[근저당권설정등기말소][공1997.4.15.(32),1103]
[1] The validity of the establishment registration of a neighboring mortgage as to a private school site, etc. registered in the name of the school manager (negative)
[2] The purport of Article 28 (2) of the Private School Act, and whether it constitutes an abuse of right to assert the invalidity of the person who violated it (negative)
[1] Even if land or a building contributed or incorporated by a private school operator for the use of a private school’s school site, etc. is located in the name of a school manager on the register, the establishment registration of a neighboring mortgage on the land or building is null and void in violation of Article 28(2) of the Private School Act applied mutatis mutandis by Article 51 of the same Act and Article 12 of the Enforcement Decree
[2] Article 28 (2) of the Private School Act and Article 12 of the Enforcement Decree of the same Act provide that a school juristic person cannot sell or offer school sites and teachers among the property of a school juristic person directly used for school education shall not be deemed to be a purpose of promoting the sound development of a private school by preserving educational facilities essential for the existence and purpose of the private school. If a person violates Article 28 (2) of the same Act, which is a mandatory law, refuses to assert invalidation on the ground that he/she is an exercise of a right contrary to the abuse of rights or the principle of trust and good faith, barring any special circumstance, such assertion is an abuse of rights or is not contrary to the principle of trust and good faith.
[1] Articles 28(2) and 51 of the Private School Act; Article 12 of the Enforcement Decree of the Private School Act / [2] Article 28(2) of the Private School Act; Article 12 of the Enforcement Decree of the Private School Act; Article 2 of the Civil Act
[1] Supreme Court Order 83Ma138 delivered on November 16, 1983 (Gong1984, 27) / [2] Supreme Court Decision 68Da1323 delivered on September 6, 1968 (No. 16-2, 1993), Supreme Court Decision 93Da4319 delivered on November 24, 1993 (Gong194, 505), Supreme Court Decision 94Da20532 delivered on November 21, 1995 (Gong196, 32), Supreme Court Decision 96Da37084 delivered on November 22, 1996 (Gong197, 36)
Gangnam-nam
Daejeon Mutual Savings and Finance Company (Law Firm Daejeon, Attorney Kim Jung-soo, Counsel for the plaintiff-appellant)
Daejeon High Court Decision 96Na2185 delivered on November 12, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. On the first ground for appeal
According to Article 28(2) of the Private School Act (hereinafter referred to as the "Act"), Article 12 of the Enforcement Decree of the Private School Act (hereinafter referred to as the "Act"), no school site, teacher, etc. among the property of a school juristic person directly used for school education may be sold or offered as a security, and Article 51 of the Act provides that Article 28(2) of the Act on the School Foundation shall apply mutatis mutandis to a private school operator. Thus, even if a land or building contributed or acquired by a private school manager is located in the name of a private school manager on the register of a private school, the establishment registration of a mortgage on the land or building completed is null and void as it violates Article 28(2) of the Act applied mutatis mutandis pursuant to Article 51 of the Act, Article 12 of the Enforcement Decree of the Act (see Supreme Court Order 83Ma138, Nov. 16, 1983
After finding the facts as stated in its reasoning, the court below determined that the registration of establishment of a neighboring mortgage (Seoul District Court Daejeon District Court Daejeon District Court Daejeon District Court 8704, Mar. 12, 1992) of the real estate first completed was invalid in violation of Article 28 (2) of the Act, which is applied mutatis mutandis by Article 51 of the Act, and that the registration of establishment of a neighboring mortgage (Seoul District Court dong Daejeon District Court 8704, Mar. 12, 1992) of the real estate of this case is null and void in all of the non-party leok's ownership transfer and mortgage of this case established by the voluntary auction procedure based on the judgment that was held upon the registration of establishment of a neighboring mortgage of this case. In light of the records, such recognition and determination of the court below
2. On the second ground for appeal
Article 28(2) of the Act, Article 12 of the Enforcement Decree of the Act provides that a school juristic person shall not sell a school site, teacher, etc. among the property of a school juristic person which is directly used for school education shall not offer it as a security for the purpose of promoting the sound development of a private school by preserving educational facilities essential for the existence and achievement of the purpose of the private school. If a school juristic person violates Article 28(2) of the Act, which is a mandatory law, and if it is rejected on the ground that it is an abuse of rights or the exercise of a right against the principle of good faith, the person who violated the law would be aware of the purport of the legislation completely. Thus, barring special circumstances, such an assertion cannot be deemed to contravene the abuse of rights
In the same purport, the court below rejected the defendant's assertion that the plaintiff's claim of this case is against the abuse of rights or the principle of good faith, and there is no error of law by misunderstanding of facts, the principle of good faith, or the prohibition of abuse of rights, as alleged in
3. 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)