(영문) 서울고등법원 2012나22930 2012.12.27. 선고 판결

The defendant performed the procedure for the registration of transfer of ownership based on donation on the date of delivery of a copy of the complaint of this case with respect to the share of 4/6 of the total of 60-3 forest land of 60-1 forest land of 10,815 square meters in Dobong-gu, Seoul, Dobong-gu and 60-3 forest land of 38,667 square meters (hereinafter collectively referred to as "real estate of this case") to the plaintiff, and paid the amount calculated by 20% per annum from the day following the delivery of a copy of the application for modification of the claim of this case as of November 20, 2012 to the day of complete payment.

B. First preliminary claim

The defendant shall hold the defendant's board of directors within three weeks from the date this judgment became final and conclusive and shall implement the resolution procedure to contribute to the plaintiff with respect to the share of 4/6 of the real estate in this case.

If the defendant fails to hold a board of directors within three weeks from the date of the conclusion of the judgment, or fails to implement the above resolution procedure, the defendant shall pay to the plaintiff 10 million won per month.

C. Claim Nos. 2 and 3

The defendant shall pay to the plaintiff 948,108,60 won with 20% interest per annum from the day following the delivery of the copy of the application for modification of the claim dated October 30, 2012 to the day of complete payment.

(The plaintiff changed the purport of the claim to the court in exchange for the other party)

2. Purport of appeal

It is amended as stated in the judgment of the first instance court.

Reasons

1. Determination as to the legitimacy of the lawsuit on the first preliminary claim

As the first preliminary claim in this case, the Plaintiff asserted that the Defendant corporation is obligated to hold a board of directors and implement a resolution procedure to contribute 4/6 shares of the instant real estate to the Plaintiff on November 4, 2010 and on December 16, 2010, while submitting a written implementation plan and a written statement to the Plaintiff, and agreed to carry out the agenda on the donation donation at the board of directors of the Defendant corporation, but did not intentionally hold a board of directors. In light of the principle of good faith, etc., the Defendant corporation is obligated to hold a board of directors in accordance with the agreement on donation on November 1, 2010 and to implement the resolution procedure to contribute 4/6 shares of the instant real estate to the Plaintiff.

Comprehensively taking account of the purport of the entire arguments in the statements No. 8-1-3 and No. 12, the defendant corporation submitted a written execution plan and a written statement to the effect that, according to the deliberation and resolution, 4/6 of the real estate of this case, which is an endowment, will contribute to the board of directors of the defendant corporation on Nov. 4, 2010 and 16 of the same year, the defendant corporation submitted to the head of Dobong-gu Office affiliated with the plaintiff, a bill of donation to the board of directors of the defendant corporation by July 31, 201.

However, Article 16 of the Private School Act provides that a school foundation shall undergo a resolution of the board of directors in transferring its basic property. If a school foundation’s basic property is transferred without a resolution of the board of directors, it shall be null and void even if it is based on the school foundation’s intent (see Supreme Court Decision 93Nu22784, Sept. 27, 1994). Moreover, a school foundation’s director shall perform his duties with the care of a good manager pursuant to Articles 61 and 65 of the Civil Act applied mutatis mutandis pursuant to Article 27 of the Private School Act. If it neglects his/her duties,

As can be seen, the board of directors of a school foundation shall undergo a resolution of the board of directors on matters concerning the transfer of fundamental property to preserve essential educational property and prevent the unreasonable reduction of basic property pursuant to Article 16 of the Private School Act, which stipulates that the legislative intent of Article 16 of the Private School Act, which requires the resolution of the board of directors on matters concerning the transfer of fundamental property, is clear that there is an independent authority and discretion to deliberate and decide on the validity of the transfer of fundamental property based on the judgment of each director regardless of the intention of the representative, etc. of the school foundation. Therefore, the specific legal right to seek a resolution of a specific matter from the

2. Facts of recognition;

The reason why this court is to implement this part is as follows: "No. 19 of the judgment of the court of first instance (hereinafter the combination of the real estate of this case)" (the area of the real estate of this case was later changed to 60-1 forest land of this case, 10,815 square meters, 60-3 forest land of this case, Dongsan 60-3 forest land of this case, 38,667 square meters as of the present time according to the division of land, etc.)" (The real estate of this case was changed to 60-1 forest of this case and 60-3 forest land of this case, 38,667 square meters, and the real estate of this case was changed to 4/6 of the real estate of this case)" and "the real estate of this case" of this case is as stated in the part of "1.

3. Judgment on the main claim and the second and third conjunctive claim

A. Judgment on the main claim

1) The plaintiff's assertion

As follows, since an agreement was concluded on the date of delivery of a copy of the complaint of this case as to the real estate of this case, the defendant is obligated to perform the procedure for the registration of transfer of ownership of 4/6 of the real estate of this case on the ground of the above agreement to the plaintiff, and as to the remaining 2/6 of the remaining 6/6 of the real estate of this case, the defendant is obligated to compensate for damages equivalent to the value of 316,036

In other words, on July 22, 1987, the defendant corporation expressed its intent of donation on the premise that it will purchase the entire real estate of this case to the plaintiff. On September 18, 1990, the board of directors of the defendant corporation decided to donate the land of this case to the plaintiff 32,98 meters equivalent to the fourth share secured by ownership up to the time. On October 8, 199, the defendant corporation calculated the permission for donation of the above fourth share to the Superintendent of Seoul Office of Education, which is the competent agency, for the above fourth share. On the premise that it would be permitted to express its intent of donation, the superintendent of the office of education of Seoul made a request to the plaintiff for cooperation on the transfer, etc. of a school operated by the defendant corporation on July 22, 1987, on the ground that the plaintiff corporation already expressed its intention of donation of the whole portion of the real estate of this case to the plaintiff on July 26, 199 that it would be impossible for the plaintiff corporation to purchase the remaining portion of the donation of this case.

2) Whether an agreement on acceptance of donations has been concluded and its validity

A) In arrears with donation, a donor’s expression of intent to donate his/her own property as public property of a local government and a local government’s expression of intent to return the property with the consent thereto is a donation agreement established by the donor (Supreme Court Decision 98Da24136, Feb. 5, 199).

B) On July 22, 1987, the plaintiff first expressed his intent to donate the entire real estate of this case to the plaintiff on July 22, 1987. With respect to the part that the plaintiff filed the lawsuit of this case and the agreement for donation was established by accepting it, the defendant corporation requested the performance of the donation of 4/6 of the real estate of this case on July 22, 1987. However, as the plaintiff asserted on his own, the plaintiff expressed several times (see the statement No. 11-21 and the inquiry results with respect to the Seoul Office of Education of this Court) that only part of the real estate of this case cannot be paid, until around July 1995. After that, the defendant corporation operated the temporary directors system and came to have expressed his intention to donate 4/6 of the real estate of this case to the plaintiff again on November 16, 2010.

Therefore, in light of the fact that Article 529 of the Civil Act provides that "an offer of a contract which does not specify a period for acceptance shall lose its effect if the offerer fails to receive a notice of acceptance within a reasonable period of time," it shall not be deemed that the Plaintiff already made a new offer by declaring his/her intention of acceptance at the expiration of twenty-four years from the Defendant's declaration of intention of donation on July 22, 1987, and that the above declaration of intention of donation has lost its effect as an offer. In addition, it shall be deemed that the Defendant made a new offer by expressing his/her intention of donation only four-six-six percent of the share that the Defendant actually acquired as ownership among the instant real estate on November 16, 2010 upon the termination of the provisional director system of the Defendant corporation and the appointment of a new operating staff. Therefore, this part of the Plaintiff's assertion that the declaration of intention of donation still remains valid is without merit.

C) Next, with respect to Defendant’s expression of intent to donate property on November 16, 2010, Article 16(1) of the Private School Act provides that “The board of directors shall deliberate and resolve on the following matters. 1. Article 28(1) of the Private School Act provides that “When a school juristic person intends to sell, donate, exchange, or use its basic property, to provide it with security, or to bear obligations or to waive rights, it shall obtain permission from the competent agency.” Article 5 of the Enforcement Decree of the same Act provides that “property falling under any of the following subparagraphs among the property of a school juristic person shall be fundamental property: (1) real estate; (2) description of evidence No. 34; and (3) fact-finding on the Office of Education of Seoul Special Metropolitan City, reported by Defendant juristic person to the competent agency for fact-finding shall be recognized as having been registered as basic property on the property list of Defendant juristic person:

In full view of the above legal provisions, an educational foundation’s act of donating its basic property without the resolution of the board of directors or the permission of the competent agency shall be deemed null and void (see Supreme Court Decision 93Nu22784, Sept. 27, 1994). Thus, even if the Plaintiff expressed his/her intent of payment with respect to the Defendant’s expression of intent of donation as of November 16, 2010 upon the filing of the lawsuit in this case, the agreement on donation cannot be deemed null and void unless there is any evidence to acknowledge that there was a resolution of the board of directors of the Defendant foundation or a permission of the competent agency regarding the said declaration of intent of donation. The Plaintiff’s assertion on

D) The plaintiff's primary claim is without merit.

B. Determination on the conjunctive claim Nos. 2 and 3

1) The plaintiff's assertion

In order to obtain a building permit for a school building operated by the Defendant Corporation, the president of the Defendant Corporation was not in accordance with the resolution of the board of directors by deceiving the Plaintiff as if he were to donate 4/6 of the instant real estate, and did not present the agenda to the board of directors in order to obtain a building permit from the Plaintiff. The Defendant Corporation decided to donate the instant real estate instead of obtaining the change of the scheduled site for the transfer of the instant real estate into the school site, but failed to implement this, the Plaintiff would have to purchase the land in substitution for the park site.

As can be seen, due to the act of deception by the president, who is an employee of the Defendant corporation, or the neglect of the duty to hold a board of directors, the Plaintiff suffered losses without acquiring the substitute park site. Since the Defendant gains by holding the instant real estate without any legal cause, the Defendant is obliged to pay the Plaintiff KRW 948,108,60, which is the amount equivalent to the officially announced land price of the instant real estate

2) Determination

According to the evidence evidence No. 8-1 to 3, and evidence No. 12, it is acknowledged that the defendant corporation, on November 4, 2010, issued a construction permit with respect to the extension of school buildings on the part of the plaintiff on November 16, 2010 and the implementation plan for the extension of school buildings, etc., which was submitted to the plaintiff on the part of the plaintiff on the ground of the above facts. However, as can be found by the evidence of the above, the current operation of the defendant corporation, which was operated under the past temporary directors system for a long time, started new operation on or around December 2008, and 21 years have passed since the former operator's first declaration of intention of donation, for the normal operation of the corporation at a long time, it is important to secure the basic property in light of the above fact that the plaintiff's repayment of basic property could not be acknowledged as being directly related to the defendant corporation's operation of real estate on the condition that the former president was aware of the existence of an amount equivalent to KRW 700,00,00,00,0,00.

In addition, as seen earlier, even if the board of directors of the Defendant corporation held the instant real estate, the board of directors cannot be deemed to have to have adopted a resolution to approve the donation of the instant real estate. Therefore, it is difficult to find a proximate causal relationship between the act of not convening the board of directors on the donation of the instant real estate and the Plaintiff’s failure to receive the donation, and thereby, the Defendant cannot be deemed to possess the instant real estate without any legal cause.

Ultimately, the plaintiff's second and third conjunctive claims are without merit.

4. Conclusion

The first preliminary claim part of the lawsuit in this case, which was changed from the trial to the exchange, shall be dismissed by the tiny, and the remaining plaintiff's primary claim and the second and third preliminary claims shall be dismissed by all as they are without any justifiable reason.