[1] In a case where a donation was made in writing for the establishment of an incorporated foundation, whether the contributor may cancel his/her expression of intent of contribution on the ground of an expression of intent based on mistake (affirmative)

[2] In a case where a contributor of an incorporated foundation revokes his/her intent of contribution on grounds of mistake, whether the incorporated foundation may exercise its right to revoke the contribution regardless of whether the incorporated foundation is incorporated or the contributed property is its basic property (affirmative)

[3] Whether a person who does not actually possess an object may file a claim for surrender or surrender on the ground of an illegal possession (negative)

[1] Article 55 of the Civil Act, which applies mutatis mutandis to the establishment of an incorporated foundation through a provisional disposition pursuant to Article 47(1) of the Civil Act, provides that "if the intent of donation is not expressed in writing, each party may rescind it." This restrictions the cancellation of donation in writing. However, such cancellation is different from the requirements and effects under the general provisions of the Civil Act, so even if the contribution is made in writing, the donor may cancel his/her declaration of intent on the ground that it is an expression of intent based on mistake pursuant to the general provisions of the Civil Act, and it does not change with the fact that it is a sole act without the other

[2] If a corporation is established based on the act of contribution with the contributor to the foundation, the contributed property shall belong to the foundation at the time of its establishment in accordance with Article 48 of the Civil Code. Even in cases where the contributed property is real estate, it is not necessary to register in addition to the establishment of the foundation. However, if the contributor of the foundation cancels due to mistake, the contributor may cancel his/her declaration of intent regardless of whether the foundation is established or whether the contributed property is the basic property of the foundation.

[3] If a request for surrender or surrender is to be made on the ground of an illegal possession, it shall be made against the person who actually occupies the object, and as long as the illegal possessor does not actually possess the object by delivering it to another person, the claim for surrender or surrender against that person is unreasonable.

[1] Articles 47(1), 109, and 555 of the Civil Act / [2] Articles 48(1) and 109 of the Civil Act / [3] Article 213 of the Civil Act

[2] Supreme Court en banc Decision 78Da481, 482 delivered on December 11, 1979 (Gong1980, 12479), Supreme Court Decision 80Da2762, 2763 delivered on December 22, 1981 (Gong1982, 213), Supreme Court Decision 93Da8054 delivered on September 14, 1993 (Gong1993Ha, 2762) / [3] Supreme Court Decision 68Da1594 delivered on February 4, 1969, Supreme Court Decision 70Da1508 delivered on September 29, 197 (Gong18-3, 128), Supreme Court Decision 70Da15080 delivered on September 29, 1970 (Gong1983, May 18, 198)

Social Welfare Foundation ○ Village (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Kim Dong-jin, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na22302 delivered on January 14, 1998

All appeals are dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the first, second, and third points

Under Article 47(1) of the Civil Act, Article 555 of the Civil Act, which applies mutatis mutandis when establishing an incorporated foundation through a pre-sale disposition pursuant to Article 47(1) of the Civil Act, provides that “if the intent of donation is not expressed in writing, each party may rescind it.” This restrictions the rescission of donation in writing. However, such cancellation is different from the requirements and effects under the general provisions of the Civil Act, so even if a written donation is made, the donor may cancel his/her intent of contribution on the ground that it is an expression of intent based on mistake, and it does not change from the perspective that it is an act

In light of the record, it is justifiable that the court below made a decision that the revocation of Defendant 1’s declaration of contribution in this case based on Defendant 1’s mistake is legitimate.

In recognition and determination of the lower court, there is no error in the misapprehension of legal principles as to failure to exhaust all necessary deliberations or the cancellation, invalidation or cancellation of legal acts, donation without any other party, alteration of contributed property before establishment of an incorporated foundation, etc.

In addition, in the case where a corporation is established based on the act of contribution with the contributor to the incorporated foundation, the contributed property shall belong to the corporation at the time of its establishment in accordance with Article 48 of the Civil Act, and even in the case where the contributed property is real estate, it is not necessary to register in addition to the establishment of the corporation (see, e.g., Supreme Court Decisions 93Da8054, Sept. 14, 1993; 78Da481, 482, Dec. 11, 1979). The decision of the court below is not erroneous in the misapprehension of legal principles as to the contribution of the incorporated foundation and Article 48(1) of the Civil Act.

This part of the grounds of appeal cannot be accepted.

2. On the fourth ground for appeal

In order to file a claim for surrender or surrender on the ground of an unlawful possession, it shall be against the person who actually occupies the subject matter, and inasmuch as the illegal possessor does not actually possess the subject matter by delivering it to another person even if he/she is an illegal possessor, the claim for surrender or surrender against the person is unreasonable (see, e.g., Supreme Court Decisions 81Da187, May 10, 198; 70Da1508, Sept. 29, 1970; 68Da1594, Feb. 4, 1969).

The lower court determined that there was insufficient evidence to acknowledge that Defendant 1 occupied the instant gift building solely on the evidence Nos. 9 and 1, and each testimony of the Non-Party’s witness at the first instance court and the lower court, and that there was no other evidence to acknowledge that Defendant 1 agreed to occupy the instant gift building or to instruct the Plaintiff corporation.

In light of the records and the above legal principles, the fact-finding and the judgment of the court below are just, and there is no error in the misapprehension of legal principles as to Article 48 (1) of the Civil Act due to a violation of the rules of evidence or a mistake of

The ground of appeal on this point is without merit.

3. On the fifth ground for appeal

The lower court determined that the testimony of each of the non-party witness of the first instance court and the lower court’s non-party witness of the Non-party 10 (Evidence No. 12-3 of the Evidence No. 12-3) are insufficient to recognize it, and there is no other evidence to acknowledge it.

This recognition and judgment of the court below is justified in the records, and there is no error of law by incomplete deliberation or misconception of facts against the rules of evidence, as alleged in the grounds of appeal.

The argument in the grounds of appeal against this is not accepted.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)