(b) The case holding that it cannot be deemed that the condition attached to the permission for the special cable railway business of the City was a deviation from the scope of discretion even if it was due to misunderstanding of the laws and regulations of the public official in charge, and that the mistake of the donor is not an error in the important part of the juristic act.

C. In the case of the above “B”, whether there is a violation of Article 11 of the Constitution of the Republic of Korea (negative) that there is a case where there is no condition for donation in a similar case, and that there is an attachment of such condition

(d) The meaning of “transfer of the whole or essential part of the business” under Article 374(1) of the Commercial Act which requires a special resolution of the general meeting of stockholders;

(b) The case holding that it cannot be deemed that the act of donation is an error in the important part of a juristic act, inasmuch as the market price permits the donor to use for a certain period as the price actually exceeds the scope of discretion in light of the administrative purpose, and even if the conditions of donation are attached in accordance with the laws and regulations of the public official in charge, the act of donation cannot be deemed as a mistake in the important part of the juristic act, in the case where the donor has made a donation under the judgment that the right of use is secured only for a certain period of time, even if it is not allowed.

C. In the case of paragraph (b) above, permission for special cable railway business is the so-called beneficial administrative disposition and discretionary administrative disposition, and such beneficial and discretionary administrative disposition can be imposed with additional clauses, such as conditions or burdens, in general, even though there is no specific provision in the relevant laws and regulations as to such disposition. Also, according to Articles 56(1) and 57-9 of the former Local Finance Act (amended by Act No. 4006 of Apr. 6, 198), which was enforced at the time, a private person’s property is also allowed to be incorporated into public property by donation, and there is no special restriction on cases where donation can be received, and the above additional clauses should not be attached fairly to anyone. Thus, even if there are cases where the conditions of donation are not attached to others, it cannot be said to be a measure violating Article 11 of the Constitution stipulating the equality of donations.

D. Article 374 subparagraph 1 of the Commercial Act, which requires a special resolution of the general meeting of shareholders, refers to a transfer of the whole or essential part of the whole or essential part of the property organized and functioned as an organic whole for a certain business purpose. Since the transfer of the property for business purpose is to be accompanied by a succession of the whole or essential part of the transferring company's business activity by the transferring company, it does not constitute the transfer of the property for business purpose, but if the disposal of the property for business purpose results in the same result as the transfer or discontinuance of the whole or part of the company's business, a special resolution of the general meeting of

The costs of appeal are assessed against the plaintiff.

1. As to the misapprehension of legal principle as to mistake

The court below held that there is an error in the important part of the donation of the remaining forest land in the decision which is unrelated to the cable railway facilities of this case, and that the part of donation of the remaining forest land at 3,710 square meters designated as the site of cable railway facilities and the part of donation of cable railway facilities, access roads, and landscape facilities installed on the ground among the conditions attached to the decision that the permission of this case was attached to the defendant, even though the above conditions were attached to the public official's legal errors, it cannot be deemed as a deviation from the scope of discretionary power in light of the fact that the defendant market is able to use the remaining forest land for a certain period of time without compensation to the plaintiff, as long as the above conditions were to be attached to the public official's legal errors and errors in the above part of the donation act of the plaintiff's donation, it cannot be deemed as an important part of the above site, 37,100 square meters and above ground facilities.

Even if a juristic act is a separate nature, if a part of an object can be identified, only a part of the object can be cancelled, and that part of the object becomes effective with respect to the juristic act (see Supreme Court Decision 90Meu7460 delivered on July 10, 190). In light of the records, the gift of this case appears to be a part of the object, and in light of the records, the donation of this case can be specified, and the mistake of the part concerning the land 3,710 square meters and its ground facilities in the decision of the court below among the act of donation of the plaintiff cannot be deemed to be an error in the important part of the juristic act. Therefore, the judgment of the court below to the same effect shall not be deemed to be an error in the important part of the juristic act.

2. As to the violation of the constitutional equality provision

As stated in the judgment of the court below, the permission for the special cable railway business of this case granted to the plaintiff by the Daegu Metropolitan City Mayor under the Urban Planning Act and the former Urban Park Act is the so-called beneficial administrative disposition and discretionary administrative disposition. With respect to such beneficial and discretionary administrative disposition, it can be imposed with additional clauses, such as terms and conditions or burdens, even though there is no special provision in the relevant Acts and subordinate statutes, and according to Articles 56 (1) and 57-9 of the Local Finance Act (amended by Act No. 4006 of Apr. 6, 198), which was enforced at the time, the property of a private person can be incorporated into public property by donation, and there is no special restriction on the case where the donation can be made, and since the above additional clauses should not be attached to anyone or equally, it cannot be said that there is a violation of Article 11 of the Constitution, which provides for the equality of donation in the case of other persons than the plaintiff.

The same purport is justified, and there is no reason to criticize the judgment below.

3. As to the misapprehension of legal principle as to a special resolution of the general meeting of shareholders

Article 374 subparagraph 1 of the Commercial Act, which requires a special resolution of the general meeting of shareholders, refers to the transfer of the whole or essential part of the property organized for a certain business purpose and functioned as an organic whole. This does not constitute a simple transfer of the property for business purpose, but where the disposal of the property for business purpose results in the same result as the transfer or abolition of the whole or part of the company's business, a special resolution of the general meeting of shareholders is required (see Supreme Court Decision 86Meu2478 delivered on June 9, 1987). In addition, considering the facts duly established by the court below, the court below did not err in the misapprehension of legal principles as to the transfer or abolition of the whole or part of the company's business due to the above donation, the contents of the donation, and the fact that the company is operating the cable railway business with permission from the defendant for free use for 10 years from the above company's own forest and facilities. Thus, the court below's judgment is justified and there is no such error in the misapprehension of legal principles.

4. As to the misapprehension of legal principle as to a public official's official illegal act

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion of tort against the above public officials on the ground that the permission for the special cable railway business of this case granted to the plaintiff under the Urban Planning Act and the former Urban Park Act is the so-called "beneficial administrative disposition" and discretionary administrative disposition, and it is difficult to conclude that the public officials belonging to the defendant attached conditions or burdens to accept the forest land and cable facilities of this case from the plaintiff, and there is no other evidence to prove that the above public officials had intention or negligence. The above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the theory of lawsuit, and therefore there is no ground for discussing the above.

Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)