收用裁決과 憲法上 政敎分離原則

Article 20(2) of the Constitution of the Republic of Korea provides that “No state religion shall be recognized, and church and state shall be separated,” which declares that a state religion is not acknowledged and also declares the principle of separation of church and state. Thus, the state, local governments, or administrative agencies have a duty not to actively intervene in religious matters such as financial support to a certain religion and not to discriminate against a certain religion. Meanwhile, Article 9 of the Constitution of the Republic of Korea prescribes that “The State shall strive to sustain and develop the cultural heritage and to enhance national culture.” In this case Supreme Court decided the approval of the development project of Yuhyun Culture Tourist Destination of this case was not contrary to the principle of separation of church and state under the Constitution. It, however, was not right approaches because the Court failed to analyze whether the project’s principle or primary effect is either advance or inhibits religion and whether the project forster an excessive government entanglement with religion. the decision of district court adopted the lemon test which was developed in U.S Supreme Court. It was overruled by Supreme Court but district court’s decision headed to right direction because the test implies a separation of religion from government more rigorous and provides deeper analysis. In Korea, nowadays there are uprising disputes related with an excessive government entanglement with religion. Therefore, it is better to apply Lemon test in Endorsement case. Under the Lemon test, government actions ① must have a secular purpose, ② may not as their principle or primary effect either advance or inhibit religion, ③ must not forster excessive government entanglement with religion.