Lee Chemical Institute and five others (Law Firm Gyeong & Yang, Attorneys Lee Young-han et al., Counsel for the plaintiff-appellant)

The superintendent of the Office of Education (Attorney Jeon Young-soo, Counsel for defendant-appellant)

Seoul National Institute of Arts (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

April 28, 2011

1. The lawsuit shall be dismissed by the Plaintiff’s school juristic person;

2. All claims of plaintiffs 2, 3, 4, 5, and 6 are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

On July 20, 2010, the Defendant’s provisional disposition, dismissal, and appointment of regular directors against a school juristic person’s transfer art institute, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s Lee Chemical Institute (hereinafter referred to as the “Plaintiff Lee Chemical Institute”) was a school foundation that established Lee Igman High School, Seoul Arts High School, Gawon High School, Egrative Foreign Language High School, Pacific High School, Modemble Middle School, and Q&P High School, an alternative school, which was established on May 31, 1886. The rest of the Plaintiffs are those who were appointed as the regular directors of the Intervenor joining the Defendant (hereinafter referred to as the “Supplementary Intervenor”).

B. The Seoul Arts High School was established on March 21, 1953, and on November 17, 1966, the Seoul Arts High School was established in the Seoul Arts School. On September 19, 1988, Nonparty 8 and Nonparty 9, the president of the private teaching institute, was the Plaintiff, who was the president of the private teaching institute, established a separate school foundation that operates the above arts school, and the supplementary intervenor was established. For this purpose, the Plaintiff Lee Chemical Institute was equivalent to KRW 2,216,963,00 as of the appraised value at the time of the site and building of the Seoul Arts High School; Nonparty 9 contributed to the supplementary intervenor equivalent to KRW 2,827,418,000,000 in total appraised value at the time of the land, building site, and building site of the wedding School; Nonparty 9 was the assistant chairman of the Intervenor.

C. At the time of separation of the Foundation, Nonparty 8 and Nonparty 9 prepared a plan for the separation of the Plaintiff’s Echemical Institute (No. 4-1, hereinafter “instant separate operation plan”), and the contents are as follows. Accordingly, 12 of the members of the vegetable board of directors of the vegetable Institute were concurrently held by 13 directors of the vegetable Institute.

(1) The Chemical Institute separates and operates the Foundation for the development of Egyptian High School, Seoul Arts High School, and Dogwon School, and the newly-established Foundation confirms that the Egymmetric Institute becomes the mother body, and the separated Foundation and the school are also operated as the school of the supervision and bridge system.

B. The current chemical foundation director and auditor shall be an officer of a new board of directors newly separated (hereinafter referred to as the “instant concurrent office provision”).

D. From March 28, 1989, Nonparty 9 appointed a person who is not a director of the Plaintiff Egyptian Institute as an assistant director within the board of directors, and began to raise objections among the directors supporting the Plaintiff Egyptian within the board of directors. Of these, Nonparty 9 was permitted to borrow loans from Hanwon School with the approval of the transfer of the school in order to move to the Seoul Arts School. On March 28, 1998, the board of directors meeting minutes were forged and the corporation’s official seal was affixed at Hanwon Bank to change the lender into the Housing Bank (current National Bank). On April 30, 1998, Nonparty 9 sold 30 billion won as collateral for the principal and profit-making basic property from the Housing Bank, and redeemed 30 billion won as a total of 15 billion won as 3 billion won as 15 billion won as 3.7 billion won as 5 billion won as 3 billion won as 1988, 198.

E. On the other hand, around 1952, Nonparty 10 was Nonparty 1’s grandchildren who donated named women’s middle schools, etc. to the Plaintiff’s Echemmba, and was appointed by the Intervenor’s president on August 31, 2006. In the board of directors of the Intervenor’s Intervenor, there was a conflict between Nonparty 10 and the directors supporting Nonparty 10. The change in the composition of the board of directors of the Intervenor’s Intervenor’s Intervenor thereafter is as follows.

On September 18, 2006, which was included in the main text, 206, 11 directors of ○○ Intervenor 2 (Plaintiff 6, 3, 5, 2, 12, 13, 14, 3, 10, and 15) who retired from office. Three (Plaintiff 6, 3, 5, and 4) of Nonparty 2 (the assistant director 1, 5, and 14) who retired from office at the expiration of the term of office, 3 of the 8 directors remaining eight (the assistant director 1, 5, and 14 of the 207, the 206 assistant director 1, the 206 assistant director 2, the 206 assistant director of Nonparty 1, the 206 assistant director of Nonparty 1, the 3, the 196 assistant director of Nonparty 2 (the 12) who retired from office on November 1, 2007, the 196 assistant director remaining 1,5).

F. On April 9, 2009, the Defendant revoked the approval of taking office for three remaining directors of the Intervenor, and appointed 11 temporary directors of the Intervenor on June 29, 2009. The appointed temporary directors held three times as above, such as November 30, 2009; December 9, 2009; and the 11st of the appointed temporary directors held a temporary directors meeting on three occasions on three occasions, such as succession to the founding ideals of the Intervenor; succession to the foundation’s liabilities; regulance to the finance (a shortage of KRW 4 billion) of the Intervenor; and deliberated and resolved on the plan to normalize the school upon recommendation of the persons with the will to manage the school foundation, who have the will to manage the school, and on December 17, 2009, publicly announced the plan to normalize the school.

G. On December 17, 2009, the Intervenor sought, separately from the foregoing public notice, the Intervenor sought the intent of the Intervenor to manage the Intervenor. On December 17, 2009, the Intervenor’s request was made to submit the Intervenor’s letter of intent to manage the Intervenor including the scheme for realizing the founding ideals of the Intervenor, the scheme for solving corporate liabilities and the financial contribution, the scheme for maintaining and managing schools (e.g., Seoul Arts High School) development from January 19, 2010 to January 26, 2010.

H. Meanwhile, as of February 11, 2010, Nonparty 1, Nonparty 27, and Nonparty 28 of the KCH group, as of February 11, 2010, received the Intervenor’s notice of recruitment of a person who is responsible for business management, and Nonparty 28 submitted a letter of intent to manage the Intervenor’s letter of intent, which contains: (a) the 11.95 billion won Institute; (b) Nonparty 1 of the light group Nonparty 1; and (c) Nonparty 27 of the light group’s letter of intent to make a contribution for debt settlement and financial contribution.

I. Around February 2010, the Intervenor supported Nonparty 14, 5, 3, 3, 12, 10, 13, 4, 15, and 28 of the Intervenor’s recruitment of prospective management of the Intervenor. Nonparty 1, 27 of the light group chairperson, and the KCH Group chairperson Nonparty 28 of the Intervenor. Around February 2010, the Intervenor consented to the recruitment of prospective management of the Intervenor’s assistant participants and consented to the recruitment of prospective management of the Intervenor’s assistant participants and agreed to cooperate in the normalization of the corporation. Around February 2010, the Intervenor presented the consent by the Plaintiff 6 of the aforementioned contents by wire (the same is most appropriate for the management of the Plaintiff Company among the above directors, but the Plaintiff also consented to the method of soliciting prospective management and the appointment of the management manager among the candidates).

(j) On March 2, 2010, the Intervenor submitted to the Defendant a letter of recommendation to the effect that he/she obtained three votes for each director at a temporary society on March 2, 2010, and that he/she selected Nonparty 1 and Nonparty 27 as a candidate for the normalization of the school foundation, accompanied by a letter of intent to manage the school foundation of the above candidates, and written consent of the previous directors, and requested the normalization of the school foundation.

(k) By March 9, 2010, the Defendant demanded that the Plaintiff Lee Chemical Institute submit as supplementary documents a copy of the meeting minutes of the board of directors’ meeting related to the Intervenor’s management intent, a statement of property to be disposed of, and a plan for organizing regular directors (including a plan for securing the consent of the immediately preceding director), but the Plaintiff Lee Chemical Institute failed to do so. To select the Intervenor’s management intent, the Defendant organized an attorney-at-law, the Korean Council of Certified Public Accountants, the Foundation of Elementary and Secondary Schools in Korea, the subcommittee on the settlement of the Seoul Education Gap Education Gap-gu, and three supplementary intervenors, which are composed of three internal members, and the said review committee selected Nonparty 1 as the chairperson of the Light Group as the last executive intent on March 24, 2010.

Other) On April 20, 2010, the Defendant submitted to the Private School Dispute Resolution Committee the “Plan for the Promotion of the Normalization of School Foundation’s Ethical Art Research Institutes (Seoul Preliminary Notice) to the Chairperson Nonparty 1. The Private School Dispute Resolution Committee referred the instant agenda to the First Sub-Committee at the 51st plenary session. On June 3, 2010, the first sub-committee heard the opinions of Plaintiffs 5, 10, 3, 4, 5, and 6, and then decided on the said normalization scheme, which included the 11-party appointment plan, at the 52th plenary session deliberation on June 29, 2010.

(m) After that, Nonparty 1 performed the obligation repayment of a corporation and the expansion of fundamental property for profit in accordance with the terms of the normalization of the supplementary intervenor who consulted with the Defendant, and the Defendant dismissed temporary directors on July 20, 2010 and appointed Plaintiff 3, Nonparty 29, 30, 31, 32, 33, 1, 34, 35, 36, and 37 as the regular director of the supplementary intervenor based on Article 25-3(1) of the Private School Act (hereinafter “instant disposition”).

[Ground of recognition] The facts without dispute, Gap evidence 1 through 9, Eul evidence 1 to 14, 17 through 23, Eul evidence 1 to 20, Eul evidence 1 to 20, the witness non-party 38's testimony and the purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. The defendant's assertion

(1) Since the duties of directors of a school foundation are terminated upon the expiration of the term of office, Plaintiffs 2, 3, 4, 5, and 6, whose term of office has expired, are not eligible to file the instant lawsuit. Even if the right to file the instant lawsuit is recognized for the directors whose term of office expired, the number of the supplementary participant directors is 11, and the meeting of the board of directors is held with the attendance of the majority of the registered directors, and the resolution is made with the consent of a majority of the registered directors, so it is possible to operate the school foundation only with only the remaining directors, even if some of the directors resigns or terminate the term of office, and thus, the number of the supplementary participant directors remains at least five, and the number of the remaining directors remains at the expiration of the term

Shebly, the Plaintiff is a juristic person separate from the supplementary intervenor, and the assistant intervenor is not a property contributor. Even if the founder or the property contributor of the supplementary intervenor for the Plaintiff chemical cause is the founder or the property contributor of the supplementary intervenor for the Plaintiff, the school juristic person is operated by the board of directors, and the school juristic person’s founder cannot be recognized as the director’s authority, and thus, the Plaintiff Chemical

B. Determination

(1) The freedom of private school under the Constitution, which is recognized as a school juristic person, is practically realized by the directors who can be seen as being on the connecting line in that it is in a relationship of appointment in succession. Among them, the former directors are those in the vicinity of the duties to ensure the independence and identity of ordinary school juristic persons. As such, the former directors, who can be deemed to be in a position to represent the independence and identity of ordinary school juristic persons, shall be deemed to have a direct interest in the matter of removal of the appointed temporary directors and appointment of an appropriate regular director in realizing the establishment purpose of the school juristic person, regardless of whether they recover their status as regular directors or whether they are entitled to appoint a new regular director by themselves, and the former directors shall not be deemed to have the right to take urgent measures by analogy of Article 691 of the Civil Act.

Therefore, the previous directors shall be deemed to have a direct legal interest in appointing regular directors after dismissing the provisional directors of the assistant intervenor. Thus, the plaintiff 2, 3, 4, 5, and 6 who was the previous directors of the assistant intervenor shall be deemed to have standing to sue to seek revocation of the disposition of this case by appointing the regular directors of the assistant intervenor. This part of the defendant's main defense is without merit.

According to the evidence laid down above, the plaintiff Lee Chemical Institute is a corporation separated from the mother body of the assisting intervenor, i.e., the assisting intervenor, and contributed to the site and building of the school belonging thereto at the time of separation. However, the founder is not a person (the founder is non-party 8 and 9). Since the assistant intervenor's autonomy and identity are not in the position of director realizing the assistant intervenor's identity, it cannot be deemed that the assistant intervenor has a direct legal interest in the disposition of this case, and therefore, it cannot be said that the assistant intervenor has standing to seek

Therefore, the lawsuit of this case by the Plaintiff Egyptian Institute is unlawful.

3. Judgment on the merits

A. The plaintiffs' assertion

(1) For the instant disposition, the instant disposition should have been resolved by the reason for appointing temporary directors stating that “the conflict between the previous directors regarding the decision of temporary directors is resolved ultimately, and where a regular director is appointed in the future, an educational project to achieve the original objective of the school juristic person may be carried out smoothly.” However, even after the appointment of temporary directors by the Intervenor, the conflict between the previous directors, including the principle of constituting the board of directors, has not been completely resolved in accordance with the rules on the concurrent positions of directors after the appointment of the assistant intervenor, and the temporary directors did not attempt to present a scheme to resolve such conflict smoothly, and thus, the instant disposition was unlawful since the instant disposition was made without resolving the said reason for appointing temporary directors.

B. Before rendering the instant disposition, the Defendant shall hear the opinions of the Intervenor’s founders, property contributors, and mother corporations, and the remaining Plaintiffs, which are previous directors. The Defendant shall actively reflect the Plaintiffs’ opinions and appoint regular directors recommended by them as assistant intervenors, or appoint them to have at least the majority of the board of directors, and grant them the substantial authority to organize the board of directors, and have them recover the management rights of the school juristic person. However, there is a defect where the instant disposition was taken without hearing the Plaintiffs’ opinions.

Article 22(1) of the Civil Act provides that “The supplementary intervenor shall not be obliged to take part in the case of a third party who is unable to manage the school juristic person in the case of a third party’s failure to resolve the financial insolvency due to financial insolvency.” The supplementary intervenor, regardless of the grounds for appointment of temporary directors, by promoting a plan for normalization of the school juristic person by acquiring the third party regardless of all the grounds for appointment of temporary directors, deprived of the right to establish and operate the school juristic person, which is the founder of the supplementary intervenor, and infringed on the right to property, and the identity and founding ideals of the supplementary intervenor also damaged.

(b) Whether grounds for appointing temporary directors cease to exist;

According to the above evidence, ① the Intervenor was unable to normally operate the school foundation because of the conflict between the board of directors and the Intervenor’s failure to fill the vacancy within the board of directors. As of March 18, 2010, the amount of the principal and interest of the Intervenor’s 8,373,77,611, while the fundamental property for profit, which serves as the financial basis for the operation of the school, is merely 130 million won, and there was a serious financial crisis or financial wave increase due to excessive debts and interest, and thus, there were many difficulties in operating the school and educational activities of the Intervenor’s 1,300,000, and the Defendant still failed to appoint a new director due to the conflict between the previous 1,300,000,000 won and the 1,000,0000,000 won of the Intervenor’s 1,000,000,0000 won of the non-party’s 1, 2013).

C. Whether there was an error in failing to hear the plaintiffs' opinions

(i)Recognitions

㈎ 원고 이화학원은 보조참가인의 경영인수에 대해 이사들 사이에 의견이 일치하지 않았고, 경영의향서 제출은 이사회에서 결의된 것이 아니라 실행위원회에서 결의되어 이에 따라 이루어진 것이며, 그 이후에도 경영의향서 제출에 대해 원고 이화학원 이사회에서 결의가 이루어진 바 없다.

㈏ 원고 이화학원의 실행위원회는 정관시행세칙에 따라 설립된 기관이며, 관련 시행세칙은 다음과 같다.

[Enforcement Rule of Articles of Incorporation (Evidence A No. 12)]

Article 3 (Subcommittees) The Board of Directors may have the Personnel Education Committee, the Articles of Incorporation, and the Executive Committee. Provided, That a special committee may be established temporarily by a resolution of the board of directors.

3) The Executive Committee

1. The Executive Committee shall be comprised of seven directors, including the chairperson and the chairperson of the financial bureau;

2. The Committee shall research and examine the matters requiring urgency and relatively insignificant matters, and if necessary, shall implement its resolution and report to the next board of directors.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 12, 13, and Eul evidence Nos. 15, 16

Shed Judgment

In full view of the legislative purpose and process of enactment or amendment of each of the above provisions, and the contents thereof, Article 13(1) of the Regulations on the Operation of Private School Dispute Mediation and Conciliation Committee provides that "the person who has contributed or contributed to the property equivalent to at least 1/3 of the basic property of the relevant school foundation" shall be subject to hearing of opinions in cases where the Private School Dispute Mediation and Conciliation Committee or the Private School Dispute Mediation and Conciliation Committee deems it necessary to deliberate on the agenda or perform its duties. In full view of the above provisions, the property contributor of the relevant school foundation shall be deemed to fall under the interested party provided for in each of the above provisions.

However, if the pertinent committee deems it necessary for the deliberation of agenda items or the performance of its duties, it is possible to hear opinions from interested parties, etc. according to its judgment and does not necessarily require interested parties, etc. Therefore, the disposition of this case cannot be deemed unlawful on the ground that the disposition of this case was conducted without going through the procedure of hearing opinions from the Plaintiff Lee Chemical Institute, who is the property contributor of the assisting intervenor, and as seen earlier, the first subcommittee of the Private School Dispute Mediation Committee has heard opinions from Plaintiffs 5, 10, 3, 4, 5, and 6, who are the president of the private school of Egyption before rendering the disposition of this case. Thus, this part of the plaintiffs' assertion is without merit.

(d) Whether the discretion is deviates or abused;

The freedom of establishment and operation of private school does not have a separate provision on the Constitution, but can be seen as fundamental rights recognized under Articles 10, 31(1) and (4) of the Constitution, and should be respected to the maximum extent that does not undermine the public nature of school juristic persons. Since the freedom of private school under the Constitution is realized by directors who can be seen as being on the connecting line in that it is in a relationship of appointment in succession, the freedom of private school under the Constitution may bring about changes in identity between corporations before and after the acquisition of the board of directors of the school juristic person by allowing a third party to take over the school juristic person without excluding all the previous directors, and it may be evaluated that the subject of ownership of the school juristic person actually differs, therefore, it is desirable to actively reflect the intention of interested parties, such as the previous directors, in principle, and it is not desirable to exclude all the previous directors from the third party.

However, in light of the fact that it is not possible to secure citizens' right to receive education and that it is also important to secure public nature of school juristic persons as well as to secure public nature of school juristic persons, it is difficult to normalize school juristic persons without going through a third party due to conflicts inside the school juristic person or financial insolvency. Even if the school juristic person is normalized through a third party, in exceptional cases where the purpose of its establishment itself does not seem to be significantly damaged, the normalization of school juristic persons through the third party shall be allowed.

According to the above facts, ① an intervenor was placed in a situation where the normal operation of the school foundation was difficult due to the failure to solve serious financial problems, and was decided to openly recruit participants to resolve such problems. ② The plaintiff Lee Chemical Institute also notified the plaintiff Lee Chemical Institute of its participation. ② The plaintiff Lee Chemical Institute submitted a letter of intent to manage the intervenor's succession to the founding ideology and resolution of financial problems of the intervenor. However, it was a mere resolution of the Executive Committee. It is doubtful whether the above plaintiff's action committee can only resolve matters requiring urgency and relatively minor matters without a regular board of directors. ③ The defendant did not submit the documents supplementing the plaintiff Lee Chemical Institute (the board of directors resolution, etc.) so that it is difficult to determine whether the defendant's acceptance of the plaintiff Lee Jong-won's transfer of the right to receive the plaintiff's transfer of the right to receive the plaintiff's transfer of the right to receive the plaintiff's transfer of the right to receive the plaintiff's transfer of the right to receive the transfer of the plaintiff's transfer of the right to receive the transfer of the plaintiff's transfer of the right.

4. Conclusion

Therefore, the lawsuit of the plaintiff Lee In-bok is dismissed as it is unlawful, and the remaining plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Omission]

Judges Hah Jong-hee (Presiding Judge)