Law Firm Maak, Attorney Park Man-ok

Attorney Choi Young-ho

Law Firm Hun-Ba, Counsel for defendant-appellant

Attorney Jeon-ho

2. The plaintiff's main claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

A. The Plaintiff is an educational foundation that establishes and operates a 'C University' located in the Seoul Metropolitan City of Jeonju (hereinafter referred to as the 'C University of this case').

B. From April 18, 2018 to April 28, 2018, from May 23, 2018 to May 25, 2018, the Defendant audited the Plaintiff and the University of this case. On December 5, 2018, the Defendant notified the Plaintiff of the 15 audit results as stated in the attached disposition list, as well as the measures to be taken, and ordered the Plaintiff to implement the measures and to take the measures within 60 days from the date of receipt of the notice of the audit results (hereinafter referred to as “each disposition of this case”).

C. The written disposition (Evidence A No. 1) issued by the Defendant to the Plaintiff at the time of each of the instant dispositions, where it is deemed that the request for the disposition of the Educational Department is illegal or unjust, the Defendant may apply for review to the Defendant within one month from the date of receipt of the notice pursuant to Article 21 of the "Audit Regulations of the Educational Department", and it is not known that the Defendant may file an administrative appeal within 90 days from the date of receipt of the notice pursuant to Article 27 of the Administrative Appeals Act.

D. Accordingly, on January 4, 2019, the Plaintiff filed an application for re-deliberation with the Defendant, and on January 21, 2019, submitted an application for re-deliberation along with additional documentary evidence.

E. On April 1, 2019, the Defendant dismissed the application for reexamination, and the Plaintiff filed the instant lawsuit on May 9, 2019.

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

2. Judgment on the claim for the main claim (the claim for confirmation of invalidity)

A. The plaintiff's assertion

Each of the dispositions of this case are procedural and practical defects as follows, and its degree is serious and clear, and each of the dispositions of this case is null and void.

1) procedural defect

The Defendant did not give prior notice under Articles 21(1) and 22(3) of the Administrative Procedures Act to the Plaintiff prior to each disposition of the instant case and did not provide the Plaintiff with an opportunity to present his opinion.

2) The substantive defect (as the plaintiff asserts that there is a substantive defect that constitutes invalidation or cancellation of each of the dispositions of this case, the plaintiff asserts that there is a substantive defect that constitutes a defect in the separate disposition of this case, 8, 9, 1 and 1, and the part of the disposition time (the specific reason for the disposition is as stated in the separate sheet as a result of the audit).

(A) Payment of remuneration, such as the president, once a year

(1) Appropriateness of payment of remuneration for the president: Although D, the president of the instant university, was paid benefits from a school enterprise (E), according to Article 50 of the Plaintiff’s Articles of Incorporation, which was enforced on December 26, 2014, appointed by the said president, the remuneration for the president was not a resolution of the board of directors. Moreover, the Plaintiff’s president, on February 26, 2015, reported that the president shall continue to pay benefits he/she received from a school enterprise, and obtained approval by the president on April 29, 2015, is lawful.

(2) On February 26, 2015, the first meeting of the 11st meeting of the board of directors (hereinafter “G kindergarten”) paid the F’s wages to G kindergarten attached to the instant university (hereinafter “G kindergarten”), and approved to pay the statutory charges in high cost. On April 29, 2015, the first meeting of the board of directors appointed F as the president of the G kindergarten. On May 1, 2015, the first meeting of the board of directors entered into an annual salary contract. As a result, the annual salary pay, allowances, and job subsidy was borne by G kindergarten, and the “private school pension corporation” was borne by each of the instant universities. As such, there is no problem in this part of the remuneration.

B) Execution of school business accounts, including performance compensation (9)

(1) The appropriateness of the payment of performance compensation to school enterprises E: It is recognized that the accounting books of the person in charge are arbitrarily discarded, but the "net profit" under Article 21 of the Regulations on Operation of CSchool Enterprises (hereinafter referred to as the "Operational Regulations of this case") refers to the "net earned surplus carried forward, not the "net profit per capita", so it is appropriate to pay the performance compensation after determining the payment of the compensation amount through the meetings of the management committee of the university enterprise of this case and the meetings of the office and the head within the scope of 10% of cumulative earned surplus. The defendant accused D, the president of the university of this case, who was the president of the university of this case, as a violation of the Private School Act in relation to the matters pointed out in this part, but the former District Public Prosecutor's Office was not guilty of non-prosecution disposition on June 18,

(2) The appropriateness of the payment of the official fees of the H Center for school enterprises: The Plaintiff may organize and operate a steering committee for each school enterprise pursuant to Article 3(2) and (3) of the Guidelines for the Operation of the H Center for School Enterprises (hereinafter “Operation Guidelines”). On September 7, 2015, the University Department of Education decided to organize a separate operating committee at the H center for school enterprises, and the person in charge of management constituted the steering committee on April 15, 2016. The representative of the H Center for school enterprises is the president of the university of this case, and the president delegated the authority of final resolution of the H Center to F, the chairperson of the H Center, who is the chairperson of the H Center for the operation of the H Center. Therefore, it is natural that the Defendant filed a complaint against D and F as an occupational embezzlement in relation to this part, but the former State Public Prosecutor’s Office was not subject to disposition of non-prosecution on February 1, 2019 (hereinafter “Public Prosecutor’s Office”).

C) 1 In the case of faculty members other than the president and vice president related to the payment of meeting expenses, etc. relating to their duties, the duties performed by them as members of various committees unrelated to the education, guidance and academic research of students are not their own duties. Accordingly, in relation to the attendance of the meetings of the operating committee of the school enterprises of such teachers and staff, allowances may be paid to them in accordance with the University Operation Guidelines.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Whether procedural defects exist

According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his/her rights and interests, it shall notify the party concerned of the facts and legal basis for the disposition, the purport that the party concerned may submit his/her opinion, and the method of disposal when submitting his/her opinion. In cases where other Acts and subordinate statutes do not stipulate that the hearing shall be held or a public hearing shall be held, the party concerned shall be given an opportunity to submit his/her opinion. However, in cases where an administrative agency does not give such prior notice or give him/her an opportunity to submit his/her opinion, the administrative agency shall not be exempt from revocation due to its illegality, but where prior notice or hearing of opinion is clearly difficult or unnecessary in light of the nature of the relevant administrative disposition (see, e.g., Supreme Court Decision 208Du1499, Feb. 12, 2009).

In each of the dispositions of this case, the defendant is the person who did not give the plaintiff an opportunity to present his opinion without giving a prior notice pursuant to Articles 21(1) and 22(3) of the Administrative Procedures Act. However, each of the dispositions of this case is conducted after the defendant audited the accounting part of the plaintiff and the university of this case, and it also holds the nature of notification of audit results and the auditor's opinion. Thus, it is difficult to see that the plaintiff subject to audit and inspection has a separate notice or an opportunity to present his opinion because it can sufficiently anticipate that the audit results and the auditor's opinion will be expressed. ② If the measures ordered by each of the dispositions of this case are not implemented, it is anticipated that the defendant would undergo procedures prescribed by the Administrative Procedures Act, such as prior notice of cancellation of approval, request for dismissal, etc. of taking office of the Private School Act, and giving an opportunity to present opinions, and ③ it is reasonable to see that the defendant's opinion is not required in light of Article 21 of the Administrative Procedures Act.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether there is a substantive defect

A) As to the assertion on the "number of matters pointed out in the separate disposition list" 8

(1) Regarding the improper information about the payment of total remuneration

According to the overall purport of evidence Nos. 5 and 11, although the articles of incorporation of the Plaintiff was amended before and after the appointment of the president, the president’s remuneration still has been stipulated as the resolution of the board of directors as before and after the amendment of the articles of incorporation. Nevertheless, the following facts can be acknowledged: (a) the president, the executive director, the K, and the president D (hereinafter referred to as the “president, etc.”) without the resolution of the board of directors as stated in the attached audit and inspection report; (b) the president decided to pay money in the name of salary to the president from the school enterprise accounts belonging to the school enterprise accounts belonging to the school expenses accounts; and (c) the part of evidence No. 6 (section 4) against this, it is difficult to believe that the Plaintiff’s payment of remuneration violates Article 50(

(2) With respect to the improper information about the payment of remuneration for teachers holding concurrent office as the head of a kindergarten

According to the above evidence and the statement of Gap evidence No. 14, Article 2 and Article 5-3 of the C University Remuneration Regulations, Article 2 of the C University Remuneration Guidelines for C University Teachers and Staff, and Article 2 of the C University Remuneration Regulations for the C University Teachers and Staff may pay the remuneration of the teachers and staff as annual salary. The annual salary of the teachers and staff shall be determined by the person who has the authority to appoint and dismiss, subject to the resolution of the board of directors, considering the career, etc. of the principal school, etc., and the annual salary of the teachers and staff shall be determined by the person who has the authority to appoint and dismiss after the resolution of the board of directors. In the case of the annual salary system, allowances other than annual salary shall not be paid separately,

The year 2014, held on December 23, 2014, passed a resolution by the board of directors, which was held on December 23, 2014, was to only entrust the president with the matters pertaining to “influences and treatment to the president” to the president. However, according to the contents and recognition of each of the above internal regulations of the university of this case, according to the Articles of Incorporation, the annual salary amount shall be determined by the decision of the board of directors within the scope of “G kindergarten budget or current status,” and the private school pension charges shall be borne by the university of this case, and the allowances and office allowances shall be paid separately from the kindergarten.” The Plaintiff paid the F professor’s annual salary from the kindergarten accounts to the school tuition of the university of this case, while the Plaintiff paid the f professor’s annual salary from the kindergarten accounts. According to the Articles of Incorporation and recognition of each of the above internal regulations of the university of this case, the Plaintiff’s payment of remuneration and the above rules related thereto are unlawful and unjust.

B) As to the argument on the "Annual No." of the attached list of disposition

(1) Concerning the issues pointed out as inappropriate for the payment of performance compensation to school enterprises E;

Article 29 (6) of the Private School Act provides that "The revenues or property belonging to school expenses shall not be transferred or lent to other accounts." In addition, Articles 14 (2), 21, and 22 of the Operating Rules of this case enacted by delegation of Article 40 (2) of the Enforcement Decree of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act may be abolished through the Steering Committee, and the property of an abolished school enterprise shall belong to the university of this case, and the president may pay compensation within 20% of the net income to the school enterprise and the students who have contributed directly to the generation of the income, but the annual compensation per school employee shall not exceed 10% of the net income (Evidence No. 8). However, Article 12 of the Regulations on Accounting of School Enterprises provides that "the standards for the sale of goods or services of school enterprises, dividends, and profits and losses of the enterprise" shall not be the net income of the school enterprise in accordance with the Accounting Rules of the Ministry of Justice.

However, according to the above evidence, although the university of this case decided to abolish E, a school enterprise, as of June 9, 2015, it does not belong to the school expenses accounts, and rather, it pays L, a person in charge of the management of the school enterprise, who is in charge of the management of the school enterprise, much more than 10% of the net income of the above school enterprise in 2014, under the pretext of "performance and compensation" after the end of the fiscal year 2014, and transfers part of it to the Plaintiff's corporate accounts, and the Plaintiff did not keep all documentary evidence related to the payment of performance compensation. Such accounting is unlawful and unfair as it violates relevant provisions, such as the above Private School Act, the instant operating rules, the school enterprise accounting rules, and the school enterprise accounting rules.

Meanwhile, according to the statement on the evidence No. 35, it is acknowledged that D was accused of the violation of the Private School Act in relation to this part, and that D was subject to a disposition of non-prosecution (not guilty of suspicion) by the prosecutor, but the above disposition of non-prosecution was made on the ground that it cannot be deemed that D’s act constitutes a crime of violation of the Private School Act sufficiently proves to the extent that there is no reasonable doubt that it constitutes a crime of violation of the Private School Act. Thus, the administrative

(2) As to the point of pointed out that the payment of the cost of supplying the H Center by a school enterprise is improper

Article 39(1) of the Enforcement Decree of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act provides that "the head of an industrial educational institution shall treat the accounts and accounts of school enterprises fairly in accordance with the principle of double-entry bookkeeping based on objective data and evidence," and Articles 21 and 22 of the Rules on the Finance and Accounting of Private School Institutions provide that "the affairs of the private school institution and the expenditure budget belonging to the school shall not be used for any purpose other than the original purpose." In addition, Articles 6 through 9 of the operating rules of this case provide that "the president shall act as the representative of a school enterprise and appoint a person responsible for the management of school enterprises, and the person responsible for the management of school enterprises shall reflect the management of the school enterprise, and the operating committee shall deliberate on important matters related to the operation of the school enterprise, such as the accounting and settlement of accounts,

However, according to the above evidence, the university of this case constitutes an independent operating committee which is not based on the operating rules of this case within the school business H center on April 15, 2016, separately from the school business operation committee, and the above "school business H center steering committee" decided on September 26, 2016 to pay KRW 1,00,000 per month for the reason that the Chairperson F is performing the duties as the president of the MM association, and then executed on the subjects of "welfare expenses and payment fees" among the school business accounts. Thus, the payment and accounting of the sales fund related to the "H center operating committee of the H center of the school business" violates the above private school institutions finance and accounting rules and the operating rules of this case.

For this reason, the plaintiff may operate a steering committee for each school enterprise in order to deliberate on matters concerning the efficiency and rationality of the operation of each school enterprise under Article 3 (2) and (3) of the operating guidelines of this case. The operating committee for each school enterprise is an organization established based on the provision that "the person in charge of each school enterprise shall obtain the approval of the president." However, it is reasonable to view the above operating guidelines to be invalid because it violates Articles 6 through 9 of the operating regulations of this case, which are the delegation delegation provisions of this case, and was enacted beyond the limits of the delegation. Thus, the plaintiff's above assertion cannot be accepted.

Meanwhile, according to the evidence evidence Nos. 36 and 37, D and F were accused of the crime of occupational embezzlement in relation to this part and received a disposition of non-prosecution (suspected of suspicion) from the prosecutor, but the above disposition of non-prosecution is merely a prosecutor's determination as to whether his act constitutes the crime of occupational embezzlement under the Criminal Act, and it is not directly related to whether the Plaintiff and the university of this case comply with the relevant provisions, such as the operating regulations, etc., while paying money in the name of the above market price, and therefore, it does not interfere with recognizing the grounds for disposition in this part.

C) As to the assertion on No. 10 per annum of the matters pointed out in the separate sheet of disposition

Article 15 (1) and (2) of the Higher Education Act provides that "the president or dean of a university shall exercise overall control over school affairs, supervise school personnel under his/her control, and guide students. Teachers shall educate students, study studies, and, if necessary, may take full charge of education guidance, academic research, or industry-academia-research cooperation under Article 2 (6) of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act, as prescribed by school regulations or the articles of incorporation." Article 21-2 of the Regulations on Regulations of C Universities and Colleges provides that "members shall perform the administrative affairs of schools and other duties under the direction of the president." Article 4 of the Regulations on the Division of Duties of C Universities and Colleges provides that "the matters without the regulations on division of duties of the president shall be handled by division of duties by the order of the president," and Articles 3 and 4 of the Regulations on the Establishment and Operation of C Universities and Colleges may establish a committee as advisory institutions, and the committee may be composed of several chairpersons and members appointed by the president.

According to the aforementioned evidence, the kinds of allowances to be paid to the teachers pursuant to Article 11 of the Regulations on the Remuneration of School Personnel are paid only to the persons eligible for payment, such as bonus, management allowance, etc. The Plaintiff’s meeting held on April 20, 2015, such as advisory fees, meeting expenses, examination expenses, etc. for internal personnel, etc., shall be paid to the teachers who are unrelated to their own duties and do not receive the payment from the school expenses." Nevertheless, the University of this case, from April 2015 to April 2018, established the payment criteria such as the instructor’s allowance, etc., which provides that the Plaintiff’s payment of allowances to the teachers and staff who cannot be said to have performed duties unrelated to their own duties under the pretext of the attendance of the president from April 2018, constitutes a violation of Article 13(1) of the Regulations on the Remuneration of School Personnel. In light of the relevant provisions, the Plaintiff’s payment of the said allowances to the president, etc. by means of cash transfer or deposit account is unfair.

D) Family judgment

As alleged by the Plaintiff, even if there were substantive defects as pointed out by the Plaintiff regarding No. 8,00,10 of each of the dispositions of this case, so long as the Defendant rendered each of the dispositions of this case based on the data secured through lawful audit procedures, the defect alleged by the Plaintiff cannot be deemed to constitute an obvious defect that can be clarified without investigating the facts. Thus, the above assertion by the Plaintiff is without merit on the premise that there is a serious defect in each of the dispositions of this case.

3. Determination as to the legitimacy of the part of the conjunctive claim (a claim for revocation) in the instant lawsuit

A. The defendant's main defense

The Plaintiff filed the instant lawsuit after the lapse of 90 days from the date on which he/she became aware of each disposition of this case ( December 5, 2018) under Article 20(1) of the Administrative Litigation Act.

B. Determination

1) According to Article 20(1) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date on which the plaintiff knew of the disposition, etc., and it is apparent that the lawsuit in this case was filed only after the lapse of 90 days from December 5, 2018, when the plaintiff knew that each disposition in this case was made after being served with a written disposition (Evidence A No. 1) stating the purport of each disposition in this case. Thus, the part of the conjunctive claim in this case among the lawsuit in this case is unlawful as it was filed after the lapse of the period for filing the lawsuit.

The defendant's main defense is reasonable.

2) The Plaintiff’s calculation of the period of filing a suit from the date when the first disposition was known even with the enactment of the review is unfair as it imposes an unexpected disadvantage on the party who filed a lawsuit seeking revocation upon reporting the result of the review and, in particular, the Defendant did not give prior notice under the Administrative Procedures Act and did not comply with the review deadline (2 months) under Article 25(5) of the Public Audit Act and Article 21(3) of the Ministry of Education’s Audit Regulations, so it shall be deemed that the Plaintiff may file a suit seeking revocation within 90 days from April 1, 2019 upon receipt of the decision dismissing the review, and ② the above circumstances constitute “justifiable cause” under Article 20(2) of the Administrative Litigation Act.

However, according to the proviso of Article 20(1) of the Administrative Litigation Act, in a case where a request for administrative appeal is possible, the period of time when the original written judgment is served shall be counted from the date when the original written judgment is served (see, e.g., Supreme Court Decision 201Du10809, Apr. 24, 2014). The term "administrative appeal" refers to a special administrative appeal under the Administrative Appeals Act and a special administrative appeal procedure in lieu of a general administrative appeal as it is particularly necessary in other Acts to consider the expertise and characteristics of the case. The application for review of the Act on Public Audit and Inspection, which forms the basis of each of the dispositions of this case, and the regulations of the Ministry of Education is a procedure that allows the head of the central administrative agency, etc. who has conducted the self-audit to review the legality and appropriateness of the audit results or the requirements subsequent thereto, and thus, the exception of the period of filing a lawsuit is not applicable (see, e.g., Supreme Court Decision 2013Du10809, Apr. 24).

In addition, the plaintiff's assertion that there is "justifiable cause" as stipulated in Article 20 (2) of the Administrative Litigation Act is not accepted in that the issue in this case is not Article 20 (2) of the Administrative Litigation Act but Article 20 (1) of the Administrative Litigation Act.

4. Conclusion

Of the instant lawsuit, the conjunctive claim is dismissed, and the main claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jae-sik

Judge Powers Governing Authority

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.