2. B

2. The costs of the lawsuit are assessed against the defendant.

(a) A system of internal investigation by the J of the school juristic person and provisional directors;

1) On January 18, 1964, the School Foundation J (hereinafter referred to as the “J”) established by the Network K and established and operated L University, M University, six special schools, two kindergartens, etc., and around 193, disputes between the disputing members and N(O and N) have occurred between the disputing members in relation to the appointment of the president of L University.

2) On February 22, 1994, the defendant revoked the approval of the appointment of directors for all the officers of J and appointed a temporary director. The defendant has replaced the temporary directors whose expiration date has expired as new temporary directors.

(b) Process of normalization by J;

1) On November 1, 201, the Private School Dispute Mediation Committee decided to appoint the Plaintiffs, Qu (N), P, R (P) and S (Defendant Recommendation) as a regular director. Accordingly, the Defendant appointed regular directors, (term: November 1, 2011 to October 31, 201) and temporary directors.

2) On October 31, 2012, the Defendant appointed U as a temporary director on November 8, 2012, following a resolution by the Private School Dispute Mediation Committee (Seoul Administrative Court Decision 2012Guhap43246, Seoul High Court Decision 2013Nu15912) of the term of office of the temporary director T (U). The Defendant revoked on December 30, 2012 on the ground that the grounds for appointing temporary directors against J were eliminated (Seoul Administrative Court Decision 2012Guhap43246, Seoul High Court Decision 2013Nu15912).

C. The defendant's approval of taking office and the revocation lawsuit against the defendant

1) On March 14, 2014, the Defendant revoked approval of taking office for Plaintiffs, Q (hereinafter referred to as “Plaintiff, etc.”) and Q (hereinafter referred to as “Plaintiff, etc.”) on the ground that “the dispute between executives may seriously obstruct the operation of the school, not appointing vacant executives, not appointing the head of a school who is established and operated, not recommending candidates for temporary directors who have expired their terms of office, and not taking office in a school that is established and operated.”

2) The Plaintiff, etc. filed a lawsuit against the Plaintiff, etc. seeking revocation of the approval of taking office of the Plaintiff, etc. on November 20, 2014, and the judgment against the Plaintiff, etc. was rendered on November 20, 2014 (Seoul High Court Decision 2014Guhap54691). On October 16, 2015, the appellate court rendered a favorable judgment against the Plaintiff, etc. on the grounds that “the disposition is illegal as it does not meet the requirements for revocation of the approval of taking office of the Plaintiff, etc., and it is against the principle of proportionality because it is too large to the public interest to be achieved even if the grounds for the disposition are recognized as part of it, and thus is contrary to the principle of proportionality (Seoul High Court Decision 2014Nu72691), and the validity and enforcement of the said disposition were suspended until the judgment becomes final and conclusive (Seoul High Court Decision 2015Da12844), and the above appellate court judgment became final and conclusive on December 28, 2015, 2017.

D. The defendant's disposition of appointing temporary directors in 2016 and revocation litigation against them

1) On July 31, 2015, the Defendant appointed V, W, X, X, Y, Z, AB as a temporary director of the J. On January 29, 2016, the Defendant made a disposition of reappointment for the said temporary directors.

2) On July 22, 2016, the Plaintiff et al. sought revocation of the above provisional director selection and appointment disposition, and accordingly, the Plaintiff et al. recovered the status of director following the decision to suspend execution, and thus, the Defendant’s selection and appointment of seven provisional directors was rendered a favorable judgment against the Plaintiff et al. on the ground that it was a disposition contrary to the decision to suspend execution (Seoul Administrative Court Decision 2016Guhap53647). The above judgment was dismissed and final and conclusive as it is (Seoul High Court Decision 2016Nu60937, Supreme Court Decision 2016Du

Meanwhile, while the court of first instance rendered a favorable judgment against the plaintiff et al. as above, it dismissed the application for suspension of execution of the plaintiff et al. (Seoul Administrative Court 2016 A10189, 2016 A2120). The appeal filed by the plaintiff et al. but all of them were dismissed (Seoul High Court 2016do1181, 2016do1345).

E. The defendant's disposition of appointing temporary directors in 2017 and revocation litigation against them

1) On January 26, 2017, the Defendant appointed AA, AC, X, AB, AD, and AE and AF as temporary directors of J on February 1, 2017.

2) On September 29, 2017, the Plaintiff et al. filed a lawsuit seeking revocation of a provisional director appointment disposition and rendered a judgment against the Plaintiff et al. (Seoul Administrative Court 2017Guhap60925).

The plaintiff et al. appealed against the judgment of the first instance court. On February 2, 2018, the appellate court rendered a declaration of termination of the lawsuit against Q. On May 29, 2018, the appellate court rendered a declaration of termination of the lawsuit against Q. The decision was revoked by the ruling on March 14, 2018, and its validity and enforcement was suspended. As the plaintiff et al. recovered from the position of the J director again, the provisional director appointment disposition against AD, AE, and AF was unlawful. Accordingly, the provisional director appointment disposition against AD, AE, and AF is unlawful. Accordingly, one of the four directors who are the majority directors of J, only one temporary director who is the mother and child, but only one of the temporary directors whose grounds for appointment did not exist, and thus all of the remaining provisional directors appointment disposition was unlawful (Seoul High Court Decision 2017Nu76366, May 29, 2018).

F. Disposition of appointing temporary directors in 2018 by the defendant

The Defendant, on February 14, 2018, appointed C.D, E, F, G, H, and I as temporary directors (term of office: from February 14, 2018 to February 14, 2019) pursuant to Article 25 of the Private School Act, on the ground that the term of office of the Plaintiffs had already expired and the Plaintiffs cannot jointly select and appoint a replacement director (hereinafter “instant disposition”).

[Judgment of the court below] Facts without dispute, Gap's evidence of subparagraphs 1 through 5, and the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. Determination

A. Article 25(1) of the Private School Act provides that a temporary director shall be appointed after deliberation by the Private School Dispute Mediation Committee in accordance with Article 20-2 of the Private School Act for a director who exceeds the quorum of the board of directors under Article 18(1) of the Private School Act due to the lack of the competent agency to fill the vacancy of a director (Article 25(1) of the Private School Act). The purpose of this provision is to prevent a violation of the right of education by appointing a temporary director and normalization of a school juristic person in case where a school juristic person is unable to perform its functions due to a cancellation of approval for taking office for a director who is in operation by a regular director, or where the board of directors becomes unable to perform its functions due to a cancellation of approval for taking office for a director who is in excess of the quorum.

Article 25(2) of the Private School Act provides that temporary directors shall endeavor so that the grounds for appointment of temporary directors may be removed as soon as possible (Article 25(2)), and the competent authorities shall immediately dismiss temporary directors and appoint regular directors when the grounds for appointment of temporary directors cease to exist (Article 25-3(1)). In principle, minimizing the term of office of temporary directors and ensure that regular directors operate the board of directors. Therefore, in cases where temporary directors are appointed pursuant to Article 25(1) of the Private School Act, it is reasonable to deem that only temporary directors can be appointed by meeting the quorum of the board of directors unless it is deemed necessary to appoint a large number of temporary directors.

B. The Defendant’s revocation of the approval of taking office for all of the above five directors on March 14, 2014 when the number of the seven directors of J remains. On October 16, 2015, the appellate court rendered a ruling revoking the approval of taking office for the Plaintiff, etc. on the ground that the said ruling became final and conclusive upon the dismissal of dismissal on October 28, 2017. As seen above, inasmuch as the revocation of the approval of taking office for the Plaintiff, etc. was revoked by the ruling, the Plaintiff, etc. whose approval of taking office was revoked by the ruling was restored to the position of the J director, and Qu died on or after the beginning of February 2018 (the date of entry, February 12, 2018), and at the time of the instant disposition (the date of the provisional director’s taking office, February 14, 2018).

C. Of course, the plaintiffs alone are true that the quorum for the selection and appointment of a successor director is insufficient, or there seems to be a considerable portion of the reasons attributable thereto among the reasons attributable thereto to the defendant (the fact that the defendant continues to appoint a senior director without proper appointment of a senior director, and the dispute between the senior directors continues to exist and impedes the operation of the school is causing interference with the operation of the school). In such circumstance, the plaintiffs continue to perform their previous duties until the appointment of a successor director or an auditor is completed, and the right to urgently handle the selection and appointment of a senior director is recognized (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007). In addition, the provisional director appointed by the defendant has no authority to appoint a senior director (see, e.g., Supreme Court en banc Decision 2006Da19054, May 17, 207).

D. As long as the appointment of 7 temporary directors appointed as the instant disposition could not identify 5 temporary directors of which the grounds for appointment do not exist among 7 temporary directors appointed by the said disposition, the appointment of the above 7 temporary directors is all unlawful.

4. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

Judges Lee Jae-he

Judges