Whether the act of disposal of basic property of an incorporated foundation which is not permitted by the competent authority is effective as a bond contract.

Since the disposal of basic property of a foundation foundation requires an amendment of the articles of incorporation, such disposal is null and void as a real right contract without permission of the competent authority, as well as null and void as a bond contract.

Articles 40, 42(2), 43, and 45(2) of the Civil Act

[Judgment of the court below]

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant-appellant

Gwangju High Court Decision 73Na147 delivered on November 8, 1973

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The gist of the ground of appeal No. 1 by the Plaintiff and the Plaintiff Attorney Kang Jae-ok is as follows:

The purport of this exchange contract is that the plaintiff is liable to transfer real estate owned by the defendant foundation to the defendant foundation while the defendant foundation is liable to transfer real estate owned by the defendant foundation to the plaintiff. However, considering that the real estate owned by the defendant foundation, which is the object of this exchange contract, is the basic property of the foundation, the defendant foundation has the obligation to transfer the real estate to the plaintiff with the permission of the competent Minister in light of the basic property of the foundation, and the defendant foundation has the obligation to transfer the real estate to the plaintiff with the permission of the competent Minister. Although the real property is not effective because the competent Minister did not obtain the permission, this exchange contract shall be effective as a bond contract in this sense, and even if there is no real property, the contract shall be valid as a bond contract in this sense, and the contract shall be valid as a suspension condition with the permission of the competent Minister with regard to the basic property of the foundation in the judgment of June 29, 710, is presumed valid as a bond contract without the permission of the competent Minister, the court below erred in the misapprehension of the contract.

The gist of the second point is:

At the time of concluding the instant exchange contract, if the Defendant Maintenance Foundation had to transfer the real estate to the Plaintiff through the exchange, but if it was requested to permit it, the competent administrative agency could have easily expected to permit it. Thus, the Defendant Maintenance Foundation, which performed the obligation of the application for permission, did not perform its obligation, and completed the registration of transfer of ownership on the ground of donation to the Defendant Educational Foundation YU, the Defendant Foundation was unable to perform its obligation. However, the lower court erred by misapprehending the legal principles on original impossibility or follow-up impossibility, on the premise that the instant exchange contract is null and void.

The gist of the third point is (including the grounds of appeal Nos. 2 through 6 of the Plaintiff’s New Year’s Grounds of Appeal);

If the contract of this case is deemed null and void from the beginning as in the original edition, it shall be deemed that there was a negligence in concluding a contract under Article 535 of the Civil Act with the defendant's Foundation. Thus, the defendant's foundation is obligated to compensate the plaintiff for the reliance interest. However, the court below decided that the plaintiff's claim for compensation for compensation for compensation for the reliance interest was made clear, but it did not request the competent authority to transfer the real estate to the plaintiff. Further, the court below neglected to deliberate on the facts that the defendant's foundation did not have filed an application for permission with the competent authority in order to transfer the real estate to the plaintiff, and that the plaintiff would have been naturally permitted if it had filed an application for permission, and that the non-party's representative of the defendant's original foundation shall be the representative of the defendant's school foundation and the non-party of the defendant's original foundation shall be the person who held the office of representative of the

First of all, the first and second points are examined:

Since the disposition of basic property of an incorporated foundation causes the modification of the articles of incorporation of the incorporated foundation, the disposition of basic property of the incorporated foundation cannot take effect unless the articles of incorporation is amended, and since the amendment of the articles of incorporation is ineffective without the permission of the competent authority, the sales contract or exchange contract of the incorporated foundation without permission of the competent authority is not effective (Supreme Court Decision 68Da2323 delivered on February 18, 1969, Supreme Court Decision 73Da544 delivered on April 23, 197). In this case, the validity of the contract of claims and real right as a real right is denied, and if the contract of claims is valid, it may result in the deprivation of the purpose of the law that prohibits the disposal of basic property without permission of the competent Minister, barring special circumstances, unless there is any special circumstance. Therefore, the validity of the contract of claims can not be maintained.

In this case, unless it is clear that the approval of the competent Minister is not available for this real estate, the theory of the theory under the premise that the bond contract is valid for this case's exchange contract is groundless.

The Supreme Court Decision 71Do991 delivered on June 29, 1971 ruled that the contract is valid in a case where the decision is made on the condition that the permission of the competent Minister should be obtained in the future, and it is clear that the contract is not a conditional contract in the exchange contract in this case, and there is no reason to discuss this point.

The other theory recognizes that all of its reasoning is clear in light of the above explanation.

The following third points shall be considered.

In this case, when the plaintiff filed a preliminary claim and the defendant's foundation could not perform the registration of transfer from the beginning because it did not apply for the permission of the competent authority which is an obligation under the exchange contract. If the defendant foundation could not perform the registration of transfer due to the reason attributable to the defendant, this is an issue of the impossibility of follow-up arising from the defendant's cause attributable to the defendant foundation, and thus the defendant foundation is liable for the compensatory damages. Thus, if the plaintiff claims the compensatory damages in lieu of the performance of the contract clearly due to the impossibility of follow-up performance of the contract, it is difficult to see that the plaintiff claims the compensatory damages in lieu of the performance of the contract due to the negligence under Article 535 of the Civil Code. Therefore, it is difficult to view that the plaintiff claims the compensatory damages as part of the right to request the compensatory damages from the point of view of the limitation of the right to request the explanation. In addition, as seen above, the court below's conjunctive claims for the compensatory damages cannot have accepted the conclusion that the court below did not have any further accepted the decision.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by all participating Justices on the bench.

Justices Lee Young-young (Presiding Justice)