Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

○○ Private Teaching Institute (Law Firm Maritime River, Attorney Jeong Jae-ho, Counsel for defendant-appellant)

Intervenor (Law Firm Sejong, Attorneys Kim Yong-dam et al., Counsel for the intervenor-appellant)

April 6, 2016

Busan District Court Decision 2013Da4015 Decided July 17, 2013

Busan High Court Decision 2013Na6414 Decided June 19, 2014

Supreme Court Decision 2014Da4451 Decided November 27, 2015

1. Of the judgment of the court of first instance, the part of the claim for confirmation of invalidity of the resolution that the Defendant appointed Nonparty 12 as the principal of the △△ High School on September 23, 201 shall be revoked, and the plaintiff's lawsuit corresponding to the above revocation portion shall be dismissed.

2. Of the total litigation cost, the part arising between the Plaintiff and the Defendant out of the total litigation cost is 20%, the remainder is borne by the Defendant, respectively, and the part arising from the participation is borne by the Intervenor.

The judgment of the first instance is revoked. The Defendant’s decision is revoked. The Defendant’s decision to appoint Nonparty 10 and Nonparty 11 as each director at the meeting of the board of directors held on August 19, 2009; the resolution to appoint Nonparty 12 as the principal of the △△△ High School on September 23, 201; the open meeting of the board of directors held on November 6, 2012, the resolution to appoint Nonparty 14 as the chief director and the non-party 6 as each director; the resolution to appoint the non-party 7 as the chief director at the meeting of the board of directors held on December 14, 2012; the resolution to appoint the non-party 8 and the non-party 9 as the chief director at the meeting of the board of directors held on January 15, 2013

1. Scope of adjudication of this court;

The court of first instance rendered a judgment dismissing all the Plaintiff’s claims seeking confirmation of invalidity of each of the resolutions stated in the purport of the claim. In the appellate court before remanding the case, the appellate court rendered a judgment dismissing all the Plaintiff’s claims. The appellate court held on November 6, 2012, confirmed that: (a) the Defendant concurrently appointed Nonparty 14 (Supplementary Intervenor) as the chief director; (b) the appointment of Nonparty 6 as the chief director; (c) the decision to appoint Nonparty 7 as the board of directors on December 15, 2012; and (d) the decision to appoint Nonparty 8 and Nonparty 9 as each director on January 15, 2013 at the meeting of the board of directors held on January 15, 2013; and (b) the Plaintiff’s remaining appeal was dismissed. In the appellate court that was proceeding with respect to each of the parts against which the Plaintiff and the Defendant lost, the appellate court reversed the part of the Defendant’s claim for confirmation of invalidity of △△ High School’s decision that was dismissed by the Plaintiff’s remaining appeal and the Defendant’s remaining appeal.

Therefore, the scope of this court's adjudication is limited to the claim for nullification confirmation of the above resolution.

2. On September 23, 201, the determination on the part of the claim for nullification of an open resolution of the Defendant’s board of directors

(a) Basic facts;

The court's explanation on this part is the same as the entry of the corresponding part of the reasoning of the judgment of the court of first instance, except for the case where "the date of December 5, 2012" in Section 3, Section 16 of the judgment of the court of first instance is "the date of December 15, 2012," and therefore, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

B. Determination on the main defense of this case

1) As to the assertion that there is no standing or legal interest

This part of the judgment of the court is the same as the statement of the main text of Article 420 of the Civil Procedure Act, since the reasons for this part are the same as the statement of the argument and the part of the judgment in the fourth through twenty of the judgment of the court of first instance.

2) As to the assertion that there is no benefit in confirmation

A) Party’s assertion

(1) Plaintiff

(A) Since Nonparty 2, Nonparty 3, and Nonparty 4 were absent without a notice of convening a board of directors, the above resolution that appointed Nonparty 10 and Nonparty 11 as a director is null and void due to the defect in the convocation procedure. The instant resolution was null and void if it excludes the person appointed in the invalid board of directors resolution as above. As such, the instant resolution was null and void because the second resolution of this case, which made Nonparty 14 (Supplementary Intervenor) reappointed to the chief director, was null and void. As such, the instant resolution 5 was not only convened by Nonparty 14 (Supplementary Intervenor) without the authority to convene a board of directors, but also did not meet the quorum, and thus, it is null and void since it does not meet the quorum, excluding non-qualified directors.

(B) The board of directors, at least seven days prior to the meeting of the instant fifth resolution, did not arrive at the notice of convening the meeting, and accordingly, the fifth resolution was reached in the absence of Nonparty 1. Such a resolution is null and void because it violated Article 17(3) of the Private School Act (or, at least seven days prior to the meeting, notify each director of the purpose of the meeting, at least seven days prior to the meeting).

(2) Defendant

Since the term of office of Nonparty 12, appointed as the principal through the resolution of this case, was expired on August 31, 2015, this part of the lawsuit seeking confirmation of invalidity of the said resolution does not have a benefit of confirmation.

B) Determination

According to the statement No. 3, it is recognized that the term of Nonparty 12, appointed as the principal through the instant resolution, expired August 31, 2015. According to this, this part of the lawsuit is for seeking confirmation that the appointment resolution on the principal whose term of office has already expired as of the date of the closing of argument in this case is null and void, and thus there is no benefit in confirmation (such as the Plaintiff’s assertion, the lawsuit for confirmation of this part of the lawsuit for confirmation is valid to resolve a dispute regarding the validity of the act done by Nonparty 12 within his term of office, and there is no ground to deem it an appropriate means).

Therefore, the defendant's defense is justified.

3. Conclusion

Therefore, the plaintiff's lawsuit seeking the confirmation of invalidity of the resolution 5 of this case is unlawful and thus, it is dismissed. Since the part concerning the claim for confirmation of invalidity of the above resolution 5 of the judgment of the court of first instance is unfair as it is concluded differently, it is so revoked, and it is so decided as per Disposition by the plaintiff.

Judges Park Jae-chul (Presiding Judge)