B. In the case of borrowing provisions in the articles of incorporation, whether the permission of the Minister for Delivery of Documents was granted

B. Where the articles of incorporation of a school juristic person provide that a school juristic person may borrow a loan without permission from the supervisory authority, and the articles of incorporation of the school juristic person obtained permission from the Minister for Delivery of Documents pursuant to Article 10 of the Private School Act, it cannot be said that there was permission from the Minister for Delivery of Documents pursuant to Article 28 of the Private School Act.

The costs of appeal shall be borne by each appellant.

(1) The court below rejected each argument by the defendant's legal representative that the non-party (the non-party co-defendant of the court of first instance) is a director of the defendant's driving school and borrowed 30,000,000 won from the plaintiff bank for the purpose of using it as the principal of the sub-lime middle and high school he manages, and that the defendant corporation jointly and severally guaranteed the above debt through a resolution of the board of directors, and that the defendant corporation recognized the above joint and several sureties's certificate Nos. 2, 6-1, 6-2 and 7, and that the evidence Nos. 4-1 and 2 are forged, and that the records are forged, the above recognition and measures of the court below can be justified, and that there is no error in law such as defects, and therefore there is no merit in this regard.

(2) If the judgment of the court below is reading, the purport of the judgment of the court below is that the defendant corporation's joint and several surety is valid by the resolution of the board of directors without the permission of the minister of literature delivery who is the supervisory authority, and thus, the plaintiff bank lent the above guarantee amount of KRW 30,00,00 to the above non-party as above is deemed to inflict damages on the above non-party, who is a director of the defendant corporation, or the chief director thereof, and thus, the defendant corporation is liable for damages to the plaintiff bank. Thus, the defendant corporation cannot be accepted the argument that it erred in the legal principles of tort.

2. We examine the grounds of incidental appeal by the Plaintiff’s attorney.

(1) 사립학교법(이하 단순히 법이라고 부르기로 한다) 제28조 제1항 의 규정에 의하면 학교법인이 기본재산을 매도, 증여, 임대, 교환 또는 용도 변경하거나 담보에 제공하고자 할 때 또는 의무의 부담이나 권리의 포기를 하고자 할 때에는 감독청의 허가를 받도록 되어 있는 바, 동 규정 취지로 보아 학교법인은「기역」, 기본재산의 매도 등 처분 또는 그의 용도변경을 하고자 할 때 「니은」,의무를 부담하거나 「디귿」, 권리를 포기할 때에는 반드시 감독청에 허가를 받아야 할 것이고, 위 의무부담 또는 권리포기가 기본재산에 관한 것에 한해서 감독청의 허가를 받아야 한다는 것이라고는 할 것이 아니라 함이 상당한즉 같은 취지의 원심의 견해는 정당하고 이 건 보증채무부담행위는 감독청의 허가를 필요로 하는 것이 아니라는 논지는 받아들일 바 못된다.

(2) The purport of the original adjudication at the time of the original adjudication is that the articles of incorporation (No. 3) of the defendant corporation cannot be the ground for not requiring permission under Article 28 of the Act with regard to the burden of guaranteed liabilities, even though there are the provisions same as the proviso of Article 10 of the Act. Article 28 of the Act provides that the purport of the provision is to secure the sound development of the private school, and to secure the property necessary for operation, the supervisory authority shall be to participate in the management of the school property within a specified limit. Thus, the school juristic person shall not be able to dispose of the property or bear the obligation without permission from the supervisory authority, so even if there is a provision that a school juristic person may borrow a loan without permission from the supervisory authority in the articles of incorporation of the school juristic person, if it is not known that the purpose of the provision is to obtain permission from the Minister of Delivery and delivery in accordance with Article 10 of the Act, and if it does not immediately do so, it cannot be viewed that the above articles of incorporation was a permit under Article 28 of the above provision.

Since the purport of Article 28 of the Act is the same as above, it is against the purport of the above provision that prior permission is granted to the matters concerning the future of the undetermined future, which cannot be seen above. Meanwhile, since the school juristic person's articles of incorporation continues to be valid as long as it is not modified by the prescribed procedure, it is reasonable to deem that permission of the supervisory authority under Article 28 of the above Act cannot be replaced by permission of the Minister for Delivery of Documents under Article 10 of the above Articles of incorporation. This is because in this case, even in a case where the scope of borrowing is determined by the revenue of the fiscal year for expenditure within the budget, it is difficult to estimate the form of operation of the principal of the school juristic person, the size of the budget for each fiscal year, the size of the revenue, etc., and therefore, it is inappropriate to grant prior permission as a whole in the future because it is difficult to predict the time, size, form, etc. of the loan and it is inappropriate to grant prior permission.

Therefore, in this case, when the above non-party borrowed 30,000,000 won from the plaintiff bank, the act of joint and several surety by the defendant school juristic person without permission from the supervisory authority is against the purport of the provision of Article 28 of the Act, and the defendant school juristic person can not be said to have obtained prior permission from the Minister for delivery of documents in this case on the ground of the proviso of Article 10 of the articles of incorporation of the defendant school juristic person. The judgment below is just and the judgment below is not justified and it is not reasonable because the court below did not explain daily grounds for the decision.

(3) According to the provisions of Article 31 of the Act, the school juristic person shall submit the budget and settlement of accounts to the supervisory authority as prescribed by the Presidential Decree, and the supervisory authority may request correction when it recognizes that the budget compilation is unfair. Since the authority of the supervisory authority to submit the budget under the above Article 31 and to request correction of the compilation and the right to permission on school property management under Article 28 is different from the authority of the supervisory authority, it cannot be argued that the school juristic person has obtained the budget which is merely an estimate of revenue and expenditure, and did not demand correction of the compilation, and that the school juristic person received the budget which is included in the budget which is scheduled to be included in the budget, and that the supervisory authority received the budget as it is, in advance, when it expects that the school juristic person separately expects the permission procedure under Article 28 when executing the above budget in the future, it does not violate the purpose of Article 28 of the Act (In theory, it does not require permission of the supervisory authority, but does not go against the purport of the above Article 28 of the Act.

However, this is a separate issue).

Even if the supervisory authority submitted a request for correction to the budget of the Defendant school juristic person and opened a temporary loan limit of KRW 50,000,000 to the budget of the Defendant school juristic person without a request for correction, it cannot be viewed that it was permitted by the supervisory authority to borrow a loan within the above limit of KRW 50,000,000. Therefore, it cannot be accepted to the purport that it erred in the determination of evidence regarding this point.

(4) If the plaintiff is a financial institution, it should have obtained permission from the supervisory authority in order to bear the obligation of the school juristic person, and it should be reasonable to examine whether the supervisory authority's permission has been granted to the school juristic person as a result of a certain obligation of the school juristic person. In addition, even though it can be said that it was very easy to consider whether the supervisory authority's permission has been granted or not in this case, it cannot be said that the plaintiff bank was negligent because it concluded this joint and several guarantee contract and lent 30,000,000 won to the above non-party, and it cannot be said that the court below's approval of the degree of negligence has been accepted in light of the various circumstances indicated in the record. Thus, the argument on this point is groundless.

Therefore, this case's appeal is without merit, and therefore dismissed in accordance with the provisions of the Civil Procedure Act 400, 395, and 384 (1). It is decided as per Disposition by the assent of all participating Justices on the bench regarding the burden of litigation costs.

Justices Min Jae-chul (Presiding Justice)