[1] Where a temporary director appointed under the procedure under the former Private School Act makes a resolution of the board of directors containing appointment of a regular director at the time the reason for such appointment ceases to exist, whether there is a benefit of lawsuit to dispute the defect of the resolution of the board of directors to the last regular director who was duly appointed before the appointment of the temporary director and retired (affirmative)

[2] Whether a temporary director under the former Private School Act has the right to appoint a regular director (negative)

[1] [Majority Opinion] (A) Once the retirement of an existing regular director becomes final and conclusive, and if a temporary director has been duly appointed pursuant to the procedure under the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), the authority as a director of the ordinary business belongs to the temporary director, regardless of the reason for appointment, so there is no room for recognizing the right to handle general business as a right to manage general business in a manner that the retired director continues to perform his/her previous duties, and later, even if the temporary director completes his/her duties, it cannot be deemed that the right to handle emergency affairs is newly granted to the former director who has retired at that time. Accordingly, in case of a school juristic person, it cannot be said that the right to appoint an existing director after separating only the authority to appoint an appointed director after the general business process is legally appointed before the appointment of a temporary director under the former Private School Act, and the right to manage emergency affairs can not be inferred or inferred by the resolution of the board of directors under Article 691 of the former Private School Act.

(B) However, even though the right to file a lawsuit against the previous director is not recognized by analogy of Article 691 of the Civil Code, it is a matter to be judged separately from other Dos whether there is a legal interest in dispute over the validity of the above resolution of board of directors. The freedom of private school under the Constitution recognized as the school juristic person is realized by the directors who can be seen as being on the connecting line in that it is in a relationship of successive appointment. Among them, the previous directors are in a position to represent the independence and identity of the general school juristic person. As such, the previous directors who are in a position to represent the independence and identity of the school juristic person as such are in a position to represent the independence and identity of the school juristic person. After the cancellation of approval for the appointment of directors under Article 20-2 (1) of the former Private School Act, if there is a director's experience composed of only the temporary directors appointed by the Minister of Education and Human Resources Development under Article 25 of the same Act and the reason for the appointment of temporary directors is terminated, regardless of whether they restore their status as the regular director or have new authority to appoint the school juristic person.

(C) Ultimately, the previous directors have a legal interest in the resolution of the board of directors with respect to which temporary directors under the former Private School Act appoint regular directors. Therefore, there is a benefit in the lawsuit seeking confirmation of invalidation.

[Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon]

(A) In relation to a school juristic person, the founder of the school juristic person shall not realize the freedom of the establishment and operation of private school by the articles of incorporation containing the purpose of the establishment thereof, and shall not affect the affairs of the school juristic person and the director who operates the school juristic person in any other way. The director shall perform his duties with the care of a good manager in accordance with the relevant Acts and subordinate statutes and the articles of incorporation becoming effective in relation to the school juristic person, as well as with the duties of a good manager. Thus, it is not necessary to perform duties with the authority delegated by the founder or for the founder. Thus, we cannot agree with the majority opinion that it is the essence of the director system to realize the purpose

(B) The previous directors should be deemed to have lost their status to represent the school juristic person’s independence and identity by retiring the office of a long-term regular director. As long as it cannot be deemed that the above rights and status are restored to the previous directors who are not likely to be given an urgent treatment right by analogy of Article 691 of the Civil Act, there is no ground to regard them as those who are most adjacent to the duties of securing the school juristic person’s independence and identity, and therefore, the previous directors shall not be deemed to have a direct interest in the resolution of the board of directors whose contents are to appoint a regular director.

(C) In addition, it is unreasonable to view that the former director who does not perform the affairs of the school juristic person any longer due to the expiration of the term of office constitutes an interested person holding the right to request the appointment and dismissal of a temporary director under Article 25(1) of the former Private School Act, regardless of whether the former director has a direct interest in the above resolution of board

[Supplementary Opinion to Majority Opinion] In a lawsuit for confirmation, demanding “interest in confirmation” as to “legal matters or legal relations” is to ensure that citizens recognize the right to a trial, but the system of a trial is established in a reasonable and efficient way to resolve disputes. Therefore, the issue of benefit in confirmation is closely related to the exercise of citizens’ right to a trial, and efforts are necessary to expand citizens’ right to a trial within a reasonable and efficient scope. As such, there is a need to correct the previous attitude toward the benefit in confirmation. In this case, in which the previous directors raised a problem against the appointment of regular directors by temporary directors and sought a court’s decision, it is difficult to hold a question as to whether it is the right exercise of jurisdiction to prevent the previous directors from denying the benefit in confirmation.

[2] [Majority Opinion] In light of the basic rights of school juristic persons, the legislative purpose of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), and Article 25 of the same Act as special provisions on Article 63 of the Civil Act, which have separate provisions on the grounds, duties, duration of office and restrictions on appointment of regular directors, etc. of temporary directors, it is reasonable to view that temporary directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25(1) of the former Private School Act have the same authority as regular directors, in cases where a vacancy of directors makes it impossible to achieve the purpose of school juristic persons or is likely to cause damage, and that temporary directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25(1) of the former Private School Act have the same authority as regular directors, unlike temporary directors under the Civil Act. Accordingly, they do not have

[Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Jeon Soo-ahn] School juristic persons are basically incorporated foundations under the Civil Act. However, in order to enhance the public nature of private school by strengthening legal regulations and administrative supervision on their organization and operation, it shall be deemed that the provisions on incorporated foundations under the Private School Act, which are established and operated under the Special Act, should be applied to school juristic persons. Therefore, the Private School Act shall be applied to school juristic persons, which are preferentially applied, but matters not prescribed under the Private School Act. However, since temporary directors appointed by the court under Article 63 of the Civil Act have the same resolution right as general directors, even if the appointment subject is different, it shall be interpreted that temporary directors under the Private School Act have the same authority as regular directors, and therefore, it shall not

[Supplementary Opinion to Majority Opinion] Article 16(1)4 of the former Private School Act, which is a general provision concerning the authority of the board of directors, provides that the board of directors shall deliberate and resolve on matters concerning the appointment and dismissal of executives, and does not have any special restrictions on the scope of the board of directors. If the board of directors under the same subparagraph deems that the board of directors consisting of only temporary directors, and that the board of directors can appoint a new fixed director without any restriction, as in the case of the board of directors consisting of the regular directors, this may allow a method that may infringe on the freedom of establishment and operation of school juristic persons as unconstitutional, and thus, it cannot be permitted from the perspective of constitutional interpretation.

[Supplementary Opinion by Justice Yang Sung-tae as to majority Opinion] In conclusion, Article 25 of the former Private School Act provides a temporary director with the authority to determine whether the grounds for appointment of the temporary director, which the temporary director serves as the basis for the term of office of the temporary director, have been eliminated. It is extremely unreasonable to grant the temporary director the said authority in light of its nature and without any legal basis. In addition, if the organization of the board of directors equivalent to two brains of the school juristic person can be completely reorganized by the temporary directors dispatched by the State power, the State receives private schools in an indirect manner, and eventually, the autonomy of education guaranteed by the Constitution is fundamentally damaged. As such, the establishment of a school juristic person has a lot of fundamental assets, and the change of the operating body of the private school by appointing the temporary director does not result in infringement of property rights, as well as property rights infringement, even if it is not a new school juristic person’s property right that belongs to the school juristic person before and after the appointment of the temporary director.

[Supplementary Opinion by Justice Lee Hong-hoon with respect to Dissenting Opinion] The autonomy of education in private schools and the autonomy in school operation shall be deemed to be respected only to the extent that does not conflict with the public nature of education. Moreover, as well as the Constitution of the Republic of Korea and the former Private School Act and the Act on the Establishment and Operation of Public Interest Corporations do not have any provisions that limit the authority of temporary directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25(1) of the former Private School Act, temporary directors under the former Private School Act shall be interpreted to have the same authority as temporary directors under the Civil Act, in accordance with the general principles of law. To limit the status and authority of temporary directors of special corporations, which are combined with public law relations and private law relations, by arbitrary interpretation without explicit legal grounds, is an unlawful interpretation that deviates from the bounds of statutory interpretation.

[1] Articles 10, 31(1) and (4) of the Constitution of the Republic of Korea; Articles 20, 20-2(1), and 25 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Articles 63 and 691 of the Civil Act; Article 250 of the Civil Procedure Act / [2] Articles 10, 23, 31(1) and (4) of the Constitution of the Republic of Korea; Articles 16(1)4, 20, 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 Decision 98Da26187 delivered on January 28, 2000 (Gong2000Sang, 554) Supreme Court Decision 2004Da65336 delivered on March 25, 2005 (Gong2005Sang, 670) / [2] Supreme Court Decision 70Nu116 delivered on October 30, 1970 (amended)

Plaintiff 1 and four others (Attorneys Yoon Jae-sik et al., Counsel for the plaintiff-appellant)

School Foundation Commercial and Private Teaching Institutes (Attorney Han-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na30776 delivered on February 14, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the benefit of lawsuit

A. There is no special provision in the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter “former Private School Act”) or the Civil Act regarding who is the person who can file a lawsuit seeking confirmation of nullity against the board of directors of a school foundation. Therefore, a person who has an ordinary interest in confirmation or legal interest, such as in a lawsuit for confirmation, shall be deemed to have standing to sue.

B. In the case of a juristic person, a director may be deemed to have the benefit of confirmation based on the right to perform his duties, i.e., the right to perform his duties even when the director retires at the expiration of the term of office. In addition, Article 691 of the Civil Act recognizes that the right to perform the previous duties is recognized until the former director is appointed, the retired director may be deemed to have the benefit of seeking confirmation of invalidation by asserting the defect in the resolution of the board of directors which was removed or later appointed as part of the performance of his duties (see Supreme Court Decision 2004Da6536, Mar. 25, 2005, etc.). On the contrary, if the retirement of the existing regular director becomes final and conclusive and the appointment of the temporary director is lawfully made pursuant to the procedures under the former Private School Act, regardless of what the reason for appointment belongs to the temporary director, and therefore, it cannot be acknowledged that the right to conduct the previous duties is newly granted to the retired director in order to continue his duties at the expiration of the term of office.

C. However, even though the previous directors do not have the right to take urgent action by analogy of Article 691 of the Civil Code, whether the legal interest in dispute over the validity of the above resolution by the board of directors is recognized or not is a matter to be separately examined in another way.

Article 25 of the former Private School Act provides that “The Minister of Education and Human Resources Development shall, if an educational foundation does not fill the vacancy of its directors, appoint temporary directors at the request of an interested party or ex officio if it is deemed that such an educational foundation could not achieve its original purpose or would cause damage to such a foundation.” (Paragraph 1); “The temporary directors shall endeavor to resolve the cause under the provisions of paragraph (1) within the prompt time.” (Article 2) “The temporary directors shall hold office until the cause under the provisions of paragraph (1) is removed. It shall not exceed two years and may be reappointed only once,” and “The temporary directors may not be appointed as executive officers under the provisions of Article 20 (Paragraph 4) because of their unique purposes for the establishment and operation of the school foundation’s first time. This provision may also be interpreted as a special provision for the establishment and operation of the school foundation’s autonomy, which is an independent school foundation’s own interest in the establishment and operation of the school foundation’s private school for the purpose of enhancing the autonomy of the school foundation.”

Based on these understandings, 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 can be said to be in the nearest position to the duties of securing the independence and identity of ordinary school juristic persons. As such, the former directors can be said to be in a position to represent the independence and identity of school juristic persons. Thus, in cases where the former directors are in a position to represent the independence and identity of school juristic persons after cancellation, etc. of approval for appointment of directors under Article 20-2 (1) of the former Private School Act, and the reasons for appointment of temporary directors are terminated, regardless of whether the former directors recover their status as the regular directors or whether the former directors have the authority to appoint new temporary directors, the former directors can be interpreted as unfairly and unfairly as an interested person at the time when the former temporary directors are appointed by the Minister of Education and Human Resources Development.

Ultimately, the previous directors have a legal interest in the above resolution of the board of directors, so there is a benefit in legal action to seek confirmation of nullity.

D. Examining the reasoning of the judgment below in light of the records, the part of the judgment that held that the plaintiffs are legally entitled to dispute about the validity of the resolution by the board of directors of this case on the ground of emergency treatment right at the time of termination of duties recognized by analogy of Article 691 of the Civil Code is inappropriate for the above reasons, but the judgment below is just in holding that the plaintiffs who retired from the term of office as the immediately preceding director of the appointed director by the resolution by the board of directors of April 28, 190 of the judgment of the court below had legal interest in dispute about the validity of the resolution by the board of directors of this case as the interested parties of the defendant driving school, and there is no error in the misapprehension of legal principles as to legal interest

2. As to the ground of appeal on the authority to appoint regular directors of temporary directors under the former Private School Act

A. The former Private School Act does not have any provision regarding the normalization method in a case where a reason for the selection and appointment of a provisional director is eliminated, so this problem should be derived through the systematic interpretation of the former Private School Act.

In light of the above basic rights of school juristic persons, the legislative purpose of the former Private School Act, and Article 25 of the former Private School Act, as special provisions on Article 63 of the Civil Act, have separate provisions on the grounds for appointment of provisional directors, duties, duration of office, restrictions on appointment of regular directors, etc., provisional directors appointed by the Minister of Education and Human Resources Development pursuant to paragraph (1) of the same Article shall be temporarily interpreted as having the same authority as regular directors only for the act of operating general school juristic persons, unlike temporary directors under the Civil Act, in cases where the vacancy of directors makes it impossible or may cause damage to the school juristic persons. Therefore, it is reasonable to deem that there is no authority to appoint regular directors. According to the above provision, it is unreasonable to deem that the Minister of Education and Human Resources Development has the authority to appoint temporary directors after expiration of the term of office of temporary directors, and thus it is unreasonable to consider that the temporary directors without authority to appoint them are entitled to easily appoint regular directors, for instance, to the existing school juristic persons without authority under the former Private School Act.

Ultimately, temporary directors have inherent limits in their authority due to their temporary and temporary characteristics. At least, matters beyond the general operation of a school foundation, such as formal directors at the time of the fundamental change in the purpose of establishment or the removal of the reason for appointment of temporary directors, shall be outside the authority of temporary directors. As such, school juristic persons, etc. guarantee fundamental rights, the State’s supervisory authority over school juristic persons shall be exercised within the extent of ensuring that the school juristic persons can be operated in accordance with the founders’ intent at the time of establishment, and the Constitution explicitly provides that the freedom of appointment of temporary directors may be exceptionally restricted in cases where the grounds for restricting fundamental rights arise, but the right to appoint temporary directors shall not be restricted in cases where the selection and appointment of temporary directors remains valid at the time of appointment of temporary directors at the time of the resolution of temporary directors at the same time as the former Private School Act provides that the right to appoint temporary directors at the time of appointment shall not be restricted in cases where the appointment of temporary directors at the time of appointment is to be resolved temporarily, and that the right to appoint temporary directors at the same time as the resolution of temporary directors at the same level may not be decided.

Unlike this, the provisional directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25 of the former Private School Act shall have the same resolution as the regular directors, in particular, insofar as the authority is not restricted by the Minister’s decision, so even if the temporary directors were appointed by the board of directors composed of the temporary directors, they shall not be deemed null and void. The Supreme Court Decision 70Nu116 Decided October 30, 1970, etc. is to be modified to the extent inconsistent with this Opinion.

B. In the same purport, the decision of the court below that the resolution by the board of directors of this case where temporary directors did not appoint all the permanent directors on the ground that there was a director director appointed by the Minister of Education and Human Resources Development pursuant to Article 25 of the former Private School Act and the reason for appointing temporary directors was eliminated is just, and it is not erroneous in the misapprehension of legal principles as to the status and authority of temporary directors or as to the limit of state supervisory authority as otherwise alleged in the ground for appeal. Supreme Court Decisions 62Da800 delivered on March 21, 1963 and 2005Ma53 delivered on April 16, 2005, etc. are different from this case, and it is inappropriate to be invoked in this case. This part of the ground for appeal is not acceptable.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Jeon Soo-ahn, and a concurrence with the Majority Opinion by Justice Yang Sung-tae, Justice Kim Hwang-sik, and Justice Park Poe-young

4. Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Jeon Soo

A. The gist of the majority opinion is that the previous director has a direct interest in the matter of appointing the regular director of the school juristic person, and there is a benefit in litigation to dispute whether there is validity of the resolution of the board of directors by which the temporary directors under the former Private School Act appoint the regular director. Second, the temporary directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25(1) of the same Act must be limited to the acts of the general school juristic person, unlike the temporary directors under Article 63 of the Civil Act, with the authority to appoint the regular director, so there is no authority to appoint the regular director. We cannot agree with the majority opinion.

B. We examine the interests of the suit.

(1) In a lawsuit for confirmation, there is a benefit of confirmation as a requirement for the protection of rights. The benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a judgment of confirmation in order to eliminate the Plaintiff’s rights or legal status unstable and danger, and it is necessary to immediately remove the danger and apprehension (see, e.g., Supreme Court Decisions 94Da21559, Aug. 11, 1995; 2003Da55059, Dec. 22, 2005). Therefore, in a lawsuit for confirmation of confirmation, it is established that the Plaintiff’s legal relationship subject to the lawsuit for confirmation and the fact that the Plaintiff’s mere interest with respect to the Defendant is insufficient and that the Plaintiff has a right or legal status in relation thereto.

In this case, the plaintiffs are responsible for the long-term internal bylaws and resign from the position of the regular director on their own, and the rest of the plaintiffs except the plaintiffs 4 are those whose appointment is revoked, and they have continued to be a temporary director system for not less than 10 years by the school foundation of this case, and as the regular director was appointed by the board of directors composed of temporary directors, the plaintiffs seek confirmation on the invalidity of the resolution of the board of directors of this case in the position of the director whose term has expired on the ground that they worked as directors before the approval of their appointment was revoked, and the term of office has expired. However, even if the resolution of this case is null and void, the plaintiffs shall be deemed null and void, as long as the cancellation of the approval of the appointment of directors on the director's position or the temporary director's appointment was confirmed after the expiration of the term of office, the plaintiffs shall not be deemed to have restored their status as the regular director or to have the power to appoint a new regular director on their own. Thus, the

(2) The majority opinion argues that in relation to the interest in a lawsuit, if the retirement of an existing regular director under the former Private School Act has become final and conclusive and the temporary director has been duly appointed, there is no room to recognize the right to conduct emergency measures at the level that the former director continues to perform his/her previous duties in accordance with Article 691 of the Civil Act, and that the right to conduct emergency measures pursuant to Article 691 of the Civil Act cannot be newly granted to a director who has retired in the past after the completion of the duties of the temporary director. Thus, there is no interest in dispute over the validity of the resolution of board of directors with respect to which the former director has the right to conduct emergency measures or on the premise thereof, the school juristic person holds private school foundation's right to establish and operate the private school, freedom to establish and operate the school juristic person, property rights, etc. to ensure that the establishment of the school juristic person establishes the independence of the existing director and realize the purpose of establishment in a timely manner by appointing a director, Article 25 of the former Private School Act, which provides for the reason for appointment of the temporary director, duty period, restriction on appointment of the existing school juristic person's.

(A) However, the plaintiffs in this case should be deemed to have lost their status to represent the independence and identity of school juristic persons by retired from office for a long time as seen above. As pointed out by the majority opinion, as long as it cannot be seen that the above rights and status cannot be deemed as reinstated to the plaintiffs who are not likely to be granted emergency treatment rights by analogy of Article 691 of the Civil Act, it shall not be deemed that they are those who are in the most adjacent position to the duties of ensuring the independence and identity of school juristic persons, there is no ground to regard them as those who are in the most adjacent position to the duties of ensuring their independence

Furthermore, even if the majority opinion's assertion as to the interest of the previous directors is accepted, it is not questionable whether there is such interest as the assertion can be a basis for affirming the legal interest in dispute as to the validity of the resolution by the board of directors of this case. The majority opinion seems to have been affected by the above resolution by the board of directors in terms of representing the independence and identity of the school juristic person, on the premise that the plaintiffs are not affected by the resolution by the board of directors of this case, even though they are not individually, in terms of representing the autonomy and identity of the school juristic person, even though there is a need for correcting the existing attitude of the interest of the lawsuit, more careful approach is needed in regard to whether the interest of the case is a legal interest.

Since the excessive narrow recognition of the benefit of a lawsuit will result in restricting the exercise of the right by citizens, there is no reason to refuse to consent to the recent trend to expand the benefit of a lawsuit within a reasonable scope. However, in a case where a director retires at the expiration of his/her term of office and then his/her position is transferred to the director and the approval of taking office is cancelled, as stated in the Majority Opinion, the subsequent directors are in principle unable to dispute the validity of the cancellation of the approval of taking office of a director in order to recover the status of a director who can represent the identity of the school juristic person as a director, and thus, they should pass through an administrative litigation. If the previous precedents have acknowledged the narrow recognition of the benefit of a lawsuit in such cases, it is difficult to recover the right of a new school juristic person in lieu of the right of a prior director in a way to represent the school juristic person. If the approval of taking office of a new director becomes effective, it can be assumed that the previous temporary director's position has no legal status to dispute for the appointment of a new director in the school juristic person's identity.

(B) Next, I cannot agree with the majority opinion that it is the essence of the system of directors to realize the purpose of the establishment of school juristic person in a sustainable manner. In relation to the school juristic person, the founder should realize the freedom of the establishment and operation of private school in accordance with the articles of incorporation that contain the purpose of the establishment thereof, and should not affect the affairs of the school juristic person and the directors who operate it in any other way. The directors should perform their duties with the care of a good manager in accordance with the relevant Acts and subordinate statutes and the articles of incorporation where the purpose of the establishment of the founder is embodied, as seen above, in relation to the school juristic person, and they should perform their duties with the care of a good manager and do not perform their duties for the founder. Thus, we cannot agree with the majority opinion

In particular, the Supreme Court has held that there is no legal interest in seeking confirmation of nullity of the board of directors of a school juristic person solely on the ground that the school juristic person has a relation to the establishment of a school juristic person, and barring any special circumstance, it cannot seek confirmation of nullity of the board of directors' resolution as the founder of the school juristic person (see Supreme Court Decision 2001Da1171, Jan. 10, 2003, etc.). The majority opinion also states that if the previous director has a legal interest in the matter of appointing a regular director suitable for realizing the purpose of establishment in order to realize the purpose of the establishment in a timely manner, the previous director has a legal interest in the matter of appointing a regular director in the purpose of the establishment, the founder or successor of the status shall also be deemed to have the right

(C) The majority opinion argues that the previous director is a person who has a direct interest in the resolution of the board of directors of this case and has the right to request the appointment and dismissal of temporary directors as an interested party under Article 25 of the former Private School Act.

Article 25(1) of the former Private School Act provides that the interested parties have the right to request the appointment of a provisional director and does not have any provision on the significance and scope of interested parties, so it is difficult to understand it accurately. First of all, the executives, temporary directors, professors, etc. of a school juristic person may be deemed to be the interested parties. However, since the Plaintiffs are the former directors, but do not perform the duties of the school juristic person any longer due to the expiration of their terms of office, it is unreasonable to deem that at least the above position is the interested parties holding the right to request the appointment of a provisional director and the right to request dismissal, regardless of whether the former directors have direct interest in the resolution of the board of directors

On the other hand, the majority opinion that the plaintiffs are interested parties with the right to request the appointment and dismissal of provisional directors and the right to request the appointment and dismissal of provisional directors. In this regard, if it is intended to draw up the argument that the plaintiffs have a legal interest in seeking nullification of the resolution of this case, such attempt is also unreasonable. The interested parties' right to request the appointment and dismissal of provisional directors and the right to request the dismissal of temporary directors is not protected by confirmation of invalidity of the resolution of this case. Furthermore, the right to request the appointment and dismissal of temporary directors by the Minister of Education and Human Resources is not protected by confirmation of invalidity of the resolution of the board of directors of this case. On the other hand, it cannot be deemed that there is a resolution of the board of directors of this case with the content that the right to request the appointment and the right to request dismissal of temporary directors

(3) If so, as long as the plaintiffs cannot be deemed to have a right or legal status which causes or is likely to cause uneasiness or danger by the resolution of the board of directors of this case, the interest in the lawsuit of this case shall be denied.

C. We examine whether temporary directors are authorized to appoint regular directors.

Even in cases where it is assumed that there is a benefit of lawsuit against the validity of the resolution by the board of directors of this case to the plaintiffs, it shall be deemed that the temporary directors have the authority to appoint a regular director, so the resolution shall not be null

(1) First of all, Article 16(1) of the former Private School Act provides that matters concerning the appointment and dismissal of officers, including directors, may be resolved by the board of directors, and there is no provision in addition to the above provision that the board of directors composed of temporary directors cannot pass a resolution on the appointment and dismissal of officers in the former Private School Act.

In addition, Article 25 of the former Private School Act provides only the contents related to temporary directors, such as appointment of temporary directors, duties and terms of office, and restrictions on appointment of regular directors, and does not directly stipulate the normalization of school juristic persons such as the appointment of regular directors. However, Article 25-3 newly established by the amendment of Act No. 7802 of December 29, 2005 provides for the normalization of school juristic persons in which temporary directors are appointed. School juristic persons are basically incorporated foundations under the Civil Act. However, school juristic persons are basically incorporated foundations under the Civil Act in order to enhance the public nature of private school by strengthening legal regulation and administrative supervision on their organization and operation. Accordingly, the provisions on incorporated foundations under the Civil Act should be applied to matters that are preferentially applied to school juristic persons but not provided for in the Private School Act.

However, the provisional directors appointed by the court under Article 63 of the Civil Act have the same right to resolution as a general director (see Supreme Court Decision 62Da800, Mar. 21, 1963, etc.). Even if the appointment subject is different, the provisional directors under the Private School Act shall be interpreted as having the same right as a regular director, and therefore, it shall not be deemed as null and void the resolution of this case where the board of directors composed of temporary directors appoints a regular director.

In particular, the Supreme Court held that a provisional director appointed under Article 25 of the former Private School Act has the same authority and duties as a regular director, unless there is a limitation on his authority by the decision of the Minister of Education and Human Resources Development, so even if the provisional director appointed a regular director at the board of directors, his appointment cannot be invalidated (see Supreme Court Order 70Nu116 delivered on October 30, 1970, Supreme Court Order 2005Ma53 delivered on April 16, 2005, etc.). Under the premise of such legal interpretation, seven universities that were dispatched after 203 and converted into a regular director system were made through a resolution to appoint a regular director at the board of directors composed of temporary directors as in this case.

In this case, unless there is a need to change the opinion of the Supreme Court or there is no evidence to deem that there is a special change in the situation, the purport of the previous precedents should be respected. If temporary directors do not have the authority to appoint regular directors, unlike the previous precedents, it would be likely that there will be many problems in terms of legal stability as a result of disregarding factual practices conducted in relation to the normalization of school juristic persons.

(2) The majority opinion argues that the provisional director under Article 25 (1) of the former Private School Act has no authority to appoint regular directors at the time of resolution of the reasons for the appointment of temporary directors, on the grounds that Article 25 of the former Private School Act has separate provisions on the grounds for appointment of temporary directors, duties, duration of office, restrictions on appointment as regular directors, etc. as a special rule under Article 63 of the Civil Act.

(A) First, we examine the contents of Article 25 of the former Private School Act.

As seen earlier, there is no provision that the board of directors composed of temporary directors is unable to pass a resolution on the appointment and dismissal of officers in the former Private School Act. The same applies to the case where the temporary directors appointed by the board of directors by the board of directors is the same as the case where the regular directors are appointed by the board of directors, and the legitimacy of approval can be disputed by appeal litigation. Thus, there is no reason to restrict the authority of temporary directors with respect to the appointment of the regular directors, and even if there is no provision on the normalization of school juristic persons such as the appointment of the regular directors under the former Private School Act, the temporary directors appointed under the same Act have the same authority as the regular directors by returning to the general principle of the Civil Act, and therefore, the appointment of the regular directors has the same authority as the regular directors, not the provision on the appointment of the regular directors, and the majority opinion interpreted the authority to appoint the regular directors by limiting the appointment of the temporary directors based on the contents of Article 25 of the former Private School Act, rather than the provision on the appointment of the regular directors.

Furthermore, as to whether the contents of Article 25 of the former Private School Act can be the basis for narrowly interpreting the authority of the provisional director unlike the temporary director under the Civil Act, Article 25 of the former Private School Act was enacted in response to Article 63 of the Civil Act under the premise that the authority of the provisional director at the time of enactment by Act No. 1362 on June 26, 1963 is identical to the regular director, and there exists almost the same contents as Article 25(1) of the former Private School Act of this case, and Article 604 of the former Private School Act of August 31, 199 as the special amendment of Article 25(1) of the former Private School Act has almost the same contents as that of the provisional director, while Article 25(2) through (4) of the former Private School Act concerning the restriction on the appointment of the temporary director as the temporary director has been newly established, the above amendment cannot be deemed as a different basis from that of the former Private School Act, since it still maintains the authority of the temporary director as an additional one under the Civil Act.

In particular, the latter part of paragraph (3) of the term of office stipulates that the term of office shall not exceed two years even in cases where the reason for the appointment of temporary directors continues for a long time, but the term of office shall be up to two years by prescribing that the appointment of temporary directors may be renewed only once, but rather, it shall be stated that the above two years and the first consecutive terms have been considerably mitigated due to the removal of the foregoing parts by the amendment of Act No. 7802 of Dec. 29, 2005.

(B) We examine the infringement of basic rights of school juristic persons.

The position of the majority opinion related thereto is likely to fundamentally infringe on basic rights of school juristic persons, such as autonomy, specialty, and political neutrality of education, if the approval of the appointment of all existing directors is revoked under Article 20-2 of the former Private School Act and provisional directors appointed thereby are able to appoint regular directors.

However, it is questionable whether it is essentially infringing on the basic rights of the school foundation to recognize the same authority as the regular director. In the event that it is impossible to achieve the purpose of the school foundation, a correction plan proposed by the former Private School Act is a system that can be dissolved with the consent of at least 2/3 of the fixed number of directors of the school foundation (Article 34 of the same Act) and a system that can order dissolution of the school foundation concerned by the Minister of Education and Human Resources Development (Article 47 of the same Act) with the consent of the Minister of Education and Human Resources Development (Article 47 of the same Act). As such, temporary directors are specially prescribed by the Private School Act in order to normalize the school foundation in lieu of the above dissolution, it can be deemed that the school foundation is scheduled to appoint regular directors for the purpose of normalization of the school foundation itself. In addition, in terms of the freedom of private school, the school foundation can place restrictions on the appointment of directors such as directors, and the temporary directors appointed by the competent agency also complies with the provisions of the articles of association, so the authority of temporary directors may be restricted by the articles.

In addition to the autonomy of school juristic persons under the majority opinion, the public nature as well as the principal legislative purport of the Private School Act also guarantees the public nature of private school. The opinion of the majority opinion that granting temporary directors, under the former Private School Act, who are not similar to those of the regular directors, brings fundamental changes to school juristic persons, which may result in the deterioration of the purpose and ideology of the establishment of school juristic persons, which may result in fundamental infringement of the basic rights. It is too minor view that the autonomy of school juristic persons is too minor, and that various institutions for strengthening the public nature of school juristic persons, including the temporary directors system, are likely to be denied.

This is a matter related to the normalization of school juristic persons, and therefore, there is no direct provision for the normalization of school juristic persons such as the appointment of regular directors under the former Private School Act, but so long as the affairs of temporary directors are aimed at the normalization of school juristic persons, it cannot be determined that there is no provision for the normalization of the former Private School Act. Moreover, even if the former Private School Act does not have any provision for the normalization, provisional directors appointed under the same Act shall have the same authority as the regular directors and have the authority to appoint regular directors because they have the same authority as the general principles of the Civil Act, even if they are not provided for in the former Private School Act. Unlike these basic principles and the purport of the existing precedents, the opinion of the majority opinion deeming that temporary directors under the former Private School Act have no authority to appoint regular directors on the grounds of infringement of fundamental rights under the Constitution guaranteed to school juristic persons such as autonomy, expertise, and political neutrality of education, or violation of the basic principles under the Constitution, etc.,

(C) Finally, the majority opinion argues that under the former Private School Act, where the reason for the selection and appointment of a provisional director is terminated, it is reasonable to solve it by returning to the general principle of the Civil Act. The purport of the former Private School Act is to refer to the appointment of a provisional director under Article 63 of the Civil Act and to the provisional director as a whole the same authority as the regular director. If this purport is the same, it should be interpreted that the temporary director has the same authority as the regular director even with the temporary director under the Private School Act who has the function to replace the temporary director under Article 63 of the Civil Act. While the majority opinion affirms that the general principle of the Civil Act is applied to the interpretation theory of the former Private School Act, it is logical to exclude the application of the general principle of the Civil Act as to the authority of a provisional director under the Private School Act.

D. For the foregoing reasons, we cannot agree with the Majority Opinion.

In light of the above legal principles, the Plaintiffs, who are previous directors, do not have the interest in the lawsuit seeking confirmation of invalidity of the resolution of the board of directors of this case, and even if they affirm the interest in the lawsuit, the resolution of the board of directors of this case, which the temporary directors appointed the regular directors for the normalization of the school juristic person, shall not be deemed null and void, and the opinion of the Supreme Court Decision 70Nu116 Decided October 30, 1970, which held to the purport of the above, should be maintained as

Ultimately, the judgment of the court below which held that there is a legal interest in dispute over the validity of the resolution by the board of directors of this case, and that the resolution by the board of directors is null and void is erroneous in the misapprehension of legal principles as to the interest in a lawsuit or the status of temporary directors under the former Private School Act and the Supreme Court precedents

5. Concurrence with the Majority Opinion by Justice Kim Hwang-sik and Justice Park Ill-sook

A. In Korea, a private school is in charge of a considerable portion of the middle and higher education, and most of them are established and operated in the form of a school juristic person established under the Private School Act. In the past, as well as in the past, temporary directors are being appointed in a considerable number of private schools. Therefore, the instant judgment is not only to simply determine the method of determining the operating body of a specific school juristic person, which is a standing school, but it is necessary to seek what is constitutional and social validity under the former Private School Act, in which it did not provide any provision regarding the normalization method of a school juristic person, for which temporary directors are appointed, and as a result, to suggest an important solution in the event of a legal dispute over the change of the operating body of a school juristic person in the future.

B. The two issues in the instant case are both related to the nature of school juristic persons and directors system and the common principle of freedom of private school as fundamental rights under the Constitution, and it cannot raise a proper resolution of the instant case without accurate understanding. The Dissenting Opinion differs from the Majority Opinion in relation to this issue that can be said to be the starting point, and thus, I will first examine this issue in order to supplement the Majority Opinion as to the benefit of a lawsuit.

The freedom of private school, i.e., the freedom to establish and operate a private school, includes the freedom to autonomously determine the identity of a school foundation without external interference. The identity of a school foundation is expressed in the purpose of establishing the school foundation and is concrete through the directors of the school foundation. Therefore, the freedom to autonomously appoint directors who are the first director of the school foundation, which is established by the articles of incorporation, together with the directors of the school foundation. The former Private School Act requires the founder to prepare its articles of incorporation, and requires the latter director to be appointed by the articles of incorporation of the school foundation (Article 10(2)) (Article 16(1)4 and Article 20) in order of the first board of directors of the school foundation (Article 16(1)4 and Article 20) to appoint directors who comprise the board of directors, in addition to the board of directors as a decision-making body. In other words, the school foundation is distinct from the case where the first director of the school foundation is a final decision-making body in addition to the board of directors.

However, revocation of approval for taking office ex post for a director who has been approved by the competent agency (see Article 20-2 of the former Private School Act), where a director is vacant, the act of appointing a director by the Minister of Education and Human Resources Development (see Article 25 of the former Private School Act), and the act of appointing a director by the board of directors composed of the above temporary directors, etc. shall be restricted to the freedom of self-determination of all the school juristic persons. In this case, the identity of the school juristic person, which is attributable to the founder, remains in the state of suspension after succession to the previous director, and it still remains in the position of representing the identity of the school juristic person. The act of appointing a new director is an act of determining a person who succeeds to the status of representing the identity of the school juristic person. Therefore, where a director without the authority to appoint a regular director commits an act of appointing a director by a board of directors composed of temporary directors without the authority to appoint it and thereby causes the result of restricting the freedom of self-determination of the school juristic person by representing the interests of the previous school juristic person.

The ideology of the law on private school operation is also supported by such interpretation. In other words, the ideology of the law on private school operation is to ensure the sound development of private school by securing its independence and promoting its public nature in light of the unique characteristics of the private school. Here, the unique characteristics of the private school point out that the founders have the legal nature of schools established and operated by school juristic persons or private individuals other than the State and local governments, independent founding spirit, tradition, and educational spirit. Traditionally, it emphasizes the spirit of the founders in connection with the private school and respect for unique tradition and tradition, as pointed out in the Dissenting Opinion, it does not mean that the founding’s spirit and purpose of establishment may be stipulated in the articles of association through the articles of association, and it does not necessarily mean that the establishment purpose of the founders is completely stipulated in the articles of association, and it is difficult to interpret the provisions on temporary directors’ authority to the extent that it is not possible to establish and operate the school juristic persons by itself for the reason that the founders do not have the authority to do so after the establishment purpose of the articles of association.

In addition, it is related to the factual relations of this case. First, the plaintiffs already resigned from the office of regular directors for a long time and the rest of the plaintiffs except the plaintiffs 4 have cancelled the approval for reappointment. According to the factual relations duly admitted by the court below, the plaintiffs rejected the approval of the competent authorities at the time, and subsequently cancelled the approval of the replacement of directors on June 9, 1990 for the remaining plaintiffs except the plaintiffs 4, while they resigned from the office on the premise that they were appointed and ordinarily take office, it cannot be deemed that the plaintiffs have lost their status by waiver of the status as the real executor of the establishment purpose. In addition, the plaintiffs cannot be determined to have cancelled the approval of the replacement of directors on the ground that the cancellation of the approval for reappointment of directors did not violate the trust relationship with the school juristic person without seriousness and seriousness of the reasons, and it cannot be concluded that the remaining terms of office of the plaintiffs have been destroyed by the cancellation of the approval for reappointment of the appointment of directors at the time of the 90th anniversary of the cancellation of the appointment of directors.

In addition, as alleged in the Dissenting Opinion, it is also erroneous in the Majority Opinion to understand that the Plaintiffs are interested parties holding the right to request appointment and dismissal of provisional directors, and that the Plaintiffs are entitled to legal interest in seeking confirmation of invalidity of the board of directors resolution in this case. This is because the Majority Opinion points out that the right to request appointment and dismissal of provisional directors and the legal interest in seeking confirmation of invalidity of the board of directors resolution in this case, depending on cases involving the Plaintiffs, are both common interests arising from the status of the Plaintiffs as previous directors. This part of the Dissenting Opinion’s assumptive argument is derived from the misunderstanding of the Majority Opinion.

In a lawsuit for confirmation, demanding “interest in confirmation” with respect to “legal matters or legal relations” is intended to ensure that citizens can have the system of a trial by suppressing the remaining lawsuit and establishing a reasonable and efficient dispute resolution means. Therefore, the issue of interest in confirmation is closely related to the exercise of the citizens’ right to trial, and efforts are necessary to expand the citizens’ right to trial within a reasonable scope. As such, the Supreme Court’s recent precedents are also going toward this direction. In this case where the former directors raise issues regarding the appointment of temporary directors and seek a court’s decision, it is not appropriate to fundamentally block the existing directors from exercising jurisdiction, and in this respect, it is not appropriate to have a question as to the dissenting opinion. The Dissenting Opinion argues that approval of temporary directors’ appointment and appointment of temporary directors can be resolved in accordance with the principle of cancellation of temporary directors’ right in the case where an approval of temporary directors’ appointment and appointment of temporary directors is revoked, as well as in the case where an approval of temporary directors’ appointment and appointment of temporary directors is sought by the method of seeking a change in the position of directors’ appointment and appointment of temporary directors.

C. Next, this paper examines the authority to appoint regular directors of temporary directors.

The Dissenting Opinion argues that, with respect to the interpretation of a law, the act of legislation requires an unreasonable interpretation beyond the scope of constitutional interpretation. However, this opinion cannot be agreed.

Article 25-3 of the current Private School Act explicitly provides for the method of appointing regular directors for the normalization of school juristic persons for which temporary directors are appointed. However, since the former Private School Act does not provide for such provision, the Dissenting Opinion seems to have consented to the fact that the method of appointing regular directors for the normalization of school juristic persons under the former Private School Act has to be disclosed through the rational interpretation of the relevant Acts and subordinate statutes, including the former Private School Act. However, the important point here is that the Constitution is the highest norm of the State, and the possibility of unconstitutional interpretation and constitutional interpretation is all difficult, the court has a duty to effectively maintain the legal provisions as far as possible by excluding unconstitutional interpretation and constitutional interpretation. Article 16(1)4 of the former Private School Act, which is a general provision on the authority of the board of directors, provides that the board of directors has the right to appoint directors after deliberation and resolution on matters concerning the appointment and dismissal of executives, and does not have any special restriction on the above scope. In conclusion, the Dissenting Opinion argues that this provision does not violate the principle of statutory interpretation of the former Private School Act.

As the majority opinion properly stated, the freedom of establishment and operation of a school juristic person, which was forced suspension of appointment by temporary directors without reflecting the intention of the school juristic person in a different rate, and the identity of the school juristic person should be restored as the grounds for appointment of temporary directors cease to exist. However, if temporary directors are appointed without considering such circumstances at all, it would result in the interruption of the identity of the school juristic person and the deprivation of the freedom of establishment and operation of the school juristic person on a permanent basis, which would result in the substantial infringement of the freedom of establishment and operation of the school juristic person.

Furthermore, such normalization methods that may cause the interruption of the identity of school juristic persons, even if the essential substance is not infringed, are in violation of the principle of proportionality and thus unconstitutional. It can be accepted that the freedom of self-determination of school juristic persons may be somewhat limited. As such, only the previous directors may appoint regular directors and all other persons may not violate the Constitution. On the other hand, the appointment of a new regular director composed of temporary directors by the board of directors without procedural consideration that reflects the opinions on succession or recovery of the identity of the school juristic persons prior to the appointment of temporary directors is the most serious among the methods that restrict the freedom of school juristic persons, and the appointment of a new regular director consisting of temporary directors by the board of directors without taking account of the procedural consideration that reflects the opinions on succession or recovery of the identity of the school juristic persons prior to the appointment of temporary directors is sufficient at the time of normalization of the school juristic persons as a result of the operation of the temporary directors system, so it cannot be said to be the minimum method of damage, and even if it takes into account the public interest that the school juristic person normalizes by restricting its self-determination.

Therefore, if it is interpreted that the board of directors consisting of only temporary directors is included in the board of directors under Article 16 (1) 4 of the former Private School Act, and that such a board of directors can appoint a new fixed director without any restriction, as in the case of a board of directors composed of regular directors, this would allow the method of unconstitutionally infringing on the freedom of establishment and operation of school juristic persons, and thus, it cannot be permitted from the perspective of constitutional interpretation.

In addition, the Majority Opinion’s position is consistent with the general principles of judicial interpretation in order to solve legal problems when there is a defect in the provision of the law. Article 1 of the Civil Act provides, “If there is no provision in the law, it shall be governed by the customary law and if there is no customary law, it shall be followed.” Here, cooking refers to the nature of the object, such as the nature of the object, common sense of the nature of the object, the intrinsic rule of the object, and the norm that is thought based on the nature of the object. If there is no law and customary law, our Civil Act recognizes the supplementary court for cooking, and it can be understood as due to the inevitable consideration of the defect of the law under the sexual legalism. In this case, the method of normalization of the private school dispatched to temporary directors under the former Private School Act is defective in the law, and in this case, finding the question of the nature of the object related to the purport of the provision of the former Private School Act, which is a related law, and Article 1 of the Civil Act does not accord with the general principles.

In addition, it is also necessary to examine the so-called "private performance practice" as to the normalization method referred to in the Dissenting Opinion. On the other hand, prior to the dispute arises between the plaintiffs and the competent authorities over the method of normalization of the defendant's school, the competent authorities had a temporary director pass a resolution to appoint the previous directors as a regular director in the form of administrative guidance, or had a practical consultation with the previous directors such as appointing the person who takes over the liabilities of the school juristic person as a regular director under the understanding of the founders or the previous directors in the case where the problem occurred due to a large amount of debts of the school juristic person, so the situation at the time of the resolution by the board of directors at the time of the instant resolution by the board of directors is in conflict with the previous "private performance practices". In other words, unlike the previous cases, the efforts to mediate the interests of various interested parties were reflected in order to resolve the potential unconstitutional state of appointment by the temporary directors without any restriction, and as a result, it is not appropriate to interpret the result of the previous lawsuit as to the legal relations of the school juristic person in this case.

The Dissenting Opinion also points out that the reason for the selection and appointment of provisional directors and the reason for the dispersion order under the former Private School Act are different and that there is a difference in the procedure and effect stipulated by the law in terms of public nature in order to normalize school foundations instead of dissolution under the former Private School Act. However, in comparison with the relevant provisions of the former Private School Act, it is assumed that the selection and appointment of provisional directors does not reach the extent of dispersion order, and that taking a measure to appoint provisional directors is good or considered by using dispersion order, and it does not fit the balance in finding legitimacy of the provisional director system. If it is necessary to issue an order to dissolve a school foundation, which is composed of all directors, has cancelled the approval for the appointment of a new director, and the appointment of a new director has been made by the board of directors who is composed of them through the normalization method, it can obtain an incidental effect such as dissolution without undergoing complicated dissolution procedure, but it is not necessarily necessary to exclude the remaining property from the procedure.

In addition, there is a big difference between the requirements for and effects of the protection of rights in the process of appointment of temporary directors. In other words, the question of whether the reason for appointment exists in the process of appointment of temporary directors is entirely different, and how the process of normalization is carried out is a fundamental difference between the two in terms of infringement of fundamental rights of the school foundation. In addition, if there is no need for differentiated consideration in each stage, it should not be required for the Minister of Education and Human Resources Development to appoint temporary directors at the time of occurrence of the cause stipulated in Article 25(1) of the former Private School Act, but it should not be said that the legislative method for appointing temporary directors was not the same as in the current Private School Act. The Dissenting Opinion’s position that the appointment of temporary directors is no more reasonable and appropriate for the purpose of normalization of the school foundation itself, but rather for the reason that the former school foundation’s opinion that the appointment of temporary directors would have been decided to be resolved by reflecting the opinions of the existing school foundation that the appointment of temporary directors would have been implemented in the way that the former school foundation will not be approved.

D. The fact that a private school has a public nature is an institution that guarantees the right of citizens to receive education as one of the public educational institutions. As seen earlier, it is reasonable to emphasize that a private school’s enhancement of public nature in the former Private School contributes to the public value of education. However, excessively expanding the participation of the State and other outside in relation to the selection of an operator. Even if the nature and identity of an educational foundation itself as a judicial person, it may result in distorted requests for such public nature. The Majority Opinion does not result from the time when a school foundation simply establishes a school foundation or its directors intend to make a private property. Rather, it is important to secure the identity and autonomy of a private school foundation itself as a judicial person in order to ensure the right to receive education of citizens, and it is reasonable to emphasize that it should be in harmony with the spirit of the Constitution, even if it is sought in accordance with the public nature. If a person satisfies the minimum requirements, it is reasonable to emphasize that a school foundation should freely choose the public nature of education to the extent that it does not infringe the autonomy of the school foundation and properly choose the public nature of education.

In short, without completely excluding the opinions of those who are in a position to represent the identity and independence of school juristic persons, the core of this case is whether temporary directors allow them to abolish the results of changes in the operational body of a private school by the temporary directors or to fully respect the identity and independence of school juristic persons, and to take appropriate control as necessary. In some cases, it is necessary to cancel the appointment approval of directors and to appoint temporary directors as a policy-oriented measure with regard to school juristic persons which have occurred within the school due to the occurrence of corruption of directors or managerial problems. However, it is difficult to find that countries adopt the temporary directors system, along with the approval of the appointment of directors and the cancellation of their approval. These provisions contained in the former Private School Act and the current Private School Act should be found in the colonial policy to suppress the national history of the school juristic person, and as long as such, an administrative and criminal measure against an executive officer can be imposed in the direction of the private school juristic person’s unconstitutionality and criminal punishment, it should be determined that such provision constitutes an abuse of the school juristic person’s identity.

6. Concurrence with the Majority by Justice Yang Sung-tae

B. I would like to add the following opinions to all the supplementary opinions of Justice Kim Hwang-sik and Justice Park Il-young.

Even though the public nature of education in the private school system is greatly emphasized, the freedom of private school establishment and operation is fundamental rights guaranteed by the Constitution of the Republic of Korea (Article 31(4) of the Constitution) that guarantees the autonomy of education under the conditions as prescribed by the Act. Private school is established by the founder as an independent and autonomous body that has been reflected in the founding ideology by its establishment, and autonomy is specifically realized through the board of directors due to the characteristics of the school juristic person. Therefore, if the composition and organization of the board of directors can be avoided regardless of the intention of the school juristic person in question, autonomy of private school is likely to pose a serious risk to the autonomy of education guaranteed by the Constitution. From this perspective, it seems that the legislative system of temporary directors appointed by the Minister of Education and Human Resources Development under Article 25 of the Private School Act can be developed as a serious risk factor for the autonomy of private school in itself, and that these legislation is rare in other countries new free democracy, and it seems that it is necessary to introduce the regulations of temporary directors to the extent that it has not been unconstitutional.

B. As to the public nature of the private school system and the necessity of the reasonable check system for the private school and the private school accordingly, I agree with the majority opinion on the reason that it cannot be the basis for interpreting that the reason is to grant the temporary directors the right to appoint the regular directors. In particular, I think that the following several arguments can be added.

Pursuant to Article 25 of the former Private School Act, temporary directors shall endeavor to resolve the causes for appointment of temporary directors within a prompt period of time. The temporary directors shall hold office until such causes cease to exist (Paragraph 2), and even if such reasons continue for a long period, their term of office shall be two years, and they may be reappointed only once (Paragraph 3). In conclusion, granting temporary directors the authority to determine whether the above provisions cease to exist as the basis for the temporary directors’ holding office, and it is very unreasonable to grant the authority to temporary directors by nature without any legal basis. Furthermore, if the organization of the board of directors corresponding to two brains of the school juristic person by the temporary directors dispatched by the State power of the State can be completely reorganized, the autonomy of private school is fundamentally damaged, and thus, it is doubtful that it does not change the public property rights of the school juristic person as well as the public property rights of the school juristic person, and thus, it is questionable that it does not change the form of private school juristic person as well as the public property rights of the school juristic person.

I would like to express a supplementary opinion to the majority opinion on the ground that the above reasons should not be interpreted as having the right to appoint a regular director.

7. Opinion concurring with the Dissenting Opinion by Justice Lee Hong-hoon

Justices Lee Hong-hoon shall supplement the Dissenting Opinion as follows.

A. Article 31(4) of the Constitution of the Republic of Korea provides that “The autonomy, speciality, and political neutrality of education, and the autonomy of universities shall be guaranteed under the conditions as prescribed by Act,” and Article 5(1) of the Framework Act on Education provides that “The State and local governments shall guarantee the autonomy and expertise of education, and shall establish and implement policies for the implementation of education meeting the circumstances of the relevant region.” Meanwhile, Article 1 of the Private School Act provides that “The purpose of this Act is to ensure the sound development of private schools by securing their independence and promoting their public nature in view of their special characteristics.”

In addition, as seen earlier, Article 31(4) of the Constitution provides that autonomy of universities shall be guaranteed, and Article 5(2) of the Framework Act on Education provides that “The autonomy of school operation shall be respected, and school personnel, students, parents, local residents, etc. may participate in school operation, as prescribed by statutes.” As such, Article 31(4) of the Constitution provides that autonomy of universities and school operation shall be guaranteed.

The principle of the autonomy of education and the autonomy of school operation refers to the guarantee of so-called educational autonomy. In full view of the relevant provisions of the above Constitution and laws, education autonomy refers to that where matters related to education and school life at schools, which are educational communities, are determined and carried out autonomously without any unfair external interference in the participation of school personnel, students, parents, and local residents, which shall be respected to the maximum extent possible.

B. However, on the other hand, Article 31(1) of the Constitution provides, “All citizens shall have the right to receive equal education according to their abilities,” and Article 31(3), (5), and (6) of the same Act provides, “The State shall promote lifelong education without compensation,” and “the State shall promote lifelong education,” and Article 9(2) of the Framework Act on Education provides that “schools shall have public nature, and Article 11(1) of the same Act provides that “The State and local governments shall be obliged to establish and operate schools, while Article 1 of the Private School Act provides that “The Constitution and laws have the right to receive equal education to citizens, and the State shall be responsible for operating the educational system, and shall clearly state that education has public nature.”

Accordingly, while respecting the special nature of a private school that aims to promote diversity and creativity of education, a private school imposes an obligation to establish and operate a private school in compliance with the educational purpose on the part of the State or a local government, and accordingly strict control is imposed on the operator of the private school. Regular private schools provide that only school juristic persons may establish and operate the private school in principle (Article 3 of the Private School Act) and their founders shall be limited to their relationship between private schools and founders, thereby preventing the transfer of private schools to private schools, while establishing and operating a school juristic person by imposing a higher public interest control than an incorporated juristic person under the Civil Act, which is operated in a form suitable for the original purpose of its establishment. The director of the school juristic person must meet strict qualification requirements. Unlike the appointment of a director of the incorporated juristic person under the Civil Act, the appointment of a director of the school juristic person requires the approval of taking office of the competent agency, and if a certain reason arises after obtaining the approval of taking office, the competent agency may cancel the approval of taking office. This is also stipulated to ensure that the school juristic person’s performance and duty corresponding to the purpose of establishment.

Therefore, the autonomy of education in private schools and the autonomy of school operation should be considered to be respected only to the extent that it does not conflict with the public nature of education.

C. A school foundation is an independent incorporated foundation that has the articles of incorporation. The autonomy of education in a private school and the autonomy of operating the school is realized by participating in the school foundation’s articles of incorporation as well as by operating the school foundation in compliance with the purpose of the establishment, educational ideology and purpose contained in the articles of incorporation. It does not ensure that the founders or the directors appointed under their influence participate in the operation of the school foundation. The purpose of establishment of the school foundation is to ensure that only the founders or the directors appointed under their influence are appointed in consecutive order, and that it conforms to the autonomy of education in the private school and the autonomy of operating the school of the private school, which is the essence of the school foundation’s director system, are to be interpreted as satisfying the autonomy of education in the private school. It prohibits an individual from directly establishing a private school and separately setting a school foundation to ensure that education is conducted in accordance with the educational ideology and purpose stipulated in the articles of incorporation, thereby preventing the transfer of personal control or property rights to the private school, and ensuring the autonomy and public nature of education without disregarding our constitutional interpretation.

D. The director of a school juristic person is in a position of a delegated person who shall manage affairs in accordance with the school juristic person’s articles of incorporation with the duty of due care as a good manager. The autonomy of education in a private school and autonomy of school operation is a legal principle achieved by the directors who faithfully perform their duties independently and autonomously in accordance with the intent of

E. Our legislative system has a separate Act on the Establishment and Operation of Public Interest Corporations so that the Foundation or Public Interest Corporations may maintain their public interest and engage in sound activities by providing for the supplement of the provisions of the Civil Act on the establishment and operation of public interest corporations (Article 1 of the Act on the Establishment and Operation of Public Interest Corporations). On the other hand, with respect to school juristic persons among public interest corporations, the Private School Act has more strict provisions in order to secure the autonomy of private schools and promote their public nature in order to promote their sound development (Article 1 of the Private School Act).

However, there is no provision that limits the authority of temporary directors appointed by the Minister of Education and Human Resources Development pursuant to Article 25 (1) of the former Private School Act in addition to the Korean Constitution and the former Private School Act, and the Act on the Establishment and Operation of Public Interest Corporations. Therefore, according to the general principles of law, temporary directors under the former Private School Act shall be construed as having the same authority as temporary directors as those of temporary directors under the Civil Act. Such interpretation not only accords with the legislative purpose of the Private School Act to promote the public nature of private schools and their sound development, but also accords with the autonomy of education in private schools and the autonomy of school operation. This is because temporary directors under the former Private School Act have the same authority as regular directors, thereby having the same authority as those of the school juristic person’s articles of incorporation and its educational ideology and purpose.

F. Since our legislation has strict provisions as above with respect to private schools, if it is deemed necessary to restrict the authority of provisional directors of private schools, it would have made explicit provisions on them.

The Majority Opinion states that it is reasonable to resolve the case where the reason for the selection and appointment of a provisional director of a private school is terminated under the former Private School Act without any provision regarding the normalization method. Article 63 of the Civil Act provides, “When there is no director or there is no vacancy, and damage is likely to be caused thereby, the court shall appoint a provisional director upon the request of interested parties or the prosecutor.” The Majority Opinion appears to the purport that this provision should be resolved by analogy. More detailedly, the Majority Opinion appears to the effect that the appointment of a provisional director is resolved by the court pursuant to Article 63 of the Civil Act, given that the provisional director is a temporary director with the authority to appoint a regular director, the temporary director is the temporary director with the authority to appoint a regular director, and thus, the private school is to normalize it by having him.

However, the main text of Article 27 of the former Private School Act provides, “The provisions of Articles 59(2), 61, 62, 64, and 65 of the Civil Act shall apply mutatis mutandis to the chief director and directors of a school juristic person.” Since Article 63 of the Civil Act explicitly excludes a person subject to application mutatis mutandis, the interpretation as stated in the majority opinion cannot be deemed unreasonable.

According to Article 25 of the former Private School Act, temporary directors are required to be appointed by the Minister of Education and Human Resources Development. However, when viewed as the majority opinion, the authority to appoint temporary directors with the Minister of Education and Human Resources Development has been transferred to some courts. In light of the principle of separation of powers guaranteed by the Constitution, it is extremely doubtful whether such interpretation is possible without any explicit legislative basis

Furthermore, Article 20(2) of the former Private School Act provides that “An officer shall take office with the approval of the competent agency.” In a case where a court appoints an ad hoc director under Article 63 of the Civil Act, there may be a view of interpreting that an officer may take office only with the approval of the competent agency under the former Private School Act. However, the competent agency under the former Private School Act shall be the Minister of Education and Human Resources Development or the Superintendent of the Office of Education (Article 4 of the former Private School Act). If a court appoints ad hoc director under Article 63 of the Civil Act, it would result in the conclusion that an approval of the Minister of Education and Human Resources Development may take office even if a court appoints ad hoc director under Article 63 of the Civil Act, as the majority opinion states, even if the court appoints ad hoc director, it can take office only with the approval of the Minister of Education and Human Resources Development, and it would be questionable

The more fundamental question about the majority opinion is that the identity and autonomy of school juristic persons can be maintained if a temporary director appointed by the court under Article 63 of the Civil Act is appointed as a successor director, and that if a temporary director appointed by the Minister of Education and Human Resources Development under the former Private School Act is appointed as a successor director under the former Private School Act, the above identity and autonomy may be infringed. It is difficult to view that there is a reasonable ground or legal justification for such opinion (In addition, the Constitution of Korea guarantees the right to receive equal education according to the ability of all citizens, while excessive emphasis on the identity of school juristic persons is likely to violate the constitutional spirit that guarantees the right to equality of education.)

The ideology of the law is the order and rule to serve justice and order to serve justice. The ideology of the law cannot be any other than justice, and in interpreting the law, it must be noted so that the ideology of justice contained in the substance of the law is not damaged. our Framework Act on Education declares that the ideology of education is aimed at enabling all citizens to lead a life worthy of human beings and contribute to the development of a democratic state and the realization of an ideal of human public service by ensuring that all citizens have character and have the capability of independent living and necessary qualities as a democratic citizen under the ideology of the law. In full view of the ideology of education as well as the public nature of education as mentioned above, and the guarantee of legal stability and legal legitimacy through the interpretation of the law with justice is the ultimate value and spirit that we should pursue, and in interpreting the law, it cannot be said that there is no clear legal basis to limit the interpretation of the law by means of the interpretation of the law, notwithstanding the absence of an explicit legal basis for the status and authority of a temporary director of a special school juristic person which is combined with public interest relations and private law relations.

G. As seen earlier, as long as the temporary directors of a school foundation have the same authority as the regular directors, inasmuch as there is no statutory limit, the board of directors’ appointment of the regular directors of the Defendant Institute for the normalization of the Defendant Institute should be deemed lawful and effective.

H. For the foregoing reasons, we cannot agree with the Majority Opinion that limits the authority of temporary directors under the former Private School Act without any legal basis.

Chief Justice Lee Yong-chul (Presiding Justice)