Open Board Director of the Private School Act

[25-2(B) KCCR 398, 2007Hun-Ma1189·1190(consolidated), November 28, 2013]

In this case, the Constitutional Court decided that Article 14 Sections 3 and 4, Article 21 Section 5, Article 25 Section 3, Article 25-3 Section 1, Article 26-2 Section 1, proviso of Article 53 Section 3, Article 54-3 Section 3 of the Private School Act do not violate the basic rights of the complainants. The provisions stipulate respectively, the open board director, open-type auditor, term of temporary directors, normalization of educational foundation for which temporary directors are appointed, university deliberation committee, restriction on reappointment of the head of an elementary school and secondary school, and restriction on appointment of spouse of the head director of educational foundation as the headmaster.

Background of the Case

The complainants are educational foundations (school juristic persons) that establish and administrate a private school, directors or former directors of an educational foundation, heads of school, and enrolled students and their parents of a private school. They filed this constitutional complaint, alleging that their basic rights were violated by the several provisions of the Private School Act revised as Act No. 7802 on December 29, 2005 and the Private School Act revised as Act No. 8545 on July 27, 2007.

Provisions at Issue

The subject matter of review is whether Article 14 Sections 3 and 4, Article 21 Section 5, Article 25 Section 3, Article 25-3 Section 1, Article 26-2 Section 1, proviso of Article 53 Section 3, Article 54-3 Section 3 of the Private School Act (revised as Act No. 8545 on July

27, 2007) are unconstitutional. The provisions at issue are stated as follows:

Private School Act (revised as Act No. 8545 on July 27, 2007)

Article 14 (Executives)

(3) Every educational foundation shall select and appoint directors who correspond to one fourth (Provided, That the numbers below decimal point shall be rounded up) of the fixed number of directors referred to in the provisions of paragraph (1) (hereinafter referred to as “open board directors”) from among the multiples of persons who are recommended by the open board director recommendation committee referred to in the provisions of paragraph (4).

(4) The open board director recommendation committee (hereinafter referred to as “recommendation committee”) shall be established at the university deliberation committee referred to in the provisions of Article 26-2 (hereinafter referred to as “university deliberation committee”) or the school operating committee referred to in the provisions of Article 31 of the Elementary and Secondary Education Act (hereinafter referred to as “school operating committee”), and its organization, operation and composition shall be determined by its articles of association and the fixed number of the members of the recommendation committee shall be odd number not less than five and one half of the members of the recommendation committee shall be recommended by the university deliberation committee or the school operating committee: Provided, That in cases of the school juristic person that establishes and operates the university and graduate school of which sole purpose is to train religion leaders as prescribed by Presidential Decree, the relevant religious group shall recommend one half of the members of the recommendation committee.

Article 21 (Restrictions on Appointment of Executives)

(5) One of the auditors who are posted in an educational foundation shall be the person who is recommended by the recommendation committee.

Article 25 (Appointment of Temporary Director)

(3) Temporary directors shall hold office until a cause referred to in paragraph (1) is removed: Provided, That their term of office may not exceed three years from the date they are selected and appointed.

Article 25-3 (Normalization of Educational Foundation for which Temporary Directors are Selected and Appointed)

(1) When the grounds of the selections and appointments of temporary directors who are selected and appointed pursuant to the provisions of Article 25 are deemed to be annulled, notwithstanding the provisions of Article 20, the competent agency shall promptly dismiss them through the deliberation of the mediation committee and select and appoint directors.

Article 26-2 (University Deliberation Committee)

(1)The university deliberation committee mandated to deliberate on the matters falling under any of the following subparagraphs shall be set up in each of university educational institutions: Provided, That the matters in subparagraphs 3 and 4 shall be subject to consultation:

1. Matters concerning development plan of the university;

2.Matters concerning establishment or amendment of schoolregulations;

3.Matters concerning establishment or amendment of a charter of the university;

4. Matters concerning operation of university educational course;

5.Matters concerning recommendation by the members ofrecommendation committee;

6.Other important matters concerning education determined by the articles of association.

Article 53 (Appointment and Dismissal of Head of School)

(3) The terms of office for the heads of various levels of schools and the terms of office of the managers of private schools that are juristic persons shall be set by the articles of association and the terms of office of the managers of private schools who are private persons shall be set by the rules and the terms of office for them shall not exceed four years and they may be reappointed: Provided, That the head of an elementary

school and a secondary school may be reappointed only once.

Article 54-3 (Restrictions on Appointment)

(3) The chief director of any educational foundation and anyone who is related with the person falling under each of the following subparagraphs shall be prohibited from being appointed to the head of the school that has been established and operated by the relevant school juristic person: Provided, That the same shall not apply to those who obtain the consent from not less than two-thirds of the fixed number of directors and approval of the competent agency:

1. The spouse;

2.The lineal ascendant and the lineal descendant and their spouses.

Summary of the Decision

1.Article 14 Sections 3 and 4 of the Private School Act on the Open Board Director

The provision intends to enhance transparency and fairness of private school administration and provide opportunities for members of the school to participate in school administration. Considering the ratio of open board directors among the whole number of directors, proportion of members of the open board director recommendation committee who are recommended by the university deliberation committee and school administration committee, necessity of ex ante and preventive measures to secure transparency of administration of the educational foundation, the provision does not violate the freedom of private school of an educational foundation and its right to equality.

2. Article 21 Section 5 of the Private School Act on the Open Auditor

The provision intends to improve transparency and credibility of private school administration by establishing reliability of audit and enhancing its responsibility. Considering that the number of an open

auditor is limited to one and that the purpose of an auditor resides in supervising the appropriateness of an educational foundation and school administration, the provision does not infringe upon the freedom of private school of an educational foundation.

3.Article 25 Section 3 of the Private School Act on the Terms of Temporary Directors

The provision does not specify the term of a temporary director. But considering that a temporary director should hold office until the ground of his/her appointment is resolved and that the law provides measures to prevent an inappropriately prolonged period under a temporary director, the provision does not violate the freedom of private school of an educational foundation and former directors.

4.Article 25-3 Section 1 of the Private School Act requiring deliberation of the private school dispute mediation committee on appointing directors for normalization of educational foundation under temporary directors

Considering that the private school dispute mediation committee holds fairness and professionalism in its composition and function, that the identity of an educational foundation is succeeded and maintained through the articles of school that represent the founding principle not through continuity of directors tracing back to the founder, and that the committee may hear opinions of former directors during its deliberation for normalization, the provision does not infringe upon the freedom of private school of an educational foundation and former directors.

5.Article 26-2 Section 1 of the Private School Act on the University Deliberation Committee

The university deliberation committee only deliberates or recommends

on significant issues that belong to university autonomy and does not restrict the decision-making rights of board of directors. Also university deliberation committee may be composed by the educational foundation according to the articles of school. Therefore, the provision does not violate the freedom of private school of an educational foundation.

6.Proviso of Article 53 Section 3 of the Private School Act on restricting the number of reappointment of the head of an elementary school and a secondary school to one

The provision intends to prevent aging and bureaucratizing of a head of school and to invigorate teaching staff through the interchange of personnel, conforming to the education laws that separate school administration from education. Also the provision guarantees term of office up to 8 years and only restricts reappointment at the same school. Therefore, it does not violate the freedom of private school of an educational foundation or the freedom of occupation and right to equality of head of school.

7.Article 54-3 Section 3 of the Private School Act on the restriction of appointing as the head of school a person who is specially related to the Chief Director of the educational foundation

The provision requires the consent of more than two-thirds of the fixed number of directors and approval of the competent agency when appointing as head of school established and operated by the relevant educational foundation, a person who is related to the chief director as a spouse, lineal ascendant or lineal descendant or spouse of lineal descendant. The purpose resides in the protection of independence of school by separating management of educational foundation and school administration, securing the public nature and transparency of private schools. Therefore, it does not infringe upon the right to occupation of spouse of a chief director of educational foundation or freedom of private

school.

Dissenting Opinion on Article 14 Sections 3 and 4 of the Private School Act by One Justice

A director of an educational foundation, as member of the board of directors which is the highest decision making body as well as enforcing body, represents the freedom of private school operation. The authority to appoint board of directors is the essence of independence and autonomy of the educational foundation. The provision mandates private schools, even including most private schools that are normally managed, to appoint so-called open board directors who correspond to one fourth of the fixed number of directors, regardless of the decision of an educational foundation. This infringes upon the core value of autonomous decision making by an educational foundation and the essence of board of directors of an educational foundation. Considering the weight of private schools, especially in higher educational institutions, in the number of schools and students, as well as the historic nature of private schools that come down from the ancient period of the Three States, the necessity to secure the function and autonomy of private schools, the nature of board of directors of an educational foundation, and the problems arising out of open board directors, the provision violates the Constitution by infringing the freedom of private school of educational foundations.

Dissenting Opinion on Article 25-3 Section 1 of the Private School Act by Four Justices

The founding principles of an educational foundation are enforced by directors who are members of the board of directors that is the decision making body as well as enforcing body. As such, the founder appoints the first directors who successively appoint incoming directors which ensures permanent succession of the founding principles. This is the

essence of the system of board of directors in an educational foundation. The temporary director system of the Private School Act is meant to realize the founding principles of an educational foundation by dispatching a temporary director in times of crisis and to achieve swift normalization. It should not be regarded as sanctions against the former directors who brought about the crisis by depriving the management right of the former directors or altering the management structure of an educational foundation. This requires providing minimum measures to maintain the identity of an educational foundation and provide permanency of founding principles during the transition process from temporary directors to normal board of directors. Nonetheless, the initiative to appoint normal directors is invested with the private school dispute mediation committee, while the legal rights of the former directors to be heard are not secured. This may lead to the severance of continuity of educational foundation in terms of human resources, thereby making realization of founding principles far from certain. Therefore, it infringes upon the essential nature of freedom of private school of former directors and educational foundations against the principle against the excessive restriction.

Dissenting Opinion on Proviso of Article 53 Section 3 of the Private School Act by Four Justices

The back-scratching alliance of head of school and educational foundation due to long terms of office has already resolved by prohibiting concurrent offices of chief director and head of school and prohibiting spouse of chief director, etc. to being appointed as head of school. Accordingly, restricting the re-appointment of head of school is not directly related to solving the above-mentioned problem. In addition, unlike public schools, personnel appointment in private school is executed within an education foundation or school. Therefore restriction on the number of re-appointment of head of school hardly can be effective in vitalizing the teaching staff in private schools as a whole. As

the head of school affects the growth and progress of students through the administration and education, it would be desirable to provide a long term of office for a competent head of school upon the decision of an educational foundation or a member of school. Also, it would correspond to the purpose of the Private School Act that allows discretion in deciding the term of office of head of school by the articles of association. Therefore, the restriction of re-appointment of head of elementary school and secondary school to one time infringes on their freedom of occupation and also violates the freedom of private school of an educational foundation operating elementary school or secondary school.