[1] The validity of appointment and dismissal of a school foundation without going through the procedures provided for in Article 53-2 (1) 1 of the Private School Act (negative)

[2] Whether a disposition of dismissal from office is subject to the procedure of appointment and dismissal of a teacher under Article 53-2 (1) 1 of the Private School Act (negative)

[1] Article 53-2 (1) 1 of the Private School Act / [2] Articles 53-2 (1) 1 and 58 of the Private School Act

[1] Supreme Court Decision 2005Da44299 decided Dec. 22, 2005 (Gong2006Sang, 159) / [2] Supreme Court Decision 79Da2168 decided Oct. 14, 1980

Plaintiff (Attorney Park Sang-hoon et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Yang Sung-won, Counsel for defendant-appellant)

Daejeon High Court Decision 2004Na10198 Decided September 29, 2005

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The court below, based on the facts found by the adopted evidence, found that only two of the seven registered directors present at the board of directors on January 30, 2004 for the management of the plaintiff's private employees and did not make a legitimate resolution of the board of directors on the repair of the plaintiff's private employees. Thus, the defendant's dismissal disposition against the plaintiff without the resolution of the board of directors against the plaintiff was invalid without the need to examine other allegations of the plaintiff.

2. However, the lower court’s determination that the instant disposition to dismiss the Plaintiff was null and void due to the absence of a resolution by the Defendant’s board of directors is difficult to accept for the following reasons.

In other words, Article 53-2 (1) 1 of the Private School Act provides that teachers of each school shall be appointed and dismissed by a school juristic person and shall be subject to a resolution by the board of directors on the recommendation of the principal of the school concerned. Since the above provision aims to ensure the appropriateness of appointment and dismissal of teachers by allowing the principal of the school and the board of directors to participate in the appointment and dismissal of teachers of the school juristic person, it is reasonable to deem that appointment and dismissal of teachers of the school juristic person without following the above procedure is null and void (see Supreme Court Decision 2005Da44299 delivered on December 22, 2005). Meanwhile, the above term "election and dismissal" refer to appointment and dismissal, and the term "inter-commission dismissal" refers to dismissal and dismissal against the principal's will, that is, dismissal and dismissal from office. Thus, in light of the purport of Article 58 of the Private School Act, in the case of dismissal from office of a member, it cannot be deemed null and void without undergoing the above procedure (see Supreme Court Decision 79Da2168 delivered

Nevertheless, the court below decided that the dismissal of the plaintiff from office against the defendant without a resolution of the board of directors is null and void, and did not examine and determine other arguments of the plaintiff. This decision of the court below is erroneous in the misapprehension of legal principles as to the appointment and dismissal of a teacher of an educational foundation under the Private School Act. Thus, the ground of appeal pointing this out has merit.

3. Therefore, without examining the Defendant’s remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)