[2] Whether a school foundation has the right to request a court to dismiss the head of the school (negative)

Supreme Court Order 97Ma2269 dated October 27, 1997 (Gong1997Ha, 3742)

Expenses for appeal shall be borne by the applicant.

The order of the court below is revoked.

The respondent shall not perform the duties of the principal of the Seocho Middle School. During the period of suspension from office, the teachers of the above school shall perform the duties of the principal on his behalf.

According to the records of this case, the following facts are recognized.

A. The applicant is an educational foundation under the Private School Act that establishes and operates a new middle school located in 872 Silsung-gun, the Gyeongsung-gun, the Gyeongsung-gun, and the applicant held a board of directors on February 5, 1997 and decided to appoint the respondent as the principal of the above school, and appointed the respondent as the principal of the above school on March 1 of the same year with the approval of the Office of Education of Gyeonggi-do, the competent agency.

B. On February 5, 1997, the board of directors of the applicant decided to appoint the respondent as the principal of the above school, and agreed with the respondent to recommend the appointment of the non-applicant as the assistant principal of the above school.

C. After that, on March 10, 1997, the respondent requested the applicant's board of directors to appoint the applicant's leaps other than the above leaps as the assistant principal of the above school instead of the above leapsing, but did not comply with the above request, the respondent had the above leaps perform the assistant principal's duties without the resolution of the board

2. Applicant's assertion

Although the respondent was appointed as the principal of the above school and agreed with the board of directors on the proposal to appoint and appoint an assistant principal of the above school, the respondent asserts that the above leapets may cause irreparable damage to the applicant as a consequence of the strike of the school, such as requesting to appoint and appoint an assistant principal of the above school and allowing the assistant principal to perform his duties without the resolution of the board of directors. Thus, the respondent asserts that the above leapets may cause irreparable damage to the applicant.

3. Determination

(a) The permission of provisional disposition in which a right to demand the dismissal of the head of a school is a preserved right;

A lawsuit seeking dismissal against the head of a school to which a school foundation belongs is a form action aimed at creating the effect of change and formation of existing legal relations, and such form action is permitted only in the case where there are special provisions in law. If there are no legal grounds allowing such dismissal, the suspension of performance of duties and provisional disposition of appointment of an acting person as a preserved right is not allowed (see Supreme Court Order 97Ma269, Oct. 27, 1997).

(b) Whether a school foundation has the right to request a court to dismiss the head;

(1) The head of a private school shall appoint and dismiss a school foundation or a private school manager who establishes and operates the relevant school (Article 53(1) of the Private School Act); where the school foundation, etc. intends to dismiss the head of a school during his term of office, a resolution and a disciplinary action shall be taken upon the resolution of the board of directors with the consent of at least two-thirds of the fixed number of directors (Article 53(2) and Article 61 of the Private School Act). The appointment and dismissal of the principal of the new middle school of this case shall be conducted by the chief director upon the resolution of the board of directors (Articles 27(2)5 and 39(1) of the articles of incorporation of the applicant corporation).

(2) In full view of the above provisions of the Private School Act and the articles of incorporation of an applicant corporation, an applicant may dismiss the respondent through the procedures prescribed in the above Act if there are grounds prescribed in the above Act. In addition, an educational foundation’s request for dismissal from the court without dismissal of the principal of the school through such internal procedures is not allowed without any legal basis.

(c) Conclusion

Therefore, in this case where the applicant does not have the right to claim the dismissal of the respondent to the court, the suspension of the execution of duties and the provisional disposition of the appointment of the acting person shall not be permitted without the need to determine the specific reasons.

4. Conclusion

Therefore, the applicant's application of this case is dismissed due to lack of vindication of the right to be preserved, and the order of the court below that made the same conclusion is just and there is no ground for appeal by the applicant, and it is so dismissed as per Disposition.

Judges Jeon Soo-dae (Presiding Judge)