Plaintiff

The Superintendent of the Office of Education of Chungcheongnam-do (Law Firm Han field, Attorneys Park Jong-young, Counsel for the plaintiff-appellant)

November 17, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The head of the District Office of Education of Chungcheongnam-do Office of Education on June 3, 2010 shall revoke the disposition of refusal to issue a written permission for the issuance of a school juristic person's property disposal permit for real estate listed in the attached Form against the plaintiff on June 3

1. Details of the disposition;

The following facts may be acknowledged, either in dispute between the parties, or in full view of the purpose of each entry and whole pleading as set forth in Gap evidence 1 through 6.

A. On June 2, 2006, a school juristic person (hereinafter “SAF”) entered into a contract with the Young Construction Co., Ltd. for the restoration of teachers by setting the construction cost of KRW 2.6 billion. Accordingly, the principal construction Co., Ltd. completed the said construction on October 21, 2006. On October 21, 2008, the principal construction Co., Ltd. transferred to the Plaintiff the claim amounting to KRW 540 million out of the construction cost claim under the said contract, and notified the Defendant of the assignment of the said claim by content-certified mail.

B. After that, on October 29, 2008, the Plaintiff received a provisional attachment order as to the real estate (hereinafter “instant real estate”) as indicated in the attached Table, which was used as a teacher at, and as,, a high school school, which was closed on April 25, 2003, as the basic property of, the Suwon District Court (Seoul District Court) rendered a favorable judgment on April 23, 2009 by filing a lawsuit against, on October 29, 2008, against the Suwon District Court (Seoul District Court Decision 2008Kadan51413), and then received a favorable judgment on April 23, 2009, and the said judgment became final and conclusive around that time.

C. On May 15, 2009, the Plaintiff filed an application for a compulsory auction of real estate with Hongsung Branch of Daejeon District Court 2009Mo5622 with the title of execution of the above executory judgment, and the instant real estate was sold to the purchaser on May 17, 2010. On May 19, 2010, the Daejeon District Court ordered the Plaintiff to submit to the Plaintiff a written permission from the competent competent authority for the disposal of the fundamental property of the Bamoon Institute.

D. According to the above order of correction, on May 27, 2010, the Plaintiff applied for issuance of a written permission to dispose of property of the school juristic person with respect to the instant real estate to the head of the education office of Chungcheongnam-do, the Defendant under the jurisdiction of the Defendant. The head of the education office of Chungcheongnam-do, Chungcheongnam-do, Office of Education rejected the Plaintiff’s application on June 3, 2010 on the ground that the school juristic person applied for permission to dispose of the basic property of the school juristic person after the resolution of the board of directors and the relevant documents

E. On July 3, 2010, the Plaintiff dissatisfied with the instant disposition, filed an administrative appeal with the administrative appeals commission of Chungcheongnam-do Office of Education. However, the said administrative appeals commission dismissed the Plaintiff’s claim on August 23, 2010.

F. Meanwhile, the Ordinance on the Delegation of Administrative Affairs concerning the Education and Arts and Arts and the previous Ordinance was amended by Ordinance No. 3523, Aug. 10, 2010, and the defendant takes charge of the acquisition, alteration, and approval of disposal of the basic property of a corporation that maintains and operates schools of various levels delegated to the head of each district office of education among the affairs of the head of each district office of education under Article 6 subparagraph 17 of the same Ordinance.

2. Determination on the legitimacy of the instant disposition

G. The plaintiff's assertion

① Since the definition, a female, a middle, and a defined female, a high school, which used the real estate of this case as a school site, has already been closed, the real estate of this case is not an asset directly used for the education of the private school established and operated by the school foundation, and thus, it cannot be deemed an endowment that cannot be disposed of. However, such disposal is an endowment that requires the permission of the supervisory agency; ② The purport of prohibiting the disposal of the property of the school foundation of this case or obtaining the permission of the supervisory agency is to prevent an operator of the school foundation from unfairly reducing the property of the school foundation; and ② The purport of prohibiting the disposal of the property of the school foundation of this case is not to restrict the cases where the creditor of the school foundation of this case disposes of the property of the school foundation by compulsory execution to obtain repayment of the claim. If such interpretation is not interpreted, it would be unreasonable to protect the school foundation only in cases where the operator of the school foundation did not pay debts intentionally by abusing the provisions of the Private School Act. ③ The Plaintiff’s exercise of subrogation right by order of the court is unlawful in light of all circumstances.

(h) Relevant statutes;

It is as shown in the attached Table related statutes.

I. Determination

(1) Article 5(1) of the Enforcement Decree of the Private School Act provides that real estate of school juristic persons, property which is fundamental property by the articles of incorporation, property to be incorporated into fundamental property by a resolution of the board of directors, and Article 28 of the Private School Act, Article 12 of the Enforcement Decree of the Private School Act provides that property directly used for school education among school sites, teachers, gymnasiums, training centers, training or research facilities, and other facilities, equipment and teaching materials and teaching materials directly used for education shall not be sold or provided as security, and in case of property not falling under the above, it shall be subject to the permission of the competent authorities in order to sell, donate, exchange, change the purpose of use, offer as security, or give up the obligation

(2) In this case, ① Article 28(1) of the Private School Act provides that a school foundation shall obtain permission from the competent agency when it sells, donates, leases or exchanges its basic property, provides it as security, or waives its obligation or rights, taking into account the special characteristics of the school foundation, that the school foundation shall ensure autonomy and faithfully establish and manage the school foundation which is its original objective by ensuring smooth management and maintenance of the property, taking into account its financial appropriateness into account. ② Where real estate which is an fundamental property of the school foundation is transferred without permission from the competent agency, it becomes null and void in violation of compulsory provisions regardless of the school foundation’s intention or due to compulsory sale, so whether the school foundation applies for permission to the competent agency for the disposal of its basic property is left to the school foundation’s will, barring special circumstances (see Supreme Court Decision 93Nu2784, Sept. 27, 1994, etc.). ③ Even if the school foundation fails to dispose of its basic property, it cannot be viewed that the school foundation directly uses the basic property of this case to obtain permission from the competent agency for disposal of the real property of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Choi Byung-jin (Presiding Judge)