[1] Whether seizure of fundamental property other than school premises, teachers, etc. which a school foundation is unable to sell or offer as security is allowed (affirmative)

[2] Whether an objection against a decision to commence compulsory auction on the grounds of substantive legal relationship is raised (negative)

[1] Article 28 of the Private School Act, Article 12 (1) of the Enforcement Decree of the Private School Act / [2] Article 86 of the Civil Execution Act

[1] Supreme Court Decision 2002Du3669 delivered on May 16, 2003 (Gong2003Sang, 1340) / [2] Supreme Court Order 90Da66 delivered on February 6, 1991 (Gong1991, 1151) Supreme Court Order 94Ma147 delivered on August 27, 1994 (Gong194Ha, 2529)

○ ○ Private Teaching Institutes

Suwon District Court Order 2003Ra356 dated April 14, 2004

The reappeal is dismissed.

1. The proviso of Article 12(1) of the former Enforcement Decree of the Private School Act (amended by Presidential Decree No. 17854 of Dec. 30, 2002) provides that "Where the school is intended to move the school or consolidate the principal school and the branch school after securing the whole of the school site and part of the basic educational facilities for the improvement of the educational environment, the school site, the school building, and the sports ground, which are directly used for the education of the private school established and operated by the school foundation, shall not fall under the property which cannot be sold by the school foundation or provided as security pursuant to Article 28(2) of the Private School Act."

In light of the records, Pyeongtaek-si ( Address 1 omitted) school site 759.4m2 (hereinafter "the land of this case") was used as the land site before the second-appellant's school site was transferred to Pyeongtaek-si ( Address 2 omitted) and 7m2. However, the above school site was sold to the non-party on March 2, 1994 while the above school site was transferred to the present site, and the non-party is currently operating ○○ School. The land of this case is about 2 km as a straight line, about 2.5m from the school due to the fact that it is impossible to use it as a daily educational facility. Thus, it is acceptable to view that the land of this case was not a re-appellant's school site or its property for the same purpose as the land of this case, which was held by the second-appellant's school foundation or its property as prohibited by the second-party's compulsory sale or compulsory sale because it did not constitute the land of this case for the same purpose as the land of this case.

2. 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 other than school sites and teachers, etc., where a school juristic person sells, donates, leases, exchanges, exchanges, or provides as security, or where it is required to obtain permission from the competent agency, barring special circumstances such as where it is not possible to obtain permission from the competent agency, the seizure of such fundamental property shall be permitted (see Supreme Court Decision 2002Du3669 delivered on May 16, 2003). The records show that the pertinent land does not fall under the property of a school juristic person which is not able to sell or offer as security, and that it can be known that it obtained permission from the competent agency on February 11, 1995 to transfer the pertinent land from the Office of Education of Gyeonggi-do, which is the competent agency, to the extent that it does not constitute a ground for re-appeal by the competent agency.

3. Meanwhile, since an objection against a decision on compulsory commencement of auction is a method of appeal against procedural defects regarding the decision on commencement of auction, it cannot be asserted as a ground of objection against the decision on commencement of auction (see Supreme Court Order 94Ma147 delivered on August 27, 1994, etc.). The argument that a claim based on a final and conclusive judgment, a title of execution of the decision on compulsory commencement of auction of this case, a protocol of mediation, or a promissory note with executory power against a private person, who is the former president of the re-appellant, not against the re-appellant, cannot be a legitimate ground for objection against the decision on commencement of auction of this part of the ground for reappeal is without merit.

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

Justices Shin Shin-chul (Presiding Justice)