Whether the act of donation to another school foundation along with the right to operate the school to use the school site, etc. to continue to be used for school education violates Article 28(2) of the Private School Act (negative)

In light of the purpose of Article 28(2) of the Private School Act and Article 12 of the Enforcement Decree of the same Act, the purpose of Article 28(2) of the Private School Act and Article 12 is to prevent the disposal of essential school property for the private school education established and operated by the school foundation in order to prevent the existence of the school from being in danger. Thus, acts prohibited by Article 28(2) of the Private School Act are not merely sale of property or provision of security, but also includes all acts of disposal, such as donation. However, such acts do not constitute disposal of property to another school foundation, rather than disposal of property to the general public, if the property continues to be used for

Article 28 (2) of the Private School Act, Article 12 of the Enforcement Decree of the Private School Act

1. A school juristic person’s private teaching institute (Law Firm Busan, Attorney Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

School Foundation Gyeongwon Institute (Law Firm Sejong, Attorney Song-chul, Counsel for the plaintiff-appellant)

Busan High Court Decision 97Na2795 delivered on November 7, 1997

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

피고는 원고에게 부산 부산진구 당감동 산 40의 10 임야 14,887㎡ 중 별지 도면 표시 ㄱ, ㄴ, ㄷ, ㄹ, ㅁ, ㅂ, ㅅ, ㅇ, ㅈ, ㅊ, ㅋ, ㄱ의 각 점을 순차로 연결한 선내 부분 12,447㎡(1993. 4. 10. 합병되기 전의 같은 동 산 40의 10 임야 4,126㎡, 같은 동 산 38의 29 임야 8,163㎡, 같은 동 산 40의 15 임야 188㎡ 부분)에 관하여 부산지방법원 부산진등기소 1988. 1. 20. 접수 제2247호로 마친 소유권이전등기의 말소등기절차를 이행하라.

In full view of the following facts: (a) evidence Nos. 1-1 through 3 (a certified copy of each register), evidence Nos. 2 (a certificate), and evidence Nos. 3 (a certified copy of land register and forestry map) and the fact-finding conducted on the District Office of Education of the Busan District Office of Education of Seo-gu Busan Metropolitan City, Busan Metropolitan City: (b) the Plaintiff educational foundation notified the Nonparty of its affiliated authority by a resolution of a temporary board of directors on Oct. 22, 1987; (c) notified the Plaintiff’s educational foundation of its affiliated authority as the ownership of the Plaintiff’s educational foundation; and (d) donated the real estate stated in the purport of the claim, which was used as the playground and building site for the above school, to the Defendant educational foundation established on Jan. 14, 198; (d) the Defendant educational foundation received the registration of ownership transfer as stated in the purport of the claim in the name of the Defendant educational foundation on January 19, 198; and (e) thereafter, it still notifies the above real estate and is used as the name of the school building site.

Article 28 (2) of the Private School Act and Article 12 of the Enforcement Decree of the Private School Act stipulate that the above contract of donation is null and void because it is in violation of Article 28 (2) of the Private School Act, and Article 28 (2) of the Private School Act cannot sell or offer as security the property prescribed by the Presidential Decree among the property of a school foundation directly used for school education. Article 12 (1) of the Enforcement Decree of the Private School Act provides that the property which a school foundation is unable to sell or offer as security under Article 28 (2) of the Act shall be the property directly used for the establishment and management of the school and the education of a private school that is established and operated by the school foundation shall fall under any of the following subparagraphs. The purport of the above provision is to prevent the existence of the school from being in violation of the purpose of the Act (Article 1). Thus, since the act prohibited by the above provision is not only sale or offer of property, but also all disposal acts such as donation, etc. such as disposal of property to the general public, the plaintiff's right of the above property shall not be disposed of:

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

Judges Yang Sung-soo (Presiding Judge) Kim Tae-ho