The case holding that Article 25 (3) of the Private School Act cannot be deemed to be limited to a maximum of four years for which the Minister of Education and Human Resources Development may appoint temporary directors and dispatch them.

The case holding that Article 25 (3) of the Private School Act cannot be deemed to be the purpose that the Minister of Education and Human Resources Development limits the period for temporary directors to a maximum of four years.

Article 25 (3) of the Private School Act

○○ Private Teaching Institute (Seng Law Firm, Attorneys Park Man-ho, Counsel for the defendant-appellant)

Defendant 1 and three others (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2004Ra224 dated December 29, 2004

The order of the court below is reversed, and the case is remanded to Seoul High Court.

1. Summary of the judgment below

The court below held that the principal school juristic person was established with the permission of the establishment of the private teaching institute on April 23, 1964 by the head of the office of delivery, and that there was no new photograph among seven directors or no director can be selected without the expiration of the term of office, and its operation took place due to the dispute between the founders at the time. The Minister of Education and Human Resources Development cancelled the approval of appointment for the remaining two directors on February 14, 1997, or appointed non-party 1 and six directors under Article 25 of the Private School Act at the time when the appointment of the provisional director was made for the first time on December 31, 1999. The above provisional director's appointment of non-party 6 and non-party 3 as temporary directors for the first time after the expiration of the term of office of the temporary directors. The provisional director's appointment of non-party 2 as temporary directors for the first time after the expiration of the term of office of the above temporary directors.

2. The judgment of this Court

Article 25 (1) of the Private School Act amended by Act No. 6004 of Aug. 31, 199 provides that "the Minister of Education (the Private School Act is changed to "the Minister of Education and Human Resources Development as it was amended by Act No. 6400 of Jan. 29, 2001; hereinafter "the Minister of Education and Human Resources Development") shall appoint temporary directors at the request of an interested party or ex officio if it is deemed that it is impossible to achieve the purpose of the school juristic person concerned or would cause damage to the school juristic person if the school juristic person fails to fill vacancies of its directors." If temporary directors are appointed pursuant to the above provision, the Minister of Education and Human Resources Development shall appoint directors at the meeting of the ordinary school juristic person and approved the appointment thereof by the Minister of Education and Human Resources Development. The obligation of the temporary directors at the meeting of the board of directors of the school juristic person becomes impossible to achieve the purpose of the establishment of the school juristic person due to disputes, fraudulent or poor reasons among the executives, and it is difficult to meet the remaining purpose of the board of directors or ex officio.

Meanwhile, Article 3 (3) of the same Act provides that "the temporary directors shall hold office until the cause referred to in paragraph (1) is removed. In this case, even if the cause continues for a long time, their terms of office shall not exceed two years and they may be reappointed only once." The above provision provides that "The temporary directors shall hold office until the cause of appointment of the temporary directors is removed, and where such cause continues for a long time, the term of office of the temporary directors shall be two years and they shall be reappointed only once."

The court below proposed the issue of when the provisional director system should be returned to the regular director system under Article 25 (3) of the Private School Act, and, on the ground that the above provision was examined and resolved from the above point of view in the legislative process, it is interpreted as a regulation to prevent the prolongedization of the provisional director system as restricting the period for which the provisional director can be appointed by the Minister of Education and Human Resources Development rather than the restriction on the individual temporary director's term of office. However, the above decision of the court below is not acceptable for the following reasons.

Article 25 of the Private School Act prior to the amendment by Act No. 6004 of Aug. 31, 199 (hereinafter referred to as the "Act prior to the amendment") only provides the same provision as that of Article 25 (1) of the Private School Act, i.e., the appointment of temporary directors, and there was no provision as provided in Article 25 (2), (3) and (4) of the Private School Act. According to the records, the Ministry of Education bill submitted on Dec. 2, 1998 submitted on the amendment of Article 25 of the Private School Act was not an amendment. However, it is difficult for the Minister of Education to set the 19-year term of office to allow temporary directors to be appointed only once within the 19-year term of office, and the 19-year term of office of the temporary directors to be appointed within the 19-year term of office, regardless of the fact that the 2-year term of office of the National Assembly bill bill amendment was inappropriate.

Article 25 (3) of the Private School Act does not mean that the term of temporary directors may be two years and they may be reappointed only once, but it should be expressed at least that the latter part of Article 25 (2) of the Private School Act may be extended only once, rather than that "the latter part of the Article 25 (3) may be reappointed only once," and it should have been discussed at the Board of Education and the meeting of the National Assembly on the basis of such a proposal.

In addition, Article 25 (1) of the Private School Act provides that the appointment of a provisional director shall be made even at the request of interested parties, and Article 25 (3) of the Private School Act provides that the appointment of a provisional director shall be made at the request of interested parties, and the interested parties of the school foundation may file an application for dismissal of a provisional director with the Minister of Education and Human Resources Development where the Minister of Education and Human Resources Development unfairly maintains the provisional director system even though the grounds for appointment of a provisional director have ceased to exist, and there is no need to interpret Article 25 (3) of the Private School Act as a provision to prevent the prolongedization of the provisional director system by an administrative litigation.

Therefore, under Article 25 (3) of the Private School Act, the Minister of Education and Human Resources Development may no longer appoint temporary directors and dispatch them to a school juristic person for the first time after four years of appointment of temporary directors, and on the premise that the qualifications for the already appointed temporary directors are lost, the court below which accepted the application of this case by the applicant who seeks to appoint temporary directors under Article 63 of the Civil Act on the ground that the principal school of this case is a state of vacancy for all of the directors at present, is erroneous in the misapprehension of legal principles as to Article 25 (3) of the Private School Act, which affected the conclusion

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)