Legal nature of the permission to amend the articles of incorporation of a social welfare foundation (i.e., discretionary act) and whether the father is permitted (affirmative)

In light of the legislative purport of the former Social Welfare Services Act (amended by Act No. 5358 of Aug. 22, 1997) with the aim of contributing to the promotion of social welfare by prescribing the basic matters concerning social welfare services and promoting the fairness and division of their operation, and the fact that no specific standard is provided for in Articles 12 and 25 of the same Act concerning permission to amend the articles of incorporation after the establishment or establishment of a social welfare foundation, etc., whether to permit the amendment of the articles of incorporation of a social welfare foundation shall be decided at a discretion according to the policy decision of the competent authority. In granting permission to amend the articles of incorporation, the competent authority may attach additional clauses to the extent that it conforms to the principle of proportionality and the principle of equality and to the extent that the intrinsic effect

Articles 1, 12 (see current Article 16), and 25 (see current Article 17(2)) of the former Social Welfare Services Act (amended by Act No. 5358 of Aug. 22, 1997), Article 27 of the Administrative Litigation Act

Social welfare foundation ○○ (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Busan Metropolitan City Mayor (Law Firm Sejong, Attorneys Song Jae-il, Counsel for the plaintiff-appellant)

Busan High Court Decision 99Nu3294 delivered on May 26, 2000

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below decided that since the plaintiff, a social welfare foundation, established and operated a mother and child welfare facility and infant nursery facility and established and operated a △△ kindergarten as a profit-making business around December 195, Article 4 (2), which is a provision for the type of business of the plaintiff's articles of incorporation, applied for permission to amend the articles of incorporation to add the contents that include the lease business of basic property for profit and the establishment and operation of an educational institution for profit-making business, and that the defendant can supplement the basic property reduced as a result of the plaintiff's conversion of the basic property into a profit-making business on March 23, 1996, the above disposition of the above 350,000,000 won as basic property for the purpose of the above establishment, and that the above disposition of the △△△△△△△△ is invalid because it did not constitute an unlawful act of the plaintiff's modification of the articles of incorporation by attaching the above 200,000 articles of incorporation permit to the above 9.

However, in light of the legislative purport of the Social Welfare Services Act (amended by Act No. 5358 of Aug. 22, 1997) with the aim of contributing to the promotion of social welfare by prescribing basic matters concerning social welfare business and promoting the fairness and division of its operation, and the fact that there is no specific standard for granting permission to amend the articles of incorporation after the establishment or establishment of a social welfare foundation under Articles 12 and 25 of the same Act, etc., whether to grant permission to amend the articles of incorporation of a social welfare foundation is subject to discretion according to the policy decision of the competent authority. In addition, in granting permission to amend the articles of incorporation, the competent authority may attach additional clauses to the extent that it conforms to the principle of proportionality and the principle of equality and to the extent that the intrinsic effect of

Nevertheless, the court below held that the permission to amend the articles of incorporation of a social welfare foundation belongs to the binding discretion of the administrative agency, and even if the binding discretion cannot be attached to the administrative agency, it is null and void, so the above vice officer attached to the above articles of incorporation permission cannot revoke the permission to amend the articles of incorporation on the ground that the plaintiff did not perform his/her obligations prescribed in the above vice officers, on the premise that the above vice officers are null and void. Thus, the court below erred in the misapprehension of legal principles as to the permission to amend the articles of incorporation and the limit of vice officers.

The ground of appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, 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 on the bench.

Justices Lee Jin-hun (Presiding Justice)