2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall implement the procedure for cancellation registration of each transfer of ownership on June 4, 2008, registered under the receipt No. 38016 of June 27, 2008, with respect to each real estate listed in the separate sheet (hereinafter “instant real estate”) to the plaintiff as to the registration of cancellation of each transfer of ownership on the ground of a compulsory sale by official auction on June 4, 2008.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, citing this part in accordance with Article 420 of the Civil Procedure Act.

2. The parties' assertion

The plaintiff asserts that the above transfer registration of ownership on the real estate of this case was made in violation of Article 28 (1) of the Private School Act, which provides that a school juristic person shall obtain permission from the Ministry of Education, Science and Technology at the time of disposing of the basic property of this case, and thus, should be cancelled

Accordingly, the defendant asserts that since the purpose of existence is lost by the dispersion order issued by the Ministry of Education, Science and Technology, the disposition permission under Article 28 (1) of the Private School Act is not required in the compulsory auction procedure for the property, and even if not, the above dispersion order includes permission for the disposal of the basic property of the pertinent school juristic person. Thus, the plaintiff cannot respond to the plaintiff's request.

3. Judgment on the issue

A. Legislative intent of Article 28(1) of the Private School Act (hereinafter “instant provision”).

(1) A private school is established by its founder’s intent and property contribution in order to realize the establishment ideology differentiated from the public education or to realize the dogmatic education in accordance with its own educational policy. In order to enhance the diversity of education and to provide students and undergraduates with more extensive contents of education and choice of new methods of education, the freedom of establishment and operation of the private school should be guaranteed. However, in the meantime, in the case of a private school, it is not only the national and public school and its founders, but also the role of supplementing public education without any big difference in teachers and staff, curriculum, use of curriculum books, etc., and the school education itself has a significant impact on the whole society. In light of such characteristics of the private school, the Private School Act has its legislative purpose to promote the sound development of the private school (see, e.g., Article 1 of the Private School Act and Supreme Court Order 9Hun-Ba36, Jan. 18, 201).

(2) In light of the above characteristics and public functions of the private school, the securing of basic property for education in the private school is essential and its physical foundation is not sufficient to endanger the existence of the school. Considering not only a large number of students and parents, but also a side effect on the local community where the school is located, it is inevitable to enter the private school's property within a certain extent. On such extension, the Private School Act requires the permission of the competent agency when the school foundation intends to dispose of its basic property in the instant provision. Such extension aims to prevent the school foundation established for the establishment and operation of the private school from unfairly reducing basic property which is a physical foundation for its education, and to facilitate the sound development of the private school by ensuring the smooth management, maintenance, and protection of the school foundation's property (see, e.g., Supreme Court Decisions 201Da24075, Dec. 28, 201; 2004Da23444, Sept. 5, 200).

(b) The significance of dispersion order and the present state of the plaintiff as stipulated in the Private School Act;

(1) On the other hand, the Minister of Education, Science and Technology may order the relevant school juristic person to dissolve when the school juristic person violates the conditions of permission for establishment, ② it is impossible to achieve the purpose of the establishment, which shall be taken in other ways, or in cases where the competent agency fails to comply with the order of correction even after six months have passed since the competent agency issued a corrective order (Article 47 of the Private School Act). Such dispersion order is the final measure denying the existence of the relevant private school under the judgment that the relevant private school cannot perform an objective role and function as provided in the Private School Act.

When the Minister of Education, Science and Technology issues an order to dissolve a school juristic person, the school juristic person shall be dissolved, and the remaining property of the dissolved school juristic person shall be reverted to the person designated by the articles of incorporation at the time of a report on the completion of liquidation to the Minister of Education, Science and Technology except in the case of merger and bankruptcy (Articles 34 and 35 of the Private School Act). According to the Plaintiff’s articles of incorporation,

(2) The plaintiff's present state

In full view of the overall purport of the pleadings in the evidence Nos. 6, 1, 2, and 4, it is recognized that the Plaintiff was ordered to dissolve and close a school by the Minister of Education, Science and Technology as the competent authority on February 29, 2008, and that the Plaintiff was in the following circumstances:

After its establishment on April 30, 1993, on March 1, 1995, the Plaintiff established and opened ○○ school to the ○○○○○○○○○○, the Plaintiff recruited 40 persons from around 1995, around 1995, on or around 1996, one regular number of students to be subject to the three-year research institute (convenor) course, not only school personnel but also new students after the opening of the school, and was subject to disciplinary action by a false report on admission, and the dispute between the principal and the executive officers including the director and the board of directors failed to properly organize the board of directors. In addition, the Plaintiff failed to prepare a specific proposal in order to demand the settlement of the debts of the competent office and the normalization of school operation over several occasions, and even after Nonparty 1, who was the chief director as of October 2, 2006, was found guilty of embezzlement, the Plaintiff did not hold the board of directors as of March 2, 2006.

In addition, in the administrative litigation brought by the Minister of Education, Science and Technology against the above dispersion order and school closure order issued by the Plaintiff, the above court dismissed the Plaintiff’s claim on July 15, 2009 as the above disposition is lawful, and the Plaintiff appealed against this order and appeal, the Seoul High Court No. 2009Nu25851 is still pending in the lawsuit.

C. Whether permission from the competent authorities in the instant case is necessary

(1) As seen earlier, requiring the permission of the competent agency with regard to the disposition of fundamental property of a school foundation in the Private School Act is the basic foundation for the existence of the school foundation and the purpose of its establishment. As such, the basic property of the school foundation is to preserve its existence and continuity by restricting the operator to dispose of the basic property without permission from the competent agency. Even if the creditor’s sacrifice is caused by failure to obtain permission from the competent agency, it is an important value of the legislator’s choice of the demand for public interest for the soundness of school finance rather than the transaction safety or the other party’s property rights. In light of the above legislative purpose and purport, the above provision is applied under the premise that it is possible to continue the school foundation or implement the purpose of its establishment. As seen in this case, if the Plaintiff is dissolved by an order for dissolution of the competent agency and becomes de facto unable to perform its function, it is consistent with the legislative intent of this case only in extremely limited cases such as unreasonably reducing the basic property.

(2) The school juristic person shall not immediately lose its right by dissolution, but shall continue to exist within the scope of the purpose of liquidation as a liquidated juristic person, and during that period, the school juristic person's property shall belong to the liquidated juristic person, regardless of its positive property or small property. Since there exists a possibility of disposing of the property in the process of liquidation, even in the case of disposal of the property of the school juristic person, which is ordered to dissolve, there is no possibility of application of the provision of this case. However, the application of the provision of this case to the extent that the school juristic person's property is not unfairly reduced because there is no possibility of arbitrary disposal as it is impossible for the school juristic person to achieve its existence and purpose and there is no possibility of arbitrary disposal as well as the possibility of arbitrary disposal as it goes beyond the legislative purpose and purport, and thus it shall not be permitted (see, e.g., Supreme Court Decision 2008Da179788, Sept. 27, 197).

(3) In the instant case, the fact that the Plaintiff was ordered to dissolve by the Minister of Education, Science and Technology, the competent authority, and is in fact closed school is identical to the fact that the Plaintiff is in fact closed school due to the lack of the substance of the school juristic person, and thus its existence or purpose is impossible to be achieved. Therefore, in this case, it would be clear whether the disposal of basic property of a private school through the compulsory sale procedure constitutes a case of arbitrary disposal of the pertinent school juristic person’s property, which is a arbitrary disposal of the pertinent school juristic person’s property. However, in the case of auction, the disposal of basic property through the compulsory sale procedure is distinguished from the case of disposal of property by the school juristic person as the principal agent upon the commencement of the procedure at the request of the creditor holding the title of execution, the procedure is separated from the case of disposal of property by the school juristic person as the principal agent, under the management and supervision of the court of execution, and there is extremely little involvement of the school juristic person’s operator or liquidator in the auction procedure. In view of these various circumstances, the dividend made in the auction procedure has the nature of liquidation.

4. Conclusion

Therefore, the application of the provision of this case is excluded in the case where the plaintiff's disposal of the real estate of this case is conducted through a compulsory auction procedure in which the possibility of arbitrary disposal by the liquidator, etc. is excluded due to the lack of an entity as a school juristic person. Therefore, the prior plaintiff's request of this case should be dismissed on different premise. Since the judgment of the court of first instance is unfair on different conclusion, the judgment of the court of first instance is revoked and the plaintiff's request is dismissed. It is so decided as per Disposition.

【Omission of Real Estate List】

Judges Sung Pung-tae (Presiding Judge)