Disposal of Basic Property of Incorporated Foundation and permission of competent authorities

The articles of incorporation of a foundation shall state the provisions concerning assets pursuant to Article 43 and subparagraph 4 of Article 40 of this Act. Therefore, the disposal of basic assets of the foundation foundation shall not take effect unless the articles of incorporation are modified because the disposal of basic assets of the foundation foundation resulted in an amendment of the articles of incorporation.

Article 42(2) of the Civil Act; Article 40 of the Civil Act; Article 45 of the Civil Act; Article 46 of the Civil Act

Han-gu incorporated foundation

Defendant

Seoul High Court Decision 65Na2544 delivered on July 8, 1966

The original judgment shall be reversed, and

The case is remanded to Seoul High Court.

The grounds of appeal by the Plaintiff’s attorney are examined.

The judgment of the court below is justified in rejecting the plaintiff's claim. The plaintiff's second real estate is the plaintiff's basic property and according to its articles of incorporation Article 6, the disposal of basic property must be approved by the competent Minister with the resolution of the board of directors. In this case, the plaintiff's registration of invalidity is being made as a security without taking such procedures. However, it is argued that the provisions of the articles of incorporation regarding the restriction on disposal of basic property pursuant to the articles of incorporation or the limitation on representative act of corporate director pursuant to the articles of incorporation can not be asserted against the third party unless there is a proof of assertion that the registration was made. Thus, the plaintiff's second second second

However, the articles of incorporation of the Incorporated Foundation shall state the provisions concerning the assets in accordance with Articles 43 and 40 subparagraph 4 of the Civil Act. Accordingly, if the articles of incorporation are not amended because the disposal of basic assets of the Incorporated Foundation is ultimately caused by the amendment of the articles of incorporation of the Incorporated Foundation, the disposal of basic assets of the Incorporated Foundation may not take effect. The amendment of the articles of incorporation of the Incorporated Foundation is null and void (Article 45(3) and Article 42(2) and Article 46 of the Civil Act) without the permission of the competent Minister (Article 45(3) and Article 42(2) of the same Act). If the real estate is asserted by the Plaintiff as basic assets of the Incorporated Foundation, the court below should have determined whether the articles of incorporation of the Incorporated Foundation related to the disposal of the real estate, as in the original sale of the real estate, has been lawfully changed with the permission of the competent authorities. It did not necessarily mean that the restriction on the disposal of basic assets by the Articles of incorporation as alleged by the Plaintiff, or the provisions concerning the restriction on the representative act of corporate director following it cannot be asserted.

Therefore, the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices of the Supreme Court (Presiding Judge) Mag-kim Kim-bun and Magman