(영문) 서울행정법원 2020.11.13. 선고 2018구합77029 판결

The Defendant’s decision to appoint G, H, I, J, K, L, M, N, andO on August 14, 2018 as the director of each educational foundation E of the Intervenor joining the Defendant is revoked.

Reasons

1. Details of the disposition;

A. Status of the parties

1) On March 8, 1974, Plaintiff A acquired Q Q (hereinafter referred to as “P”) from a school foundation Q (hereinafter referred to as “E”) established by P on March 6, 1962, and changed the name to “E” (hereinafter referred to as “E”). Thereafter, Plaintiff A established and operated F University, R University, S High School, etc.

2) On November 9, 1989, Plaintiff C was appointed as E director. From the previous date, Plaintiff A, B, and D, who were in charge of directors, were reappointed upon the approval of the Defendant’s appointment of directors on April 28, 1990 by the board of directors of E on April 28, 1990.

B. Progress of litigation related to the appointment and dismissal of the former director

1) In around 192, there was a school subcommittee on the identification of the students under his control and the revocation of appointment of full-time instructors in relation to the abolition of the department of oriental medicine materials. Among them, Plaintiff A was bound on April 1, 1993 by a charge of embezzlement of the suspicion of illegal admission of students from parents and the E money paid as construction cost to F University.

2) Around April 21, 1993, E directors submitted a list of long-term internal bylaws that are responsible for and collectively responsible for them. On May 1, 1993, 1993, under the presence of the chief executive officer, all directors dismissed and seven new directors, including T, were decided to appoint new directors. On May 4, 1993, the Defendant applied for the approval of the appointment of new directors.

3) On April 28, 1990, the Defendant: (a) conducted a fact-finding survey on E; (b) the Defendant prepared a false meeting minutes of the board of directors and applied for approval of the appointment of directors; (c) the Defendant failed to comply with the Defendant’s corrective orders based on the fact-finding survey; (d) brought about a serious demand in school, administrative paralysis, and paid crisis to all students; (e) thereby, the Defendant could not achieve the purpose of the establishment of E; and (e) appointed temporary directors for the normalization of E operation at the same time as he revoked the approval of the appointment of directors on June 4, 1993; and (e) appointed temporary directors for the normalization of E operation. Since the term of office expired was replaced in sequence with a new temporary director, E was operated as a temporary director system.

4) On December 18, 2003, 9 U.S. U., appointed as a temporary director E by the Defendant, held a board of directors on December 18, 2003 and decided to appoint 9 persons, such as V, as a director E (hereinafter referred to as a "regular director"). The Defendant approved it on December 24, 2003.

5) The plaintiffs are merely entitled to conduct an act that falls under the ordinary business and do not have the authority to decide on the important business of the school juristic person, and therefore the provisional directors' forms.

On December 18, 2003, E filed a lawsuit seeking confirmation of invalidity of the resolution of appointment of directors on December 18, 2003 against E. However, on April 8, 2004, the Chuncheon District Court rendered a ruling dismissing the lawsuit by the plaintiffs (Scheon District Court 2004Gahap52). The plaintiffs appealed. The Seoul High Court accepted the plaintiffs' claim on February 14, 2006 and rendered a ruling confirming that the appointment of directors is null and void on December 18, 2003 (Seoul High Court 2004Na3076). While the Supreme Court appealed on May 17, 2007, where the provisional director could not achieve the purpose of the school juristic person due to the vacancy of directors or could cause damages to the company, the provisional director's new decision was rejected for the reason that the provisional director's authority to appoint directors was limited to 200 or 207 E. 204 of the provisional director's operation as a risk management company under the Civil Act.

6) Since then, the Defendant Intervenor Private School Dispute Mediation Committee (hereinafter “Mediation Committee”) established under the jurisdiction of the Defendant pursuant to Article 24-2 of the Private School Act deliberated on the plan for normalization of E. In this regard, the Plaintiffs demanded to recover the right of management of E. In this regard, the Plaintiffs expressed their opinions to exclude the management of E by the Plaintiffs and appoint fixed-type directors as a democratic person unrelated to private school expenses, and request the appointment of fixed-type directors as a temporary director, on the ground that only 4 members of the Plaintiff recommended by the Plaintiff among the members of the F University’s Council of Professors, employees’ labor union, and students, etc. were appointed to meet the requirement of recommendation of the Plaintiffs. The Mediation Committee passed six times after the hearing of the interested parties’ opinions on April 29, 2010 and passed 28 times on April 29, 2010.

7) Accordingly, on August 30, 2010, the Defendant appointed seven persons, including W, as a regular director, pursuant to Article 25-3(1) of the Private School Act. On the same day, X was temporarily appointed pursuant to Article 25(1) of the Private School Act. On January 10, 201, the Defendant appointed Y as a regular director on behalf of the regular director whose term of office expires. The Defendant appointed Y on behalf of the regular director whose term of office expires.

8) The Intervenor F.I.D., the Intervenor F.I.D. and the Plaintiff’s 2.1 F.I.D. (hereinafter collectively referred to as the “Supplementary Intervenor”) shall appoint as an open director upon the recommendation of the Open Director Recommendation Committee pursuant to Article 14(3) of the Private School Act. However, the Defendant’s 20th Appeal against the Defendant was dismissed on August 30, 2010 and the Plaintiff’s 20th Appeal against the Seoul High Court (Seoul High Court Decision 201Du1610, Oct. 21, 201; 206Du11891, Jul. 14, 201; 2010Du1065, Oct. 21, 201; 201. The Intervenor’s 1.6th Appeal against the Intervenor’s 20th Appeal against the Seoul High Court Decision (Seoul High Court Decision 201Du106140, Jul. 14, 2012).

9) On November 30, 2016, the Defendant notified the president of E on August 30, 2010 to the effect that: (a) the appointment of a regular director on August 30, 2010 and the appointment of a regular director on January 10, 201 was revoked; (b) thereby, the appointment of a new director was also invalidated; and (c) on November 30, 2016, nine persons, including Z, were appointed as a temporary director pursuant to Article 25(1) of the Private School Act.

C. Appointment of the instant regular director

1) On November 28, 2016, from November 28, 2018 to December 6, 2018, the Mediation Committee deliberated on the plan for the normalization of E and decided to promote E and promote the normalization. On July 23, 2018, the Mediation Committee decided to appoint a full-time director as a director on August 6, 2018, on the following: (a) one recommendation of the Plaintiffs, two recommendation of the university university university university council; (b) one recommendation of the university university council council council; (c) one recommendation of the S High School Governance Committee; (d) three recommendation of the E-O recommendation committee; and (e) one recommendation of the Defendant recommendation who is the competent agency; and (e) a decision was made to appoint a full-time director as a director on August 6, 2018.

2) Accordingly, on August 14, 2018, the Defendant appointed 9 K et al. as a full-time director under Article 25-3(1) of the Private School Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 6 through 8, 43, 44, Eul evidence 5, 6 and 27, and the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. The plaintiffs' assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

A. Procedural illegality

1) Although the Plaintiffs are the former directors of E lawfully selected and appointed, the Mediation Committee did not constitute the former and present director consultative body (hereinafter “consultative body”) under Article 9-6(4) of the former Enforcement Decree of the Private School Act (amended by Presidential Decree No. 31049, Sept. 25, 2020; hereinafter the same) during the process of appointing regular directors. Temporary directors are not entitled to change the number of directors by amending the articles of incorporation. Thus, the number of directors of E is seven persons pursuant to the articles of incorporation enacted in 1974, and it is unlawful that the Mediation Committee did not form a consultative body even if the amendment of the articles of incorporation is effective and the number of directors of E is nine and the number of directors of the Plaintiffs is below the majority of the number of directors. If the composition of the consultative body may not be omitted, Article 9-6(4) of the former Enforcement Decree of the Private School Act is unconstitutional by infringing on the freedom of the founder and the previous private school directors.

2) AA and AB participated in the deliberation of the relevant agenda item although they should have avoided the deliberation of the agenda item related to the normalization of the E Private School Act pursuant to Article 9-7 of the former Enforcement Decree of the Private School Act.

B. substantive illegality

1) The Mediation Committee’s granting only one person’s recommendation right to the Plaintiffs is unlawful for the following reasons. ① The instant disposition to appoint a regular director again after the appointment of a regular director in 2010 and 2011, which is attributable to the Defendant and the Mediation Committee, was made, and it is unreasonable to apply the former Enforcement Decree of the Private School Act which is disadvantageous to the Plaintiffs. ② The Plaintiffs are founders and previous directors who are able to realize the founding ideology of E, and the Defendant did not confirm whether there is a reason under Article 9-6(5)1 of the Enforcement Decree of the former Private School Act. In light of the case of other school juristic persons, it is too little to grant only one person’s recommendation right to the former directors. Accordingly, the instant disposition violates the principle of proportionality and the principle of equality. ③ Since the Mediation Committee grants a majority of the recommendation right to the Plaintiffs in 2010 and 2011, the Plaintiffs were deprived of their trust from the Plaintiffs, the Plaintiffs’ trust and trust in the operation principle.

2) Since the E’s fixed number of directors is seven, the instant disposition that appointed nine regular directors is in violation of the articles of incorporation.

3) Ad hoc directors do not have the right to amend the articles of incorporation, and it is null and void for ad hoc directors to amend the articles of incorporation on July 4, 2018. The Defendant and the Mediation Committee appointed an open director in accordance with the procedures set out in the above articles of incorporation null and void. Therefore, the Mediation Committee should first have appointed only the remaining regular directors except the open directors, and then should have appointed the appointed regular directors subsequently appointed an open director following the amendment to the articles of incorporation. In addition, ad hoc director was involved in the recommendation of the open director recommendation committee by the board of directors composed of temporary directors even though

Therefore, the part of the appointment of open directors among the instant disposition is unlawful.

4. Whether the instant disposition is lawful

A. Whether the plaintiffs constitute legitimate former directors E

1) Facts of recognition

A) The provisional directors of Q including the Plaintiff A hold a board of directors on January 27, 1974, and (1) amended the number of directors by amending the articles of incorporation of Q Q, which provides for the number of these circumstances as nine, to seven persons, and (2) appointed the Plaintiff A and B as a new full-time director, and (3) dismissed from the office of temporary directors following a resolution to change Q’s name E.

B) Q changed its name to E on March 8, 1974. The Defendant approved the temporary dismissal of Q on March 16, 1974, and approved the appointment of the Plaintiff A (president), 6, and 2 auditors as the executives of Q.

C) The Plaintiffs were appointed and held office as a director E as indicated in the following table between 1974 and 1993. Of them, in the case of appointment as of June 9, 1990, the E board of directors held on April 28, 1990 appointed seven directors including the Plaintiffs, and the Defendant approved the above seven directors to take office on June 9, 1990.

A person shall be appointed.

D) On June 4, 1993, with respect to all seven directors appointed by the board of directors on April 28, 1990, including the plaintiffs, on the following grounds, the defendant issued a disposition to revoke the approval of taking office while disclosing that the act of appointing executives and the qualification of executives is null and void:

In the event that the board of directors duly convened pursuant to Articles 17(3) and 18 of the Private School Act did not attend the meeting of the board of directors who did not attend the meeting, and prepared a false meeting minutes of the board of directors falsely different from the fact that the officer was present, and did not comply with the request for correction of illegal and unjust matters recovered as a result of the fact-finding survey conducted from March 27, 1993 to April 1, 1993;- on May 1, 1993, the number of faculty members including the president (Plaintiff A) were not normal due to the fact that the serious situation is pending until the attendance of the whole student until the paid situation, such as being detained by the judicial authorities in connection with the illegal and illegal admission, and thus, it is difficult to expect future measures for normalization, such as serious concerns of damage to the teachers and staff and the students, and social confusion.

It is judged that the purpose of the establishment of the corporation can not be achieved, and the approval of taking office can not be cancelled under Article 20-2 of the Private School Act.

[Ground of recognition] Gap evidence Nos. 48, 51, Eul evidence Nos. 3 through 8 (including paper numbers, hereinafter the same), the purport of the whole pleadings

2) Determination

According to the purport of the above facts and the whole pleadings, it is reasonable to view that the Defendant’s cancellation of the approval of taking office against E on June 4, 1993 is subject to the approval of taking office on June 9, 1990, and is not subject to the prior approval of taking office. Although the Defendant decided that the approval of taking office of June 9, 1990 was null and void on the ground that he did not have a legitimate notice of convening board on June 4, 1993, and that he did not have a legitimate notice of convening board on June 4, 1993, and prepared and submitted a false meeting minutes of the board of directors on the ground that he did not have a legitimate notice of convening board on June 4, 1993 and that in the written disposition against E, only the incumbent and auditor at the time was subject to the cancellation of the approval, and that he was subject to the cancellation of the approval of taking office including the purpose of disclosing the grounds for invalidation without specifying the period for invalidation as above.

Meanwhile, in the Defendant’s internal document No. 193, 6, and 4, the following facts are stated: (a) the pertinent director was notified of holding the board of directors after the director was appointed; (b) the fact that the director was present at the board of directors; or (c) the fact that the director was delegated the authority of the director once or once to the board of directors; and (d) the fact that the director was present at the board of directors at the meeting held on April 8, 193, 1993, D, AC, and D, which were the directors of E. In light of the evidence No. 88, the content of the above internal document alone is insufficient to readily conclude that all the resolution for appointing directors after 1978 was null and void; and (b) there is no other evidence to acknowledge otherwise. Therefore, it is reasonable to deem that D’s first appointment as director on June 10, 1982 as well as Plaintiff A, B, and C, the first director appointed on June 10, 1982.

B. Based on whether the number of directors under the articles of incorporation of E is seven or nine, the elements of the consultative body under Article 9-6(4) of the Enforcement Decree of the Private School Act are satisfied, and whether the appointment of nine regular directors in the instant disposition conforms to the number of directors under the articles of incorporation. Thus, the determination of the procedural illegality of the instant disposition and substantive illegality is first made on the premise of the determination of substantive illegality.

1) Facts of recognition

A) On July 7, 1966, the Defendant appointed 4 temporary directors on the ground that the number of 9 directors of Q was not filled, among 9 directors, and appointed 8 members including the Plaintiff A, etc. as temporary directors of Q on November 12, 1973.

B) The provisional directors of Q, including Plaintiff A, held on January 27, 1974, set the number of directors at the board of directors held on January 27, 1974, and Q’s articles of incorporation stipulate that the number of directors shall be nine. However, for efficient operation of the board of directors, a resolution was passed to revise the

C) On June 4, 1993, the defendant appointed temporary directors pursuant to Article 25 of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999) while revoking approval of taking office for E.

D) Article 22 of the E Articles of Incorporation, effective July 15, 1993, prescribed the prescribed number of directors as seven (including one chief director). However, since Article 22 of the E Articles of Incorporation, effective March 21, 1994, the above provision has been continuously maintained since it was decided as nine (including one chief director).

[Ground of recognition] Gap evidence Nos. 6, 46 through 48, 51, 100, 101, Eul evidence Nos. 3, 4 and 35, and the purport of the whole pleadings

2) Determination

The articles of incorporation of a school juristic person, as the fundamental provisions of the school juristic person, shall be modified by a person having legitimate authority, as prescribed by the relevant provisions, such as the Private School Act, and the articles of incorporation by himself/herself. Meanwhile, a provisional director appointed by the defendant under Article 25(1) of the former Private School Act shall not be included in the authority of a provisional director, which goes beyond the general operation of the school juristic person, as a risk management manager with the same authority as a regular director, in cases where the purpose of the school juristic person is not achieved or may cause damage to the school juristic person due to a vacancy of directors.

However, it is difficult to view that simply changing the number of directors prescribed by the articles of incorporation would affect the freedom of private school establishment and operation, or would go beyond the scope of the general operation of the school foundation, as it changes the matters concerning the purpose of establishment or operation of the school foundation, or changes the personal composition of the decision-making body and the executive body of the school foundation by appointing regular directors. Article 14(1) of the Private School Act provides that not less than seven directors shall be appointed as an executive officer of the school foundation (Article 14(1)), and that the executive officer shall be appointed as the board of directors as prescribed by the articles of incorporation (Article 20(1)) and delegates specific number of directors to the articles of incorporation (Article 20(1). If the articles of incorporation changes the number of directors by legitimate appointed temporary directors in accordance with the relevant provisions, such as the Private School Act, and the articles of incorporation changes the number of directors,

According to the above facts, Article 22 of the E’s articles of incorporation was amended from July 15, 1993 to March 21, 1994, and the fixed number of directors was changed from 7 to 9. This was made on June 4, 1993 by the Defendant’s temporary directors lawfully appointed pursuant to Article 25 of the former Private School Act, and it is difficult to find any other circumstances to deem that the Defendant violated the pertinent provisions and the articles of incorporation. Furthermore, there is no special circumstance to deem that there was an amendment to the articles of incorporation regarding the fixed number of directors. Accordingly, there is no special circumstance to deem that E’s legitimate and effective number of directors is nine, and that the instant disposition was unlawful to appoint nine directors accordingly (On the other hand, the number of directors of E is changed from 9 to 7 members by temporary directors on January 27, 1974, even if the changed number of the fixed number of directors was null and void, it is not changed from 9).

C. Whether the instant disposition is procedurally unlawful

1) Whether a consultative body under Article 9-6 (4) 1 of the former Enforcement Decree of the Private School Act meets the requirements

The provisions of Article 9-6 (4) and (5) of the former Enforcement Decree of the Private School Act amended on June 26, 2018 are as follows:

Article 9-6 (Meeting of Mediation Committee) D. D. Deliberation under Article 25-3 (1) of the Act shall hear opinions on the recommendation of candidates for directors from any of the following persons. In such cases, the procedures and methods for submitting and hearing specific opinions shall be determined by the Mediation Committee. The following persons shall be included in the order of the most recent date of retirement, and a consultative body approved by the Mediation Committee. In such cases, the persons referred to in item (b) shall be included in the order of the most recent date of retirement, the total number of persons of the consultative body shall be the majority of the total number of directors of the relevant school juristic person, and if the number of persons referred to in item (a) alone exceeds the number of persons to be included as the last members, the number of persons including the excessive number shall be deemed the total number of persons

(a) A director (excluding temporary directors) of the relevant school foundation; 2. A person, other than those referred to in paragraph (4) 1, who was a director (excluding temporary directors) of the relevant school foundation; 2. An organization recognized by the Mediation Committee, which falls under any of the following items; 4. A school foundation established and operated by the relevant school foundation; 5.6. Other interested parties mediation committees recognized by the Mediation Committee, which have established the relevant school foundation (limited to the school foundation falling under the proviso to Article 14 (4) of the Act) pursuant to the latter part of paragraph (4), shall comply with the following standards, if the procedures and methods for submitting opinions are determined.

As above, Article 9-6 (4) 1 of the former Enforcement Decree of the Private School Act provides for the method of organizing a consultative body (excluding temporary directors) consisting of the directors of the relevant school juristic person and the persons who were the regular directors of the relevant school juristic person in consecutive order. The total number of such consultative body stipulates that a majority of the total number of directors of the relevant school juristic person shall be the total number of the consultative body, including those who exceptionally exceed part of the total number of directors of the relevant school juristic person. Therefore, if the total number of the pre- and incumbent regular directors of the relevant school juristic person falls short of the majority of the number of directors due to death, etc., it is reasonable to view that the consultative body cannot be formed since the total number of directors of the relevant school juristic person falls short of the number of the consultative body, even if the number of the pre- and incumbent regular directors of the relevant school juristic person falls short of the majority of the total number of directors, it is unreasonable to interpret Article 18 (1) of the Private School Act to constitute a consultative body based on Article 9 (1) of the former Enforcement Decree.

As seen earlier, the number of the directors of E is nine, and the number of the directors of E is four, the former and current regular directors of E, and they do not reach a majority of the number of the directors. Therefore, the mediation committee did not recognize the consultative body composed of the plaintiffs since it did not meet the requirements for the consultative body of the plaintiffs. The mediation committee did not comply with the legitimate procedure under Article 9-6(4)1 of the Enforcement Decree

2) Whether Article 9-6 (4) 1 of the former Enforcement Decree of the Private School Act is unconstitutional

If Article 9-6 (4) 1 of the former Enforcement Decree of the Private School Act provides that the number of former and present regular directors of a school juristic person does not meet the majority of the fixed number of directors, the Plaintiffs asserts that the above provision is unconstitutional by infringing on the freedom of private school operation of a founder of a school juristic person or a former director.

The freedom of the establishment and operation of private schools is ordinarily common in that the founder prepares the articles of incorporation specifying the purpose of the establishment by contributing property, forms the first board of directors in accordance with the articles of incorporation, and is realized through the legal chain process operated by the school foundation and the school. Among these series of processes, the source of private school freedom is specifically identified in the establishment act, and thus it constitutes the essential substance of private school freedom to ensure that such establishment purpose can be succeeded to.

In a situation where a school foundation normally operates, the purpose of its establishment is to be continuously implemented through the board of directors; however, any question may arise as to whether a temporary director is appointed or a reason for such appointment is maintained and succeeded to the establishment purpose at the stage of normalization by the extinction of the reason for such appointment. In such a case, if the board of directors of a school foundation comprised of temporary directors cannot expect the role as a guardian for the establishment purpose or identity of the school foundation, it is necessary to allow the previous directors, etc. to have an opportunity to protect the establishment purpose or identity of the school foundation by exceptionally recognizing the freedom of private school. However, this is recognized as exceptional and complementaryly for the protection of the establishment purpose, so the scope of private school freedom granted to the previous directors, etc. cannot be extended to the extent that it is necessary to grant the right to appoint regular directors or guarantee a certain share in the composition of the board of directors, and the content of such right may not be reduced without the private school freedom exercised by the school foundation in ordinary cases.

The assertion that the right to manage the previous directors, etc. or the right to manage the school shall be recovered from the supplementary position of subparagraph 1 of the purpose of the establishment of the school foundation, or that such right shall be guaranteed, does not constitute the product of an accident that considers the right to manage the school or the right to manage the school as the subject of property rights. In the stage of normalization, even if the previous directors, etc. return to the board of directors or grant them the lead right to appoint regular directors, if the purpose of the establishment of the school foundation specified in the articles of incorporation is maintained and properly realized, the identity of the school foundation is naturally maintained and succeeded. The integrity of the purpose of the establishment is not so that it can only be achieved by restoring the previous status of the school foundation, such as the founder or the previous directors, which is the intention of the founder specified in the articles of incorporation, by maintaining the purpose of the establishment of the school foundation (see e.g., Supreme Court Decision 201Hun-Ba). It does not mean that the normalization of the school foundation appointed by the competent agency or the mediation committee is not a new school foundation or publicization.

Article 9-6 (4) of the former Enforcement Decree of the Private School Act provides that, in cases where the Mediation Committee deliberates on the selection and appointment of regular directors due to the cancellation of the reasons for the selection and appointment of temporary directors of a school foundation, other than the former and incumbent consultative body of directors shall hear the opinions of recommending candidates for directors from school personnel or students and parents representatives of the school established and operated by the school foundation concerned, the Recommendation Committee, the competent agency, and other interested parties recognized by the Mediation Committee. This is intended to seek a direction for the most well-being of the purpose of establishment of the school foundation by reflecting the diverse opinions of the members who have an interest in the normalization of the school foundation. In cases of former and incumbent regular directors meeting certain requirements, it is also guaranteed that the former and incumbent directors of the relevant school foundation can account for a certain degree in the process of recommending candidates for directors pursuant to Article 9-6 (5) of the former Enforcement Decree of the Private School Act. Thus, even if the former and incumbent directors of the relevant school foundation do not meet the requirements prescribed in Article 9-6 (4) 1 of the former Enforcement Decree, it cannot be denied that they constitute interested parties under Article 9-6 (4).

3) Whether Article 9-7 of the former Enforcement Decree of the Private School Act concerning the avoidance of members of the Mediation Committee is violated

A) Facts of recognition

(1) The professor AA of F University was appointed on August 21, 2017 as the president’s vicarious performance of duties, and was also appointed on September 1, 2017 as the vice president of F University.

(2) AB was appointed as a member of the Conciliation Committee on May 11, 2018, and AA was appointed as a member of the Conciliation Committee on June 8, 2018.

(3) In the first 145 deliberation on June 29, 2018, the Mediation Committee discussed the agenda for the "E (FF) normalization promotion plan while eight members attend, held a hearing on the side of the previous directors and the members of the school, decided to appoint an open director from the Open Director Recommendation Committee organized in accordance with the articles of incorporation amended and implemented on November 2007, and decided to continue to discuss the above agenda in the next 145.

(4) On July 13, 2018, at the 146th deliberation, the Mediation Committee discussed the agenda for the "establishment of the deliberation criteria pursuant to the amendment of the Enforcement Decree of the Private School Act" while ten members attend, and decided to continue to discuss the agenda at the next opportunity.

(5) In the first 147 deliberation on July 23, 2018, the Mediation Committee discussed the agenda for â€˜E (FF)' promotion plan while ten members are present, it recognized the Plaintiffs as interested parties pursuant to Article 9-6 (4) of the Enforcement Decree of the Private School Act, and decided to hear the opinions of the Plaintiffs on the recommendation of candidates for directors, and distributed the Plaintiffs to recommend one of the nine members as the number of directors.

(6) In the 148th deliberation on August 6, 2018, the Mediation Committee discussed the agenda of the "E (FF) normalization promotion plan" while nine members were present, and appointed three and six regular directors, and decided to continue to discuss the agenda of the "Preparation of the Standards for Deliberation in accordance with the Amendment to the Enforcement Decree of the Private School Act" and the next opportunity.

(7) At the first 14th 12th 2018, June 12, 2018, June 29, 2018, No. 145th 29th 2018, July 23, 2018, and No. 147th 148th 6, 2018, A avoided the review and resolution of the "E (FF) Promotion Plan" agenda.

[Ground of recognition] Gap evidence Nos. 23, 24, 43, 44, 85, 92 through 94, Eul evidence Nos. 27, Eul evidence No. 1, and the purport of the whole pleadings

B) Determination

Article 9-7 (1) of the former Enforcement Decree of the Private School Act provides that "if a member of the Mediation Committee falls under any of the following subparagraphs, he/she shall be excluded from the deliberation and resolution of the Mediation Committee," and subparagraph 1 through 4 provides that "if a member or a person who is or was his/her spouse becomes a party to the relevant agenda (including an executive officer in cases where a party is a corporation, organization, etc.) or is a joint holder of rights or joint holder of rights with a party to the relevant agenda, a member is or was a relative of a party to the relevant agenda, if a member gives testimony, gives a statement, gives a advice, provides a research, provides a service, or provides an appraisal as to the relevant agenda, the member or the corporation or organization to which the member belongs is or was an agent of the party to the relevant agenda." Article 9-7 (3) of the former Enforcement Decree of the Private School Act provides that "if

According to the above facts, AA member is deemed to have a ground for exclusion prescribed in each subparagraph of Article 9-7(1) of the Enforcement Decree of the former Enforcement Decree of the Private School Act with respect to the "E (FF)" agenda as the president's vicarious performance of duties of the F University. However, in the case of the agenda, it appears that E or F University is a party to the relevant agenda because the discussion on the agenda has continued even after the nine directors are appointed, it is difficult to view that E or F University is a party to the relevant agenda. Therefore, even if A member, who is not recognized as a ground for exclusion with respect to the "establishment of the criteria for deliberation following the amendment of the Enforcement Decree of the Private School Act", did not avoid the relevant agenda in the first deliberation of July 13, 2018, and participated therein, it cannot be deemed that procedural defects in violation of Article 9-7(3) of the former Enforcement Decree of the Private School Act are recognized.

Meanwhile, the plaintiffs asserted that the grounds for exclusion of the AB member is recognized as to the "establishment of the criteria for deliberation in accordance with the amendment of the Enforcement Decree of the Private School Act". However, as alleged by the plaintiffs, the mere fact that the AB member has been in charge of representation of the counter-party to the lawsuit by the plaintiffs is difficult to deem that the AB member falls under the grounds for exclusion under each subparagraph of Article 9-7 (1) of the former Enforcement Decree of the Private School Act and there is no other evidence to recognize it. Accordingly, the AB member is not deemed to have procedural defect

D. Whether the disposition of this case is unlawful in substance

1) Whether the discretionary authority is deviates or abused

With respect to the normalization of school juristic persons for which temporary directors are appointed, the Private School Act, without delay, dismiss temporary directors and appoint regular directors after deliberation by the competent authorities (Article 25-3(1)), and requires the competent authorities to follow the result of deliberation by the Mediation Committee (the main sentence of Article 24-2(4)). This is based on legislative decision that it is reasonable to assign a leading role to the Mediation Committee with high level of political neutrality, fairness and expertise in their composition and function as well as the previous directors or temporary directors for the appointment of directors for the normalization of school juristic persons for which temporary directors are appointed (see, e.g., Constitutional Court Decision 2009Hun-Ba206, 2010Hun-Ba101, Nov. 28, 2013). In this context, when deemed necessary for deliberation, the Mediation Committee under Article 9-6(3) of the former Enforcement Decree of the Private School Act shall hear opinions from the executives and employees of the relevant school juristic person, the school juristic person established and operated by the relevant school juristic person, and other interested parties, and the specific method of submission of opinions.

Therefore, in the judicial review of the exercise of the discretion of the conciliation committee on the normalization of school juristic persons, the conciliation committee did not undergo a substantial deliberation, or misunderstood that it was the basis of the deliberation.

Unless there exist special circumstances, such as the failure to comply with the provisions of relevant Acts and subordinate statutes or the conclusion of violating the principle of equality or self-defense principle as to deliberation, respect as much as possible accords with the legislative intent of the relevant Acts and subordinate statutes, such as the Private School Act. On April 29, 2010, the Mediation Committee decided to recommend five and two directors to the Plaintiffs, and two members in the school, and decided to recommend two directors to the Defendant on August 9, 2010, and that two directors should be recommended to the Defendant on the following grounds: (a) the appointment of directors was revoked due to defects in the procedures for recommending open directors; and (b) the Mediation Committee recognized that the Plaintiffs were not subject to the amendment of the relevant laws and subordinate statutes, other than the Plaintiffs at the time of the amendment of Article 9-6(4) of the Enforcement Decree of the former Private School Act, based on the circumstance that the Plaintiffs, other than the Plaintiffs, as well as the school staff and parents members of schools established and operated, and that there were no justifiable reasons to recognize the amendment of the Council as one-year recommendation.

In addition, according to the overall purport of Eul evidence Nos. 26 and Eul evidence Nos. 26, and Eul evidence Nos. 9 and the whole purport of the pleadings, the defendant revealed, as a result of a comprehensive audit conducted with respect to E and F University from November 24, 2014 to December 11, 2014, multiple pointed out, such as special dismissal of contract staff, improper management of fundamental property for education (official residence), and improper management of class management for student refusal to give lessons to E. On March 10, 2015, the defendant requested measures of severe disciplinary action against the plaintiff who was in office as President E on March 10, 2015, and E is recognized to have dismissed the plaintiff on July 13, 2015. Considering that this is a reason falling under Article 9-6 (5) 1 (b) and (d) of the former Enforcement Decree of the Private School Act, it cannot be deemed that the Mediation Committee violated the principle of proportionality or the principle of equality.

Since the appointment of a regular director in 2010 and 201, the plaintiffs trusted that they belong to the management right of E and donated property to E, the disposition of this case deprived of their operational rights from the plaintiffs is contrary to the principle of trust protection. However, in general, in order to apply the principle of trust protection to the acts of an administrative agency, the administrative agency must issue an official opinion that is the subject of trust to an individual, and (2) there is no reason for the individual to believe that the name of the opinion of the administrative agency is justifiable, and (3) there should have been no reason for the individual to believe that the individual's name is trusted and/or any act corresponding thereto. (4) When an administrative agency disposes of the opinion contrary to the name of the opinion, it should not cause infringement of the interest of the individual who trusted the name of the opinion, and (5) When it takes an administrative disposition in accordance with the name of the opinion, it should not be deemed that there is no concern to significantly harm the public interest or legitimate interests of a third party, thereby infringing upon the rights of the plaintiff and the new director's right to recommend or the plaintiff's trust.

Therefore, this part of the plaintiffs' assertion is not accepted.

2) Whether the part on appointment of open directors among the instant disposition is lawful

A) Facts of recognition

(1) Under Article 14(3) of the Private School Act amended on January 12, 2005, the Private School Act newly established an open director system that allows not less than 1/4 of the fixed number of the directors to be appointed from among the persons recommended by the school operating committee or the school operating committee twice the number of the directors, and the amended Private School Act on July 27, 2007 amended that the above provision was amended that the above provision was amended that the above provision was amended that the appointment was made from among the persons recommended by the two times the fixed number of the directors or by the open director recommendation committee established in the school operating committee.

(2) Accordingly, the temporary directors of E amended the articles of incorporation on October 26, 2006 and October 9, 2007 to comply with the above amendment, and the board of directors amended the articles of incorporation on November 13, 2006 and obtained authorization from the Defendant on November 5, 2007.

(3) From the 145th deliberation on June 29, 2018, the Coordination Committee decided to appoint a candidate for an open director upon recommendation by an open director recommendation committee organized in accordance with the E’s articles of incorporation amended and implemented around November 2007.

(4) Article 24-3(2) of the previous E articles of association provides that the number of members of the recommendation committee shall be nine. Five persons recommended by the board of trustees, five persons recommended by the board of trustees and the school steering committee (three members of the F University Council, one council member of the R University Council, one operating committee of the S High School Council), and four persons recommended by the board of directors of the corporation. On July 4, 2018, Article 24-3(2) of the E articles of association amended as amended on July 4, 2018, four persons recommended by the board of directors of the corporation was changed to two legal persons, one AE Foundation, and one association of the total language.

[Ground of recognition] Gap evidence Nos. 44, 49, 101, Eul evidence Nos. 31 to 33, 35, and the purport of the whole pleadings

B) Determination

Although the Plaintiffs asserted that the amendment of the articles of incorporation made around July 4, 2018 was null and void, since the board of directors composed of temporary directors does not have the authority to amend the articles of incorporation concerning the Open Director Recommendation Committee, it is difficult to deem that the said amendment of the articles of incorporation was null and void, given that the amendment of the articles of incorporation was made within the scope prescribed by statutes, to diversify the members recommended by the Open Director Recommendation Committee, which constitutes the open Director Recommendation Committee, affects the freedom

In addition, even though Article 24-3(2) of the E Articles of Incorporation provides that two members of the Open Director Recommendation Committee shall be recommended by a corporate board of directors, this is merely granting the authority to recommend some members of the Open Director Recommendation Committee who recommended candidates for two times the number of open directors. Therefore, it is difficult to evaluate that this part of the Plaintiffs’ assertion is limited to an act exceeding the scope of the authority of temporary directors, just as appointing regular directors, at the board of directors composed of temporary directors.

E. Sub-committee

Therefore, the instant disposition is lawful as it does not recognize substantive and procedural unlawful grounds.

4. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.

Judges

The presiding judge shall make a private exchange

Judges Park Nam-jin

Judges Lee Gyeong-soo

Note tin

1) Plaintiff A was prosecuted for the crime of interference with business and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), and the Seoul Criminal District Court sentenced Plaintiff A to three years of imprisonment for the crime of interference with business and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on June 16, 193. Plaintiff A appealed. The Seoul High Court acquitted Plaintiff A of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Seoul High Court Decision 93No2042), and the Plaintiff and the Prosecutor appealed for the remaining crimes (Seoul High Court Decision 93Do3154). The Supreme Court dismissed all of the appeals by Plaintiff A and the Prosecutor on March 8, 1994 (Supreme Court Decision