The case holding that it is in violation of the good faith to seek cancellation of the registration of ownership transfer of the above real estate on the ground that the medical corporation which has discontinued the business ex officio on the ground that it has no record of business operation and has been revoked the permission for incorporation and has been declared bankrupt despite the position to obtain permission from the competent authority on the disposal of basic property in the compulsory sale procedure for the real estate used by the medical corporation which has been awarded a successful bid

The case holding that it is in violation of the good faith to seek cancellation of the registration of ownership transfer of the above real estate on the ground that the medical corporation which has discontinued its business ex officio on the ground that it has no record of business operation and has been revoked the permission for incorporation and has been declared bankrupt despite the position to obtain permission from the competent authority on the disposal of basic property in the compulsory auction procedure for the real estate in use, the medical corporation which has been awarded a successful bid

Article 41(3) of the Medical Service Act, Article 2 of the Civil Act

A bankrupt medical corporation, the bankruptcy trustee of the Postal Medical Foundation (Law Firm 21st century General Law Office, Attorneys Shin-sik et al., Counsel for the plaintiff-appellant)

Medical Corporations, the Busan Medical Foundation (former Medical Corporations, the Japanese Medical Foundation) and one other (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2002Na4787 delivered on October 24, 2003

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found facts as stated in its decision, and judged that the articles of incorporation concerning the grounds for disqualification of executive officers of the Korea Civil and Medical Foundation (hereinafter referred to as the "Plaintiff Corporation") of the medical corporation prior to bankruptcy does not automatically resolve the qualifications of the lawfully appointed chief executive officer without being subject to lawful dismissal procedures as prescribed by the articles of incorporation. Thus, the chief executive officer who has been duly appointed until then can exercise his authority even if he falls under the grounds for disqualification of executive officers, and the lawsuit of this case constitutes a business within the scope of the purpose of the plaintiff corporation under liquidation. In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles on the authority to represent the corporation, or by

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged facts as stated in the attached list of the judgment below, which is owned by the plaintiff corporation, as the basic property of the medical corporation, and determined that the disposal of the real estate constitutes the basic property of the medical corporation and requires the permission of the Do Governor under Article 41 (3) of the Medical Service Act, and as long as the defendant medical corporation did not obtain permission from the Governor of Jeollabuk-do branch under Article 41 (3) of the Medical Service Act in completing the registration of transfer of ownership of the real

However, we cannot accept the above determination by the court below for the following reasons.

The purpose of Article 41(3) of the Medical Service Act is to ensure the proper operation of medical corporations and to protect and promote public health by preventing a medical corporation from unfairly reducing its property, thereby ensuring the sound development of medical corporations with property necessary for its management at all times. Thus, if a person who violated the above provision, which is a mandatory provision, voluntarily rejects the claim for invalidation on the ground that it is an exercise of the right against the good faith principle, barring any special circumstance, barring any special circumstance, such claim cannot be deemed to be in violation of the good faith principle (see Supreme Court Decision 200Da12761, 12778, Jun. 23, 200).

However, according to the records, the director of the Dosan Tax Office discontinued the plaintiff corporation on December 31, 199 on the ground that the plaintiff corporation did not report the establishment of value-added tax, etc. and did not perform its business activities such as medical business. After that, the director of the Dosan District Tax Office, on February 21, 2001, notified the plaintiff corporation of the cancellation of the permission to establish the corporation on the ground that the basic property of the plaintiff corporation, including the real property of this case, including the real property, was completed in the name of the defendant medical corporation by the auction disposition of the court, and the basic property of the plaintiff corporation, including the real property of this case, was extinguished in the name of the defendant medical corporation, making it impossible to perform the purpose business. On January 28, 2005, the medical corporation was declared bankrupt on the part of the plaintiff corporation, and on the other hand, the defendant medical corporation established the "OOsan Hospital" in the building of this case after receiving the bid of the real property of this case in the compulsory sale procedure of this case. In particular, the defendant medical corporation completed the registration of the maximum maximum amount.

In full view of the aforementioned various circumstances, the legislative purport of Article 41(3) of the Medical Service Act is as follows: (a) even though it is evident that the Plaintiff corporation, which did not have been able to operate a medical corporation any longer even though it was in the position to obtain permission from the competent authority regarding the disposition of basic property in the compulsory auction procedure for the instant real estate, sought cancellation on the ground that the registration of ownership transfer of the instant real estate in the name of the Daegu Medical Foundation was made without permission from the Governor of Jeollabuk-do is contrary to the principle of good faith; (b) thus, the allegation in the grounds of appeal

3. Conclusion

Therefore, the judgment below is reversed, and 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 Zwon-won (Presiding Justice)