[1] Whether seizure of fundamental property other than school premises, teachers, etc. which a school foundation is unable to sell or offer as security is allowed (affirmative)

[2] Whether an objection against a decision to commence compulsory auction on the grounds of substantive legal relationship is raised (negative)

[1] Article 28 of the Private School Act, Article 12 (1) of the Enforcement Decree of the Private School Act / [2] Article 86 of the Civil Execution Act

[1] Supreme Court Decision 2002Du3669 delivered on May 16, 2003 (Gong2003Sang, 1340) / [2] Supreme Court Order 90Da66 delivered on February 6, 1991 (Gong1991, 1151) Supreme Court Order 94Ma147 Delivered on August 27, 1994 (Gong194Ha, 2529)

School juristic persons shall have the right to receive benefits.

Suwon District Court Order 2003Ra356 dated April 14, 2004

The reappeal is dismissed.

1. The proviso of Article 12(1) of the former Enforcement Decree of the Private School Act (amended by Presidential Decree No. 17854 of Dec. 30, 2002) provides that "Where the school is intended to move the school or consolidate the principal school and the branch school after securing the whole of the school site and part of the basic educational facilities for the improvement of the educational environment, the school site, the school building, and the sports ground, which are directly used for the education of the private school established and operated by the school foundation, shall not fall under the property which cannot be sold by the school foundation or provided as security pursuant to Article 28(2) of the Private School Act."

In light of the records, Pyeongtaek-dong 827-3 School Site 759.4m2 (hereinafter referred to as "the land in this case") is used as the land site before the re-appellant's benefiting in the management of the re-appellant's benefiting in terms of transfer to the 46 and 7 lots of land, but the above school was transferred to the Lee Young-young on March 2, 1994 while the above school site was transferred to the present site, and now, the Lee Young-young operated the benefiting-dong Association. The land in this case is about 2 km as a straight line, about 2.5mm from the school site, and it is impossible to use it as a daily educational facility from the school due to the fact that it is impossible to use it as the re-appellant's property. Thus, it is acceptable to view that the land in this case is not the land of this case, nor the land of this case as the land of this case being sold to the school foundation or the land of this case for which the order of seizure or compulsory sale was prohibited, and it is not the land of this case.

2. According to Article 28(1) and (2) of the Private School Act and Article 12(1) of the Enforcement Decree of the same Act, with respect to fundamental property other than school sites and teachers, etc., where a school juristic person sells, donates, leases, exchanges, exchanges, or provides as security, or where it is required to obtain permission from the competent agency, barring special circumstances such as where it is not possible to obtain permission from the competent agency, the seizure of such fundamental property shall be permitted (see Supreme Court Decision 2002Du3669 delivered on May 16, 2003). The records show that the pertinent land does not fall under the property of a school juristic person which is not able to sell or offer as security, and therefore, it can be known that it obtained permission from the competent agency on February 11, 1995 to transfer the pertinent land from the Office of Education of Gyeonggi-do, which is the competent agency, to the extent that it does not fall under the grounds for re-appeal by the competent agency.

3. Meanwhile, since an objection against a decision on compulsory commencement of auction is a method of appeal against procedural defects regarding the decision on commencement of auction, it cannot be asserted as a ground of objection against the decision on commencement of auction (see Supreme Court Order 94Ma147 delivered on August 27, 1994, etc.). The argument that a claim based on a final and conclusive judgment, a title of execution of the decision on compulsory commencement of auction of this case, a protocol of mediation, or a promissory note with executory power against a private person, who is the former president of the re-appellant, not against the re-appellant, cannot be a legitimate ground for objection against the decision on commencement of auction of this part of the ground for reappeal is without merit.

4. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)