Appropriateness of seizure of real estate owned by a school foundation

Attachment of real estate for which the Office of Education has not been permitted to change the basic property for profit to the basic property for education shall be justifiable.

Article 28 (Management and Protection of Property)

Article 5 of the Enforcement Decree of the Private School Act (Classification of Properties)

2013-Gu Partnership-10726 Invalidity of Attachment Disposition

AAA Institute of Education for a school foundation

BB Director of the Tax Office

8,2014.01

2014.02.07

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant confirmed that the attachment disposition dated March 10, 1999 (No. 12390, Mar. 12, 1999) issued by the Defendant with respect to DDD D, EE Ri 26 Forest and 12,694 square meters, and F.C. F. F., CC 1295-1 Guide 8,530 square meters, 1295-2 Guide 4,473 square meters, 1295-7 Guide 1295-7 Guide 1,782 square meters on October 18, 2004 (No. 59808, Oct. 18, 2004) is null and void.

1. Details of the disposition;

A. The Plaintiff is a school juristic person operating HH Information High School and II Middle Schools, and owned 12,694m2, EEEisan 26m2,00 m2,694m2 (hereinafter referred to as “the instant forest”), FGri 1295-1m2, FGri 8,549m2, and 1295-2m2,255m2.

B. The Defendant imposed corporate tax on the Plaintiff at KRW 1,361,188,670 (the due date of February 29, 1996), but did not pay it. On March 10, 1999, the Defendant seized the forest land of this case (hereinafter referred to as the “instant disposition”) and on October 15, 204, seized each of the instant GG Ri’s land (hereinafter referred to as the “instant disposition”).

C. On the other hand, on August 18, 2010, FGri 1295-2 Dogri, 6,255 Dogri 1295-7, and 19 Dog 1295-1 Dogri 8,549 Dogri was divided into 1295-6, respectively (hereinafter “instant land”), and on March 29, 2012, the registration of transfer of ownership was completed in the name of the Republic of Korea on the ground of expropriation on the ground of expropriation on the 7th of the same month.

D. The Plaintiff filed an appeal on January 25, 2013, but the Tax Tribunal decided to dismiss the appeal on the ground that the period for filing the appeal expires on March 28, 2013.

Facts without any dispute, Gap's 3, 7, 18, Eul's 1, 2, and 3 (including each number), the purport of the whole pleadings.

2. Determination on this safety defense

The defendant asserts that the lawsuit of this case is unlawful since the plaintiff received each of the dispositions of this case from March 1999 and around October 2004, and the plaintiff filed a request with the Tax Tribunal on January 15, 2013, which was later than 13 years and 10 months after the expiration of 13 years and 8 years, since it did not go through legitimate procedures.

However, since each disposition of this case is related to the basic property for education and thus, it is sought to confirm it on the premise that it is void. Thus, in a lawsuit seeking confirmation of invalidity of administrative disposition, it is not necessary to go through a prior trial procedure and there is no limit on the filing period of the lawsuit. Therefore, the defendant

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The Plaintiff was scheduled to use the instant land as a site for cultivating vegetables for practical training in the same school cooking division while leaving the land as the Hah Information High School was used for the camping field, and the Plaintiff was also obligated to use it as a site for cultivating vegetables for practical training in the same school cooking division, and the JJ also obtained permission from the superintendent of education to change the purpose of use of the instant land, but did not dispose of the instant land during the above period, so the Plaintiff maintained its nature as an fundamental property for educational purposes. On May 30, 2011, the JJ also respondeds to the Defendant on the list of basic property indicated as the basic property for educational purposes, and the Ministry of Finance and Economy’s National Tax Tribunal of the Ministry of Finance and Economy decided on April 14, 197 that the instant land was an fundamental property for educational purposes, and thus, the disposition of this case constitutes a grave and apparent disposition prohibited under Article 28(2) of the Private School Act, Article 12(1)2(1) and (2) of the Enforcement Decree of the instant land or research facility.

2) In order to seize the instant forest, which is an fundamental property for education, the instant land and the instant forest, which is an fundamental property for profit, each of the instant dispositions taken by the Defendant without obtaining permission from the competent authorities pursuant to Article 28(1) of the Private School Act, is null and void because its defects are significant and apparent.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On May 19, 1967, the Plaintiff completed the registration of ownership transfer on the instant land under its own name on the grounds of sale and purchase on April 28, 1983, and thereafter managed the instant forest land and land as basic property for profit-making purposes.

2) On November 25, 1983, J also filed an application with the superintendent of education for changing the purpose of use of the instant land as fundamental property for education, on the ground that he/she uses the instant land as a practice site for middle and high schools. On December 3, 1983, J also obtained permission from the superintendent of education for changing the purpose of use.

3) On April 4, 1990, J also filed an application with the superintendent of education for the change of the purpose of use of the instant land as a fundamental property for profit on the ground that he/she applied for the change of the purpose of use of the instant land as a fundamental property for profit on the ground that he/she was able to dismantle the Y and secure finances for the plan to move the site for school sites. Accordingly, Jdo superintendent of education granted a permit to dispose of the instant land in addition to certain conditions (a disposition of more than 66,796,80 won until August 20, 1990) while granting a permit to change the purpose of use as a fundamental property for profit on the instant land.

4) On August 17, 1990, J also applied to the Superintendent of the Provincial Office of Education for the extension of the disposal period until December 31, 1990. However, J also notified the Plaintiff of the extension of the disposal period by the terms and conditions of the existing terms and conditions of the appraisal report and the validity period of the appraisal report, etc. on September 1990.

5) The Plaintiff did not dispose of the instant land within the above disposal period, and the above period was exceeded, and the JJ also did not obtain a permit from the superintendent of the Office of Education to change the use of the instant land to the fundamental property for education.

6) However, on July 27, 1998, J also submitted to the superintendent of education a list of school juristic persons’ property registers, etc. stating the instant land as fundamental property for educational purposes when submitting data following the computerization of basic property of school juristic persons. On April 14, 2011, the Plaintiff reported the status of the Plaintiff’s fundamental property by stating the instant land as fundamental property for educational purposes. In addition, the Plaintiff entered the instant land as fundamental property for educational administration information system (NEI)

7) On December 4, 2013, JDo superintendent confirmed that the instant land was deemed fundamental property for education during the instant lawsuit, and notified the Plaintiff of the management of the instant land as fundamental property for profit-making purposes on the ground that the instant land was not permitted to change its use as fundamental property for education, and that it was an fundamental property for profit-making purposes.

8) Meanwhile, from 2004 to 2008, KK cultivated the instant land from 2009 to 2010 and received subsidies for rice income direct payments, respectively. CC market imposed property tax on the Plaintiff from 1998 to 2012 on the instant land, and the Plaintiff did not object thereto or raise an objection thereto.

9) In HH Information High School, as the instant land, which was used as a camping ground, was left unattended without any specific profits, the construction plan was also proposed. The instant land is currently maintained in the form of farmland.

Facts that there is no dispute over recognition, Gap's evidence Nos. 5, 6, 9, 11 through 14, 16, Eul's evidence Nos. 5 through 11 (including each number), and the court's fact-finding results on the J- Superintendent of J-do Office of Education, the purport of the whole pleadings and arguments.

D. Determination

1) Determination on the first argument

A) Article 28 (2) of the Private School Act provides that "any property prescribed by Presidential Decree among the property of a school juristic person directly used for school education shall not be sold or offered as a security," and the main sentence of Article 12 (1) of the Enforcement Decree of the Private School Act provides that "any property which cannot be sold or offered as a security to a school juristic person pursuant to Article 28 (2) of the Enforcement Decree of the same Act shall be the property directly used for the education of a private school established and operated by the school juristic person concerned, which corresponds to the land area (title 1), teachers (title 2), gymnasiums (title 3), training or research facilities (title 4), and other facilities, equipment and teaching materials and aids (title 5) directly used for education."

The prohibition of sale of such property (basic property for education) is not limited to the fact that it cannot be the object of a sales contract, but entirely excludes the possibility of transfer of ownership due to sale and purchase, and thus, the sale by the procedure for disposition on default under the National Tax Collection Act is prohibited, and attachment under the National Tax Collection Act is not allowed (see, e.g., Supreme Court Decision 96Nu4947, Nov. 15, 199

B) Therefore, as to whether the instant land constitutes a fundamental property of a school juristic person directly used for school education, the Minister of Health and Welfare, and the JJ also, upon the Plaintiff’s application on May 7, 1990, the superintendent of the Office of Education permitted the change of the use of the instant land from the basic property for educational purposes to the basic property for profit-making purposes. Accordingly, the Plaintiff did not have issued a permit to change the use of the instant land as the basic property for educational purposes. However, the Plaintiff stated the pertinent land as the basic property for educational purposes in the school juristic person’s property register, etc. and reported the status of fundamental property to the Superintendent of the Office of Education. The superintendent of the Office of Education, on December 4, 2013, notified the Plaintiff of the fact that the instant land was immediately confirmed and managed as the basic property for profit-making purposes. Since K and LL received subsidies for rice income from 2004 to 2010, the Plaintiff did not object to the foregoing basic property or did not object to the Plaintiff’s seizure of the instant land under the premise that the Plaintiff’s ground.

2) Judgment on the second argument

According to Article 28(1) and (2) of the Private School Act and Article 12(1) of the Enforcement Decree of the same Act, with respect to fundamental property excluding school sites and teachers, etc. which a school foundation is unable to sell or offer as security, a school foundation shall obtain permission from the competent authorities in cases where it intends to sell, donate, lease, exchange, change the purpose of use, or offer as security, or to waive the obligation or to waive the right, barring special circumstances such as where it is not possible to obtain permission from the competent authorities, seizure of such fundamental property shall be allowed (see, e.g., Supreme Court Decision 2002Du3669, May 16, 2003).

As seen earlier, the fact that the instant land is the basic property for profit-making purposes and the fact that the instant forest is the basic property for profit-making purposes is not disputed between the parties concerned, and there is no assertion or proof as to the fact that it is not possible to obtain permission from the competent authorities with respect to the disposition, etc. of the instant land and forest, and therefore, seizure of the instant land and forest shall be allowed. Accordingly, the Plaintiff’s assertion to the effect that the instant land is not an fundamental property for education or a seizure of the basic property for profit-making purposes

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.