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(영문) 서울고법 1968. 10. 11. 선고 68나526 제3민사부판결 : 상고

[전화가입권명의서환청구사건][고집1968민,470]

Main Issues

Method of designation as "other facilities or equipment directly used for education" by the head of the literature delivery department under Article 12 subparagraph 5 of the Enforcement Decree of the Private School Act.

Summary of Judgment

In designating facilities and equipment of a school juristic person which cannot be disposed of pursuant to the above provisions, the head of the literature and delivery department shall not comprehensively designate them in the form of internal administrative disposition, and shall enact and promulgate them in the form of Ministerial Ordinance by specifying in detail what school juristic person shall designate in accordance with the purport delegated by Article 12 subparagraph 5 of the Enforcement Decree of the Private School Act, Article 28 (2) of the same Act.

[Reference Provisions]

Article 23 of the Private School Act, Article 12 of the Enforcement Decree thereof

Plaintiff and appellant

School juristic persons, persons and 1 other than the school juristic persons’ lodging;

Defendant, Appellant

Defendant

Judgment of the lower court

Seoul Central District Court (67A9643) of the first instance trial (Supreme Court Decision 67Da9643)

Text

(1) The plaintiffs' appeal is dismissed.

(2) The costs of appeal are assessed against the plaintiffs.

Purport of appeal

The plaintiffs' legal representative shall revoke the original judgment.

With respect to the right to telephone subscription listed in the attached Form 1 to the deliberation of the plaintiff school foundation, the defendant shall comply with each of the procedures for telephone subscription rights listed in the attached Form 2 to the plaintiff school foundation's private teaching institute.

The first and second trials filed a judgment that all the costs of lawsuit should be borne by the defendant.

Reasons

(1) The right to telephone subscription listed in the separate sheet No. 1 was registered in the name of the Plaintiff educational foundation Gyeonggi-do Office in the name of the Plaintiff educational foundation in the name of the seat of the Plaintiff educational foundation. The Defendant received an order of seizure of each of the above telephone subscription rights against each of the Plaintiffs on May 8, 1967 and served the order on the third debtor on May 9, 1967, and then the order was received on June 7, 1967 by transfer order of each of the above telephone subscription rights under the above court No. 677T2313 on June 7, 1967, and as such, the fact that each of the above telephone subscription rights was registered in the name of the Plaintiff educational foundation in the name of the Plaintiff educational foundation. There is no dispute between the parties.

(2) The plaintiffs' right to claim each of the above telephone subscription rights is designated by the head of literature issuance department as facilities or equipment directly used for the education of private schools established by the plaintiff school foundation pursuant to Article 28 (2) of the Private School Act and Article 12 subparagraph 5 of the Enforcement Decree of the above Act, and thus, the above order to transfer each of the above telephone subscription rights is prohibited by the above provisions of the law, and thus the above order to transfer each of the above telephone subscription rights shall be null and void as it is in violation of the above provisions of the law. Therefore, the plaintiffs shall claim against the defendant for the implementation of the procedure for return of the above

Article 28 (2) of the Private School Act provides that a school juristic person's property directly used for school education as prescribed by the Presidential Decree may not sell it or offer it as a security. Article 12 (2) of the Enforcement Decree of the Private School Act provides that a school juristic person shall not sell it or offer it as security pursuant to Article 28 (2) of the Enforcement Decree of the Private School Act list several properties in subparagraphs 1 through 4, and Article 28 (2) 5 provides that other facilities or equipment directly used for education shall be designated by the Minister for

The purpose of this study is to delegate the scope of property which cannot be disposed of to the President among the property of school juristic persons directly used for school education under Article 28 (2) of the Private School Act for the purpose of promoting the sound development of private schools is to prohibit them from arbitrarily disposing of part of the property of school juristic persons in order to achieve the purpose of this Act, and on the other hand, it is likely that a third party would incur unexpected damages due to the formation of property which cannot be disposed of by the third party. Thus, the purpose of this study is to determine the scope of property which cannot be disposed of in advance and to make it widely known to the general public by allowing the general public to determine the scope of property of school juristic persons which cannot be disposed of under the delegation of Article 28 (2) of the above Act, which is the Presidential Decree enacted pursuant to the delegation of Article 28 (2) of the above Act, and to designate and deliver it to the Minister of Justice by specifying the scope of property of school juristic persons which cannot be disposed of under the delegation of the Ordinance.

However, in the case of this case, since there is no dispute over the establishment of the portion of evidence Nos. 6 and 7 which is presumed to be the whole authenticity, considering the contents of evidence Nos. 2 and 3 which are presumed to be true, the results of fact-finding and the whole purport of the oral argument by the court below on May 19, 1967, in the form of an internal administrative disposition under Article 86 of the sentence delivery instruction of literature No. 86 of the sentence No. 196 of the sentence No. 196 of the sentence No. 86 of the sentence of this case, it can only be recognized that the above telephone subscription right is not specifically designated by the school juristic person, and it can be recognized that the above telephone subscription right was designated as facilities or equipment directly used for education of the private school established and operated by the plaintiffs pursuant to Article 12 subparag. 5 of the above Enforcement Decree.

In addition, even if the above telephone subscription right is deemed to have been designated as a facility or equipment that could not be disposed of under the above order of the Minister for Delivery of literature, the defendant's compulsory execution on May 8, 1967 under the name of debt against the plaintiffs, which was served on the third obligor on May 9, 1967 in the country where the third obligor was the obligor on May 19, 1967, and the seizure became effective. As long as each of the above telephone subscription rights has been duly seized, if the defendant or the third party, who was the obligor, violated the above seizure order and thereby interfered with the execution of the execution claim by the execution creditor, the act of disposal cannot be asserted against the execution creditor, in relation to the defendant who was the execution creditor, the execution creditor's act of disposal cannot be viewed as being effective, and since the above telephone subscription right cannot be disposed of under Article 12 subparagraph 5 of the Enforcement Decree of the above Act after the seizure of the above telephone subscription right, the designation of the execution creditor of the defendant's execution claim shall also be considered as valid.

(3) If so, each of the above telephone subscription rights is clearly determined by Article 12 subparagraph 5 of the Enforcement Decree of the above Act as effective as facilities and equipment directly used for the education of private schools established and operated by the plaintiffs. Thus, the plaintiffs' claims against the principal lawsuit based on the premise that the plaintiffs' claims are valid as facilities and equipment for the education of private schools established and operated by the plaintiffs are dismissed without any further determination. Accordingly, the judgment below, as stated above, is just and there is no ground for appeal by the plaintiffs, and it is dismissed in accordance with Article 384 of the Civil Procedure Act, and it is so decided as per Disposition by applying Articles 95, 89, and 9

[Attachment List]

Judges Cho Jong-dae (Presiding Judge)