[1] The purport of Articles 51 and 28(2) of the Private School Act, and whether it is against the principle of good faith that a person who violated this provision asserts its invalidation (negative), and whether such provisions violate the Constitution (negative)

[2] The case holding that it cannot be concluded that it is not a property directly used for school education under Article 12 (1) of the Enforcement Decree of the Private School Act, in case where a kindergarten is a kindergarten whose use on the register of an aggregate building is a kindergarten and a building indication on the register is a kindergarten and a neighborhood living facility, and a branch of a school is understood as a kindergarten lecture facility in the competent office of education

[1] Articles 51 and 28 (2) of the Private School Act aims to preserve educational facilities essential for the existence and purpose of a private school, thereby promoting the sound development of a private school. Thus, if a person who violated the above provisions, which are mandatory provisions, voluntarily denies the above purport of legislation if he/she denies the claim for invalidation on the ground that he/she is an exercise of a right contrary to the good faith principle, barring any special circumstance, such assertion cannot be deemed to violate the good faith principle, and the above provisions of the Private School Act shall not be deemed to violate the Constitution.

[2] The case holding that in a case where the purpose of use on the aggregate building register is a kindergarten from the time of completion to the point of view of the building register of the entire building and is a kindergarten and neighborhood living facilities, and the office of education under its jurisdiction is not a facility used every day for education under the premise that the operator of a kindergarten uses it as a kindergarten lecture, and it is not a facility used every day for education, so it cannot be determined that it is not a property directly used for school education under Article 12 (1) of the Enforcement Decree of the Private School Act

[1] Articles 28(2) and 51 of the Private School Act, Article 2 of the Civil Act, and Article 23 of the Constitution / [2] Article 28(2) of the Private School Act, Article 12(1) of the Enforcement Decree of the Private School Act

[1] Supreme Court Decision 96Da55693 delivered on March 14, 1997 (Gong1997Sang, 1103), Supreme Court Decision 97Da33683 delivered on December 12, 1997, Supreme Court Order 97Ka105 delivered on December 12, 1997

Hyundai Mutual Savings and Finance Co., Ltd. (Law Firm Han-hwan, Attorneys Kim Si-help et al., Counsel for the defendant

Defendant-Counterclaim (Law Firm Squa, Attorneys Park Si-hwan et al., Counsel for defendant-Counterclaim)

Seoul High Court Decision 98Na57848, 57855 delivered on January 7, 2000

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the counterclaim is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff (Counterclaim Defendant)’s appeal is dismissed.

1. We examine the grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter referred to as “Plaintiff”).

According to the reasoning of the judgment below, Articles 51 and 28 (2) of the Private School Act aim at preserving educational facilities essential for the existence and achievement of the purpose of a private school to promote the sound development of the private school. Thus, if a person who violated the above provision, which is a mandatory provision, claims invalidation, would completely be dismissed on the ground that he is an exercise of a right in violation of the good faith principle, barring any special circumstance, such assertion cannot be deemed a violation of the good faith principle (see Supreme Court Decision 96Da55693, Mar. 14, 1997). In this case, the court below rejected the Plaintiff’s assertion that there is no evidence to deem that there is such special circumstance. The judgment of the court below is just and it cannot be deemed that the above provision violates the Constitution, and there are no errors in applying the provisions of the Private School Act or in applying the unconstitutional provisions, as discussed in the judgment of the court below.

2. We examine the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”)’s grounds of appeal.

According to the reasoning of the judgment of the court below, the court below rejected the defendant's assertion that since the real estate (2) as shown in the attached Table 1 (2) of the judgment of the court below (hereinafter referred to as "the branch of this case") was used as a wedding place from the completion of the work to the present day and was used as a place for the presentation of a harsh kindergarten, the above real estate is a lecture used directly for school education as defined in Article 12 (1) of the Enforcement Decree of the Private School Act, and thus the establishment registration of a neighboring establishment is null

However, Article 28 (2) of the Private School Act provides that property not sold or offered as security by a school juristic person shall not be sold or offered as security among the property of a school juristic person directly used for school education. Article 12 (1) of the Enforcement Decree of the Private School Act provides that a school juristic person shall be directly used for the education of a private school established and operated by the school juristic person concerned and shall fall under any of the following subparagraphs, and the use of the branch of this case on the aggregate building ledger shall be a kindergarten from completion of construction. According to the records, the use of the branch of this case on the aggregate building ledger shall be a kindergarten and neighborhood living facilities. According to the records, the branch of this case shall be a kindergarten and neighborhood living facilities in the district office of education, while the branch of this case shall be understood as a teaching school in nature, it shall not be used every day in education. Thus, if a kindergarten operator intends to use it for the sound development of a private school by preserving educational facilities essential for the establishment and purpose of a private school as seen in the above paragraph (1) of the same Article, it shall not be actually used by a kindergarten operator:

Therefore, the court below should have deliberated and taken into account the details of the principal use in determining whether the branch of this case is a property directly used for the education of a school, and the process of registering the branch of this case as a kindergarten in the building ledger as a lecture facility by the competent office of education, and whether the branch of this case is a requisite facility in the establishment of a kindergarten or in the education of a kindergarten. However, the court below should have determined that the branch of this case was not a property directly used for the education of a kindergarten, while recognizing that the branch of this case has been used as a lecture place for the establishment of a kindergarten or in the education of a kindergarten, the court below should have determined that the branch of this case was not a property directly used for the education of a kindergarten. Accordingly, the court below erred in the misunderstanding of legal principles as to educational property under Article 28 (2) of the Private School Act or misunderstanding of facts due to an incomplete deliberation, which affected the judgment.

3. Therefore, the part of the lower judgment against the Defendant regarding the counterclaim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)