[1] The purport of Article 28 (2) of the Private School Act, Article 12 (1) of the Enforcement Decree of the same Act, and the validity of a contract to sell kindergarten sites on the condition that the kindergarten be relocated or closed (effective)

[2] In a case where a kindergarten operator is already closed at the request of a kindergarten operator when a dispute arises over the validity of the transfer after the transfer of a kindergarten operator, whether denying the validity of the transfer of a kindergarten operator on the ground of Article 28(2) of the Private School Act is against the good faith principle to deny the validity of the transfer of a kindergarten operator on the ground of Article 28(2)(affirmative)

[3] The case holding that it is not permitted against the good faith principle to claim that a kindergarten operator's decision to grant a successful bid to a kindergarten assistant is null and void on the ground of Article 28 (2) of the Private School Act

[1] Article 28(2) of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act stipulating that a school site and a gymnasium may not be sold or offered as security among the property of a school foundation directly used for school education is intended to promote the sound development of a private school by preserving educational facilities essential for the establishment and purpose of a private school. Therefore, if a purchaser enters into a sales contract on the condition that a kindergarten site does not exist in the land for the purpose of sale by transferring or closing the kindergarten to another place or closing the kindergarten site, the sales contract shall become effective notwithstanding the above provisions, if it is not possible for the purchaser to move or close the kindergarten.

[2] Even if the transfer of a kindergarten is not subject to explicit conditions, if the validity of the transfer of the kindergarten's assistant to the kindergarten is already closed at the time when a dispute over the validity of the transfer of the kindergarten's assistant to the kindergarten is brought about, and the establishment of the kindergarten's education is no longer likely to be impeded, barring special circumstances, it is not permissible to deny the validity of the transfer of the kindergarten's assistant to the kindergarten's assistant to the party who is a party to the transfer contract, on the ground of Article 28 (2) of the Private School Act and Article 12 (1) of the Enforcement Decree of the Private School Act, barring special circumstances.

[3] The case holding that it is not permissible to claim that the decision to grant a successful bid to the original assistant of a kindergarten is null and void on the ground of Article 28 (2) 2 of the Private School Act, as it is against the principle of good faith, even though it is known that a provisional attachment has already been made to the original assistant of the kindergarten and the right to manage the kindergarten in a single unit in the apartment area where the kindergarten is located, even though it is scheduled to implement a reconstruction project, it does not operate the kindergarten itself after the acquisition of the kindergarten, and the lessee has leased a part of the building of the original assistant to operate the kindergarten and had the tenant operate the kindergarten, and the compulsory auction procedure for the original assistant of the kindergarten was in progress, but it is not necessary to take all measures to continue the kindergarten, and that it is not allowed for the operator of the kindergarten to claim that the decision to grant a successful bid to the original assistant of the kindergarten is null and void on the ground of Article 28 (2) 2 of the Private School Act

[1] Article 28 (2) of the Private School Act; Article 12 (1) of the Enforcement Decree of the Private School Act; Article 147 of the Civil Act / [2] Article 28 (2) of the Private School Act; Article 12 (1) of the Enforcement Decree of the Private School Act; Article 2 of the Civil Act / [3] Article 28 (2) of the Private School Act; Article 12 (1) of the Enforcement Decree of the Private School Act

[1] Supreme Court Decision 97Da10857 delivered on May 28, 1997 (Gong1997Ha, 1985) Supreme Court Decision 97Da54284 delivered on April 24, 1998 (Gong1998Sang, 1453)

[Defendant-Appellant] Plaintiff (Attorney Kim Hyun-tae, Counsel for defendant-appellant)

A Co., Ltd., a litigation taking over the lawsuit of mutual savings and finance companies (Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2001Na4188 delivered on April 17, 2002

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. The lower court’s recognition and judgment

A. The court below acknowledged the following facts in full view of the admitted evidence.

(1) On January 23, 1986, Nonparty 1 obtained the authorization of establishment of a kindergarten from the Office of Education of the Standing Winter-do (hereinafter referred to as the "Office of Education") and newly constructed the instant building on the land owned by it and completed registration of preservation of ownership in its name, and operated a kindergarten (hereinafter referred to as the "the instant kindergarten") in the name of "○○ kindergarten" in the instant land and building (hereinafter referred to as the "real estate in the following").

(2) However, when Nonparty 2 was awarded a successful bid on February 20, 1987 with respect to the instant real estate after the auction procedure was conducted, Nonparty 2 obtained on October 16, 1987 the authorization from the Office of Education to change the founder of the instant kindergarten to himself on his own upon Nonparty 1’s application, and thereafter registered the ownership transfer of the instant real estate in his name on the following day, and operated the instant kindergarten.

(3) When Nonparty 2 obtained authorization from the Office of Education on September 19, 197 by filing an application for authorization for change of a kindergarten that changes the founder of the instant kindergarten to Nonparty 3, Nonparty 3 completed the registration of ownership transfer on the instant real estate under his name on the 22th day of that month and operated the instant kindergarten.

(4) Afterwards, Nonparty 3 applied for authorization for the change of the kindergarten founder to the Plaintiff from himself, and obtained authorization from the Office of Education on September 24, 1998, the Plaintiff completed the registration of ownership transfer on the instant real estate in its name and operated the instant kindergarten on the 30th day of that month.

(5) As a result of the commencement of the procedure for compulsory auction on April 4, 199 with respect to the instant real estate and the auction procedure is in progress, on February 15, 200, the mutual savings and finance company Gap, which was merged with the defendant on February 15, 200, awarded the bid for the instant real estate and completed the registration of ownership transfer on the ground of successful bid on March 20 of

(6) The instant land on the registry was registered as a site from 1982, and the instant building was registered as a kindergarten building from the time of registration of initial ownership preservation, and such indication was the same as at the time the Defendant was awarded a successful bid of the instant real estate.

(7) The Plaintiff, with the authorization of the Office of Education, appointed Nonparty 3 as the head of the instant kindergarten from September 24, 1998 to February 19, 199, respectively, and Nonparty 4 from the next day to February 29, 200. Nonparty 4 did not employ the Plaintiff, but entered into a lease agreement with the Plaintiff on the instant real estate and operated the instant kindergarten.

(8) From January 1, 1999, the Plaintiff leased one column among the three floors of the instant building to each other during the period from April 1, 1999, and used it for other than the kindergarten education.

(9) When it was difficult for the Plaintiff to recruit students on March 7, 200, after the Defendant paid the successful bid price, the Plaintiff applied for closure of the instant kindergarten, which was approved by the Office of Education on the same day, and closed the kindergarten.

B. Furthermore, Article 28(2) of the Private School Act prohibits sale or offer of security as prescribed by the Presidential Decree among the property of an educational foundation directly used for school education. Article 51 of the same Act provides that the above provision shall apply mutatis mutandis to an operator of a private school who is not an educational foundation. Article 12 of the Enforcement Decree of the Private School Act provides that a school site and a teacher shall not be sold or offered as a security pursuant to Article 28(2) of the Private School Act. In light of the purport of Article 28(2) of the Private School Act, the court below presumed that the possibility of transfer of ownership due to sale and purchase of the property owned by a educational foundation directly used for school education shall be excluded from all the possibility of transfer of ownership due to compulsory auction, and determined that the real property of this case was registered as a kindergarten, a teacher's workplace, and a site on the registry at the time the defendant was awarded a successful bid, and that the real property of this case was used for education except for the first and third floors among the first floor of the building of this case, and thus, it cannot be invalidated as a legitimate cause for compulsory auction and compulsory auction.

2. The judgment of this Court

Article 28(2) of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act provide that a school site and a gymnasium shall not be sold or offered as security among the property of a school juristic person directly used for school education shall be aimed at promoting the sound development of a private school by preserving educational facilities essential for the establishment and purpose of a private school (see Supreme Court Decision 97Da54284, Apr. 24, 1998). Thus, if a party to a transaction concludes a sales contract on the condition that a kindergarten is not located in the land for the purpose of sale by transferring the kindergarten to another place or closing the kindergarten site, the sales contract shall become effective notwithstanding the above provisions (see Supreme Court Decision 97Da10857, May 28, 1997).

In the same purport, barring special circumstances, barring special circumstances, denying the validity of the transfer of a kindergarten assistant who was owned by a party to a contract of transfer on the ground of the above provision of the law cannot be permitted in light of the spirit of the good faith, unless there are special circumstances.

According to the facts acknowledged by the court below and the records of this case, when Nonparty 2 acquired the kindergarten of this case which was newly constructed and operated by Nonparty 1 and acquired it by Nonparty 3, and when the Plaintiff acquired all of the real estate of this case and its kindergarten management rights from Nonparty 3, Nonparty 5 had already been subject to provisional seizure and had been scheduled to implement the reconstruction project of neighboring apartments, he registered the provisional registration of the right to claim ownership transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer transfer. The plaintiff had Nonparty 3 continue to work as the head without his own kindergarten after he acquired it, and had Nonparty 3 operate the kindergarten by leasing part of the real estate to others, and some other original building was leased to others for the purpose other than kindergarten education, while the compulsory auction procedure of this case was in progress, it was closed after receiving the successful bid payment, and applied for the closure of the kindergarten and had not been supported by the plaintiff.

Therefore, in light of the above legal principles, it would be against the principle of good faith to deny the validity of the compulsory auction on the ground that the Plaintiff, who did not deny the compulsory auction even if the Plaintiff acquired the obligation to be subject to provisional attachment and transferred ownership through the provisional registration, was already completed, on the ground that the existence of kindergarten education is completed or the objective is fulfilled, unless the opposing circumstance is revealed.

Nevertheless, at the stage where the court below did not clearly state the circumstances opposite to other opinions, it did not exhaust all necessary deliberations or erred in the misapprehension of legal principles as to the above legal principles. Thus, the argument in the ground of appeal containing the same purport is justified.

3. Conclusion

Therefore, without examining the defendant's remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)