[2] Whether an act of disposing of a specific property of a school foundation directly used for school education, along with a right to operate a school, to ensure that the property continues to be used for school education, is prohibited pursuant to Article 28(2) of the Private School Act (negative)

1. Generally, who is a party to a contract is a matter of interpretation of the intent of the party involved in the contract. Interpretation of an expression of intent is clearly confirming the objective meaning that the party gave to the expression of intent. In the event that the content of a contract is written in writing, which is a disposal document, it shall be reasonably interpreted, regardless of the party’s internal intent, by the content of the document, regardless of the party’s internal intent. In this case, unless there are special circumstances, if the objective meaning of the text is clear, the existence and content of the expression of intent shall be recognized (see, e.g., Supreme Court Decision 2009Da92487, May 13, 2010).

Meanwhile, Article 28(2) of the Private School Act prohibits the sale or offering of a specific property of a school juristic person directly used for school education (hereinafter “basic property for school education”), but it is not prohibited under this Act until the school juristic person disposes of the basic property for school education together with the right to operate the school to another school juristic person so that the property continues to be used for school education. Thus, it is not prohibited under this Act [see Supreme Court Decisions 97Da54284 decided Apr. 24, 1998; 2007Da62048 decided Jan. 24, 2008; 62055 decided Jan. 24, 2008; 2007Da62048 decided Jan. 24, 2008; 2055, prior to the above disposition of the school juristic person’s operating right of the school juristic person, it is allowed under the principle of private autonomy, unless there are special circumstances.

2. In light of the following, the lower court determined that the instant transfer agreement was reverted to the △△ University’s educational foundation’s right to operate the school and the right to operate the school at the level of the school foundation, such as the transfer of basic property for education between the school foundation and the resolution of the board of directors to transfer the property before and after the instant transfer agreement, and the Defendant and Nonindicted Party 1 appears to have entered into the instant transfer agreement with the intention to transfer and acquire basic property for education in addition to the right to operate the school as the actual operator of the school foundation, as well as the right to operate the school, and that such interpretation conforms to the fundamental purpose of Article 28 of the Private School Act prohibiting the disposal of basic property for education. As such, the instant transfer agreement was concluded between Nonindicted Party 1 and 250 million won as the representative of the school foundation to be established pursuant to the intention to transfer the right to operate the school to the △△ University University’s school foundation and the school foundation’s school foundation’s school foundation’s school building site (hereinafter “the instant real property”).

3. However, we cannot accept the judgment of the court below for the following reasons.

(4) The Defendant, upon acquiring the right to operate the school foundation’s board of directors from Nonindicted 2, the actual operator of the △△ University to Nonindicted 2,50 million won, based on the premise that △△△△ University’s transfer of △△△ University’s △△△ University’s name and name were changed to 2.5 billion won on September 206, 200. The Defendant prepared an agreement on the transfer between Nonindicted 1 and the principal of the school foundation and the actual operator of the △△ University’s name; and (2) the Defendant prepared an agreement on the transfer of real estate to the head of the △△△ University’s name and the Defendant’s comprehensive educational foundation’s name, which was located in the name of △△△ University’s transfer of △△ University’s △△ University’s △△ University’s △△ University’s name and the Defendant’s comprehensive educational foundation’s name, which was located in the name of the principal of the △△△ University’s transfer.

Examining the above facts in light of the legal principles as seen earlier, the instant transfer agreement is a kind of agreement on the transfer of the right to operate the △△ University between the Defendant and Nonindicted 2, or between the Defendant and Nonindicted 4, as well as the agreement on the transfer of the right to operate the △△ University among the right to operate the △△ University between the Defendant and Nonindicted 1. As such, the instant transfer agreement is an interpretation consistent with the language of the instant transfer agreement or the intent of the parties, which is a disposal document, and the purport of Article 28(2) of the Private School Act, solely on the ground that the Defendant’s specific method stated the details of the obligation of the Defendant to transfer basic property, etc. to the educational foundation as an actual operator of the educational foundation, or that the obligation to transfer the right to operate the ○○ Comprehensive High School and its basic property, etc. belongs to the educational foundation, which is to be established by Nonindicted 1, thereby allowing Nonindicted 1 to actually operate the ○○ Basic High School.

Nevertheless, the lower court determined that the instant transfer agreement was a school juristic person and a school juristic person, solely based on the circumstances indicated in its holding, that the parties to the instant transfer agreement were the school juristic person and the school juristic person, and based on the premise that the amount of KRW 2.5 billion is attributed to the school juristic person and the school juristic person △△ University, the Defendant, who arbitrarily consumed it, constituted a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) regarding KRW 2.5 billion. In so doing, the

4. Scope of reversal

Of the judgment of the court below, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is reversed as seen above, and the reversed part and the remaining part that the court below found guilty are concurrent crimes or ordinary concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the part on conviction among the judgment of the court below should be reversed in its entirety.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty portion of the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)