Whether transmission subsidy claims paid by the State or local governments to holders of important intangible cultural heritage are subject to compulsory execution (negative)

The purpose or nature of the money is to provide subsidies to be received or settled only between the State or a local government and a specific person in its nature, and thus, cannot be subject to compulsory execution. This legal doctrine is the money paid only to the holders of important intangible cultural heritage who provide education for transfer to protect and foster important intangible cultural heritage by the State or a local government, and it is also the case of transmission subsidies to be received or settled only between the State or a local government and holders of important intangible cultural heritage.

Articles 223, 246 of the Civil Execution Act, Article 22(1) of the Subsidy Management Act, Article 41(3) of the Cultural Heritage Protection Act

Supreme Court Order 96Ma1302, 1303 Decided December 24, 1996 (Gong1997Sang, 527) Supreme Court Decision 2006Da33586 Decided April 24, 2008 (Gong2008Sang, 777) Supreme Court Order 2008Ma1440 Decided January 28, 2009 (Gong2009Sang, 204)

Plaintiff

Republic of Korea (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul Central District Court Decision 2012Na27246 Decided October 25, 2012

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

The grounds of appeal are examined.

1. The lower court determined that transmission subsidy claims are subject to compulsory execution, on the ground that the State or a local government’s use of the subsidy for transmission of important intangible cultural heritage for expenses necessary for the education for transmission of important intangible cultural heritage is not stipulated in the Cultural Heritage Protection Act for the prohibition of use of transmission subsidy or for the punishment or recovery of users other than its intended use, while recognizing that transmission subsidy claims are not subject to the prohibition of transfer due to its nature.

2. However, the lower court’s determination cannot be accepted for the following reasons.

In light of the purpose or nature of the money, it shall not be deemed that a subsidy claim to be received or settled only between the State or a local government and a specific person is prohibited by its nature, and thus, it cannot be subject to compulsory execution (see Supreme Court Order 96Ma1302, 1303, Dec. 24, 1996, etc.). This legal doctrine is likewise applicable to the case of a transmission subsidy to be received or settled only between the State or a local government and the holders of important intangible cultural heritage, which is paid only for expenses incurred in providing the education for the education for the transfer, in order to protect and foster important intangible cultural heritage.

Examining the facts acknowledged by the court below in light of the above legal principles, although transmission subsidy claims are prohibited from transfer due to their nature and cannot be subject to compulsory execution, the court below erred in the misapprehension of the above Supreme Court precedents and affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. 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 Kim Shin (Presiding Justice)