[1] The effect of provisional registration or registration of establishment of a neighboring mortgage for the purpose of securing real estate under the name of the manager who contributed and acquired by the operator of a private school to use it as a school building or school site (negative)

[2] Legislative intent of Article 28 (2) of the Private School Act, and whether it violates the abuse of rights or the principle of good faith to assert invalidation after selling or offering security with the knowledge that sales or offering security in violation of the above provision is null and void (negative with qualification)

[1] Article 28(2) of the Private School Act and Article 12 of the Enforcement Decree of the same Act provide that school sites and teachers shall not be sold or offered as security among the property of school juristic persons directly used for school education. Article 51 of the same Act provides that Article 28(2) of the same Act shall apply mutatis mutandis to school juristic persons. Thus, even in cases where land or buildings contributed or incorporated by private school managers are located in the name of a private school owner or a teacher on the register of a private school, provisional registration for the purpose of security or establishment of a neighboring mortgage for the purpose of establishment of a new registration or a neighboring mortgage for the purpose of security, which is applied mutatis mutandis pursuant to Article 51 of the same Act, are null and void.

[2] Article 28 (2) of the Private School Act and Article 12 of the Enforcement Decree of the same Act provide that a school juristic person shall not sell or offer school sites and teachers, among the property of a school juristic person directly used for school education, in order to ensure the sound development of a private school by preserving educational facilities essential for the establishment and purpose of the private school. If a person who violated Article 28 (2) of the same Act, which is a mandatory law, violates the provisions of Article 28 (2) of the same Act, is dismissed for the reason that he/she is in violation of the abuse of rights or the principle of trust and good faith, the purport of the above legislation is completely eliminated. Thus, if it is merely a property used directly for school education, or the school itself does not actually become an educational facility due to its appearance, it goes against the principle of good faith or abuse of rights. However, even if a private school operator knowingly sells or provides security without any special circumstance, it is not a violation of the principle of trust and good faith or the principle of trust and good faith or abuse of rights.

[1] Articles 28(2) and 51 of the Private School Act; Article 12 of the Enforcement Decree of the Private School Act / [2] Article 2 of the Civil Act; Articles 28(2) and 51 of the Private School Act; Article 12 of the Enforcement Decree of the Private School Act

[1] [2] Supreme Court Decision 96Da5693 delivered on March 14, 1997 (Gong1997Sang, 1103) / [1] Supreme Court Order 83Ma138 delivered on November 16, 1983 (Gong1984, 27) / [2] Supreme Court Decision 68Da1323 delivered on September 6, 196 (No16-2, 1999) Supreme Court Decision 93Da44319 delivered on November 24, 1993 (Gong194, 505) 94Da20532 delivered on November 21, 195 (Gong196, 32) / [307Da37979 delivered on November 26, 1996)

Plaintiff (Law Firm Hun, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

Yellow East and four others

Korea Asset Management Corporation (Attorney Han Jin-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na19614 delivered on November 12, 1999

The part of the lower judgment’s dismissal against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

Article 28(2) of the Private School Act (hereinafter referred to as the "Act") and Article 12 of the Enforcement Decree of the Private School Act provide that a school site, a teacher, etc. among the property of a school juristic person directly used for school education shall not be sold or provided as a security. Article 51 of the Act provides that Article 28(2) of the Act on the School Foundation shall apply mutatis mutandis to a private school operator. Thus, even where a land or a building contributed or acquired by a private school operator is located in the name of a private school operator on the register of a private school, provisional registration for the purpose of a security or registration of creation of a neighboring mortgage for the purpose of a security for such land or building is null and void in violation of Article 28(2) of the Act applied mutatis mutandis pursuant to

In addition, Article 28(2) of the Act and Article 12 of the Enforcement Decree of the Act provide that a school juristic person shall not sell or offer as security the school site and teachers among the property of the school juristic person which is directly used for school education is in violation of the purpose of ensuring the sound development of the private school by preserving educational facilities essential for the establishment and purpose of the private school. If a person who violated Article 28(2) of the Act, which is a mandatory law, claims the invalidity of a person who violated the above provision, is excluded on the ground that he/she is an exercise of rights in violation of the principle of abuse of rights or the principle of trust and good faith, the above legislative intent would be completely dismissed. Thus, it is only a property used directly for school juristic person, and in fact, if the school juristic person does not have any facilities, equipment, teaching materials, or teaching equipment used directly for school education, or if there are special circumstances such as the school itself cannot be deemed as an educational facility, such sale or offering as invalid is contrary to the purpose of the law, and thus, it is not contrary to the principle of trust and good faith or abuse of rights (see 97.

The court below held that, in the case where the plaintiff borrowed money from the defendant Seoul Bank on three occasions prior to the provisional registration of the purpose of the security of this case or the establishment registration of a new establishment under the Act on the Establishment of Mortgage, it appears that the defendant Seoul Bank actively deceivings the defendant Seoul Bank by acquiring confirmation from the head of the competent education office even though he knows that the real estate of this case is being used as school site and teacher under the Act and cannot be offered as a security. The remaining Defendants trust the entry on the registry and completed the registration of this case. The execution of the punishment of this case was completed for 10 months due to the plaintiff's crime of forging of securities. On the other hand, Article 49 subparagraph 3 of the Act provides that since the plaintiff was sentenced to imprisonment without prison labor or heavier punishment and the execution of this case was terminated or decided not to execute the establishment registration of a new school, it is difficult to say that the plaintiff cannot be the operator of the private school, as a matter of course, who violated the principle of trust and good faith and the establishment registration of a new school for the purpose of the establishment of this case.

However, it is difficult to see that the Defendant Seoul Bank, the mortgagee of the right to collateral security, was not aware of the fact that it could not be provided as a collateral real estate used as the school site and teacher of a kindergarten pursuant to Article 28 (2) of the Act with a specialized financial institution. The fact that the Plaintiff received a confirmation from the head of the competent education office regarding the provision of the instant collateral, not the permitted or reported matters, that there was no objection against the establishment of the kindergarten collateral security, cannot be readily concluded that the Plaintiff actively induced the Defendant Seoul Bank as if the provision of the security of the kindergarten facility was effective. Moreover, there is no circumstance to recognize the establishment of the kindergarten facility security by deceiving the Defendant Seoul Bank, and even if there was deception against the Plaintiff, the fact that the Plaintiff caused the establishment of the kindergarten facility security by deceiving the Defendant Seoul Bank cannot be found in the record. Furthermore, if the Plaintiff permits the disposal of the property directly used for the education of the kindergarten, considering that such special reason is a separate reason to punish the Plaintiff as a fraud, the act of the private school operator, thereby

In addition, Article 49 subparagraph 3 of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999) provides that "no person for whom two years have not passed since his/her imprisonment without labor or greater punishment was completely executed or since the non-execution became final and conclusive shall become an operator of a private school." In addition, the court below held that the plaintiff does not lose his/her qualification as an operator of the private school or establish a kindergarten as a matter of course upon the final and conclusive decision of ten months of imprisonment, and the provision was deleted by the amendment of Act No. 6004 of Aug. 31, 1999 and the decision to establish a kindergarten was revoked until now. Thus, there is no room to revoke the decision to establish a private school solely on the ground that the plaintiff was sentenced to a punishment.

In addition, although it is clear that the plaintiff's assertion that the plaintiff's invalidation would hinder the claims collection of the defendants, the records are followed. Since it can be known that the kindergarten is operating normally as 7 teachers and staff and 90 students as of June 199, the validity of the right to collateral security, etc. is not recognized, only the effect of evading claims by the plaintiff's individual, and it cannot be concluded that the legislative intent of the law, which is the sound development of the kindergarten, is not possible. Unlike the property owned by the corporation, the property owned by the school operator, a private person, unlike the property owned by the corporation, can not be determined by the law, only if the school operator renounces the operation of the private school or excludes the property directly used for school education from the property owned by the private school, the real property in this case is still used directly for kindergarten education and can not be determined as violating the principle of good faith and abuse of rights.

In addition, even if there is a timely cancellation of the establishment of the right to collateral prior to the provisional registration of the instant collateral or the establishment of the right to collateral prior to the establishment of the right to collateral, or the remaining Defendants trusted the establishment of the right to collateral against the Defendant Seoul Bank, or considering the fact that the Plaintiff provided the instant real estate as collateral did not use the funds for the maintenance, continuation, and development of the kindergarten, the legislative intent of prohibiting the establishment of the kindergarten and its sound development by selling or providing the instant real estate as collateral shall not be deemed to be the grounds to the extent that the instant invalid claim resulting from the violation of the compulsory provision is against the principle of trust and good faith or by abusing the right.

Therefore, the court below erred by misapprehending the legal principles as to Article 28 (2) of the Act, the principle of good faith, the principle of good faith, and the principle of abuse of rights, which affected the conclusion of the judgment, on the ground that the court below determined that the above ruling was a violation of the principle of good faith or abuse of rights.

Therefore, the part of the judgment of the court below regarding the appeal against the defendants is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)