[1] Where a school foundation trades fundamental property, whether it must obtain permission from the supervisory authority prior to the establishment of a sales contract (negative)

[2] In a case where a school foundation entered into a contract for sale of basic property without permission from a supervisory authority, whether the purchaser can file a claim for registration of transfer of ownership under the conditions of permission from the supervisory authority (affirmative

[1] The purport of Article 28(1) of the former Private School Act (amended by Act No. 4226, Apr. 7, 1990) is not to regulate contracts on basic property of school juristic persons itself, but to regulate transfer of rights or creation of security rights and leases to another person in the future without permission of the supervisory authority in order to maintain and preserve the basic property which serves as the financial basis of the school juristic persons establishing and operating private schools. Thus, it does not necessarily require permission of the supervisory authority prior to the formation of contracts, such as sale of basic property, and even after the formation of contracts, contracts, such as sale, are valid when permission of the supervisory authority is obtained.

[2] In a case where a school foundation entered into a contract of real estate sale, which is an endowment, without permission of the supervisory authority, and moves the school operated in the real estate to a new building and completes the completion inspection with permission of the supervisory authority, even if the above contract was concluded without permission of the supervisory authority and has no effect yet, the legal relation which serves as the basis for the right to claim the execution of the procedure of ownership transfer registration based on the above contract can be deemed to exist, and there is also sufficient probability that the claim may occur according to permission of the supervisory authority. Thus, the purchaser may request the execution of the procedure of ownership transfer registration subject to permission of the supervisory authority

[1] Article 28 (1) of the former Private School Act (amended by Act No. 4226 of April 7, 1990) / [2] Article 229 of the Civil Procedure Act, Article 28 (1) of the former Private School Act (amended by Act No. 4226 of April 7, 1990)

[1] Supreme Court Decision 86Meu2534 delivered on April 28, 1987 (Gong1987, 887)

The World Climate Society Maintenance Foundation (Attorney Yoon Young-chul et al., Counsel for the defendant-appellant-appellee)

School Foundation Sung-young School

Daejeon High Court Decision 94Na3566 delivered on May 14, 1996

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

Article 1 of the former Private School Act (amended by Act No. 4226 of Apr. 7, 190) provides that the purpose of this Act is to ensure the sound development of private schools by securing the independence and promoting the public nature in light of the unique characteristics of private schools. Article 28(1) of the above Act provides that a school foundation shall obtain permission from the supervisory authority when it intends to sell, donate, lease, exchange, provide security, etc. of its basic property, and Article 28(2) of the Enforcement Decree of the above Act provides that any property directly used for education within a certain period of time, such as school site, teachers, gymnasiums, physical training, or research facilities, shall not be sold or offered as security. In light of the above provision, the purport of Article 28(1) of the above Act is not to regulate the contract of basic property of the school foundation, but to newly establish and sell the basic property of the school foundation in order to maintain and preserve the basic property which is the financial basis of the school foundation that established and operated the school without permission, and thus, it shall be deemed that the school foundation has already purchased and sold the real property without permission.

Therefore, even if the Plaintiff entered into the instant sales contract with the Defendant without the permission of the supervisory authority, it is reasonable to view that the Plaintiff, as long as it is necessary to make the claim in advance, may claim the execution of the procedure for the registration of ownership transfer on the instant real estate under the conditions of the permission of the supervisory authority.

Nevertheless, the court below rejected the plaintiff's claim of this case claiming the execution of the procedure for ownership transfer registration on the ground that the contract of this case was null and void, on the ground that the defendant did not have the permission of the supervisory authority for the sale of the real estate of this case to the plaintiff. The court below erred by misapprehending the legal principles on future performance litigation and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The arguments pointing this out

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of 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 Cho Chang-hun (Presiding Justice)