[1] In a case where a temporary director under the former Private School Act was legally selected and appointed before the appointment of a temporary director but was retired after consultation with a regular director, etc., the validity of the act of appointing a new director (= null and void)

[2] A person who can file a lawsuit seeking confirmation of invalidity against the board of directors resolution of a school foundation

[3] Where a temporary board of directors composed of temporary directors appointed by the Minister of Education under Article 25 of the former Private School Act decided to appoint seven persons including A et al. as a standing director of a new private teaching institute Eul, and thereafter the board of directors of a private teaching institute Eul et al. passed a resolution to appoint Byung et al. as a director or chief director, the case holding that Gap et al. did not have the status of directors of the private teaching institute Eul and the contents of each resolution by the board of directors do not directly have the status of directors of the private teaching institute Gap et al.

[1] In light of the basic rights of school juristic persons, the legislative purpose of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005; hereinafter “former Private School Act”), and Article 25 of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005; hereinafter “former Private School Act”), a special provision on Article 63 of the former Private School Act, which has separate provisions on grounds for appointment of provisional directors, duties, duration of office, restrictions on appointment of regular directors, etc., where a temporary director appointed by the Minister of Education pursuant to Article 25 of the former Private School Act is unable to achieve the purpose of school juristic persons due to a vacancy of directors or is likely to cause damage, a temporary director appointed by the Minister of Education is a risk manager in charge of temporary operation, who has the same authority as a regular director of the general school juristic person, and therefore, there is no authority to appoint regular directors under the former Private School Act, and there is no authority to appoint regular directors after consultation with the aforementioned temporary directors.

[2] There is no special provision in the Private School Act or the Civil Act as to who can file a lawsuit seeking confirmation of invalidity against the board of directors of a school foundation. As to a lawsuit seeking confirmation, a person who has a legal interest in confirmation or interest as in ordinary cases shall be deemed to have standing to sue. Furthermore, the benefit of confirmation in a lawsuit seeking confirmation is recognized only as the most effective and appropriate means for the plaintiff's right or legal status to be judged in order to eliminate such apprehension or risk.

[3] In a case where a temporary board of directors appointed by the Minister of Education pursuant to Article 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005) passed a resolution to appoint seven new directors including A et al. as the regular board of directors of a private teaching institute of Eul and thereafter passed a resolution to appoint Byung et al. as the board of directors or the board of directors of a private teaching institute of Eul et al., the case holding that, in the case where a temporary board of directors appointed by a temporary board of directors consisting of temporary directors was made without the power to appoint the regular board of directors, and that the resolution made by the regular board of directors appointed by the invalid board of directors or the regular board of directors appointed by the regular board of directors is null and void all of the resolutions made by the regular board of directors, and the contents of each resolution made by the board of directors are not directly related to the status or rights of Gap et al. of Eul et al

[1] Article 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), Article 63 of the Civil Act / [2] Article 250 of the Civil Procedure Act / [3] Article 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), Article 250 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2006Da19054 Decided May 17, 2007 (Gong2007Sang, 873) Supreme Court Decision 2010Da30676, 30683 Decided October 28, 2010 (Gong2010Ha, 2161)/ [2] Supreme Court Decision 2003Da55059 Decided December 22, 2005 (Gong2006Sang, 155)

Plaintiff 1 and three others (Bae, Kim & Lee LLC, Attorneys Ko Hyun-chul et al., Counsel for the plaintiff-appellant)

School Foundation (Law Firm Barun et al., Counsel for the defendant-appellant)

Intervenor joining Co-Litigation (Law Firm Barun et al., Counsel for defendant-appellant)

Daegu High Court Decision 2008Na918 decided July 24, 2009

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. The total cost of the lawsuit is assessed against the Plaintiffs, including the cost of supplementary participation in co-litigation.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In light of the basic rights of school juristic persons, the legislative purpose of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter "former Private School Act"), and Article 25 of the same Act as special provisions of Article 63 of the Civil Act, which have separate provisions on the grounds for appointment of provisional directors, duties, duration of office and restrictions on appointment of regular directors, etc., provisional directors appointed by the Minister of Education pursuant to Article 25 of the former Private School Act shall be a risk manager who is temporarily in charge of operation of the school juristic persons where the purpose of the school juristic person is not achieved or is likely to cause damage, and they shall be interpreted as having the same authority as regular directors of the school juristic person, unlike temporary directors under the Civil Act. Therefore, it is reasonable to view that there is no authority to appoint regular directors, such as the above 200-Da19054, May 17, 2007, which is not legally authorized to appoint regular directors (see, e.g., Supreme Court en banc Decision 2006Da1606.

Inasmuch as there is no special provision in the Private School Act or the Civil Act as to who can file a lawsuit seeking confirmation of invalidity against the board of directors of a school juristic person, any person who has a benefit of confirmation or legal interest as in ordinary cases of a lawsuit for confirmation shall be deemed to have standing to sue. Furthermore, in a lawsuit for confirmation, the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment of confirmation in order to eliminate the plaintiff's right or legal status and the apprehension and danger (see Supreme Court Decision 2003Da5059, Dec. 22, 2005, etc.).

According to the reasoning of the judgment below and the records, Defendant private teaching institute was established for the purpose of providing secondary education based on the educational ideology of the Republic of Korea and established and operated Ocheon Middle Schools and Ocheon High Schools under its control on April 25, 1964, as a result of the special audit of the Office of Education of the competent authorities, and the directors and auditors employed at that time as of September 18, 200, including the embezzlement of the basic property for profit and school facilities of the school foundation, were all dismissed as of September 18, 200, and the Minister of Education (amended by the Private School Act by Act No. 6400, Jan. 29, 2001; hereinafter referred to as “the Minister of Education”) adopted a resolution of 15th board of directors by the board of directors of the Defendant private teaching institute (the board of directors of the 205th board of directors composed of Nonparty 2 and 7 directors of the 19th board of directors; hereinafter referred to as “Temporary 37th board of directors”).

In light of the above facts in light of the legal principles as seen earlier, the resolution of the board of directors of the third party provisional board of directors composed of the temporary directors of the defendant driving school on March 11, 2005, which was made without the authority to appoint the regular board of directors, is null and void. As such, the resolution of the regular board of directors appointed by the resolution of the board of directors of March 11, 2005, or the resolution of the appointment of the remaining directors as the intervenor or the board of directors of the board of directors, etc. is null and void. Thus, the plaintiffs do not have the status of directors of the defendant driving school, and the contents of each resolution of the board of directors of the case are not directly related to the plaintiffs' status or rights, and therefore there is no standing to sue or legal interest to seek confirmation of invalidity of each resolution of the plaintiffs

Nevertheless, the court below erred by misapprehending the legal principles as to the scope of the authority of temporary directors appointed under Article 25 of the former Private School Act and the requirements for litigation, thereby adversely affecting the conclusion of the judgment, by rejecting the principal defense of the defendant and the intervenor that the lawsuit in this case is unlawful.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance which accepted the plaintiffs' claim shall be revoked, and the lawsuit of this case shall be dismissed, and the total costs of the lawsuit shall be borne by the losing party. It is so decided

Justices Park Si-hwan (Presiding Justice)