[1] Legislative intent of Article 28(1) of the Private School Act which provides that when a school foundation intends to bear obligations, it shall obtain permission from the competent agency

[2] The case holding that the above guarantee insurance contract does not constitute an act of bearing the obligation under Article 28 (1) of the Private School Act, in a case where Gap corporation entered into a guarantee insurance contract with Eul insurance company for the payment of deposit for restoration expenses due to conversion of a mountainous district with Eul insurance company, and Eul corporation agreed to indemnify Eul company for the payment of the insurance money to Byung corporation after Eul paid the insurance money under guarantee insurance contract to Byung local government

[1] The purpose of Article 28(1) of the Private School Act is to ensure the sound development of private schools by ensuring smooth management, maintenance, and protection of the school foundation’s property when the school foundation intends to bear the obligations. Therefore, the amount of the obligations under the above provision should be determined specifically in comparison with its purpose, and all legal acts that the school foundation bears the obligations can not be determined uniformly.

[2] Where Gap corporation entered into a guarantee insurance contract for the payment of expenses for restoration to original state upon Eul's conversion with Eul insurance company during the process of new construction of a school, and Eul corporation claimed reimbursement against Eul corporation after paying insurance money to Byung local government under guarantee insurance contract, the case holding that Gap corporation's obligation to deposit expenses for restoration to original state is not an obligation to obtain permission from the competent agency pursuant to Article 28 (1) of the Private School Act, since Gap corporation's obligation to deposit expenses for restoration to original state is merely an obligation to deposit expenses for restoration to original state, and it cannot be deemed that Gap corporation's obligation to deposit expenses for restoration to original state, and it cannot be deemed that Gap corporation's obligation to directly pay expenses for restoration to original state due to the occurrence of a new obligation to deposit expenses for restoration to original state under Article 28 (1) of the Private School Act, and the above guarantee insurance contract is also an obligation to deposit expenses for restoration to original state, which is merely an obligation to directly pay expenses for restoration to original state to Byung to the competent agency.

[1] Article 28 (1) of the Private School Act / [2] Article 28 (1) of the Private School Act, Articles 38 and 39 of the Mountainous Districts Management Act

[1] Supreme Court Decision 2000Da2344 delivered on September 5, 200 (Gong2000Ha, 2090)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Barun, Attorneys Park Tae-tae et al., Counsel for the defendant-appellant)

School juristic persons and the Gu Private Teaching Institutes

Daegu District Court Decision 2017Na301597 Decided September 14, 2017

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The plaintiff's ground of appeal No. 1

A. On the grounds indicated in its reasoning, the lower court determined that the Defendant’s conclusion of the instant guarantee insurance contract that “if the Plaintiff pays the insurance money to the Plaintiff when the Plaintiff was the insured, the Defendant’s promise to pay the insurance money to the Plaintiff” constituted an act of bearing the Defendant’s liability and constitutes an act of bearing the obligation necessary for the competent agency’s permission pursuant to Article 28(1) of the Private School Act in substance, and dismissed the Plaintiff’s primary claim by deeming the instant guarantee insurance contract as null and void on the ground that there was no permission from the competent

B. However, we cannot accept the above determination by the court below for the following reasons.

1) The purpose of Article 28(1) of the Private School Act is to ensure the sound development of private schools by ensuring smooth management, maintenance, and protection of the property of the school juristic person when the school juristic person intends to bear the obligations of the competent agency. Therefore, whether the above provision constitutes the obligation of the school juristic person should be determined specifically in comparison with its purpose, and all juristic acts that the school juristic person bears the obligation of the school juristic person uniformly cannot be determined (see Supreme Court Decision 2000Da2344, Sept. 5, 200, etc.).

2) Considering the above legislative intent and the record as well as the following circumstances revealed, it is reasonable to view the instant guarantee insurance contract concluded with the Plaintiff does not constitute an act of bearing obligations under Article 28(1) of the Private School Act, which is subject to permission by the competent agency under Article 28(1)

A) The Defendant, who obtained permission for mountainous district conversion, is obligated to deposit recovery expenses for school facilities projects under the Management of Mountainous Districts Act or notification of the deposit of recovery expenses for mountainous districts in the old and mountainous districts market, not arising from legal acts. Therefore, the Defendant’s obligation to deposit mountainous district recovery expenses cannot be deemed as the Defendant’s obligation to obtain permission from the competent authorities under Article 28(1) of the Private School Act.

B) Even if the Defendant deposits mountainous district recovery expenses in cash, it is merely a performance of the Defendant’s duty to deposit mountainous district recovery expenses, and thus, cannot be deemed as an act of compulsory performance subject to permission by the competent agency under Article 28(1) of the Private School Act. Furthermore, the instant guarantee insurance contract also aims to substitute the Defendant’s direct cash deposit of mountainous district recovery expenses, and is merely an incidental to the notification, etc. of the deposit of mountainous district recovery expenses in the

C) The Defendant’s duty to recover a mountainous district, which was granted permission for mountainous district conversion, is only derived from Articles 39 through 42 of the Management of Mountainous Districts Act, and does not arise from legal acts. Therefore, it cannot be deemed that the Defendant’s duty to recover a mountainous district is an object of permission from the competent authorities

D) In the event that an insured incident occurred after the conclusion of the instant guarantee insurance contract, and the Plaintiff pays the insurance proceeds to the Plaintiff, the Defendant bears a liability for reimbursement equivalent to the amount paid to the Plaintiff. The amount of payment is cost incurred in designating an agent for recovery and on behalf of the Defendant, depending on the fact that the Defendant did not directly perform the duty of recovery from the mountainous district, and is merely of the nature that the Defendant should have originally borne as a person responsible for recovery from the mountainous district. Accordingly, the Defendant’s conclusion of the instant guarantee insurance contract does not lead to the Defendant’s additional obligation

3) Nevertheless, the lower court determined otherwise and dismissed the Plaintiff’s primary claim. In so determining, the lower court erred by misapprehending the legal doctrine on Article 28(1) of the Private School Act, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out is

2. Conclusion

Therefore, without examining the remaining grounds of appeal by the plaintiff and the defendant as to the conjunctive claim, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-hyung (Presiding Justice)