The validity of a contract to sell a kindergarten site on condition of the relocation or closure of a kindergarten site (effective)

Where the parties to a sale and purchase enter into a sales contract on the condition that a kindergarten does not exist on the land for the purpose of sale by moving a kindergarten to another place or closing the kindergarten site, if it is not possible to move the kindergarten or close the kindergarten site, the sales contract shall, notwithstanding the provisions of Article 28 (2) of the Private School Act, be effective.

Article 28(2) of the Private School Act; Article 147 of the Civil Act

Kim Yong-room et al.

[Defendant-Appellee] Defendant 1 and 2 others (Attorney Park Jong-young et al., Counsel for defendant-appellee)

Daejeon High Court Decision 94Na5418 delivered on January 16, 1997

The judgment of the court below is reversed and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal submitted after the lapse).

1. According to Article 51 and Article 28(2) of the Private School Act and Article 12 subparag. 1 of the Enforcement Decree of the Private School Act, the lower court rejected the Defendant’s assertion that, in such a case, the land transaction report (acceptance) was valid, and that, inasmuch as a kindergarten constitutes a private school as provided in Article 28(2) of the Private School Act and Article 81 subparag. 7 of the Education Act, a sales contract between the Plaintiffs and the Defendant on June 9, 191 was null and void. The lower court concluded a sales contract on the condition that the Plaintiffs and the Defendant will close the kindergarten, namely, the Plaintiffs and the Defendant applied for authorization to close the kindergarten on April 21, 1992, and the Defendant actually received the authorization of the closure of the kindergarten on April 21, 1992, and thereafter, the Defendant’s assertion that the school site of the kindergarten is valid, and that the Defendant concluded a sales contract only on the ground that the Defendant did not withdraw the kindergarten.

2. However, the sales contract prepared by the plaintiffs and the defendant states that not only the school site of the kindergarten but also the building of the kindergarten (the purpose of the kindergarten is specified as a kindergarten) shall be transferred to the kindergarten until June 30, 191, and according to the records, there is no dispute between the parties as to the conclusion of the above sales contract on the premise that the kindergarten building was to be removed. Thus, the plaintiffs and the defendant should be deemed to have entered into a sales contract on the land of this case on the condition that the kindergarten is not in existence by moving the kindergarten to another place or closing the kindergarten. If the sales contract on the land of this case on the condition that the kindergarten's relocation or closing of the kindergarten is not impossible, the validity of the contract shall not be denied, notwithstanding the provisions of Article 28 (2) of the Private School Act.

Nevertheless, the court below, without sufficiently examining the contents of the sales contract between the plaintiffs and the defendant, ruled that the sales contract of this case is null and void on the grounds of only the provisions of Article 28 (2) of the Private School Act. The court below erred by misapprehending the legal principles on Article 28 (2) of the Private School Act, and it is obvious that such illegality has influenced the judgment, and therefore, there is a reason to point this out.

3. Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)