[1] The nature of a crime committed by a public interest corporation without obtaining approval from the competent authority (=a continuous crime) and whether the statute of limitations is in progress during the continuation of profit-making business (negative)

[2] Whether the real estate leasing business is included in the profit-making business under Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations (affirmative with qualification) and the method of determining such inclusion

[3] The case holding that where a public-service corporation leases part of a building which is an endowment to a wedding hall business operator without approval from the competent authority, the statute of limitations for continuing the lease shall not run

[4] The relationship between the approval system for profit-making business and the permission system for disposal of fundamental property of the public interest corporation

[1] The statute of limitations has not yet progress while a profit-making business without the approval of the competent authority continues to be approved as long as the continuity of time is an element of an act that constitutes a crime of continuous crime in that it is deemed that the act of a profit-making business without the approval of the competent authority.

[2] Even real estate leasing business may be included in profit-making business under Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations if profitability or profit-making business is established even if such real estate leasing business is profit-making business. Specifically, whether the pertinent real estate leasing business constitutes real estate leasing business should be determined by comprehensively taking into account the purpose of the public interest corporation, motive and conditions of the act of leasing real estate

[3] The case holding that where a public-service corporation leases part of a building which is an endowment to a wedding hall business operator without the approval of the competent authority, the statute of limitations that continued the lease shall not run

[4] The approval system of profit-making business under Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations aims to restrain the public interest corporation from carrying out profit-making business indiscreet and inappropriate manner by reviewing and managing the profit-making business in advance, and to enable the public interest corporation to maintain the public interest which is the original objective of establishing the public interest corporation and to continue its sound activities. The purpose of the approval system of disposal of basic property under Article 11(3) of the same Act is to ensure the smooth management and maintenance of basic property, which is the basis of existence of the public interest corporation, and to ensure the appropriateness of finance, and its legislative purpose and the scope of application are different.

[1] Articles 4(3) and 19(1) of the Act on the Establishment and Operation of Public Interest Corporations / [2] Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations / [3] Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations / [4] Articles 4(3) and 11(3) of the Act on the Establishment and Operation of Public Interest Corporations

[1] Supreme Court Decision 81Do1244 delivered on October 13, 1981 (Gong1981, 14510)

Defendant 1 and one other

Defendants

Law Firm Jinju General Law Office, Attorneys Park Jong-hwan et al.

Seoul Central District Court Decision 2004No795 Decided July 8, 2004

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the grounds of appeal filed after the deadline).

1. Article 4(3) of the Act on the Establishment and Operation of Public Interest Corporations (hereinafter “Public Interest Corporation Act”) provides that “When a public-service corporation intends to engage in a profit-making business in order to achieve its objective, it shall obtain approval from the competent authorities for each business as prescribed by the articles of incorporation. The same shall apply to any modification thereof.” Article 19(1) provides that “Where a public-service corporation intends to engage in a profit-making business without obtaining approval from the competent authorities, it shall be deemed that the act of a public-service corporation engaged in a profit-making business without obtaining approval from the competent authorities constitutes an element of an act that constitutes a crime that constitutes a crime that constitutes a continuous crime. As such, the statute of limitations has not yet run while a profit-making business that is not approved as long as it continues to be an act that constitutes an element of an act that constitutes a crime

According to the facts duly admitted by the court below, under the evidence duly admitted by the court below, the land foundation, a foundation of the defendant foundation (hereinafter referred to as the "land foundation"), has continuously leased the object of the judgment of the court below, which is part of its fundamental property, to the non-indicted of the children's center, through two re-contracts after first leasing it to the non-indicted of the wedding hall on October 1, 1994, until February 18, 2003 for which the summary order of this case was requested through two re-contracts. Examining these facts in light of the above legal principles, since the statute of limitations on the above real estate lease continues to run as long as the defendant's land lease act, which is a profit-making business without the approval of the court below, continues to run, the statute of limitations on the above real estate lease act does not run, it can be known that the statute of limitations on the above real estate lease act has not

Unlike the above, although it is inappropriate to develop the logic of the court below that the statute of limitations is in progress separately at each time when a lease contract is concluded without obtaining approval for the object in the judgment below, the conclusion of the court below that the statute of limitations has not yet lapsed on the lease of real estate as stated in the judgment below is justifiable, and such mistake does not affect the conclusion of the judgment below. The defendants' grounds for appeal on this part are rejected.

2. According to the evidence duly admitted by the court below, the res judicata following the final judgment rendered on February 8, 2001 does not extend to Defendant 1 who was not the defendant of the case, and it does not extend to the lease of real estate in the judgment of the court below rendered on November 6, 2003. The judgment of the court below rendered on November 6, 2003 against the defendants as to the lease of real estate as stated in the judgment of the court below is just in holding that the res judicata effect upon the final judgment of the court below does not fall under the lease of real estate as stated in the judgment of the court below, since the lease of real estate and the lease of real estate at all differing from the lease time, the other party, the object, and the method of the use of the object are different, and it is not erroneous in the misapprehension of legal principles as

3. Even if real estate leasing business is profitable or is made for profit-making purposes, it may be included in profit-making business under Article 4(3) of the Public Interest Corporation Act. Specifically, whether the real estate leasing act constitutes real estate leasing business as profit-making business should be determined by comprehensively taking into account the purpose of the public interest corporation, the motive and condition of the act of leasing real estate, and the actual situation of use

According to the evidence duly admitted by the court below, the defendant Young-gu Foundation is a public interest corporation with the main business of youth Young-gu, and the lease act in the judgment of the court below was conducted on the condition that it is a large amount of deposit and monthly rent for part of children's hall, which is an endowment, to raise funds for the operation of the Foundation, and the leased object was provided as a wedding business for the general public by a wedding hall business operator. In light of the above legal principles, in light of the above facts acknowledged, it is clear that the above real estate lease act constitutes a profit-making business under Article 4 (3) of the Public Interest Corporation Act, and the court below's decision to the same purport is just, and there is no violation of the legal principles as to the meaning of profit-making

4. The approval system of profit-making business under Article 4(3) of the Public Interest Corporation Act is intended to prevent public interest corporations from imprudent and inappropriate profit-making business by examining and managing their profit-making business in advance, and to enable public interest corporations to maintain the public interest which is the original objective of establishment and to continue their sound activities. In that it is subject to regulation of business not accompanied by the disposition of basic property of public interest corporations, it differs from the approval system of disposal of basic property under Article 11(3) of the Public Interest Corporation Act with the aim of ensuring smooth management and maintenance of basic property which is the basis of existence of public interest corporations and the appropriateness of finance.

According to the evidence duly admitted by the court below, although it is stipulated that in order to operate the real estate leasing business, which is a profit-making business under Article 4 (3) of the Articles of Incorporation of the Foundation, the Defendants shall obtain prior approval from the supervisory authority, the Defendants have been compelled to operate the real estate leasing business without obtaining approval from the supervisory authority for the establishment of financial resources for the operation of the Foundation. Accordingly, the Defendants were punished on the ground that they conducted the real estate leasing business without approval even before the lease activity was conducted. According to the relation between the approval system of the public-service corporation and the permission system for disposal of fundamental property and the above recognition, even though the Seoul Special Metropolitan City superintendent of education or the Sungdong District Office of Education did not have to obtain a lease of basic property as stated in the judgment of the court below, the Defendants cannot be deemed to have justifiable grounds or to have no possibility of expectation of lawful acts.

The judgment of the court below to the same purport is just, and there is no illegality in the misapprehension of legal principles as to the relationship between the approval system for profit-making business and the permission system for disposal of fundamental property of the public-service corporation.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)