[1] In a case where in the course of incorporation of an incorporated foundation, only the title holder of the real estate to be reverted to the basic property of the incorporated foundation was agreed on trust, whether such title trust agreement has effect on the newly incorporated incorporated foundation (negative)

[2] In a case where the right to appoint and dismiss a chief executive officer belongs to the incorporated foundation, whether a director of the incorporated foundation or an individual appointed from the incorporated foundation can seek active confirmation of the status of chief executive officer (negative)

[3] In a case where Gap sought confirmation of a widely known status against an individual, such as a director or a Buddhist inspector of Eul's Foundation, the case holding that a lawsuit seeking confirmation of a widely known status may only be brought against Eul Foundation, because the right to appoint and dismiss a widely known status belongs to the Foundation Eul, ultimately, since it belongs to the Foundation Eul

[4] Whether a person can possess land and buildings owned by an independent temple having capacity to be a party, which are not the inspection (negative)

[1] The basic property of an incorporated foundation is an entity of the incorporated foundation. Thus, it is against the purport of the establishment of the incorporated foundation that the donator of the basic property for the establishment of the incorporated foundation vests only in the name of the incorporated foundation, and makes contributions by attaching additional clauses such as reservation to the contributor to the ownership. Thus, the competent authority cannot permit the establishment of the incorporated foundation which uses the attached property as basic property. In addition, even if the contributor agreed to trust only the title of the ownership of the real property that will be reverted to the basic property of the incorporated foundation in the process of the establishment of the incorporated foundation, even though the contributor agreed to trust only the title of the real property that will be reverted to the basic property of the incorporated foundation in the process of the establishment of the incorporated foundation, such title trust agreement remains effective even after the establishment of the incorporated foundation is completed through the permission of establishment of the competent authority and the registration of incorporation without any condition. Thus, if the basic property of the incorporated foundation

[2] In a case where the right to appoint and dismiss a chief executive officer who has the right to manage the temple’s property belongs to an incorporated foundation, in the case of a lawsuit seeking active confirmation of the status of chief executive officer against a third party, not the incorporated foundation, even if the judgment accepting such claim was rendered, the judgment cannot be the most effective and appropriate way to resolve the dispute between the highest parties because it does not affect the incorporated foundation. Thus, there is no benefit in confirmation, and barring special circumstances, barring special circumstances, there is no benefit in seeking confirmation against a chief executive officer who is merely a member of the incorporated foundation or an individual appointed from the incorporated foundation.

[3] In a case where Gap sought confirmation of a widely known status against an individual, such as a director or a Buddhist inspector of Eul's Foundation, the case holding that as long as Eul foundation acquired a complete ownership of land, etc. which is a temple property, the right to appoint and dismiss a widely known person having the right to manage property shall ultimately belong to the Foundation, and that a lawsuit seeking confirmation of a widely known status may only be brought against Eul foundation

[4] Possession of land and buildings owned by an independent temple having capacity to be a party does not belong to the temple itself, and a person who is in the position of well-known person does not possess the land and buildings.

[1] Article 43 of the Civil Code / [2] Article 250 of the Civil Procedure Act / [3] Article 250 of the Civil Procedure Act / [4] Articles 31 and 192 (1) of the Civil Code

[1] Supreme Court Decision 69Da1369 delivered on November 25, 1969 (No. 17-4, 61), Supreme Court Decision 71Da176 delivered on August 31, 1971 (No. 19-2, 259) / [2] Supreme Court en banc Decision 80Da2425 delivered on September 14, 1982 (Gong1982, 97Da4104 delivered on November 27, 1998 (Gong199Sang, 20) / [4] Supreme Court Decision 94Da4562 delivered on January 26, 196 (Gong196, 723)

The secretary and one other (Attorney Kim full-seop, Counsel for the defendant-appellant)

Defendant 1 and two others (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na70344 decided September 1, 2006

The part of the judgment of the court below regarding the plaintiff 2's claim for confirmation against the defendant 1 and 2 shall be reversed, and the corresponding part of the judgment of the court of first instance shall be revoked, and this part of the lawsuit shall be dismissed. The remaining part of the appeal shall be dismissed. All of the appeals by the plaintiff 2 and the appeal by the plaintiff secretary shall be dismissed. The costs of appeal as to the dismissal of appeal shall be borne by the plaintiffs, and

1. As to the ground of appeal by the plaintiff secretary

Since basic property of an incorporated foundation is an entity of the incorporated foundation, it is contrary to the purport of the establishment of the incorporated foundation to vest in the name of the contributor of property in the name of the incorporated foundation, and to contribute actual ownership by attaching additional clauses such as reservation to the contributor. Thus, the competent authority cannot permit the establishment of the incorporated foundation which uses the donated property attached to such division as basic property. In addition, even though the contributor agreed to entrust only the title holder of the real property to be reverted to the basic property of the incorporated foundation in the process of the establishment of the incorporated foundation with the trust of the real property to be reverted to the basic property of the incorporated foundation without any conditions newly established through the permission of establishment of the competent authority and the registration of establishment of the incorporated foundation, if such title trust agreement takes effect only after the completion of the registration of transfer of ownership based on donation of basic property without any conditions newly established through the permission of establishment of the incorporated foundation, it is deemed that the basic property of the incorporated foundation is lost and the existence of the incorporated foundation itself is affected (see, e.g., Supreme Court Decisions 69Da1369, Nov. 25, 19697>

According to the reasoning of the judgment below and the records, the non-party 1 (the non-party 1 omitted) purchased the land of this case on June 29, 1968, and built the "YTT" on the ground of June 21, 1969, and the non-party 1 thereafter completed the registration of transfer of ownership with respect to the land of this case and the previous temple building under the name of the non-party 1 on July 27 and May 31, 1990, and the non-party 1 (the non-party 1 omitted) completed the registration of transfer of ownership with respect to the non-party 1's new property under the name of the non-party 1 (the non-party 2) as the non-party 9's senior secretary on June 27, 198, and the non-party 1 was appointed as the chief secretary of the non-party 1 as the non-party 9's new property and the non-party 2's new property under the name of the non-party 19's new property.

Examining the above facts in light of the legal principles as seen earlier, in the case of the secretary, who was created by Nonparty 1, the registration of ownership transfer was completed in the name of the secretary with respect to the instant land, etc. registered in the name of Nonparty 1, and the establishment of an entity as a non-corporate foundation was made through the process of registering in the end of this case. As to all temple properties including the instant land, etc. contributed to the Defendant Foundation’s fundamental property on December 30, 191, and the Defendant Foundation lost its physical elements by acquiring a complete ownership on December 30, 191, and at that time, the legal nature of the instant land, etc. owned by the Defendant Foundation was converted into one of the simple non-corporate facilities owned by the Defendant Foundation and lost its independent party capacity. In addition, even if there was a stipulation that the secretary should vest only the formal ownership of the instant land, etc. in the process of contributing to the fundamental property of the Defendant Foundation, the agreement affecting the existence of the Foundation itself cannot be acknowledged in relation to the Defendant Foundation, and thus, it cannot affect the establishment of Nonparty 1, etc.

The judgment of the court below to the same purport is just and acceptable, and there is no violation of the rules of evidence, misapprehension of legal principles, omission of judgment, etc. as otherwise alleged in the ground of appeal.

2. As to the plaintiff 2's claim for confirmation against the defendant 1 and 2

This part of the grounds of appeal is examined ex officio prior to the determination.

In a case where the right to appoint and dismiss a chief executive officer who has the right to manage the property of the temple belongs to an incorporated foundation, a lawsuit seeking active confirmation of the status of chief executive officer against a third party who is not the incorporated foundation is not the incorporated foundation, even if the judgment accepting the claim is rendered, since the judgment cannot be the most effective and appropriate way to resolve the dispute between the highest parties because it does not affect the incorporated foundation (see, e.g., Supreme Court Decision 97Da4104, Nov. 27, 1998). Barring any special circumstance, there is no benefit to seek confirmation of the above chief executive officer or individual appointed from the incorporated foundation, who is merely a member of the incorporated foundation, barring any special circumstance (see, e.g., Supreme Court en banc Decision 80Da2425, Sept. 14, 1982; Supreme Court Decision 97Da4104, Nov. 27, 1998).

As seen in Paragraph 1, as long as the Defendant Foundation acquired full ownership of the instant land, etc., which is the temple property of the secretary, the right to appoint and dismiss the chief executive secretary shall ultimately belong to the Defendant Foundation. According to the records, Defendant 1 and 2 shall be the directors of the Defendant Foundation, and Defendant 1 shall be recognized as the chief executive secretary in the Defendant Foundation. Thus, in this case, the lawsuit seeking confirmation of the status of chief executive secretary having the right to manage the temple property may only be brought against the Defendant Foundation.

Thus, the part where Plaintiff 2 filed a lawsuit against an individual, including Defendant 1 and 2, who is merely a director or secretary of the Defendant Foundation, seeking confirmation of a widely known position against an individual, such as Defendant 1 and 2, is deemed unlawful since it was filed against an unqualified person. However, the court below erred by misapprehending the legal principles as to the interest in confirmation, and thus, it cannot be maintained as it is.

3. As to the plaintiff 2's claim for confirmation against the defendant foundation

The court below held that the right of appointment and dismissal of chief executive secretary to exercise the right to manage the temple property belongs to the defendant foundation. Since the plaintiff 2 did not have been appointed as chief executive secretary by the defendant foundation, the part of the right to request confirmation of the status of chief executive secretary is without merit, and whether the non-party 3, who is not entitled to exercise the right to appoint and dismiss chief executive secretary, appointed the plaintiff 2 as chief executive secretary, etc. does not affect its conclusion. In light of the above legal principles, this decision of the court below is just and it is not erroneous in the misapprehension of legal principles as to the right to appoint and dismiss chief executive secretary, and it is not unlawful as

4. As to the request for extradition against Defendant 1 by Plaintiff 2

In the case of an independent inspection with capacity to be a party, possession of the land and buildings owned by it shall not be the inspection itself nor the person in the position of its chief knowledge occupies the land and buildings (see Supreme Court Decision 94Da45562 delivered on January 26, 1996, etc.).

In this case, Plaintiff 2 asserted that Plaintiff 2 is the chief secretary with independent party capacity and sought the transfer of the instant land, etc., which is the property of the inspector of YY. However, even if the above Plaintiff’s assertion is accepted as it is, it cannot be acknowledged that the above right to request extradition cannot be acknowledged to the above Plaintiff, which is merely the chief secretary, to the above Plaintiff. Thus, the above assertion is without merit.

Although the reasoning of the court below is somewhat inappropriate, the conclusion of the court below's rejection of this part of the claim is justifiable, and it cannot be said that there is an error of law such as misunderstanding of legal principles as to the right to claim extradition, as otherwise

5. Conclusion

Therefore, among the judgment of the court below, the part of the claim for confirmation against the defendant 1 and 2 of the judgment of the court below is reversed, and this part of the judgment of the court of first instance is deemed sufficient to be judged directly by the court. Thus, this part of the judgment of the court below is reversed, and the corresponding part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. The appeal by the plaintiff secretary and the remaining part of the appeal by the plaintiff 2 are all dismissed. The costs of appeal and the total costs

Justices Yang Chang-soo (Presiding Justice)