[1] In a case where a temporary director was appointed under the former Private School Act due to the unlawful or unjust operation and strike of a school juristic person, and the regular board of directors is formed due to the resolution of the reason for appointment, whether the right to composition belongs absolutely to the previous board of directors (or the founder board of directors) immediately before the provisional board of directors system (negative), and in such a case, the degree of involvement of the previous

[2] Where the board of directors of a school foundation consisting solely of the temporary directors appointed under the former Private School Act decided to appoint a full-time director on the ground of resolution of the reason for appointment, the case holding that the resolution was made without excluding the former foundation (in particular the founder) composed of the former directors, or that it cannot be deemed that it was unfair in light of the general principles of the Civil Act by means of normalization of the school foundation

[1] As a type of an incorporated foundation established for the purpose of establishing and operating a private school, the school foundation must respect the founders’ intent at the time of its establishment, i.e., the purpose of its establishment. Such school foundation’s establishment shall be realized and concrete by “continuity of the purpose of its establishment” (the first director; the latter director; the latter director in a manner in which the latter director is appointed in consecutive order); and the latter director in a manner in which the latter director is appointed). Therefore, in a normal board of directors, the right to appoint the latter director shall belong to the former board of directors; and further, such right shall be respected in principle in terms of the termination of the temporary board of directors system or the normalization method of the school foundation. However, it is sufficient that, after the temporary board of directors system, the reason for which the temporary board of directors was established before the expiration of the term of office of the director, regardless of the existence of the cancellation of the approval for taking office from the office of education due to illegal or unjust operation and strike of the school foundation, the former founder and the former board of directors cannot be held absolute opinions.

[2] Where the board of directors of a school foundation consisting solely of the temporary directors appointed under Article 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), passed a resolution to appoint a successor-time director on the ground of resolution of the reason for appointment, the case holding that such resolution was valid because it was made without excluding the former foundation ( particularly the founder, who was lawfully appointed before the appointment of temporary directors) composed of the former directors (the last regular director), or that it was unfair in light of the general principles of the Civil Act by normalizing the school foundation

[1] Articles 20, 20-2 (1), and 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 63 of the Civil Act / [2] Articles 20, 20-2 (1), and 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 63 of the Civil Act

[1] Supreme Court en banc Decision 2006Da19054 Decided May 17, 2007 (Gong2007Sang, 873)

Plaintiff 1 and one other (Attorney Yoon-Gyeong et al., Counsel for the plaintiff-appellant-appellee)

Defendant 1 School Foundation and 8 others (Law Firm Cheongn Law, Attorney Kim Do-mun, Counsel for the defendant-appellant)

May 14, 2008

1. The plaintiffs' claims against the defendants are all dismissed.

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

1. As to Defendant 1’s school foundation:

A. The resolution by the board of directors of February 15, 2005, which appointed Defendant 2 as a director,

B. The resolution by the board of directors of April 13, 2006, which appointed Defendant 3 as a director,

C. The board of directors resolution dated May 17, 2006, which appointed Defendants 4 and 5 as directors;

D. The resolution by the board of directors of April 23, 2007, which appointed Defendant 6 as a director,

E. The resolution by the board of directors of December 1, 2007, which appointed Defendant 7 as a director,

F. The resolution by the board of directors of December 14, 2007, which appointed Defendant 7 as chief director, Defendant 8, and Defendant 9 as chief director, respectively, to confirm that there is no absence or invalidation.

2. Defendant 2, 3, 4, 5, 6, 8, and 9 verify that the status of the director of Defendant 1 educational foundation is nonexistent or invalid, and Defendant 7 confirms that the status of the chief director and the director is nonexistent or invalid.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by adding up the whole purport of the pleadings to each entry in Gap evidence (including a case where there is a serial number) of 1 through 13:

A. Defendant 1’s educational foundation (hereinafter “Defendant 1’s educational foundation”) was established for the purpose of providing secondary education based on the spirit of the class, based on Nonparty 1 who was dispatched to the Republic of Korea by Nonparty 1, who is an incorporated foundation in the United States (name omitted), and operated ○○ Unemployment High School, ○○○○ High School, ○○○ High School, ○○ High School, and ○○ High School, etc. under its control, with donations and subsidies obtained from various churches in Korea and abroad around December 1963.

B. From July 16, 1992, Plaintiff 1 was appointed and served as director of each Defendant’s driving school from August 3, 1994. The Defendant’s driving school was dismissed on May 31, 1999 as the result of the special audit by the Office of Education from April 19, 199 to May 4, 199 by stating that a large amount of loans (including approximately KRW 19.7 billion), or that school contributions were transferred to Defendant’s driving school without permission from the supervisory authority.

C. On June 1, 1999, the superintendent of the Busan Metropolitan City Office of Education appointed seven persons, including Nonparty 2, etc. as temporary directors of the Defendant Driving Schools (hereinafter “the First Provisional Board”) and appointed seven persons, including Nonparty 2, the temporary directors, Nonparty 3, Nonparty 4, 5, 6, 7, and 8, as temporary directors on June 12, 2001 (hereinafter “the Second Provisional Board”) and appointed seven persons, including Nonparty 9 and the temporary directors, as temporary directors (including Nonparty 10, Nonparty 11, 12, 13, 4, and 5).

D. On December 26, 2002, the second provisional board of directors of the Defendant Driving Schools appointed seven (7) directors, including Nonparty 14 and Nonparty 15, 16, 17, 18, 19, and 20 as the regular board of directors of the Defendant Driving Schools (the chief director Nonparty 14, Nonparty 15, 17, 18, 19, and 20), and appointed Nonparty 21, 22, and 23 as the regular board of directors on February 203 (hereinafter “the board of directors of Nonparty 14”).

E. On September 8, 2003, the board of directors of the non-party 14 system, including the non-party 25, 26, 27, 28, 29, 30, 31, 32, and 33, appointed 10 directors of the defendant private teaching institute (hereinafter referred to as the "board of directors of the non-party 24 system"), including the non-party 34, including the chairperson, appointed 36, 37, 38, 39, and 10 directors, including the non-party 34, as directors of the defendant private teaching institute, the board of directors of the defendant private teaching institute and the non-party 2 as directors of the defendant private teaching institute (hereinafter referred to as the "Board of the non-party 34 system"), and thereafter, the board of directors of the defendant private teaching institute and the non-party 2 as directors of the defendant private teaching institute on March 15, 2006; the president of the defendant private teaching institute on April 13, 7, 207

2. Judgment on the main defense of this case

A. The Defendants asserted that their respective claims in this case are invalid or null and void by the board of directors’ selection of regular directors under the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter “former Private School Act”) on December 26, 2002, as long as the Plaintiffs already retired due to reasons such as cancellation of approval for taking office by the office of education prior to the above board of directors, there is no legal interest, and thus, the Plaintiffs’ freedom of private school under the Constitution recognized as a school juristic person is unlawful. Thus, the Defendants are practically implemented by connecting directors in that they are in a relationship of appointment in succession (see, e.g., Supreme Court en banc Decision 200Da17500, supra). Accordingly, the Defendants’ previous directors have the authority to directly appoint and appoint temporary directors under Article 20-1 of the former Private School Act regardless of their independence and identity as an independent representative status of the school juristic person.

B. In addition, the Defendants asserted to the effect that the part concerning the claim for confirmation of absence or invalidation by the resolution of the board of directors of the Defendant’s driving school in the instant case (2008Gahap2114), which was additionally raised and joined in the instant case, is unlawful as it constitutes a duplicate lawsuit. However, since the previous case before the consolidation (2007Gahap18808) differs from the purport of the claim, which is the subject matter of the lawsuit, (i.e., the object of the resolution of the board of directors of the Defendant’s driving school as of December 1, 2007 and December 14, 2007), this part of the claim is without merit

3. Judgment on the merits

A. Summary of the plaintiffs' assertion

(1) A provisional director under the former Private School Act is not entitled to appoint a regular director, and thus a resolution of the second provisional board of directors of the Defendant’s 2nd provisional board of directors of the Defendant’s 2nd provisional board of directors on December 26, 2002, which appointed Nonparty 14 system directors, cannot be recognized as legal validity. Therefore, since the regular board of directors appointed in succession thereafter are all not qualified as directors, the board of directors consisting of Defendant 2, 3, 4, 5, 6, 6, 7, 8, 9 must be deemed to be nonexistent or null and void.

(2) Therefore, Defendant 2, 3, 4, 5, 7, 8, and 9 should be deemed not to hold the current status or qualification as a director or chief director of the Defendant Driving Schools.

B. Summary of the defendants' assertion

The second provisional board of directors of the Defendant’s driving school obtained the understanding of Nonparty 1 (former Foundation) who is the founder of the Defendant’s driving school, or sufficiently reflected his opinion, appointed the directors of Nonparty 14 system, and was appropriate by the normalization method of the Defendant’s driving school at the time. Thus, the Plaintiffs’ claim of this case should be dismissed in entirety because the resolution by the board of directors who appointed the directors of Nonparty 14 system cannot be deemed nonexistent or null and void.

(c) Markets:

(1) Ad hoc director appointed by the Minister of Education and Human Resources Development pursuant to Article 25 (1) of the former Private School Act shall be a crisis manager in charge of operation of a school juristic person temporarily in cases where the vacancy of a director makes it impossible to achieve the purpose of a school juristic person or is likely to cause damage, and shall be interpreted narrowly as having the same authority as a regular director only to conduct the operation of a general school juristic person differently from ad hoc director under the Civil Act, and therefore there is no authority to appoint a regular director. However, in cases where a cause for appointing a temporary director is terminated, it shall be reasonable to return to the general principle of the Civil Act in the former Private School Act, which does not have any provision regarding the method of normalization of a school juristic person, and whether the method of normalization such as the formation of a regular board of directors is appropriate shall be determined comprehensively taking into account the freedom to establish and operate a private school, autonomy of the school juristic person, public nature of a school juristic person, and characteristics of education. In such cases, if a temporary director is appointed by the Minister of Education and Human Resources Development under Article 25 of the former Private School Act, it shall be deemed null and void.

(2) In light of the circumstances that Nonparty 1 and Nonparty 2 did not appear to have participated in the process of Nonparty 1’s establishment of a private teaching institute, it is difficult for Nonparty 2 to find out the fact that Nonparty 1 and Nonparty 2 participated in the process of Nonparty 1’s establishment of the former Private Teaching Institutes, and thus, it is difficult for Nonparty 1 to find out the fact that Nonparty 1 and Nonparty 2 participated in the process of Nonparty 1’s establishment of the former Private Teaching Institutes, and that Nonparty 1 and Nonparty 2 did not appear to have participated in the process of Nonparty 1’s establishment of the former Private Teaching Institutes, and that Nonparty 1 and Nonparty 2 were not the head office of education to recognize the fact that Nonparty 2 were not the first director of the former Private Teaching Institutes, and that Nonparty 1 and Nonparty 2 were not the first director of the Busan Private Teaching Institutes, and that the former Private Teaching Institutes was not the first director of the Busan Private Teaching Institutes, and that there was no way for Nonparty 1 and Nonparty 2 to establish the former Private Teaching Institutes.

(3) The key point of “the method of termination of the provisional director system” or “the method of normalization when the causes for the selection and appointment of temporary directors have been terminated” under the former Private School Act is that the temporary board of directors consulted with the previous directors before the appointment, and grants them the right to organize the (f) board of directors, thereby restoring the right to manage the school foundation. In this case, the method of normalization of the Defendant Institute is to restore the right to manage the Defendant Institute to the board of directors composed of Nonparty 1 and Nonparty 1 and Nonparty 1, the founder of the right to manage the Defendant Institute after completing the temporary board of directors system of the Defendant Institute. Thus, the second temporary board of directors cannot be seen as the normal board of directors which was made without appointing Nonparty 1 and Nonparty 1 as the regular board of directors.

However, the purpose of the establishment is to respect the founders’ intent at the time of establishment in the operation of a private school as a type of an incorporated foundation established for the purpose of establishing and operating a private school, i.e., the school foundation’s establishment purpose. Such school foundation’s establishment purpose is to be realized and concrete by “deficiencies of the establishment purpose” (the first director; the latter director; and the latter director’s director system by the method in which the latter director is appointed in consecutive order in the manner in which the latter director is appointed). Therefore, the right to appoint the latter director in a normal organization should belong to the former board of directors; and further, such right should be respected in principle in the termination of the temporary board of directors system or the method of normalizing the school foundation. However, if the temporary board of directors is established after the system of temporary board of directors, not where the board of directors is ordinarily composed, and if the existing board of directors is established after the expiration of the term of office of the school foundation’s unlawful and unjust operation and the existing board of directors’ authority should not be accepted, regardless of whether there exist any vacancy or vacancy in the existing board of directors.

In this case, it is difficult to view that the former director (the founder of the non-party 1) was excluded from the process of appointing the non-party 14 system's regular directors. Rather, the non-party 1 appears to play an important role as the founder in the process of normalization of the defendant 2 and the regular board of directors, or to reflect his intention in the process of taking over the non-party 1's temporary board of directors. Furthermore, the non-party 2's non-party 4's non-party 1's non-party 2's non-party 1's non-party 2's non-party 4's non-party 1's non-party 4's non-party 1's non-party 4's non-party 1's non-party 2's non-party 4's non-party 1's non-party 4's non-party 1's non-party 2's non-party 1's non-party 2's non-party 3's non-party 1's non-party 4's non-party 1's witness.

Meanwhile, all of the plaintiffs, as to the non-party 1's part of the defendant 1's regular board of directors or the part of the non-party 1's objective part of the defendant 1's regular board of directors (which was prepared and made to the office of education and the non-party 17, the non-party 17 and the non-party 21 actually participated in the process of application for the temporary suspension of performance of duties and mediation, the non-party 1's personal reason that the non-party 34 was recommended to take over the defendant 2 from the normal board of directors, etc., and the non-party 34 recommended the non-party 34 as the chief director of the non-party 34 system), the non-party 1's promise or the non-party 1's actual opinion (the non-party 1's opinion or the non-party 1's opinion to take over the management right of the defendant 2 with the intention of the non-party 1's regular board of directors cannot be viewed as being reflected in the non-party 1's decision.

(4) The plaintiffs asserted that, in light of the fact that the directors of the non-party 14 system were appointed without resolving the debt problems, etc. of the private teaching institute, which was the substantial cause of the strike of the defendant driving school, at the time, and that the board of directors of the non-party 14 system at the time constituted the non-party 14 system, the "non-party 14 system temporary board of directors" of the defendant driving school is nothing more than the "non-party 14 system" of the defendant driving school, and therefore, the non-party 2nd temporary board of directors, who was the non-party 14 system temporary board of directors without the authority to appoint, excluded the intention of the founder and again appointed the directors of the non-party 14 system, the non-party 14 system's temporary board of directors, the non-party 14 system's board of directors, the non-party 24 system's board

However, unless there is no evidence that the composition of the board of directors of the non-party 14 system was made in accordance with the direction of appointment by the Office of Education, and as long as the former Private School Act does not distinguish temporary directors and (food) directors according to the operation of the school juristic person in which the directors actually performed (it cannot be deemed that there is a difference in authority with respect to the operation of the general school juristic person) or the contents of their duties, the argument that the board of directors of the non-party 14 system is temporary board of directors cannot be accepted, and the remaining argument

4. Conclusion

Thus, the resolution of December 26, 2002, which the second provisional board of directors appointed the non-party 14 system directors, cannot be deemed unfair in light of the general principles of the Civil Act by means of the normalization of the defendant's driving school, or by means of the normalization of the defendant's driving school. Therefore, on this premise, the current directors of the defendant's driving school (Defendant 2, 3, 4, 5, 6, 7, 8, 9) appointed the director of the defendant's driving school as the director or chief director of the defendant's driving school as the non-existence and invalidation of each resolution of board of directors stated in the purport of the claim that the above directors do not have a status as the director or chief director of the defendant's driving school, and all of the claims for confirmation of non-existence and invalidation are dismissed. It is so decided

Judges Park Sung-chul (Presiding Judge)