[1] The purport of Article 28 (1) of the former Private School Act

[2] Whether the act of borrowing money by a school juristic person constitutes "act of bearing obligations" under Article 28 (1) of the former Private School Act (affirmative)

[3] The validity of an act of borrowing money by a school foundation without a resolution of the board of directors or permission of the supervisory authority (negative)

[4] Where an employee of a school juristic person causes damage to another person by borrowing money from another person without a resolution of the board of directors or permission of the supervisory office, but the other person knowingly participates and lends money to another person, whether the school juristic person is liable to compensate for damages against the above other person (negative)

[1] Article 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) provides that "where a school foundation intends to assume or waive the obligation, it shall obtain permission from the competent agency." The purpose of this provision is to promote the sound development of a private school by ensuring the smooth management and maintenance of the property of the school foundation and the protection of the $$100,000. Thus, whether a school foundation is obligated to bear the obligation under the above Act should be determined specifically in comparison with its purpose, and all the obligations arising from the act of the school foundation shall not be uniformly determined.

[2] It is clear that an educational foundation's act of borrowing money from another person is not an ordinary transaction for school operation, and it can not be interpreted as an act of imposing obligations to obtain permission from the supervisory authority under Article 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), regardless of whether the amount of money borrowed is excessive, the period for repayment is long, and whether it is within the scope of budget compilation, and thus, it does not constitute an act of imposing obligations to obtain permission from the supervisory authority under Article 28 (1) of the former Private School Act.

[3] Where a school foundation borrows money from others without a resolution of the board of directors and permission of a supervisory authority under Articles 16 and 28 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), the act of borrowing money has no effect on the school foundation.

[4] Where an employee of a school juristic person causes damage to other persons by borrowing money from other persons without a resolution of the board of directors and permission of the supervisory authority, the school juristic person shall be liable for damages as an employer. However, where the other person knew in advance that the other person's act of bearing the obligation of the school juristic person is done without permission of the supervisory authority, the other person shall not be liable for damages from the school juristic person on the ground that the act of the school juristic person constitutes a tort against himself.

[1] Article 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) / [2] Article 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) / [3] Articles 16 and 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997 / [4] Article 756 of the Civil Act, Articles 16 and 28 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997)

[2] Supreme Court Decision 78Da1339 delivered on November 28, 1978, Supreme Court Decision 86Da2534 delivered on April 28, 1987 (Gong1987, 887) / [3] Supreme Court Decision 79Da1431 delivered on April 8, 1980 (Gong1980, 1274) / [3] Supreme Court Decision 80Da1317 delivered on September 22, 1981 (Gong1981, 14369) / [3] Supreme Court Decision 74Da244 delivered on May 28, 1974 (Gong1974,781), Supreme Court Decision 93Da429399 delivered on January 25, 1994 (Gong2984 delivered on September 29, 198)

Plaintiff

○○ Private Teaching Institute (Attorney Kim Chang-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na49161 delivered on August 20, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 28(1) of the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; hereinafter the same) provides that "where a school foundation intends to give up its obligation or to waive its right, it shall obtain permission from the competent agency." The purpose of the provision lies in promoting the sound development of a private school by ensuring the smooth management and maintenance of the property of the school foundation and the protection of the maintained $$100. Thus, whether it constitutes an obligation under the above provision should be determined in comparison with the purpose, and all obligations arising from the act of the school foundation can not be determined uniformly. However, lending of money from another person is not an ordinary transaction for school operation, but it is evident that the school foundation cannot ensure the smooth maintenance of the property of the school unless it supervises it. It is determined that it constitutes an act of borrowing money from another person (see, e.g., Supreme Court Decision 2008Da18478, Jul. 18, 197). 1987.

The court below is justified in holding that the defendant's act of borrowing money from the non-party to the office of education in accordance with the above legal principles for the implementation of the condition of conditional authorization of regular high schools of the office of education, but in light of its legislative purpose, the permission of supervisory authorities under Article 28 of the former Private School Act, which is interpreted as mandatory provisions, cannot be substituted for the permission of supervisory authorities. Accordingly, the defendant's act of borrowing money from the non-party to the office of education cannot be viewed as invalid because the decision of the board of directors of the board of directors of the board of directors of the board of directors of the office of education or the meeting of the officers of the office of education cannot be substituted for the permission

2. On the second ground for appeal

Where an employee of a school juristic person causes damage to other persons by borrowing money from other persons without a resolution of the board of directors or permission of the supervisory authority in connection with the performance of his duties, the school juristic person shall be liable for damages as the employer. However, where the other person knew in advance that the other person's act of bearing the obligation of the school juristic person is conducted without permission of the supervisory authority, the other person shall not be liable for damages from the school juristic person on the ground that such an act of the school juristic person constitutes a tort against himself.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and held that the non-party can not seek compensation for damages from the defendant on the ground that the defendant's failure to obtain permission from the supervisory authority in the above act of bearing the above obligation is a tort against the defendant on the ground that the defendant's act of collecting and investing the construction costs of the educational facility of this case is an alternative to raise funds in a regular manner with permission from the supervisory authority, and the non-party proposed that the above educational facility be treated as being donated by the constructor without permission from the supervisory authority, and led the practical work. In light of the above facts, the non-party cannot be seen as actively participating in the above investment and the return agreement of the defendant on the above investment without permission from the supervisory authority, and in light of the above facts, the non-party cannot claim compensation for damages from the defendant on the ground that the defendant's act of collecting the above obligation is an unlawful act without permission from the supervisory authority. In light of the records, we find that there is no error in the misapprehension of legal principles as to the grounds for appeal and the grounds for appeal.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)