2015Guhap10414 Action demanding revocation of a corrective order

School Foundation00 Private Teaching Institutes

Law Firm (LLC), Kim & Lee LLC, Attorneys Park Jae-young et al., Counsel for the defendant-appellant

Superintendent of Education of Gwangju Metropolitan City

Attorney Yang Chang-soo, Counsel for the defendant-appellant

May 21, 2015

June 11, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The corrective order issued by the defendant against the plaintiff on September 16, 2014 shall be revoked.

1. Details of the disposition;

A. Status of the plaintiff, etc.

The plaintiff is an educational foundation established pursuant to the Private School Act for the purpose of providing secondary education and basic specialized education, and has established and operated △△ Women High School and △ Women High School.

A is the principal of the △△ Women High School, B is the principal of the △△ Women High School, and A and B were the directors of the school juristic person (hereinafter referred to as "private teaching institute") from December 2008 to June 2013.

B. Cancellation of approval of taking office and the progress of litigation

1) On June 27, 2013, the Minister of Education issued a disposition of cancellation of approval for taking office (hereinafter below) on the grounds that “12 executive officers of a private teaching institute, including A and B, embezzled and illegal use of funds for school expenses, ② improper operation of the board of directors, ③ false appointment of full-time teachers, ④ failure to comply with audit results or other corrective requirements.”

2) On July 17, 2014, A and B filed a lawsuit seeking the revocation of the instant disposition with the Seoul Administrative Court 2013Guhap5819, which was dissatisfied with the revocation of the approval, and the said court rendered a judgment dismissing both their claims on the grounds that: (a) the grounds for the disposition under the foregoing paragraph (1) are not recognized; (b) but (c) the said judgment was rendered on the grounds that the grounds for the disposition under the foregoing paragraph (4) is recognized; and (d) thereafter, A and B appealed appealed from the Seoul High Court 2014Nu59780; and (c) the said court rendered a judgment dismissing their appeals on April 14, 2015 on the grounds that both the grounds for the disposition under the foregoing paragraph (1), (2), (3) and (4) are recognized, and thus, A and B are currently pending in the final appeal trial by Supreme Court Decision 2015Du42138.

C. Defendant’s notification

On September 16, 2014, the Defendant informed the Plaintiff that he was subject to the revocation of the approval in this case, pursuant to Article 22 of the Private School Act and Article 54-3 of the Private School Act, and Article 22 of the Private School Act and Article 54-3 of the Private School Act, and that the principal of the A and the B are deprived of the principal’s position (excluding automatically) subject to the restriction on the appointment of the principal, the Defendant immediately notified the Plaintiff that he would not interfere with the management and academic administration of the school, and that he would immediately take follow-up personnel measures so as not to interfere with the principal’s position (report on appointment and dismissal) and submitted the result by September 30, 201 (hereinafter referred to as the “instant disposition”).

[Ground of recognition] A without dispute, entry of Gap evidence 2, purport of whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

Article 54-3 (1) of the Private School Act provides that "a person falling under any of the following subparagraphs shall not be appointed as the principal of a school" and subparagraph 1 of Article 20-2 provides that "a person in whose case five years have not passed since the approval of taking office was cancelled pursuant to the provisions of Article 20-2", and the defendant issued the disposition in this case on the premise that the grounds for limiting the appointment of the principal of a school under the above provision constitute a reason for

However, the Private School Act provides for the grounds for restrictions on appointment (Article 54-3) and the grounds for ipso facto retirement (Article 57) separately, and does not provide for the grounds for ipso facto retirement in cases falling under the grounds for restrictions on appointment unlike the State Public Officials Act or the Public Educational Officials Act. Thus, interpreting that the status of the principal as a matter of course has been lost since the appointment of the principal after the appointment of the principal of the school has occurred as a reason for restrictions on appointment under the above provisions of the Private School Act is not only an interpretation by analogy and expansion beyond the ordinary meaning of the language, but also an interpretation by analogy and expansion of the above provisions of Article 31(6) of the Constitution and Article 56 of the Private School Act.

Therefore, the instant disposition was unlawful since it was not only without legal basis but also explicitly infringed on the principle of guarantee of status of private school teachers as prescribed by the Constitution.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

The instant disposition is merely to attract the Plaintiff’s duty to take follow-up measures following the revocation of the instant disposition, and it does not in itself cause any specific disadvantage to the Plaintiff, and thus, it cannot be deemed that there is a disposal nature.

B. Determination

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstract or general. In specific cases, an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. In mind, the administrative disposition should be determined individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and Section (j) of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010)

According to the above facts, the Defendant’s instant disposition against the Plaintiff is based on the following purport: “The Defendant’s instant disposition against the Plaintiff was lost its principal position in accordance with the instant disposition of revocation; thus, it promptly takes follow-up personnel measures to prevent any disruptions to school management and school administration, and submits the result by September 30, 2014.”

In light of the contents and form of the instant disposition, it is reasonable to view that the instant disposition constitutes a corrective order with the content that “if a school violates education-related Acts and subordinate statutes or orders or school regulations related thereto, with respect to facilities, equipment, classes, school affairs, and other private matters, the school founder, etc.” under Article 63(1) of the Elementary and Secondary Education Act, it shall be deemed that the instant disposition constitutes an administrative act that directly affects the Plaintiff’s duty of interest, not an administrative act that directly affects the Plaintiff’s right of interest. If the Plaintiff fails to comply with such order within the designated period without justifiable grounds, the Plaintiff may be subject to measures such as reduction of the fixed number of students, reduction or closure of classes or departments, or suspension of student enrollment (see Article 63(2) of the Elementary and Secondary Education Act). Therefore, the instant disposition is recognized as an administrative act that directly affects the Plaintiff’s duty of interest, not an administrative act that merely leads the Plaintiff to the Plaintiff’s duty.

Therefore, the defendant's defense prior to the merits is without merit.

4. Determination on the legality of the instant disposition

Article 69 of the Private School Act provides for the grounds for restrictions on appointment (Article 54-3) in Section 1 of Chapter IV (Article 57) and provides for the grounds for ipso facto retirement (Article 57) in Section 2 of the same Chapter, and Article 69 of the same Act provides for the grounds for disqualifications (Article 33) for the Public Educational Officials Act (Article 10-4) in Article 43-2 of the same Act, but the Private School Act does not provide for the grounds for disqualifications (Article 54-3) as grounds for ipso facto retirement (Article 57) in Article 57.

① However, it cannot be compared with the case of statutory retirement, as it does not simply lose a position of the head of the school. The defendant does not take the instant measure against the plaintiff A and B pursuant to Article 57 of the Private School Act, on the premise that the reasons for cancellation of appointment under Article 54-3 of the Private School Act have occurred, rather than taking the instant measure on the premise that the reasons for cancellation of appointment under Article 54-2 of the Private School Act have occurred. ② The legislative intent of Article 54-3 (1) 1 of the Private School Act provides that the above provisions of Article 54-2 of the Private School Act shall not be deemed to include the reasons for cancellation of appointment under Article 15 of the Private School Act, and Article 54-3 (1) 4 of the Private School Act provides that the above provisions of Article 54-1 of the Private School Act shall not be deemed to include the reasons for cancellation of appointment under Article 7 of the Private School Act, and thus, it shall not be deemed that the above provisions of Article 54-1 of the Private School Act explicitly stipulate the reasons for cancellation of appointment.

Meanwhile, under Article 54-3 (1) 1 of the Private School Act, there is a question as to whether a person whose approval of taking office of a school foundation is revoked is not limited to a school belonging to the school foundation in which the approval of taking office is revoked. (2) In addition, Article 54-3 (1) of the Private School Act provides that a person falling under any of the following subparagraphs shall not be appointed as the head of the school. The scope of a school in which appointment is restricted is not limited to a school belonging to the school foundation in which the approval of taking office was granted, and the scope of a school is not limited to a school belonging to the school foundation in which the approval of taking office is granted, and Article 20-2 of the Private School Act provides that a person whose appointment is revoked is limited to a school foundation in violation of the provisions of the Elementary and Secondary Education Act, the Higher Education Act, the Higher Education Act, or the Higher Education Act, disputes between executives, accounting fraud, or significant undue practices, etc., which may not cause serious obstacles to school operation within a certain period of time before the approval of taking office is revoked.

In addition, in light of the legislative intent of Article 54-3 (1) 1 of the Private School Act, such interpretation shall not be construed as either an illegal interpretation beyond the ordinary meaning of the language and text of the Private School Act, nor an obvious violation of the principle of guarantee of status of private school teachers under the Constitution.

Therefore, the Defendant’s disposition to the effect that “A” and “B” obtained the revocation of the approval from the Minister of Education, thereby losing their principal’s position (excluding the Plaintiff’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case case’s case’

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Park Dog-won (Presiding Judge)

Mazyanite

Category support

1) Removal from office upon a request for dismissal under Article 54-2 of the Private School Act; dismissal from office as a member of the Private School Act;

Article 54-2 of the Private School Act cannot be viewed as grounds such as right dismissal, right dismissal, and right to recommend dismissal. In light of the above reasons for removal upon request for dismissal, etc.

It is reasonable to view that the dismissal by a request for dismissal constitutes disciplinary action or dismissal.

2) After the conclusion of the pleadings, the Plaintiff asserts this purport in the reference document submitted as of June 1, 2015.

Site of separate sheet

Related Acts and subordinate statutes

Private School Act

Article 1 (Purpose)

The purpose of this Act is to ensure the sound development of private schools by securing their independence and promoting their public characteristics, in view of their special characteristics.

Article 4 (Competent Agencies)

(1) A person who falls under any of the following subparagraphs shall be the Special Metropolitan City, Metropolitan Cities, and Dos (hereinafter referred to as "City/Do") having jurisdiction over his/her domicile:

The superintendent of the Office of Education shall be subject to guidance and supervision.

1. Private elementary schools, middle schools, high schools, high technical schools, civic schools, high civic schools, and special schools;

· Kindergartens and various equivalent kinds of schools

2. An educational foundation or a manager of a private school which establishes and operates a private school referred to in subparagraph 1;

(3) Any of the following persons shall be subject to guidance and supervision by the Minister of Education:

1. Private universities and colleges, industrial colleges, cyber colleges, junior colleges, technical colleges, and various kinds of schools equivalent thereto (hereafter in this paragraph, referred to as "private universities");

(n) A college educational institution (hereinafter referred to as " college educational institution").

2. An educational foundation that establishes and operates a private school referred to in subparagraph 1;

3. School foundations which establish and operate both private and other private schools referred to in subparagraph 1 and others.

Article 20-2 (Cancellation of Approval of Taking Office)

(1) If any executive has committed any of the following acts, the competent agency shall cancel its approval of his taking office:

the corporation.

1. A violation of the provisions of this Act, the Elementary and Secondary Education Act, or the Higher Education Act or an order issued pursuant to such provisions;

failure to comply with the

2. A dispute between executives, accounting fraud or other serious unfair practices, etc., which results in seriously impeding the operation of the relevant school;

at the time of such occurrence

3. When he infringes on the authority of the principal of a school in regard to school administration;

6. Where it fails to comply with the request for disciplinary action against the head of the school.

(2) Cancellation of the approval of taking office under paragraph (1) shall be corrected by the competent agency to the school juristic person for the reason thereof.

shall be limited to the case where no response has been made even after 15 days have elapsed from the date of the request: Provided, That correction shall be made;

If it is apparent that it is not possible to correct it even if requested, or the degree of corruption, such as accounting fraud, embezzlement, and bribery, etc.

may cancel the approval of taking office without the request for corrective action, and the detailed criteria therefor.

The Presidential Decree shall be prescribed.

Article 22 (Disqualifications for Officers)

No person who falls under any of the following subparagraphs, may be an officer of a school juristic person:

1. A person who falls under Article 33 of the State Public Officials Act;

2. One for whom 5 years have not elapsed from the date on which the approval of his taking office was revoked under Article 20-2; and

3. A person for whom 3 years have not elapsed from the date he was released from office by a request for dismissal under Article 54-2; and

4. A person who has been removed pursuant to Article 61 and for whom five years have not elapsed since the removal.

5. He/she shall be a public educational official of Grade IV or higher or a public educational official of Grade IV or higher or a public educational official of Grade IV or higher;

A person in whose case the year has not elapsed;

Article 23 (Prohibition of Concurrently Holding Office)

(1) The chairperson shall not concurrently hold office as the head of a private school established and operated by the relevant school foundation: Provided, That only kindergartens shall be kindergarten.

In the case of the chief executive officer of a school foundation that establishes and operates a Dong, the head of the relevant kindergarten may concurrently hold the office.

(2) Directors may concurrently serve as an auditor or a teacher or other employees of a private school established and operated by the school foundation concerned.

except that the principal of a school shall not be a person.

(3) The auditor shall be the chief director, directors, or employees of the school foundation (the private school established and operated by the school foundation concerned).

No person shall concurrently serve as a teacher or any other employee.

Article 53 (Appointment and Dismissal of Head of School)

(2) Where a school foundation intends to dismiss the head of a college educational institution during the term of office pursuant to the provisions of paragraph (1).

shall undergo a resolution of the board of directors with the consent of at least 2/3 of the fixed number of directors.

The term of office of the heads of various levels of schools shall be stipulated by the articles of association, and private schools as private.

Operators shall be prescribed by the Rules, but they shall not exceed four years, and may be reappointed: Provided, That the foregoing shall not apply to elementary and secondary schools.

The head of a Gu may be reappointed only once.

Article 54-2 (Request for Dismissal)

(1) When the head of each school of various levels falls under any of the following subparagraphs, the competent authorities shall appoint and dismiss the person concerned:

Any person authorized to appoint and dismiss the principal of a school may request the dismissal of the principal. In such cases, upon receipt of a request for dismissal, shall not have any special

(1) shall be subject to such provisions.

1. When he falls under any of subparagraphs of Article 58 (1);

2. Ownership of the authority of the head of the relevant school in connection with admission (including transfer admission), classes, and graduation of students;

When they violate the education-related Acts or the orders issued under such Acts.

3. When he violates this Act or an order issued pursuant to this Act or other education-related Acts and subordinate statutes; and

4. When he commits an unjust or unusually unfair act concerning the execution of accounts which belong to the school.

(2) The request for dismissal under paragraph (1) shall be made to the school juristic person or manager of a private school by the competent agency.

15 days have elapsed from the date of the request for correction by clarifying the reasons therefor; and

(c)

Article 54-3 (Restrictions on Appointment)

(1) None of the following persons shall be appointed as the head of a school:

1. One for whom 5 years have not elapsed from the date the approval of his taking office was revoked under Article 20-2;

2. One for whom 3 years have not elapsed from the date he was dismissed upon a request for dismissal under Article 54-2; and

3. A person who has been removed pursuant to Article 61 and for whom five years have not elapsed since the removal;

4. One who falls under any subparagraph of Article 10-4 of the Public Educational Officials Act.

(2) The head of a school by a person who falls under paragraph (1) 1 through 3 and for whom a limited period of appointment has elapsed.

In order to take office, two-thirds or more of the registered directors shall be approved.

(3) The chief director of a school juristic person and persons falling under any of the following subparagraphs shall be established by the school juristic person concerned:

No head of a school shall be appointed: Provided, That the affirmative votes of at least two-thirds of the fixed number of directors and by the competent authorities shall be appointed;

No person who has obtained approval shall apply.

1. Spouse;

2. The lineal ascendants and descendants and their spouses;

(4) No person who falls under paragraph (1) 4 shall be appointed as a teacher.

(5) Teachers (including fixed-term teachers under Article 54-4) and teachers and staff of national or public schools under this Act.

(including fixed-term teachers under Article 32 of the Public Educational Officials Act) and full-time teachers under Article 23 of the Early Childhood Education Act.

While serving as instructors, etc. or industrial-educational teachers, etc. under Article 22 of the Elementary and Secondary Education Act, the following foods:

A person who has been removed, removed, or sentenced to imprisonment without prison labor or any heavier punishment due to an act falling under any of the following:

A person who has been sentenced to a suspended sentence and for whom the period of the suspended sentence has elapsed shall be included) shall not exceed high school.

No teacher of a school of various levels shall be appointed: Provided, That the relevant school shall be appointed by the teachers' disciplinary committee referred to in Article 62.

Where it is decided that a teacher is able to perform his/her duties in consideration of his/her reflectivity, etc., he/she

subsection (1) of this section.

2. Receipt of money and valuables;

3. Cheating related to student performance, such as leakage of examination questions and manipulation of grade;

4. Physical violence to students.

(6) A resolution of the teachers' disciplinary committee referred to in the proviso to paragraph (5) shall be made at least 2/3 of the incumbent members present and the

The concurrent vote of half shall be given.

Article 56 (Prohibition of Temporary Retirement, Dismissal, etc. Contrary to Intention)

(1) A teacher of a private school shall be sentenced to punishment or disciplinary action, or not subject to any cause prescribed by this Act.

No unfavorable disposition, such as temporary retirement or dismissal, shall be taken against the will of the person: Provided, That class or department shall be

When a position is closed or become an excessive member due to an opening or closing, this shall not apply.

(2) No teacher of a private school shall be subject to any advice to resign.

Article 57 (Reasons for Retirement)

If a teacher of a private school falls under any subparagraph of Article 10-4 of the Public Educational Officials Act, he/she shall be retired from office per year: Provided, That subparagraph 5 of Article 33 of the State Public Officials Act shall apply only where he/she commits a crime provided for in Articles 129 through 132 of the Criminal Act and Articles 355 and 356 of the Criminal Act in connection with his/her duties and is sentenced to the suspension of sentence of imprisonment without labor or greater punishment, and in applying subparagraph 6-2 of Article 33 of the State Public Officials Act, "official

Article 58 (Reasons for Dismissal from Office)

(1) If a teacher of a private school falls under any of the following subparagraphs, the person who is entitled to appoint and dismiss him, shall dismiss him:

the corporation.

1. Failure to return to his duties or duties even after the period of temporary retirement expires or the grounds for temporary retirement cease to exist;

When he is unable to cope with it;

2. When his service record is extremely poor;

3. When he joins an organization which aims to destroy the Government and aids it;

4. Political movement, or collectively refusing lectures and seminars, or supporting or opposing a political party;

for the guidance and instigates of students;

5. When he gives unlawful grade or record, or makes a false certification or statement in the student record.

(2) Teachers under Article 62 who are to be dismissed on the grounds of paragraph (1) 2 through 5.

The consent of the Disciplinary Committee shall be obtained.

Article 61 (Causes and Kinds of Disciplinary Action)

(1) If a teacher of a private school falls under any of the following subparagraphs, the person who is entitled to appoint and dismiss the teacher concerned shall discipline

A request shall be made and a disciplinary action shall be taken according to the results of the disciplinary resolution.

1. Where he performs an act contrary to the teacher's principal portion in violation of this Act and other education-related Acts and subordinate statutes;

2. When he violates or neglects his duties;

3. When he commits an act detrimental to the dignity of a teacher regardless of whether he is on or off duty.

(2) Disciplinary measures shall be removal, dismissal, suspension from office, reduction of salary, and reprimand.

(3) The suspension from office shall be one to three months, and a person subject to the suspension from office shall hold his status during the relevant period.

2/3 of the remuneration shall not be paid as one duty, and shall be reduced.

(4) The reduction of salary shall reduce the remuneration by one-third for a period of not less than one month but not more than three months.

(5) Reprimand shall admonish a person for his/her previous offense, and make him/her repent of himself/herself.

Constitution

Article 31

(6) Education systems, including school education and lifelong education, and operation thereof, and educational finance and status of school teachers.

The principal matters shall be determined by Acts.

Educational Officials Act

Article 10-4 (Grounds for Disqualification)

None of the following persons shall be appointed as a public educational official:

1. A person who falls under any subparagraph of Article 33 of the State Public Officials Act;

2. A sexual crime against a minor defined in Article 2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

The dismissal, dismissal, or a sentence of a fine of at least one million won or a sentence of a heavier punishment shall be imposed on the person.

A fixed person (including a person for whom the period of suspended execution has elapsed after having been sentenced to a suspended sentence)

Article 43-2 (Ipso Facto Retirement)

If a public educational official becomes disqualified under Article 10-4, he/she shall retire ex officio: Provided, That subparagraph 5 of Article 33 of the State Public Officials Act shall only apply where he/she commits an offense provided for in Articles 129 through 132 of the Criminal Act and Articles 355 and 356 of the Criminal Act in connection with his/her duties and is suspended from the sentence of imprisonment

/ The State Public Officials Act

Article 33 (Grounds for Disqualification)

None of the following persons shall be appointed as a public official:

1. An adult ward or limited ward;

2. A person declared bankrupt and not yet reinstated;

3. After a sentence of imprisonment without prison labor or heavier punishment as declared by a court is completely executed or exempted;

A person for whom five years have not passed;

4. A person in whose case two years have not passed since his/her imprisonment without labor or greater punishment as declared by a court was completely suspended;

5. A person who is under the suspension of the sentence of imprisonment without prison labor or heavier punishment;

6. A person disqualified or whose qualification is suspended by a court ruling or by any other Act.

6-2. Articles 355 and 356 of the Criminal Act in connection with duties while in office as a public official;

A person who commits a crime and is sentenced to a fine of not less than three million won and for whom two years have not passed after the sentence becomes final and conclusive.

A person who does not have yet to go

7. A person in whose case five years have not passed since he/she was removed by a disciplinary action.

8. A person who was dismissed by a disciplinary action, and for whom three years have not passed thereafter.

Article 69 (Ipso Facto Retirement)

Where a public official falls under any of the following subparagraphs, he/she shall retire automatically:

1. Where he/she falls under any of the subparagraphs of Article 33: Provided, That subparagraph 5 of Article 33 shall be the same as Article 129 through 5 of the Criminal Act

A person who commits any of the crimes specified in Article 132 of this Act and Article 355 or 356 of the same Act in connection with his/her duties;

It shall be limited to a suspended sentence of imprisonment without prison labor or any heavier punishment.

2. Where the service period of a public official in a fixed term position expires;

- The Elementary and Secondary Education Act

Article 63 (Order for Correction or Modification)

(1) The competent authorities shall provide education-related Acts and subordinate statutes concerning facilities, equipment, classes, school affairs and other matters to schools.

or, in the event of a violation of orders or school regulations, the founder, operator, or head of a school.

order the correction or modification thereof within a fixed period.

(2) The competent agency shall, in receipt of an order for correction or modification under paragraph (1), designate the period without any justifiable ground.

failure to comply with such order, the cancellation or determination of such violation, as prescribed by the Presidential Decree.

b. Reduction of the fixed number of students, reduction or closure of classes or departments, suspension of the enrollment of students, etc. in the relevant school;

the corporation. Finally, the corporation may take any action.