(영문) 대전지방법원 2020.7.16.선고 2019구합102382 판결

Of the corrective order issued to the Plaintiff on December 31, 2018, the part that the Defendant ordered the Plaintiff to transfer the sum of KRW 1,375,474,780 from the corporate accounting to the school expense account is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is an educational foundation that establishes and operates B University in a river.

B. On July 17, 2015, the head of Seoan-gu Office imposed a penalty surcharge of KRW 1,322,610,780 on the Plaintiff on the ground that the Plaintiff constitutes a long-term non-registered person who violated Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) by failing to complete the registration of ownership transfer concerning the instant real estate within three years from the date the Plaintiff paid all remainders to Seoan-gu, Seoan-gu, Seoan-gu and 32 parcels (hereinafter “instant real estate”).

C. On April 7, 2016, the Plaintiff filed a lawsuit seeking revocation of the imposition of the instant penalty surcharge with the Daejeon District Court. However, on January 26, 2017, the said court dismissed the Plaintiff’s claim on the ground that “the Plaintiff did not file an application for the registration of ownership transfer within three years from the date of the remainder payment of the instant real estate, and thus constitutes a long-term unregistered person.” Since the Plaintiff was aware that there was no exception to acquiring farmland at the time of the purchase of the instant real estate, the statutory disability that the Plaintiff cannot obtain the qualification certificate is due to the Plaintiff’s cause attributable to the Plaintiff, and thus it cannot be deemed that there was a justifiable reason for not filing an application for the registration under the proviso of Article 10(1) of the Real Estate Real Name Act (Seoul District Court Decision 2016Guhap101456), the appellate court dismissed the Plaintiff’s appeal (Seoul High Court Decision 2017Nu106455), and the said judgment became final and conclusive through the Supreme Court (Supreme Court Decision 2017Du

D. The Plaintiff deemed that the said penalty surcharge constitutes the expenses for the installation of facilities directly necessary for education at B University, and subsequently executed the total of KRW 1,345,474,780, including the penalty surcharge and related administrative litigation expenses, from August 17, 2015 to October 17, 2017.

E. From July 24, 2018 to August 3, 2018, the Defendant comprehensively audited B University established and operated by the Plaintiff from July 24, 2018 to August 3, 2018. On December 31, 2018, the Plaintiff: (a) was responsible for the Plaintiff from August 17, 2015 to October 17, 2017; and (b) executed the total amount of KRW 1,345,474,780 (hereinafter referred to as “instant expenses”) including other penalty surcharges and related administrative litigation expenses not directly required for school education, on the ground that “the Plaintiff transferred KRW 1,375,474,780 from the corporate accounts to the school expenses” (hereinafter referred to as “instant corrective order”).

The current status of accounting execution of school expenses, such as unregistered penalty surcharges for the long term of real estate and litigation performance expenses.

A person shall be appointed.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Plaintiff purchased the instant real estate for the purpose of securing a site for the expansion of educational facilities of B University. As such, the long-term unregistered penalty surcharges for the instant real estate and all related expenses incurred in the process of acquiring the instant real estate fall under Article 13 (2) 2 of the Enforcement Decree of the Private School Act and constitutes an item of school expenses accounting expenditure for the expenses incurred in acquiring the instant real estate.

Therefore, on the premise that the instant disposition is not an item for school expenses accounting expenditure, there is an error of law by erroneously applying the statutes, or by deviating from and abusing discretionary power.

3. Relevant statutes;

The entries in the attached statutes are as follows.

4. Whether the instant disposition is lawful

A. Relevant legal principles

Article 29 of the Private School Act classify the accounts of school juristic persons into those of schools established and operated by them, and classify them into those of the juristic person (Article 1). The matters concerning the revenue and expenditure of the accounts while keeping accounts belonging to schools without affiliated hospitals into school expenses, shall be determined by Presidential Decree, and tuition fees and other charges shall be managed by the revenue of school expenses and shall be managed in a separate account (Article 2). The strict distinction between the accounts of school juristic persons and the accounts of school expenses is made.

Article 13(2) of the Enforcement Decree of the Private School Act, which provides for matters concerning the expenditure of the accounts for school expenses upon delegation under Article 29(2) of the Private School Act, provides that the expenditure of the accounts for school expenses shall be the expenses prescribed in each subparagraph thereof. Article 13(2) of the Enforcement Decree of the same Act provides that the expenditure of the accounts for school expenses shall be the expenses for personnel and goods necessary for school operation, the expenses for the facilities and equipment required directly for school education under subparagraph 2, and other expenses directly required for school education under subparagraph 5. Thus, whether the expenditure of the accounts for school expenses that are allowed by the revenue of the accounts for school expenses constitutes the expenditure of the accounts for school expenses that are allowed shall be determined by comprehensively considering all the circumstances related to the relevant expenditure (see, e.g., Supreme Court Decisions 2011Do12408, May 10, 201; 201Du7138, Feb.

B. Determination

In light of the following circumstances acknowledged by comprehensively considering the aforementioned facts and the purport of the evidence Nos. 1, 2, and 3 as well as the entire arguments, the instant disposition is justifiable for the reason that the instant expenses do not constitute “expenses for the installation of facilities directly needed for school education” under Article 13(2)2 of the Enforcement Decree of the Private School Act, and that it does not constitute an item for expenditure of school expenses under Article 13(2) of the Enforcement Decree of the Private School Act, and it is difficult to view that the instant expenses do not constitute an item for expenditure of school expenses, and therefore, the instant disposition to transfer the relevant expenses from the corporate accounts to school expenses is not an item for expenditure of school expenses, and there is no violation of law that deviates from or abused the discretionary power.

1) The instant expenses were incurred due to the Plaintiff’s prolonged neglect of the registration of the instant real estate after purchasing the instant real estate. Even if the Plaintiff purchased the instant real estate in order to secure a site for the expansion of educational facilities of B University, it is difficult to deem that the Plaintiff appears to have a cause attributable to the Plaintiff for not having registered the instant real estate for a long time, such as the purchase of the instant real estate, while it appears that the Plaintiff had a justifiable reason for not filing a long-term application for the registration of the instant real estate, even though it was aware that the Plaintiff would not have obtained the qualification certificate for acquisition of real estate

2) Some of the costs of this case were used for administrative appeal and administrative litigation against the instant penalty surcharge imposition. The instant penalty surcharge imposition disposition is merely against the Plaintiff, not against the school juristic person, and the Plaintiff did not assert that the instant penalty surcharge imposition disposition should belong to an educational foundation, not the Plaintiff, in the course of disputing the legitimacy of the instant imposition of penalty surcharge. In addition, the Plaintiff became final and conclusive that the instant penalty surcharge imposition disposition will belong to the Plaintiff by losing all of the aforementioned administrative appeal and administrative litigation.

3) Considering the purport of Article 29 of the Private School Act intending to faithfully provide private school education and protect students’ right to learn by preventing the insolvent accounting of private schools and enhancing the financial soundness thereof, the imposition of the instant penalty surcharge by the Plaintiff’s duty, which led to the instant imposition of the instant penalty surcharge, and the instant expenses, which are 1.3 billion won higher than the Plaintiff’s private interest that can be gained by enhancing the financial soundness of private schools and treating the instant expenses in the accounts of school expenses.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.