Appropriateness of a title trust made prior to a registration as the fundamental property of a social welfare foundation

The acquisition, loss, and transfer of real rights due to a juristic act on real estate takes effect only with the registration of the acquisition of real estate by the competent minister, or with the reason that the acquisition of real estate by the social welfare foundation was permitted by the articles of incorporation, or entered as the basic property in the articles of incorporation, cannot be deemed as the basic property owned by the juristic person. Therefore, the trust of real estate in the name of a third party before the registration of ownership transfer with the name of the juristic person becomes null and void without the permission of the competent minister or the procedure for modification

Article 186 of the Civil Act, Article 20 of the Social Welfare Services Act, Article 15 of the Enforcement Decree of the Social Welfare Services Act

Attorney Kim Jong-su et al., Counsel for the plaintiff-appellant of social welfare foundation

Defendant-Appellant Lee Byung-il, Counsel for defendant-appellant

Seoul Civil District Court Decision 81Na1844 delivered on May 18, 1982

The judgment of the court below is reversed, and the case is remanded to Seoul Civil Procedure District Court Panel Division.

The defendant's attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, the plaintiff is a social welfare foundation established with the approval of the Minister of Health and Welfare pursuant to the Social Welfare Services Act for the purpose of accepting and protecting persons in need of protection. Under Article 20 of the Social Welfare Services Act and Article 15 of the Enforcement Decree of the same Act, the amendment of the articles of incorporation and disposal of fundamental property should be permitted by the Minister of Health and Welfare (Delegation to the Seoul Special Metropolitan City Mayor). Article 7 of the articles of incorporation of the plaintiff foundation also requires the prior permission of the competent Minister after the resolution of the board of directors. The land in this case is the basic property at the time of establishment of the plaintiff foundation (Seoul Metropolitan City, etc., 192-5 786, 7-1, 77-1, 1-1, 51-1, 046, 200-7, 200-7, 3000-7, 300-7, 3000-1,000-7,000).

However, since the acquisition and loss of real rights due to a juristic act on real estate takes effect only with registration, and there is no reason to regard this legal principle differently from the basic property acquired by a juristic person subject to the Social Welfare Services Act, it shall be presumed that the land of this case purchased by the juristic person of this case from the non-party 1, the seller, was the basic property owned by the plaintiff juristic person, and the registration of transfer of ownership due to the original sale in the name of the plaintiff juristic person, the purchaser of which was the plaintiff juristic person, should be presumed to have been made. The permission of the competent Minister for the acquisition was obtained as at the time of the original judgment, or the articles of incorporation of the plaintiff juristic person stated this as the basic property (the original judgment contains an expression that the land of this case was incorporated as the basic property of the plaintiff juristic person, but its purport is not to regard it as the basic property owned by the plaintiff juristic person without registration of transfer of ownership

Although the court below acknowledged that non-party 1, a seller, did not complete the registration of ownership transfer in the future of the plaintiff corporation, the court below held that the land in this case was the basic property owned by the plaintiff corporation only for the reasons as stated in its holding, and held that the registration of ownership transfer made in the non-party 3 future from the non-party 1 was made by the title trust act without the permission of the competent Minister or the amendment of the articles of incorporation of the plaintiff corporation, and held it null and void and accepted the defendant's claim for the registration of ownership transfer cancellation. Therefore, the court below erred in the misapprehension of legal principles as to the validity of the registration of real rights due to a juristic act on real estate or the requirements to become the basic property owned by the social welfare foundation, which affected the conclusion of the judgment, and thus, it constitutes a case which seriously goes against justice and equity unless the judgment of the court below is reversed

Therefore, the judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Il-young (Presiding Justice)