Whether a pecuniary claimant of a school juristic person may apply for permission for the disposition of the basic property to the competent agency on behalf of the school juristic person (negative)

In light of the purport of Article 28(1) of the Private School Act and the legal nature of the right to request disposal of the basic property of an educational foundation, it is reasonable to view that the pecuniary claimant of the educational foundation cannot apply for permission of disposal of the basic property to the competent agency in subrogation of the educational foundation

Article 28 (1) of the Private School Act

Plaintiff

The Superintendent of the Office of Education of Chungcheongnam-do (Law Firm Han field, Attorneys Park Jong-young, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2011Nu59 decided May 26, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 28(1) of the Private School Act provides that when a school foundation intends to sell, donate, lease, exchange, exchange, or offer its basic property as security, or to bear obligations or waive its rights, it shall obtain permission from the supervisory authority. Thus, where a school foundation transfers its basic property by its own intention as well as where it transfers it by compulsory auction procedure, it shall be prohibited from transferring its basic property unless permission from the supervisory authority is granted (see Supreme Court Decision 93Da4293 delivered on January 25, 1994, etc.).

In addition, the Private School Act provides that an educational foundation shall obtain permission from the competent agency when it intends to dispose of its basic property as above is derived from the public interest purpose of promoting the sound development of a private school by preventing an educational foundation established for the establishment and operation of a private school from unfairly reducing its basic property. Accordingly, even if an obligee’s sacrifice is followed, it is inevitable because the legislators have chosen as an important value a demand for the public interest for the soundness of school finance than transaction safety or other property rights of the other party. Therefore, barring special circumstances, whether to apply for permission from the competent agency for the disposal of basic property of a school foundation is left to the will of the school foundation, and even if it is impossible to repay debts without the disposal of basic property due to the absence of other property of the school foundation, a person who is not a transferee of basic property from the school foundation and who is a pecuniary claimant of the school foundation does not wish to dispose of the basic property, in light of the purport of demanding an application for permission to dispose of the basic property by subrogation of the school foundation’s claim for compulsory performance of its basic property (see Supreme Court Decisions 200Da198Da2197, Dec. 2198, 20.

In the above purport, the court below is just in holding that even if it is impossible for the plaintiff, as a general creditor of a school juristic person, to receive a claim without disposing of the basic property, he/she cannot request the competent agency to file an application for permission to dispose of the basic property, in person or by subrogation of the school juristic person. There is no error of law such as omission of judgment or misapprehension of legal principles

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)