In a case where Party A, a public-service foundation corporation, and Party B agreed to contribute ownership of facilities and buildings created after completion of the project to Party B free of charge under the business agreement concluded between Party A, a public-service corporation, and Party B, and Party B demanded Party A to implement the procedure for registration of ownership transfer of real estate based on donation to Party A, after completion of the project due to the construction of cultural and assembly facilities on the land owned by Party C, the founder and the representative of Party A and Party C, the case holding that Party A’s obligation for registration

In a case where: (a) Party A, a public-service foundation, and Party B agreed to contribute ownership of facilities and buildings created after the completion of the project to the local government free of charge; (b) Party A and Party B demanded Party B to implement the procedures for registration of ownership transfer of real estate based on donation to Party A, after the completion of the project due to the construction of cultural and assembly facilities on the land owned by Party C, the founder and the representative of Party A; and (c) Party A’s articles of incorporation do not have any legitimate ground or means to compel Party A to sell or contribute real estate to Party A; and (d) Party A’s articles of incorporation states that the basic property disposition of the public-service corporation is not effective without the permission of the competent authority; and the competent authority’s purchase of real estate with the funds of Party A and donation of real estate or donation of real estate to Party C without compensation, and thus, Party A’s obligation for registration of ownership transfer violates the Acts and subordinate statutes on the establishment and operation of public-service corporations.

Articles 7(1)1 and 11 of the Act on the Establishment and Operation of Public Interest Corporations, Articles 16 and 17(1) of the Enforcement Decree of the Act on the Establishment and Operation of Public Interest Corporations, Article 7 of the Public Property and Commodity Management Act, Articles 390, 546 and 554 of the Civil Act

Gyeong-do, Gyeong-gun (Attorney Park Young-soo, Counsel for the defendant-appellant)

Government-○○ Educational Foundation, a foundation (Attorney Park Jong-soo, Counsel for the defendant-appellant)

Changwon District Court Decision 2015Nu100887 decided July 2, 2015

December 3, 2015

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On August 17, 2011, the Defendant shall implement the procedure for the registration of transfer of ownership on each real estate listed in the separate sheet to the Plaintiff.

2. Purport of appeal;

The same shall apply to the order.

1. Basic facts

A. The Defendant is a corporation that operates real estate rental business, sports facility business, tourist accommodation business, and food service business with the approval of the competent authority in order to contribute to the national development by granting scholarships, paying research expenses, subsidizing educational institutions, supporting social welfare business for the needy classes pursuant to the provisions of the Act on the Establishment and Operation of Public Interest Corporations (hereinafter “Public Interest Corporations Act”).

B. On August 17, 2011, the Plaintiff and the Defendant entered into a business agreement (hereinafter “instant agreement”) with a view to carrying out a construction project of facilities for education and tourism (hereinafter “instant project”) at a real estate source listed in attached Table No. 1 of the attached Table No. 1, and the main contents of the agreement prepared at the time are as follows.

Article 1 (Purpose of this Convention) of the Table contained in the main text of this Convention is to facilitate the smooth promotion of the project of this case by prescribing the Plaintiff’s business cooperation and the rights, obligations, and responsibilities to be performed by the Plaintiff and the Defendant when the Defendant performs the planning, attracting investment, etc. of the project of this case. ① The outline of the project of this case is as follows. ② The location of the project of this case: The real estate area: 3. The real estate area: 7,030 square meters: the introduction facility: the exhibition hall and education experience hall, resting space, parking lot, etc.: the Plaintiff is the co-implementer and co-contractor of the project of this case who participates in the project of this case in promoting the regional economy through the establishment of educational tourist facilities, and the Defendant is the co-implementer and co-contractor of the project of this case. ① The project of this case (the scope of the project of this case)

C. At the time of the instant agreement, each real estate listed in paragraphs 1 and 2 of the separate sheet was owned by Nonparty 1, the Defendant’s founder and the representative Nonparty 2’s son. The real estate listed in paragraphs 3 and 4 of the separate sheet was owned by Nonparty 3. Nonparty 1 completed the registration of ownership transfer on March 2, 2012, each real estate listed in the separate sheet Nos. 3 and 4 (hereinafter “each land of this case”).

D. Around November 10, 201, the Gyeongnam-do Governor decided and publicly announced the Do-gun management plan that alters each of the instant land from an agricultural and forest area to a planned management area.

E. Nonparty 1 obtained a building permit for cultural and assembly facilities on each of the instant lands, constructed real estate listed in attached Table 5 (hereinafter “instant buildings”) accordingly, and completed registration of ownership preservation on January 19, 2015.

F. Nonparty 1 was the Defendant’s director at the time of the instant agreement. On December 22, 2011, Nonparty 1 resigned from the Plaintiff on September 12, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 6, and 8 (including virtual numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The Plaintiff performed the obligation under the instant agreement by changing each of the instant land, which is an agricultural and forest area, into a planned control area to make it possible to construct a new building on the ground, and accordingly, the instant building was constructed on each of the instant land and completed the instant project. Accordingly, the Defendant is obligated to implement the procedure for ownership transfer registration on each of the instant real estate (hereinafter “each of the instant real estate”) on August 17, 201, in accordance with the instant agreement, as to the facilities created by the instant project and each of the instant real estate listed in the separate sheet, which is a building,

B. Defendant

The defendant asserts that it is impossible to respond to the plaintiff's claim for the following reasons.

1) The instant agreement cannot affect the Defendant on the ground that it is voluntarily sealed by the Defendant’s founder and representative Nonparty 2 and the Foundation’s board of directors without the approval of the Defendant’s founder and representative.

2) The instant agreement provides that the Plaintiff, who is an administrative agency with the building permit, has abused the superior position and made the Plaintiff contribute each of the instant real estate to the Plaintiff under the condition on the building permit. As such, the instant agreement is an unfair legal act that gains a significant loss of balance by using the Defendant’s old-age, rash, or inexperience, and thus, is null and void by Article 104 of the Civil Act.

3) The instant agreement is a form of document necessary to deliberate on whether to grant a building permit for the instant building, which restores Nonparty 2’s life and restores Nonparty 2, and is a juristic act by the Plaintiff’s coercion that, if the Plaintiff deceptions or fails to conclude it, it cannot grant a building permit. Therefore, it is subject to Article 110 of the Civil Act or a juristic act by mistake of motive induced by the Plaintiff, and thus, is revoked by Article 109 of the

4) The instant project was not retained until December 31, 2013, and thus became null and void pursuant to Article 6(3) of the instant agreement.

5) Even if the instant agreement is valid, according to Article 5(1) of the instant agreement, the subject matter of donation is limited to the facilities and buildings created, i.e., the instant buildings, and excluding each of the instant land.

6) In order to contribute each of the instant real estate to the Plaintiff, the Defendant should purchase or receive donation from Nonparty 1, the owner of the instant real estate, and donate it to the Plaintiff. Since the Defendant, subject to the Public Interest Corporation Act, is not allowed to acquire and dispose of each of the instant real estate, it is null and void or the Defendant’s obligation

3. Determination

A. Whether an agreement is concluded against the defendant's will

If the seal imprinted by the holder of a title deed signed and sealed on a private document is affixed with his/her seal, barring special circumstances, it is presumed that the authenticity of the seal imprint is created, that is, the act of affixing the seal is based on the will of the holder of the title deed, barring special circumstances. Once the authenticity of the seal is presumed, the authenticity of the document is presumed to have been created by Article 358 of the Civil Procedure Act (see Supreme Court Decision 2002Da59122, Feb. 11, 2003

Therefore, it can be recognized that the official seal is affixed on the non-party 4, the representative of the defendant at the time of the defendant's filing, and there is no specific assertion or proof by the defendant to reverse the establishment of the authenticity of the above seal and the presumption of the authenticity of the entire agreement of this case.

Therefore, this part of the defendant's argument is without merit.

B. Whether Article 104 of the Civil Act is null and void

The circumstance alleged by the Defendant alone is insufficient to recognize the fact that the Defendant, a foundation, having a considerable financial capacity and operating organization at the time of the preparation of the instant agreement, was in a state of pathical, rashness, and bad experience, and there is no other evidence to acknowledge

Therefore, this part of the defendant's assertion is without merit.

C. Whether there exists a reason for revocation under Articles 109 and 110 of the Civil Act

In order to be a declaration of intent by coercion, the other party should feel fear due to the other party’s expression of harm or injury illegally (see, e.g., Supreme Court Decision 2002Da73708, 73715, May 13, 2003). In order to be found to be a coercion that is the cause of cancellation of a juristic act, it should be a case where the counter-party caused fear and the intention to make the decision of the intention of the juristic act be an intentional act, and it should be a case where the other party unlawfully notifies the future harm and injury. However, it is insufficient to find that the statement of No. 3 alone is insufficient to acknowledge that the Plaintiff unlawfully notified the Defendant at the time of the instant agreement, or that the Defendant made a statement of harm and injury, and there is no evidence to acknowledge otherwise.

In addition, the statement in Eul evidence No. 3 alone is insufficient to deem that the plaintiff deceivings the defendant or entered into the instant agreement because it is a formal document necessary for the plaintiff to deliberate on whether to grant a building permit to the building of the instant building, and there is no other evidence to acknowledge it.

Furthermore, there is no evidence that the Plaintiff caused the Defendant’s mistake at the time of entering into the instant agreement.

Ultimately, it is difficult to accept the Defendant’s assertion on the revocation of the instant agreement on the ground of fraud, duress or mistake.

(d) Whether the agreement has become null and void pursuant to Article 6 (3).

Article 6(3) of the Convention provides, “If the plaintiff and the defendant fail to attract the business by December 31, 2013 despite their faithfully performing the duties under Article 4, this Convention shall lose its effect.” As seen earlier, while listing the duties of the plaintiff and the defendant, “the change of the purpose of the business of this case and the cooperation in the acquisition of authorization and permission,” which the plaintiff lists the duties of the plaintiff and the defendant, and the defendant provides for “the purchase and securing of the business site” to the defendant.

However, there is no dispute that the Defendant purchased or secured each of the instant lands and the instant buildings constructed by Nonparty 1, which were owned by Nonparty 1, until December 31, 2013, but at the time of the instant agreement, Nonparty 1 was the Defendant’s founder and representative Nonparty 2’s director at the time of the instant agreement. Since December 22, 2011, Nonparty 1 was in the status of representative director at the time of resignation from September 12, 2014, and Nonparty 1 appears to have been involved in the instant project including the construction of the instant building, which restored Nonparty 2’s birth from the beginning to the beginning, and Nonparty 1 appears to have been involved in the instant project. The Plaintiff appears to have fulfilled its duties by actively cooperating in the change of land use and the acquisition of authorization and permission to promote the instant project. Therefore, it is difficult to deem that the Defendant faithfully performed his duties or caused any disruption to the instant project by neglecting his duties. Accordingly, this part of the Defendant’s assertion is without merit.

(e) Scope of contribution acceptance;

In a case where there is a difference between the parties regarding the interpretation of a contract, and the interpretation of the intention of the party expressed in the disposition document is at issue, such interpretation shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background leading up to such an agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decision 2000Da4517, Apr. 11, 20

Therefore, as seen earlier, Article 5(1) of the Convention on Health and Welfare (Evidence A2) provides that “when the instant project is completed, ownership of the facilities and buildings created shall be donated and transferred to the Plaintiff without compensation.” As seen earlier, the “developed facilities and buildings” shall be indicated as the object of donation. For this reason, the Defendant asserts that “each land of this case” shall be excluded from the said object.

However, considering that Gap evidence Nos. 5-1 through 5, 13 through 16 and testimony of non-party 5, the following circumstances, which can be known by comprehensively taking account of the overall purport of pleadings, i.e., where the State or a local government receives specific facilities relating to public projects, etc., it would normally be deemed that the whole land and above-ground objects should be taken into consideration, and it would rather be an exceptional way to separate the land and above-ground objects, and the plaintiff also seems to have had an obvious intent to include "land" as the object of donation from the date of the project in this case to the conclusion of the agreement and the submission of deliberation by the Urban Planning Committee at the Gyeongnam-do Urban Planning Committee. ③ It is sufficiently possible for the plaintiff to have concluded an agreement on the subject of donation as alleged by the defendant, with the meaning of "facilities and buildings of this case," and it is also difficult for the plaintiff to properly explain the meaning of "facilities and buildings of this case," which are the subject of development of the existing agreement, including "facilities and buildings of this case."

Therefore, we cannot accept this part of the defendant's assertion.

F. Whether the agreement of this case is null and void or impossible

1) Whether the agreement of this case is null and void

The Public Interest Corporation Act and the Enforcement Decree of the same Act provide that the public interest corporation shall deliberate on the acquisition and disposal of the property of the public interest corporation at the meeting of the board of directors for the purpose of promoting the sound development of the public interest corporation by ensuring the smooth management, maintenance, and protection of its property and the appropriateness of its finance, taking into account the special nature of the public interest corporation, and provide that the public interest corporation shall deliberate on the acquisition and disposal of the property of the public interest corporation as its basic property for the purpose of carrying out its intended business and shall obtain permission from

Article 7 (Functions of Board of Directors) ① (1) The board of directors included in the main sentence of this Act shall deliberate and decide on the following matters. 1. Matters concerning the budget, settlement of accounts, loans and the acquisition, disposal and management of property of a public-service corporation (1) "property of a public-service corporation" shall be classified into fundamental property and general property, as prescribed by Presidential Decree. (2) The list and appraised amount of fundamental property shall be entered in the articles of incorporation, and when the appraised amount is changed, procedures for amendments to the articles of incorporation shall be conducted without delay.

Meanwhile, the donation is established when a donor expresses his/her intent to donate his/her own property as public property of a local government and a local government expresses his/her intent to accept the donation (see, e.g., Supreme Court Decision 92Da4031, Dec. 8, 1992). Since the subject matter of donation is not limited to his/her own property, even if it does not belong to himself/herself, the subject matter of donation can be the subject matter of donation. In such cases, the donor is obligated to acquire the property from others and perform it to the other party.

However, since each real estate of this case is owned by Nonparty 1, not only at the time of the agreement of this case but also at the time of the closing of argument in the trial of the court, the agreement of this case is not valid immediately just because the defendant did not obtain a decision of the board of directors or permission from the competent authorities on the agreement of this case (Supreme Court Decisions 73Da1975 delivered on June 11, 1974 and Supreme Court Decision 98Da19202 delivered on August 21, 1998 cited by the defendant and Supreme Court Decision 98Da19202 delivered on August 21, 198).

Therefore, this part of the defendant's argument is without merit.

2) Whether the instant agreement cannot be implemented

The performance of an obligation includes not only cases where the performance of an obligation is absolutely and physically impossible but also cases where the obligee cannot expect the realization of the obligor’s performance in light of the empirical rules of social life or the concept of transaction (see Supreme Court Decision 2009Da75321, Dec. 9, 2010, etc.).

However, in full view of the facts acknowledged above and the purport of evidence Nos. 1 and 4, the non-party 1 appears to have no intention to sell or donate each of the real estate of this case to the defendant, and there is no justifiable ground or means to compel sale or donation to the non-party 1. ② According to the defendant’s articles of incorporation, the property acquired by the defendant or without compensation is fundamental property unless the supervisory authority approves it (Article 6(2)2 of the Articles of Incorporation), and pursuant to the Public Interest Corporation Act and the Enforcement Decree of the same Act, the disposal of basic property shall be permitted by the competent authorities, and the disposal of the property becomes null and void without permission by the competent authorities (Article 11 of the Public Interest Corporation Act, Article 16 and Article 17 of the Enforcement Decree of the same Act). ③ The office of education of the defendant, the competent authority of the Seoul Special Metropolitan City, which is the defendant, has purchased each of the real estate of this case with the defendant’s funds, and it is reasonable to conclude that the plaintiff violated the law of this case and its statutory interpretation.

Therefore, the defendant's defense pointing this out is with merit, and the plaintiff's claim against the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment] Indication of Real Estate: Omitted

Judges Doh-type (Presiding Judge)