Plaintiff 1 and one other (Law Firm Barun et al., Counsel for the plaintiff-appellant)

The Minister of Education, Science and Technology (Law Firm, Attorneys Southern-soo)

Hanyang Institute of Education (Attorney Song Chang-chul et al., Counsel for the defendant-appellant)

October 5, 2011

Seoul Administrative Court Decision 2010Guhap23873 decided March 4, 2011

1. Revocation of a judgment of the first instance;

2. The instant lawsuit between the Plaintiff 1 and the Defendant was concluded on April 8, 201 due to the death of the said Plaintiff.

3. The plaintiff 2 shall be dismissed.

4. Of the total cost of litigation, the part arising between Plaintiff 2 and the Defendant, including the part arising from the supplementary participation, shall be borne by Plaintiff 2.

The judgment of the first instance shall be revoked. The defendant's appointment of Nonparty 2, 3, 4, 5, and 6 as the defendant's assistant director on March 10, 2010 shall be revoked.

1. Basic facts

The reason why this Court shall use this part is the same as the corresponding part of the judgment of the first instance (from the second to the second half of the judgment). It shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act.

2. Determination as to Plaintiff 1’s claim

Plaintiff 1 asserted that the Defendant assistant founder and the former director are in a position representing the independence and identity of the school juristic person, and sought the revocation of the instant disposition.

The fact that Plaintiff 1 died on April 8, 201, while the trial is in progress, is no dispute between the parties. The founder of a private school or the former director’s status is not subject to inheritance due to the nature of the status of the founder of a private school or the former director.

The instant lawsuit between Plaintiff 1 and the Defendant was terminated on April 8, 201, which was the date of death, due to Plaintiff 1’s death during the duration of the lawsuit.

3. Determination as to Plaintiff 2’s claim

A. Defenses before the merits

Plaintiff 2 is the founder of the Defendant’s supplementary intervenor, and only has no specific and direct interest in the instant disposition and has an indirect and de facto interest, and thus is not eligible for Plaintiff 2.

B. Determination

1) Although there is a legal interest in a lawsuit where a third party, who is not the other party to an administrative disposition, has a legal interest in cases of infringement of the legal interest protected by the law seeking the revocation of an administrative disposition, it refers to cases where there is individual, direct, and specific interest protected by the relevant law and regulations, and it does not include cases where it is indirect, factual, or economic interest (see Supreme Court Decision 2006Du330, Mar. 16, 2006).

A school juristic person is a juristic person established under the Private School Act for the purpose of operating a private school, which forms an independent right that forms the substance of a property foundation, by its nature. A school juristic person founder shall contribute a certain property at the time of its establishment and establish the school juristic person once after obtaining permission from the competent administrative agency, and shall not have any factual influence on the operation of the school juristic person, even if it can exercise any right against the school juristic person or have any legal relation with the school juristic person (see, e.g., Supreme Court Decisions 88Nu4710, Feb. 14, 198; 96Nu14036, Jul. 10, 198; 2001Da1171, Jan. 10, 2003).

Article 1 of the Private School Act provides that the purpose of private schools shall be to ensure the sound development of private schools by securing independence and promoting the public nature, in view of their special characteristics. School juristic persons shall respect the founder’s intent at the time of establishment at the time of establishment, i.e., the purpose of establishment at the time of establishment, as incorporated foundations to establish and operate private schools. Since the purpose of establishment of school juristic persons is successively realized by directors at the time of establishment determined by the articles of incorporation, and by future directors appointed in succession thereafter, they shall have direct interest in the issue of appointing regular directors appropriate for the realization of the purpose of establishment of school juristic persons, who were appointed before a temporary director is appointed under the former Private School Act (hereinafter “final director”), and who are in the position to represent the independence and identity of the retired director at the time of appointment of temporary directors under the former Private School Act (hereinafter “final director”). It does not represent the identity of the school juristic person solely on the ground that the founder or heir is not the last director (see Supreme Court en banc Decision 1906Da19054, May 17, 2007).

2) Article 25-3 of the former Private School Act (amended by Act No. 8545, Jul. 27, 2007) stipulates that where the competent agency appoints a regular director due to the removal of the grounds for appointment of a provisional director, a person who has contributed to the development of the school, a person who has contributed to the development of the school, and a person who has contributed to the development of the school or the council on board of trustees. However, the current Act and subordinate statutes stipulate that where the competent agency appoints a regular director, a regular director shall be appointed after deliberation by the Mediation Committee (Article 25-3(1) of the Private School Act). The Mediation Committee may hear opinions from the relevant school juristic person, executives, employees of the school, and other interested persons (Article 9-6(3) of the Enforcement Decree of the Private School Act). The Mediation Committee shall deliberate on the normalization of the relevant school juristic person, employees of the school, and other interested persons (Article 9-6(3) of the same Act).

Comprehensively taking account of the foregoing provisions, the current law only stipulates that the appointment of a full-time director shall be subject to deliberation by the Mediation Committee, and does not provide for the procedures to hear opinions from founders or persons who contributed a considerable property. However, the Mediation Committee under the Operational Rule of the Mediation Committee provides that the person who contributed at least 1/3 of the basic property of the school juristic person in the process of deliberation may hear opinions from the persons who contributed to at least 1/3 of the basic property of the school juristic person in the process of deliberation. As such, the Mediation Committee provides that the person may hear opinions from the property contributors, etc., and does not guarantee the procedural right to have the founders submit opinions on the appointment

① Provisions that allow a conciliation committee to hear opinions from a person who contributed at least 1/3 of the basic property amount of a school foundation, are not an essential procedure in the process of deliberation by the conciliation committee, but rather a discretionary procedure. The operating rules of the conciliation committee are merely an internal business rule of the conciliation committee and do not have any external effect that restricts citizens or courts. Therefore, the conciliation committee does not necessarily have to hear the opinions of founders during the process

(2) Even if the freedom to establish a private school is guaranteed under the Constitution and the Private School Act, those who are in a position to represent the independence and identity of the school juristic person are the last director, and they are not in a position to represent the autonomy of the school juristic person to realize the purpose of establishment in a permanent manner solely on the

Therefore, there is a provision that allows founders to hear opinions from founders, etc. in the process of normalization of private schools or the process of appointing regular directors in the process of appointing regular directors, not a legally protected interest to seek cancellation of the appointment of regular directors.

3) Even if Plaintiff 2 contributed property with Plaintiff 1, who is the husband, and is the founder of the Defendant’s Intervenor at the time of its establishment, and is the director at the time of its establishment, insofar as the last director is legally appointed by the board of directors of the Defendant’s Intervenor, the Plaintiff 2, who was the founder, is not in the position to represent the autonomy and identity of the educational foundation on the ground that he/she has an opposing opinion with the founder. Thus, Plaintiff 2, not the last director, does not have any interest protected under the law regarding the appointment of the Defendant’s Intervenor

The lawsuit filed by Plaintiff 2 is unlawful.

4. Conclusion

The judgment of the first instance shall be revoked. The termination of the lawsuit shall be declared against the plaintiff 1. The plaintiff 2 shall be dismissed.

Judges Kim Jong-dae (Presiding Judge)