the latter, religious issues are treated as an important derivative of

respect for nationalities and cultures of individual Member States, creating their identity.

The model of relations between the European Union and religious communities and

ideological organizations is of a pluralistic nature36

. European Union authorities, in their

actions, perceive churches and religious associations in the way that is apparent from

the standards set out in internal legal systems of the Member States. It seems that a

different approach, manifested in greater interference, is impossible due to the

multiplicity of constructions of relations between the State and churches and religious

associations in individual EU Member States. The diversity of historical experiences

and cultural differences are in this respect - as it seems - insurmountable.

However, one cannot fail to notice that EU law co-forms, in a direct or indirect

way, the legal status of churches and religious associations in many aspects of their

operation, (beyond the sphere of education and culture), such as economic law (the

problem of the freedom of establishment of these entities), labour and social security

law (the status of the clergy) or tax law. In one of its judgments, the European Court of

Justice stated that actions of members of an association based on religion or another

form of ideology in the course of economic activity of this association are part of an

economic life, if the performances that the association provides for its members can be

seen as direct mutual performances for actual and real actions37

. Therefore, in this law –

as well as civil procedural law – one can clearly see on the one hand a layer of activities

of religious associations relating to religious cult, and on the other hand - a religious

legal person as a participant in legal transactions, including economic ones.

This perception of church legal persons and components of their organizational

structures as participants in the legal system - having legal capacity and the capacity to

performs acts in law and, consequently, also the capacity to be a party in court

proceedings and the capacity to perform actions in court proceedings makes it possible

to treat these entities as other legal entities who are parties to or participants of civil

proceedings. This does not mean, however, that the legislature "is not going to make

35 K. Orzeszyna, Podstawy relacji między Państwem a Kościołami w konstytucjach państw członkowskich i

traktatach Unii Europejskiej, Lublin 2007, p. 195. 36 J. Krukowski, Polskie prawo wyznaniowe, Warszawa 2005, p. 286. 37 Case: D. M. Levin v. Staatssecretaris van Justitie, 23.05.1982, Affaire 53/81, http://eur-

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61981J0053,

15.12.2014.

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61981J0053

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61981J0053



concessions" to church legal persons, who in the case of civil procedural law express

themselves not in the way of regulating certain matters in the Code of Civil Procedure,

but in the absence of such regulations. This applies to restrictions on the admissibility of

legal action in the cases referred to, for example, in this study (i.e. regulatory

proceedings, registration or bankruptcy proceedings).

All of these aspects co-create a complex legal and procedural status of church

legal persons, combining the features of entities adhering to the regulations of the canon

law and the secular law, including civil procedural law.

In the society, but also in the legal doctrine, there is an increasing belief in the

need to align churches and religious associations with other entities of civil law

transactions. Strengthening the constitutional principle of equality before the law will be

a long process in Poland. In relations to churches and religious associations it will be

strengthened by the processes of secularization of society, which, however, is not a very

dynamic one. The research systematically conducted by CBOS shows that since the late

nineties over 90% of respondents (from 93% to 97%) have been consistently defining

themselves as believers, of which roughly one in ten, and most recently one in eleven,

twelve, assess their faith as deep. The percentage of persons identifying themselves as

partial or complete non-believers has remained at a relatively low level (from 3% to 7%)

for years, but - as already noted - since 2005 a steady growth has been observed.

Also, the level of involvement of Poles in religious practice, which in 1997-2005

remained relatively stable, has weakened quite significantly after 2005. Also during this

period we sae a decrease (from 58% to 51%) in the percentage of respondents practicing

regularly, at least once a week, and there has been an increase in those who do not

participate in religious practices (from 9% to 12%). More people also practice

irregularly (an increase from 33% to around 37%)38

.

38 Osoby niewierzące w Polsce – kim są oraz jakie uznają normy i wartości?,

http://www.cbos.pl/SPISKOM.POL/2013/K_134_13.PDF, 15.01.2014.

http://www.cbos.pl/SPISKOM.POL/2013/K_134_13.PDF


Procedure


Shimon SHETREET

Academic Blueprint for the implementation of

a Uniform Civil Code for India

Article 44 of The Constitution of India, provides that "The State shall endeavour

to secure for the citizens a uniform civil code throughout the territory of India." Even

though almost 60 years have passed, this has not been implemented.

In the M K Nambyar Memorial Lecture 2009 I attempted together with my

colleague Professor Hiram Chodosh, Dean of the Utah University College of Law, who

was a partner in this comparative study, to provide a blueprint for a possible framework

for a model of course of action for securing of a uniform civil code for India in a

comparative context.

Together with Professor Chodosh, I approached this study with great care and

high sensitivity. This sensitivity I acquired in research and in practice. I have conducted

research and offered courses on comparative law culture and religion in many leading

universities in Europe and North America and Israel. I have held public offices in Israel

including Cabinet minister of Religious affairs and senior deputy mayor of

Jerusalem .Equipped with this sensitivity and a significant measure of humility I

embarked upon the study of the issues of the Uniform Cavil Code for India.

The first part of the study was to learn from the experience of other nations how

they resolved the challenge of introducing the civil code and keeping continued respect

to community laws and social customs and how to formulate the relationship between

the religion and state.

As to the models of relation between religion and state or church and state my

study shows that we can classify the countries of the world into five models of church

state relation : the theocratic model, the absolute secular model, the separation of state

and religion model, the established church model and the acknowledged religions model

.

We also studied the reforms introduced in Turkey a Muslim country which

shifted from a country based on Muslim law to a secular republic with a modern civil

code in the broader sense of the term including in personal law. This took place in

1920s under the initiative and vision of Ata Turk. We paid special attention to the study

of the civil code in Goa which came under the rule of India in 1961. Likewise we

studied in detail the shift of Nepal from a religious Hindu monarchy State to a secular

democracy in 2006-2008 dramatic changes.

Based on the comparative study and the detailed analysis of the local context of

the India constitution and social and legal environment we arrive at a number of

conclusions as to the possible recommended course of action to further the

constitutional mandate to implement a uniform civil code for India.

In order to facilitate the securing of a Uniform Civil Code, we propose a

Blueprint for Guidelines, and proposals to secure a Uniform Civil Code should follow a

number of guidelines. We think that these guidelines will make its application as easily

acceptable for all the citizens and communities of India, as possible.

Shimon SHETREET (Israel)


The first guideline is that the process of preparing and implementing a uniform

civil Code should be the function of the Legislature. The Courts can resolve certain

specific points but the comprehensive code is a legislative function and not for judicial

resolution.

The second guideline that we propose is a parallel application of civil and

religious law. The securing of a Uniform Civil Code must not negate the possibility of

citizens availing themselves of religious law – if they so wish. Moreover, the state must

not merely allow for the existence of a religious law system, but must assist in its

enforcement, if the need for such intervention is required, and the circumstances allow

for it. The mere existence of a Civil Law does not nullify the existence of a religious

law system. In London, New York, or Toronto people marry first in civil marriage and

they marry in a church or a synagogue. Later, if necessary, they receive a judicial

remedy for religious aspects of their marriage and divorce. It is proposed that the same

should be available in India. The main law will be civil; the parallel law will be

religious.

The third guideline we suggested is a gradual application of the Uniform Civil

Code. Time must be allowed for the citizens of India to grow accustomed to the

existence of a civil code. A drastic change in the civil life of the people of India cannot

be put into place overnight, but must be implemented over time. The application should

be done topic by topic and chapter by chapter.

The fourth proposal put forth, is mediation. This mediation should take on two

forms – intercommunity mediation, and individual mediation. The first of these two

relates to a dialogue between the communities of India, to advance an agreement upon

the substantive provisions of the Uniform Civil Code. The second relates to mediation

between individuals, in occasions where dispute arises in the realm of personal law.

This set of proposals should alleviate the suspicion of the Muslim community or

the Hindu majority community that the civil code will altogether remove their traditions.

On the other hand, certain central values must be maintained by all law, whether civil or

the parallel religious law, namely to prevent discrimination and unfair practices to

women and daughters in a democratic country.

The main aim of this paper to provide a blueprint for a possible framework for

a model of course of action for securing of a uniform civil code for India in a

comparative context. The opening section of this paper shall deal with different models

of church state relations and minority culture recognition. The exposition offers an

example of the different approaches, and different aspects of these relations. The

application of these models to several countries, as well as the patterns of the

development of civil law in these countries will then be studied. The purpose is to

provide the necessary theoretical and practical background in order to analyze the

different models that may be prescribed for implementation of a uniform civil code in

the Indian context, and to understand the preferred model for India. Once this is

achieved, a better understanding can be reached of how securing a uniform civil code

can be made possible in India.

session 1 : ideological background of the constitution ... filedaniel mitidiero (brazil)...

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