2012Da81630 Registration of creation of superficies, cancellation thereof, etc.

The World Civil Transport Society Maintenance Foundation, a foundation of the World Civil Transport Society

A.I.D. Financial Investment Company for A.I. project

Seoul High Court Decision 2011Na65695 Decided August 1, 2012

July 10, 2014

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on permission of competent authority under the Civil Act

A. The Civil Act provides that matters concerning the assets of the Incorporated Foundation shall be stated in the articles of incorporation (Article 43 and Article 40 subparag. 4 of the Civil Act) with the permission of the competent authority at the time of establishment (Article 32 of the Civil Act). The amendment of the articles of incorporation shall also be effective with the permission of the competent authority (Articles 45(3) and 42(2) of the Civil Act), and the disposal of the assets of the Incorporated Foundation itself is not subject to the permission of the competent authority.

Therefore, in order to ensure that there is no validity of an act of disposal of the assets of the Incorporated Foundation on the ground that the amendment of the articles of incorporation was not approved by the competent authority, it is necessary to revise the contents of the articles of incorporation approved by the competent authority due to such act of disposal (see, e.g., Supreme Court Decisions 73Da1975, Jun. 11, 1974; 90Da8558, May 28, 199).

B. According to the reasoning of the judgment below and the records, the articles of association of the plaintiff who obtained permission from the competent authority for the purpose of the plaintiff in Article 3 provides that "the purpose of this corporation is to secure funds to assist the missionary missionary work and education projects conducted by the World Exemplary Transport Organization and all activities for the realization of the ideology of the Association, and to manage land, buildings, and other property owned by the foundation." Article 20 provides that the plaintiff's property shall be divided into basic property and ordinary property, and the list of basic property shall be entered in the attached Form. The list of basic property shall include only the location, land category, and area of 11 real estate owned by the plaintiff, including the land in this case. On the other hand, the plaintiff shall be the defendant, the person holding superficies in this case, a solid building or trees owned by him, the duration of the land in this case shall be nine nine years, and the price of land shall be five percent of the officially announced land price in the relevant year.

Examining these facts in light of the legal principles as seen earlier, it cannot be deemed that the creation of superficies of this case constitutes a case where the contents of the Plaintiff’s articles of association permitted by the competent authority should be amended, and therefore, the creation of superficies of this case cannot be deemed null and void on the ground that the act of creation of superficies of this case did not obtain permission from the competent authority under Articles 45(3) and 42(2) of the Civil Act regarding the creation

In the same purport, the court below is just to reject the plaintiff's assertion on permission of competent authority under the provisions of the Civil Act, and there is no error of law by misapprehending legal principles.

2. As to the grounds of appeal on the evasion of the law

The court below determined that the creation of superficies in this case cannot be deemed to constitute an evasion of the law to avoid the application of the legal provisions stipulated by the permission of the competent authority, in light of the following: (a) even after the creation of superficies in this case, the term of the superficies in this case is 99 years and the Plaintiff still has the right to dispose of it as the owner of the land in this case, as well as the right as the implementer of superficies, such as right to receive land payment, etc.; (b) superficies in the Civil Act is not a provision on the maximum period of superficies in the Civil Act; and (c) the establishment of superficies in this case is expected to be possible in fact because the contents of superficies in this case do not considerably exceed the general contents of superficies stipulated by the Civil Act and do not impose a burden on the Plaintiff above superficies in the Civil Act

The following circumstances revealed in the records revealed by the court below, i.e., the plaintiff did not actively use and profit from the land of this case for about 30 years since the acquisition of the ownership of the land of this case, while the plaintiff owned 10 real estate as basic property and operated offices in other real estate. Thus, the plaintiff can not be deemed to have achieved the purpose of establishment of the plaintiff only if the plaintiff directly uses and profit from the land of this case, and it appears to be the same in the future, and rather, it is a considerable amount of rent income from the creation of the superficies of this case while the plaintiff still has the right to dispose of the land of this case, and it is consistent with the purpose of establishment of the plaintiff to secure and manage financial resources to assist the creation of the superficies of this case. Meanwhile, considering not only the fact that the neighboring land of this case was leased for a long period of 99 years, but also the term of the use of the building of this case, it is not necessary to determine the term of existence of the superficies of this case as an evasion of law, as alleged in the ground of appeal.

3. As to the remaining grounds of appeal

With respect to the creation of superficies of this case, the lower court determined that the creation of superficies of this case cannot be deemed null and void on the ground that the Plaintiff did not obtain permission from the competent authority pursuant to Articles 21 and 31 of the Plaintiff’s articles of association or Article 11(3) of the Act on the Establishment and Operation of Public Interest Corporations, and that the creation of superficies of this case cannot be deemed null and void on the ground that the agreement for land category change included in the final contract of this case did not obtain permission from the competent authority for modification of the articles of association. Furthermore, the lower court determined that the creation of superficies of this case does not constitute an act of unauthorized Representation, the act of abuse of power of representation, anti-social order, and false agreement, and that the restriction of Plaintiff’s power of representation cannot be asserted against

In light of the relevant legal principles and records, the conclusion of the court below is just, and there is no error of law such as misunderstanding of legal principles, misunderstanding of facts, incomplete hearing, omission of judgment, etc.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young

Justices Lee In-bok

Note 2: (1) Park Poe-young

Justices Kim Jae-han