2016Nu60937 Revocation of revocation of the appointment of a provisional director

1. A;

2. B

3. C.

The Minister of Education

Seoul Administrative Court Decision 2016Guhap53647 decided July 22, 2016

November 9, 2016

December 7, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The provisional director appointment disposition issued by the Defendant against D, E, F, G. H, I, and J on January 29, 2016 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

1. Quotation of the first instance judgment

This court's reasoning is the same as the reasoning of the judgment of the court of first instance, except for the supplement of the following judgments. Thus, this court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Supplementary judgment

A. The defendant's assertion

① Although the claim for revocation of the approval of taking office filed by the Plaintiffs was accepted in the appellate court (the instant lawsuit), it is legitimate to revoke the approval of taking office by mistake in the legal principles of the Private School Act. Thus, the revocation of the approval of taking office by the Plaintiffs is lawful. Accordingly, the Defendant’s provisional director appointment disposition based on the premise that it is lawful.

② Even if it is recognized that the Plaintiffs have the authority to elect the company later as directors, it is impossible to select the company later as a result of the Plaintiffs’ failure to secure the quorum to elect the company later. This constitutes “where it is deemed difficult for the school juristic person to normally operate the school juristic person because the school juristic person fails to fill the vacancy of directors” and in such a case, the Defendant may appoint temporary directors pursuant to Article 25(1)1 of the Private School Act, and thus, the instant provisional directors’ appointment disposition is legitimate in such respect.

③ Even if it is possible for the Plaintiffs to seek revocation of the instant provisional directors appointment disposition, it cannot be deemed that the Plaintiffs may seek revocation of the entire provisional directors appointment disposition by up to seven persons, beyond seeking revocation of the provisional directors appointment disposition by three persons corresponding thereto.

B. Determination

In full view of the following circumstances acknowledged by the evidence adopted in the reasoning of the judgment of the court of first instance, as cited by this judgment, and the statement of Gap evidence Nos. 5 through 8 (including branch numbers) and the purport of the whole pleadings, the above argument by the defendant cannot be accepted.

1) According to the above evidence, the claim for revocation of the appointment approval of this case filed by the plaintiffs was accepted in the preceding lawsuit of this case (Seoul High Court 2014Nu72691) but the defendant appealed and is pending in the final appeal (Supreme Court 2015Du56540), and the application for suspension of execution (Seoul High Court 2015Du5284) against the cancellation approval of the appointment approval of this case filed by the plaintiffs was accepted on October 26, 2015, and the validity and execution of the cancellation approval of the appointment approval of this case was suspended until the judgment of this case became final and conclusive, and the defendant re-appeal (Supreme Court 2015No679) was dismissed on January 7, 2016, and the above suspension order became final and conclusive. Accordingly, even if the appointment approval of this case against the plaintiffs was not finally revoked due to the above provisional appointment approval of the director appointment of this case, it shall be deemed that the above provisional appointment approval of this case was revoked as long as the status of the plaintiff was revoked.

2) Even if the status of executives of the Plaintiffs is recovered as alleged by the Defendant, it is true that the Plaintiffs alone lack the quorum for the selection and appointment of a successor director, or that part of the reason attributable thereto appears to be the Defendant. In other words, it is difficult to accept the Defendant’s assertion that, although the dispute between the temporary directors continues to exist by continuing the appointment and appointment of a senior director without proper appointment of a senior director, and the Defendant’s normal operation of a school juristic person is difficult due to such outcome, it is difficult to accept that the reason for the selection and appointment of a temporary director was not resolved. Moreover, it is difficult to view that a school juristic person’s temporary directors need to appoint a temporary director on the ground that there is a lack of the quorum for the selection and appointment of a senior director,

3) Even if the plaintiffs can only seek revocation of three provisional directors as alleged by the defendant, the defendant is bound to revoke the entire provisional directors of this case, so long as four grounds for appointment among the seven provisional directors appointed by the provisional directors of this case cannot be specified.

3. Conclusion

Therefore, the plaintiffs' claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and it is dismissed on the grounds that the defendant's appeal is without merit.

Mobilization by the presiding judge

Judges Yoon Jong-dae

Judge Lee Jae-soo