(영문) 서울북부지방법원 2017.1.20.선고 2016노1262 판결

1) The lower court determined that the cost of an attorney-at-law should be spent from the accounts of a corporation on the grounds that the cost of an attorney-at-law was set out in the rules of finance and accounting of a private school institution as an item for the expenditure of a school foundation. However, the special rules on the finance and accounting of a private school institution are preferentially applied to the rules of finance and accounting of a private school institution, and the attorney-at-law’s cost falls under the general service cost (4230) of the special rules on the finance and accounting of a private school institution, which

2) Each litigation cost paid by the Defendant is ① attorney’s fee in the case of a retirement allowance claim, ② attorney’s fee in the case of remedy for unfair labor practice, remedy for dismissal, invalidation of dismissal, and invalidation of removal, ③ attorney’s fee in the case of administrative litigation for revocation of a recommendation to recommend correction of the National Human Rights Commission of Korea. Since the litigation is related to personnel expenses, which are school expenses accounting expenses under Article 13(2)1 of the Private School Act, the cost paid by the Defendant in relation thereto constitutes expenses directly required for school education under Article 13(2)5 of the Enforcement Decree of the Private School Act. In cases of remedy for unfair labor practice, dismissal, invalidation of removal, and invalidation of removal, etc., a litigation for normalization of school education due to prolonged illegal strike of a labor union caused interference with school education by a labor union’s wage personnel committee and the personnel committee. Accordingly, the cost paid by the Defendant in relation thereto constitutes expenses directly required for school education under Article 13(2)5 of the Private School Act. An administrative litigation for revocation of a recommendation to recommend correction of the National Human Rights Commission constitutes expenses directly required under Article 13 subparag.

3) Even if it is not so, ① most other private universities have disbursed the litigation costs for school operation in the accounts of school expenses, and the Korea Private School Promotion Foundation, which was delegated by the Ministry of Education to the accounting audit of private universities, has authoritative interpretation that the litigation costs necessary for school operation can be disbursed from the accounts of school expenses. ③ Since there is no cadastral map of the Ministry of Education or the Board of Audit and Inspection, etc. of the Ministry of Education, the Defendant believed that the Defendant’s act was not a crime, and there is no negligence in trust.

B. Unreasonable sentencing

The sentence of the court below is hot.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) First, we examine the argument that the Defendant’s expenses may be paid out of the accounts of school expenses.

Article 13(2) of the Enforcement Decree of the Private School Act, which provides for matters concerning the expenditure of the accounts for school expenses upon delegation under Article 29(2) of the Private School Act, provides that personnel expenses and goods expenses necessary for school operation (Article 13(2) of the Enforcement Decree of the same Act, expenses for facilities and equipment directly necessary for school education (Article 29(2) (Article 13(1)2), expenses for research of school teachers, student scholarships, education guidance expenses, loans under subparagraph 3 (Article 3), repayment of principal and interest on school expenses (Article 1(1)8 (Article 4) and other expenses directly necessary for school education (Article 5) shall be deemed the expenditure of the accounts for school expenses. Thus, whether the expenditure from the income belonging to the accounts for school expenses falls under the expenditure of the accounts for school expenses, should be determined based on whether the expenses directly required for school education concerned are expenses (see, e.g., Supreme Court Decision 2011Do12408, May 10, 2012).

According to the purport of the Private School Act, the accounts of school juristic persons shall be divided into the accounts of school juristic persons and the accounts of juristic persons, and the use of the accounts of school expenses shall be strictly interpreted according to the meaning of the language and text. Therefore, even if it is related to the operation and certain portion of the school, it does not constitute the expenses that can be disbursed from the accounts of school expenses if it cannot be viewed as the expenses directly required for school education.

Comprehensively taking account of the following circumstances in the above legal principles, the expenses paid by the Defendant cannot be deemed as expenses that can be disbursed from the accounts of school expenses with the expenses directly required for school education.

① The special rules on the finance and accounting of private school institutions do not expressly stipulate the costs of lawsuit, and the rules on the finance and accounting of private school institutions stipulate the cost of lawsuit among the subjects of the expenditure of the school juristic person.

② It is difficult to accept the defense counsel’s assertion that the expenditure items in the table of the statement of the accounts of the private school institution’s finance and accounting are mostly necessary for school education rather than directly required for school education. Thus, “other expenses necessary for school education” under Article 13(2)5 of the Enforcement Decree of the Private School Act refers to other expenses necessary for school education. The purpose of the Private School Act that strictly limits the use of the accounts for school expenses in the school accounting among the school accounting, is to strictly interpret the use of the accounts for school expenses according to the purport of the Private School Act that strictly limits the use of the accounts for school expenses in the school accounting. (3) The remedy for unfair labor practices, the action for invalidation of dismissal, the action for invalidation of removal, etc. is basically pertaining to the appointment and dismissal of employees who can be basically deemed a corporation’s business, and the administrative litigation for the

(4) In the case of a claim for retirement allowances, the amount of retirement allowances falls under the personnel expenses necessary for the operation of a school. However, there is no explicit provision that the amount of the relevant litigation expenses is included in the expenditure subjects of the accounts for school expenses. To do so from the accounts for school expenses, the amount of the litigation expenses related to the personnel expenses, which are necessary for the operation of a school, should be viewed as direct expenses for education. It is difficult to deem that

(5) Although the lawsuits related to the expenses paid by the defendant were conducted in connection with the long-term strike of a trade union, it cannot be said that the student’s right to study, etc. is not related to the school education, it is difficult to view that the litigation cost related to such lawsuits is the

Ultimately, the court below's decision that the expenses paid by the defendant cannot be considered as expenses for school expenses because they cannot be considered as expenses directly needed for school education is correct, and there is no error of misapprehending the legal principles as argued by the defendant, or of misunderstanding facts.

2) Next, we examine the argument that the Defendant believed that his act was not a crime.

Article 16 of the Criminal Act provides that his act of misunderstanding that it does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there are reasonable grounds for such misunderstanding.

Whether such a justifiable ground exists shall be determined depending on whether an actor was unable to recognize the illegality of his/her own act as a result of failure to perform his/her duty even though he/she could have been aware of the illegality of his/her act if he/she had been able to examine or inquire about the possibility of illegality of his/her act by satisfying his/her intellectual ability. The degree of efforts necessary for recognizing illegality shall be determined differently according to the detailed situation of the act, the offender’s awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006). The circumstances alleged by the Defendant alone do not constitute a sufficient effort to avoid this by the Defendant with his/her intellectual ability, and as a result, it is difficult to deem that the Defendant did not recognize the illegality of his/her act. This part of the Defendant’s assertion is unacceptable.

B. Determination on the assertion of unfair sentencing

There is no significant change in circumstances to consider the sentencing of the defendant after the judgment of the court below. Comparing to the sentencing conditions stated in the records and arguments of this case and the reasons for sentencing of the judgment of the court below, considering all the circumstances alleged by the defendant as the grounds for appeal, the sentence of

3. Conclusion

The defendant's appeal shall not be accepted.