(영문) 서울행정법원 2020.8.27. 선고 2019구합77743 판결

A. School Foundation B (hereinafter “B”) establishes and operates C University, and the Plaintiff was appointed as a director B from February 2, 2005.

B. The Ministry of Education conducted a comprehensive audit of B and C University from February 13, 2017 to February 24, 2017, and confirmed at least 40 cadastral matters concerning the operation, management, etc. of school juristic persons.

C. On May 28, 2019, based on the audit results, the Defendant issued a disposition on May 28, 2019 to revoke the approval of taking office of the Plaintiff (hereinafter “instant disposition”). The grounds for the disposition are as follows.

In particular, the violation of the Private School Act and the Enforcement Decree of the same Act (including the Civil Act, the finance and accounting rules of private school institutions, the special rules on the finance and accounting rules of private school institutions, which are applicable mutatis mutandis) such as embezzlement of basic property for profit-making purpose (deposits 1,200,000,000), investment of corporate funds, etc., i.e., violation of the Private School Act and the Enforcement Decree of the same Act (including the Civil Act, the finance and accounting rules of private school institutions, and the special rules on the financial and accounting rules of private school institutions), i.e., where it is evident that the correction of Article 9-2(1) of the Enforcement Decree of

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, the purport of the whole pleadings

2. Grounds and the attached specifications of the relevant statutes (hereinafter referred to as the "Private School Act") are as stated in the law, and the Enforcement Decree of the same Act is as "Enforcement Decree" (hereinafter referred to as "Enforcement Decree") and 3. Whether the dispositions of this case are legitimate

A. The plaintiff's assertion

1) The Defendant, by misunderstanding each of the facts constituting the grounds for the instant disposition, was disposed of even though it did not constitute the grounds for the disposition.

2) Even if there are some grounds for partial disposition, taking into account the minor and corrective circumstances in which the degree of the violation is insignificant, the disposition is excessive.

3) The Defendant, if all of the violations were corrected, violated the instant disposition, even though it did not take the instant disposition. This contradicts the principle of trust protection.

B. Determination

1) Determination as to the non-existence of grounds for disposition

The director of a school juristic person shall be present at the board of directors to deliberate on, determine (Article 19(3) of the Act), and perform his duties with the care of a good manager (Article 27 of the Act and Article 61 of the Civil Act). The director shall be appointed at the board of directors, but the director shall obtain approval from the competent agency. If the director commits an act falling under any subparagraph of Article 20-2 of the Act, the competent agency may revoke his appointment approval. The defendant issued the instant disposition against the Plaintiff, a B director, for the same reason as stated in paragraph (c) of the same Article (the Plaintiff’s assertion to the effect that the reason for the instant disposition is not clearly specified, is not accepted, and shall not be determined

In full view of the evidence mentioned above, Gap evidence Nos. 3, 5 through 8, 11, and Eul evidence Nos. 2 through 8 (including each number number), and facts or circumstances acknowledged or known by the overall purport of pleadings as follows, it cannot be deemed that there was an error in the judgment of the defendant that there was a reason under Article 20-2 (1) 1 of the Act to the plaintiff. Even if part of each of the facts constituting the reason for disposition is not acknowledged, even if there is no reason for disposition, it is not against the defendant even if the plaintiff explained the details of the use of welfare expenses and merchandise coupon use unclear among the reason for disposition in this case, and submitted relevant materials, and the defendant did not go against it (if the reason for disposition in this part exists, it is not sufficient to prove the existence of the reason for disposition in this part).

(1) Matters concerning the disposal and administration of property of a school foundation shall be deliberated and resolved by the board of directors.

(1) Article 16(1)1 of the Act and the Plaintiff presented the opinion that D directors make an investment in E Company. On December 10, 2012, the Plaintiff cancelled the deposit of KRW 1,200,000,000 in F Bank without the resolution of the board of directors, and ordered D to do so without the resolution of the board of directors, and on April 3, 2013, the Plaintiff revoked the deposit of KRW 1,20,000,000 in basic property for profit which was deposited in F Bank without the resolution of the board of directors, and then revoked the deposit of KRW 1,20,000 in F Bank without the resolution of the board of directors. In this regard, the Plaintiff was found to have been subject to investigation of violation of the Act on the Punishment, etc. of Specific Economic Crimes (Embezzlement) with D, and received a separate decision of 00,000 won for embezzlement of KRW 20,000 on the ground that it did not constitute the above 200,0000.

② The Fund budget refers to a statement specifying the source of all the Fund revenues and the purpose of all the Fund expenditure for one fiscal year (Article 3 subparag. 9 of the Regulations on Special Cases), and the president of a school foundation shall not spend more than the Fund budget (Article 12 of the Regulations on Special Cases). Matters concerning the disposal and management of the Fund Foundation’s property shall be deliberated and resolved by the board of directors (Article 16(1)1 of the Act). B, despite the acquisition budget of the Fund’s property in 2012 is 200,000,000 won, the total amount of 60,000,000 won in the pertinent fiscal year shall be loaned to E, and the amount shall be additionally 250,000,000 won shall be invested in 200,000 won, and the amount shall be converted to E, 200,000 won shall be 10,0000 won, 300,000 won shall be 20,0000,00 won.

③ The Fund budget refers to a statement of estimated balance of funds, specifying the source of all the funds for one fiscal year and the purpose of all the funds expenditure (Article 3 subparag. 9 of the Regulations on Special Cases), the president of a school foundation cannot spend more than the Fund budget (Article 12 of the Regulations on Special Cases), and B, October 1, 2014, I was employed as a class-V employee in general service. I was employed as a parent of the B president, and as a member of a D director or a member of another school in the past, for the purpose of filling the remainder of the private school pension within the remaining period. I was formally employed from the date of employment to the date of resignation (from November 10, 2014 to January 20, 2017 to the date of retirement), and the Plaintiff recovered the amount of KRW 59,630,000 in total, from the date of employment to the date of January 20, 2017 to the date of receiving the official seal from the president.

2) Determination on the assertion of deviation or abuse of discretionary power

The revocation disposition of taking office constitutes a punitive administrative disposition. Whether a punitive administrative disposition deviatess from or abused the scope of discretionary power under the social norms should be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition by objectively examining the content of the offense committed as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

In full view of the facts and circumstances as seen earlier, it is difficult to view the instant disposition as deviating from the scope of discretion or abusing discretion, or taking account of the following facts and circumstances recognized or known by the purport of the entire pleadings (see, e.g., Supreme Court Decision 2006Da15488, Apr. 2, 2006). The Plaintiff’s assertion is rejected.

① All of the facts constituting the instant disposition are that the Plaintiff accepted and executed the instructions of D Director (A President’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s Professor

② A director or board of directors of a school juristic person shall play a role in a prior examination of the operation of the juristic person (Articles 16 and 19(3) of the Act); the Plaintiff asserts that all relevant money, such as embezzlement, investment, and I pay, were recovered from and preserved in B; however, it cannot be justified for an unlawful act that has failed to perform the prior examination function. In particular, the part related to embezzlement is the maximum amount of damage amounting to KRW 2,100,000,000 in total, and D was convicted of conviction, and the Plaintiff was subject to a disposition of suspension of indictment (the recovery of damage is only an event after the death of the president and does not affect the establishment of the crime). It is apparent that the investment portion was caused by the re-contribution of the president, and that both abstract and specific risks arising from investment have occurred and have been realized.

3. The ultimate purpose of revoking approval of taking office is to promote the sound development of private schools (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007). The public interest needs are not weak. Considering the circumstances asserted by the Plaintiff, the disadvantage suffered by the Plaintiff compared to the public interest to be achieved by the instant disposition cannot be deemed significantly higher.

3) Determination on the assertion of violation of the principle of trust protection

In full view of the aforementioned evidence and the purport of the entire pleadings, it is recognized that the defendant demanded the plaintiff to correct the violation on which the reason for the disposition of this case was based and notified that it would take a separate measure (Evidence Nos. 1 and 7). In the case of embezzlement, it is possible to cancel the approval of taking office without a demand for correction. It cannot be deemed that the defendant granted trust to the purport that he would not take a measure if the defendant complies with

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, the Korean Judge;

Judges Lee Dong-chul

Judges Cho Jong-chul

Note tin

1) The Plaintiff asserts that the evidence submitted by the Defendant was drafted by coercion or illegally collected, and thus, cannot be used as evidence. However, the relevant evidence can be recognized as having been duly signed by the Plaintiff or prepared by a public institution as an official document. The Plaintiff’s assertion is insufficient to prove it.