Whether the execution creditor of a school juristic person may apply for permission to dispose of the basic property under the Private School Act to the competent agency in subrogation of the school juristic person (negative)

Even if it is impossible for a school foundation, which is the debtor, to repay the obligation without disposing of the basic property due to the absence of other property, an application for permission for the disposal of the basic property of a private school cannot be deemed as subject to subrogation by creditors under Article 404 of the Civil Act. A person who is a pecuniary claimant of a school foundation, is not entitled to file a claim with the competent authority for the implementation of the procedure for application for permission for disposal of basic property against a school foundation which does not wish to dispose of the basic property solely on the grounds that it is necessary for the

[1] Articles 16 and 28 of the Private School Act, Article 11 of the Enforcement Decree of the Private School Act, Article 404 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

A

Ulsan Metropolitan City Superintendent of the Office of Education (Law Firm Won, Attorneys Min Ho-ho, Counsel for the plaintiff-appellant)

Ulsan District Court Decision 2001Gu3153 delivered on December 19, 2001

1. The judgment of the court below is revoked.

The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by all the plaintiff of the first and second instances.

On October 15, 2001, the Defendant revoked the disposition not to grant a provisional disposition on the land of 1,077 square meters in Ulsan-gu B, Ulsan-gu against the Plaintiff.

The same shall apply to the order.

1. Details of disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the whole purport of the pleadings as stated in Gap evidence 1-1, 2, 3, 5, and 8.

A. On February 2, 2001, the Plaintiff filed an application for compulsory auction for real estate auction with the Ulsan District Court on the land as stated in the purport of the claim (C large 747.1mm2, hereinafter referred to as the “instant real estate”) which is the basic property for profit owned by Taechemical, based on an executory exemplification of the judgment demanding construction remainder payment by the Busan District Court 200 Gahap17745, the Busan District Court (hereinafter referred to as the “TT”) against the Tae Chemicalwon of the School Foundation (hereinafter referred to as the “TT”), and at the subsequent auction procedure, E was determined as the highest purchaser of the instant real estate.

B. On October 12 of the same year, the plaintiff did not cooperate in the procedure of repayment of debts due to the failure of the Thai Chemical Board to obtain permission to sell the pertinent real estate from the competent authorities under Article 28(1) of the Private School Act. Based on Article 404 of the Civil Code, the plaintiff filed an application for permission to sell the instant real estate with the defendant by subrogation of Thai Chemical Board.

C. On October 15 of the same year, the Defendant rendered a disposition rejecting the Plaintiff’s above application (hereinafter “instant disposition”) on the ground that the application for permission to dispose of the basic property of a school juristic person can only be the subject of the act, which is the representative of the school juristic person.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition was unlawful for the following reasons, and sought its revocation.

(i)The plaintiff is entitled to exercise in subrogation the right to apply for the disposal of the instant real estate, which is an endowment, by reason that it is not exercised by the Thai Chemical Board.

(2)The statement of disposal, appraisal report, etc. shall not be allowed to accept an application for permission for sale on the ground that the school juristic person has already submitted such documents in the auction procedure in the case of a compulsory sale of real estate, such as this case, because it has already been subject to the submission of them.

B. Relevant statutes

[Attachment] The entry is as follows.

(c) Markets:

(1)First, we examine whether the plaintiff, a executing creditor of the procedure for compulsory auction of real estate, can exercise the right to request disposal of basic property on behalf of the school foundation.

(A) Examining the contents and legislative purport of the various provisions of the Private School Act, the purport of Article 28(1) of the Private School Act stipulating that a school foundation shall obtain permission from the competent agency when it intends to dispose of its basic property, is derived from the public interest purpose of promoting the sound development of a private school by preventing a school foundation established for the purpose of establishing and operating a private school from unfairly reducing its basic property. In light of such purport and the legal nature of an application for permission to dispose of its basic property, etc., in light of the legal nature of an application for permission to dispose of the basic property, the Private School Act means that a school foundation’s basic property as the most basic means to accomplish the purpose of a school foundation’s disposal has lost the substance of the school foundation’s basic property. Thus, it is reasonable to deem that whether it is an application for permission from the competent

From the above point of view, even if it is impossible for a school foundation, which is the debtor, to repay the obligation without disposing of the basic property because it has no other property, the application for permission to dispose of the basic property of a private school cannot be deemed as the object of subrogation by the creditor under Article 404 of the Civil Act. A person who is a monetary claimant of a school foundation does not wish to dispose of the basic property solely for the reason that it is necessary to realize the right of compulsory performance (see Supreme Court Decision 98Da19202, 19219 delivered on August 21, 1998). Thus, the application for subrogation by such a bypassing method shall also be deemed impossible.

(B)In light of the legal principles set forth in the above (a) above, it shall be deemed that the plaintiff, who is only the monetary claimant of the Taesung Institute, cannot file an application for permission on the disposal of the instant real estate with the defendant on behalf of the defendant on the ground that he is in the executive creditor status.

(2) Accordingly, the disposition of this case, based on the premise that the plaintiff cannot exercise the right to request disposal of the basic property of the Taesung Institute without merit, is legitimate without having to determine the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court below is unfair with different conclusions, and the judgment of the court below is revoked, and the plaintiff's claim is dismissed as per Disposition.

Judges Kang Sung-sung(Presiding Judge)(Presiding Judge)