Whether a social welfare foundation’s renewal of a lease contract for fundamental property without obtaining permission from the Minister of Health and Welfare constitutes an offense provided for in Article 53 subparag. 1 of the former Social Welfare Services Act (negative), and whether the same legal doctrine applies to cases where the Minister of Health and Welfare grants permission for the lease of fundamental property of a social welfare foundation to the effect that “where the lease period is extended due to the expiration of the lease period, it shall obtain permission to dispose

In full view of Articles 23(3) and 53 subparag. 1 of the former Social Welfare Services Act (amended by Act No. 10997, Aug. 4, 201; hereinafter the same) and Article 14(2) of the former Enforcement Rule of the Social Welfare Services Act (amended by Ordinance of the Ministry of Health and Welfare No. 147, Aug. 3, 2012), where a social welfare foundation has renewed a lease agreement on fundamental property, it is unnecessary to obtain permission from the Minister of Health and Welfare. Thus, even if a social welfare foundation has renewed a lease agreement on fundamental property without obtaining permission from the Minister of Health and Welfare, it cannot be deemed a violation of Article 23(3) of the former Social Welfare Services Act, and thus, it cannot be deemed a crime under Article 53 subparag. 1 of the same Act. This legal doctrine does not change even if the Minister of Health and Welfare granted a license on the lease of fundamental property of a social welfare foundation, with the purport that “where the lease period is extended following the expiration of the lease period,

Articles 23(3) and 53 subparag. 1 of the former Social Welfare Services Act (Amended by Act No. 10997, Aug. 4, 201); Article 14(2) of the former Enforcement Rule of the Social Welfare Services Act (Amended by Presidential Decree No. 147, Aug. 3, 2012);

Defendant 1 and one other

Defendants

Law Firm Ilwon, Attorneys Choi Han-chul et al., Counsel for the plaintiff-appellant

Suwon District Court Decision 2012No3851 decided November 22, 2012

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, in permitting the lease of the building of this case, which is an essential property of a social welfare foundation, around May 26, 2010, by employment evidence, the court below: (a) attached to the subsidiary director of this case (hereinafter “the subsidiary director of this case”) that “it is necessary to obtain permission to dispose of the basic property even if the lease contract of this case is renewed; and (b) Defendant 2’s social welfare foundation (hereinafter “Defendant 2”) did not attach the lease contract of this case to the above 135.03 square meters of the extended part of the building of this case and 2nd 895.75 square meters of the building of this case to the above tenant of this case; (c) on the ground that the above disposal of the basic property of this case, which is the basic property of this case, had been applied for the renewal of the lease contract of this case; (d) Defendant 2 did not have to obtain permission to dispose of the basic property of this case for 3 years from around 20 years to the expiration of this case’s lease contract.

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

Article 53 Subparag. 1 of the former Social Welfare Services Act (amended by Act No. 1097, Aug. 4, 2011; hereinafter the same) provides that “a person who violates the provisions of Article 23(3) of the same Act shall be punished by imprisonment for not more than five years or by a fine not exceeding 15 million won.” Article 23(3) of the former Social Welfare Services Act provides that “a corporation shall obtain permission from the Minister of Health and Welfare in any of the following cases with respect to its fundamental property: Provided, That the same shall not apply to matters prescribed by Ordinance of the Ministry of Health and Welfare.” Article 23(3) provides that “when selling, donating, exchanging, leasing, providing security, or changing the purpose of use” under Article 53(1)1 of the same Act

Meanwhile, Article 14(2) of the former Enforcement Rule of the Social Welfare Services Act (amended by Ordinance of the Ministry of Health and Welfare No. 147, Aug. 3, 2012) provides that “The matters prescribed by Ordinance of the Ministry of Health and Welfare” in the proviso of Article 23(3) of the Act means the renewal of a lease contract on fundamental property.

In full view of these provisions, it is unnecessary for a social welfare foundation to obtain permission from the Minister of Health and Welfare to renew a lease contract for fundamental property. Thus, even if a social welfare foundation has renewed a lease contract for fundamental property without obtaining permission from the Minister of Health and Welfare, it cannot be deemed a violation of Article 23(3) of the former Social Welfare Services Act, and thus, cannot be deemed a crime under Article 53 subparag. 1 of the same Act. This legal doctrine does not change even if the Minister of Health and Welfare grants permission for the lease of fundamental property to “the extension of the lease term upon the expiration of the lease term, it shall be deemed that it is subject to

Thus, even if Defendant 1, the representative director of Defendant 2 corporation, a social welfare foundation, renewed the instant lease contract on the instant building, which is the basic property of Defendant 2 corporation, without obtaining permission from the competent authority, notwithstanding the vice-section of this case, such act cannot be deemed as an act violating Article 23(3) of the former Social Welfare Services Act. Thus, it cannot be determined pursuant to Article 53 of the former Social Welfare Services Act.

Nevertheless, the lower court found the Defendants guilty of all the charges of this case. In so doing, the lower court erred by misapprehending the legal doctrine on Articles 53 and 23(3) of the former Social Welfare Services Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)