In cases where a claim for sale of basic property of an incorporated foundation is filed under the Act on the Ownership and Management of Aggregate Buildings, whether not only the establishment of a sales contract for such basic property, but also the amendment of the articles of incorporation of an incorporated foundation, the alteration of basic property,

The right to request sale stipulated under Article 48(4) of the Act on Ownership and Management of Condominium Buildings provides that the said Act may be deprived of property rights against the will of a rebuilding participant in order to facilitate a reconstruction project, and its substance is the same as the public expropriation under Article 23(3) of the Constitution. In a case where a foundation foundation files a claim for sale of its basic property pursuant to the Act on Ownership and Management of Condominium Buildings, in order to acquire the above basic property, if it is separately necessary for the foundation foundation to acquire the above basic property, the essence of the right to request sale is contrary to the nature of the right to request sale that a person who files a claim for sale is unable to acquire the basic property of the foundation, unless the foundation disposes of the basic property by itself, and is deprived of his/her property right against the will of the foundation subject to the claim for sale. Accordingly, in a case where a claim for sale on the basic property of the foundation foundation under the Act on Ownership and Management of Condominium Buildings exists, the establishment

Article 48(4) of the Act on the Ownership and Management of Aggregate Buildings, Article 23(3) of the Constitution, Article 42(2), 43 and 45(3) of the Civil Act

Constitutional Court Decision 2003Hun-Ba18 decided July 27, 2006 (Hun-Ba118, 1078)

A sericultural apartment reconstruction and rearrangement project association (Law Firm Barun et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] The Korea Foundation established under the Korea Foundation (Attorney Yyang-yang, Counsel for defendant-appellee)

Seoul High Court Decision 2007Na65827 decided January 8, 2008

The part of the lower judgment against the Plaintiff regarding the claim for the implementation of the amendment application procedure is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

The Incorporated Foundation has granted a legal personality to the entity that is a property that has been incorporated for a certain purpose, and the Incorporated Foundation is the most basic means to achieve its purpose at the same time as it is the entity of the Incorporated Foundation. Therefore, the disposal of such basic property means that the entity of the Incorporated Foundation loses its substance. Therefore, the basic property of the Incorporated Foundation cannot be disposed of without permission, and it is necessary to revise the articles of incorporation to dispose of it, and the amendment of the articles of incorporation becomes effective only after obtaining permission from the competent authority (Articles 45(3) and 42(2) of the Civil Act).

Meanwhile, in a case where a sectional owner, etc. who approved a rebuilding resolution against an incorporated foundation that objects to rebuilding, files a claim for sale of the above basic property pursuant to Article 48(4) of the Act on Ownership and Management of Condominium Buildings (hereinafter “the Aggregate Buildings Act”), the establishment of a sales contract is enforced. The right to claim sale of aggregate buildings under the Aggregate Buildings Act is particularly stipulated to deprive the other incorporated foundation of his/her property rights against the intention of reconstruction. It can be deemed that the substance of the right to claim sale of aggregate buildings is the same as the common expropriation under Article 23(3) of the Constitution (see Constitutional Court Order 2003Hun-Ba18, Jul. 27, 2006). However, in a case where a claim for sale of the basic property of an incorporated foundation is made pursuant to the Aggregate Buildings Act, the amendment of the articles of incorporation of the incorporated foundation is not required separately to acquire the above basic property, unless the incorporated foundation arbitrarily disposes of the basic property, and thus, the incorporated foundation is deprived of its property rights subject to a claim for sale by the competent authority under the Civil Execution Act.

Nevertheless, the court below held that the plaintiff's above claim should be conditioned to be modified by the defendant's articles of incorporation on the ground that the plaintiff requested the competent authority to amend the articles of incorporation due to the change of basic property in accordance with Article 48 (4) of the Aggregate Buildings Act, on the ground that the plaintiff filed a claim for sale of basic property of the defendant foundation in accordance with Article 48 (4) of the same Act, and that the defendant's change of the articles of incorporation is entrusted to the defendant's will, and that the competent authority can seek permission to change the articles of incorporation due to the sale of basic property, and that the court below erred

Therefore, among the judgment below, the part against the plaintiff regarding the claim for the implementation of the amendment of the articles of incorporation application procedure is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Ji-hyung (Presiding Justice)