(영문) 대전지방법원 2018.6.28. 선고 2017구합107734 판결

○○ The primary purport of the claim is to confirm that the Defendant’s appointment of a school juristic person C as a provisional director on December 13, 2017, by either D, E, F, G, H, and January 18, 2018, as a provisional director on January 1, 2018.

○ Preliminary claim: Revocation of the above disposition.

Reasons

1. Details of the disposition;

A. A school juristic person C (hereinafter referred to as the “school juristic person of this case”) is a school juristic person that has been established pursuant to the Private School Act for the purpose of higher education and secondary education and maintains and manages K University, etc.

B. On January 22, 2014, the Plaintiffs were appointed as a director for a term of three years at the board of directors of the instant school foundation on February 26, 2014, and were in office until February 25, 2017 with the approval of the Ministry of Education on February 26, 2014. After that, the Plaintiffs were in office until February 25, 2017

C. When there was a vacancy of three open directors due to Plaintiff B and M, an open director, prior to the expiration of the term on February 25, 2017, the board of directors of the instant school foundation, on January 5, 2017, pursuant to Article 24-4(2) Subparag. 4 of the Articles of incorporation, the board of directors of the instant school foundation (hereinafter referred to as the “university board”) made a resolution to select five members recommended by the said school foundation (hereinafter referred to as the “Recommendation Board”) from among the full number of 11 members, among the full number of 11 members, of the said open directors recommended by the said school foundation. On January 6, 2017, the board of directors notified the board of directors of the selection of five members of the recommendation committee as above, and requested the recommendation of two (6) twice (3) members (6) subject to the appointment of open directors in accordance with the relevant provisions.

D. On January 13, 2017, the board of trustees requested the instant school juristic person to re-recommended five members of the recommendation committee as neutral personnel. On January 25, 2017, the said school juristic person urged the recommendation of candidates for open directors without re-recommendationing the recommendation committee members, and on February 1, 2017, the board of trustees demanded that the recommendation authority of the five members of the recommendation committee be given to the school juristic person.

E. Although the instant school juristic person urged a candidate again, the board of trustees did not recommend the candidate, the instant school juristic person requested the Defendant, who is the competent agency, to recommend three candidates for open directors on April 21, 2017, according to the resolution of the board of directors on April 20, 2017.

F. On April 26, 2017, the Defendant organized an open director recommendation committee to recommend six candidates for open directors by no later than May 12, 2017, taking into account the purpose of the private agenda, the opening to give an opportunity to participate in school operation to school members. The board of trustees did not organize a recommendation committee or recommend candidates for open directors.

G. On September 19, 2017, the instant school foundation requested the Defendant to recommend a candidate for an open director again. On September 22, 2017, the instant school foundation filed a lawsuit against the Defendant on September 22, 2017 demanding confirmation of illegality of the recommendation of a person eligible for appointment of an open director.

H. On August 28, 2017, September 25, 2017, October 30, 2017, and November 27, 2017, the Defendant appointed D, E, F, G, and H as temporary directors of two years, after deliberation by each private school dispute mediation committee, on December 13, 2017. On December 18, 2017, the Defendant again appointed temporary resignation (termed until January 18, 2018) (hereinafter referred to as “each of the instant dispositions”).

I. The relevant provisions of the articles of incorporation of the instant school juristic person are as follows.

Article 22 (Types and Fixed Number of Officers) The following officers shall be assigned to this juristic person.1. The term of office of the nine directors (including the chief director), Article 23 (Term of Office of Officers) and (1) shall be as follows: Provided, That the term of office of the first half of the officers shall be three years, but the term of office of the directors shall be three years, and they may be reappointed.

(4) Executive officers shall be appointed two months before the expiration of their terms of office, and shall apply for approval of their inauguration to the competent authorities at least one month prior to the commencement of their terms of office. Article 24-2 (Appointment of Open Directors) and (1) The chairperson shall request the committee for recommending open directors (hereinafter referred to as the "Recommendation Committee") to recommend persons eligible for appointment of open directors within 15 days from the date on which the grounds for appointment of open directors arise (in the case of de facto directors, not later than three months before the expiration of their terms of office). (2) The Recommendation Committee requested the recommendation of the chairperson to recommend two times the persons eligible for appointment of open directors within 30 days: Provided, That if the recommendation is not made within the same period, a corporation shall request the competent authorities to recommend two times the persons eligible for appointment of open directors: The fixed number of members shall be 11 members, and any resolution of open directors shall not be made with the consent of the majority of the board for directors (in the case of de facto directors, the number of members shall be 11, and the following:

[Ground for Recognition: Facts without a partial dispute, Gap evidence 1 through 4, 11 (including each number, hereinafter the same shall apply) and Eul evidence 1 through 5]

2. Summary of the parties' arguments

A. Summary of the plaintiffs' assertion

The Plaintiffs, who are directors of the instant school foundation, have the authority to appoint a successor director and to organize the next board of directors. The Defendant’s appointment of a temporary director without recommendation despite the obligation to recommend candidates for an open director under the Private School Act is unlawful as it infringes upon the existing directors’ right to appoint a successor director and the freedom of university and private school guaranteed by the Constitution.

Since the above defect is significant and apparent, each of the dispositions of this case is null and void as a matter of course, and even if not, it should be revoked as it is unlawful.

B. The defendant's argument

The provisional director's appointment disposition itself is legitimate, and even if the omission of recommendation by an open director is illegal, it cannot be deemed that the appointment of provisional director, which is a subsequent disposition, is succeeded to.

The Defendant’s discretionary act of recommending an open director is likely to cause a conflict between the instant school juristic person and K University members when recommending an open director at the time. Since three previous directors (M, B, and N) who exercised emergency measures after October 2017 have renounced their authority to appoint an open director, it cannot be deemed that the said school juristic person’s recommendation was unlawful.

3. Relevant statutes;

The entries in the attached Table-related statutes shall be as follows.

4. Determination on the legitimacy of the instant lawsuit

A. The defendant's main defense

(1) The plaintiffs are not the other party to the disposition of this case, and there is a defect in the appointment of the first executive director who appointed the plaintiffs as the second executive director of the school juristic person of this case, and the appointment of the plaintiffs is also null and void. Thus, the plaintiffs are not parties to the disposition of this case, and they

(2) The instant lawsuit is unlawful, since the appeal period against the omission of recommendation by an open director, which is a prior disposition, has lapsed.

B. Determination

(1) Determination on the assertion related to standing to sue

Even if the term of office of all or some of the directors of a school foundation expires, in cases where a resolution for appointment is invalid and it is not possible to conduct activities of a normal school foundation only with other directors whose term of office expires, barring any special circumstance to deem it inappropriate to permit the former director to conduct activities of the school foundation, Article 691 of the Civil Act should be inferred to recognize the right to conduct the former duties until the former director is appointed. In cases of a school foundation, as in the Civil Act, the right to appoint a new director, as in the case of a foundation foundation, has the board of directors who can not appoint a new director after the expiration of the term of office, the right to request revocation of the appointment of a new director by the above emergency treatment right, even if the term of office expires after the expiration of the term of office. Even if the status of a new director of a school foundation was denied, if the status of a temporary director becomes invalid, then the right to seek revocation of the appointment of a new director after the expiration of the term of office can still be applied to the foregoing provisional director's right to seek revocation of the appointment.

In light of the above legal principles, the plaintiffs were appointed as a director on January 22, 2014 by the board of directors of the school foundation of this case on February 26, 2014 and held office until February 25, 2017 with the approval of the Ministry of Education on February 26, 2014. As seen earlier, the plaintiffs were the one period of the school foundation of this case who appointed the plaintiffs.

Since there is no evidence to acknowledge that appointment of directors is null and void, the Plaintiffs are legitimate directors of the instant school juristic person from February 25, 2017, the date on which the term of validity expires, and the right to take emergency measures to continue to perform their previous duties is recognized from February 25, 2017 to the date on which the previous director is appointed. If the status of provisional directors appointed by each of the above dispositions is invalidated or revoked, the Plaintiffs can appoint a new director based on the above right to take emergency measures, so the Plaintiffs are legally interested in seeking revocation of each of the above dispositions. Accordingly, this part of the Defendant’s assertion is groundless.

(2) Determination on the assertion relating to the Do and the appeal period

On the other hand, the facts of each of the dispositions in this case where the defendant, who was the competent agency, was requested by the school foundation of this case to recommend a candidate for an open director, but was not recommended by the school foundation of this case are similar in that the appointment of an open director and the appointment of an ad hoc director are to resolve the vacant condition of the board of directors of the school foundation. However, the two are separate dispositions different from the requirements and effects, and it is difficult to view that each of the dispositions in this case, which appointed an ad hoc director, is premised on the refusal or omission of the recommendation of the opening director or logical preemptive relation. Thus, this part of the defendant's assertion on the premise that the omission of the recommendation of an open director

5. Determination as to whether each disposition of this case was unlawful

(a) Facts of recognition;

In full view of the above evidence, evidence No. 10, evidence No. 10, and evidence No. 7 and the purport of the whole pleadings, the following facts are acknowledged:

(1) The instant school juristic person, following the difference in the selection and appointment of a new director following the resignation of a regular director, has caused conflicts among the executives, and operated as an emergency management right of the directors whose term of office expires from January 2013. On December 31, 2013, the instant school juristic person provided that, if the Defendant did not appoint a new director, it would be expected to appoint a temporary director. On January 22, 2014, 8 directors including the Plaintiffs (excluding 0 directors for which the appointment of a new director was suspended from among nine directors) were appointed through the compromise between the former directors and the members in the school.

(2) In addition, even though there was a vacancy due to the resignation of an open director L on April 28, 2016, the instant school juristic person did not appoint an open director, the Defendant urged the instant school juristic person to appoint a vacant director (one retired director and one open director and seven remaining directors scheduled to terminate the term of office) several times from July 15, 2016 to April 1, 2017, and determined that the approval for taking office for seven directors scheduled to terminate the term of office at the time of the nonperformance.

(3) On May 12, 2017, the Defendant: (a) organized an open director recommendation committee at the university council on April 4, 2017, and notified that six candidates should be recommended by the open director by May 12, 2017; (b) however, on July 28, 2017, the board of trustees heard opinions from the members of the instant school foundation directors and the KK University; (c) at the time, the said school foundation first seeks opinions that the appointment of open directors should be made on the recommendation of the competent agency; (d) the university autonomous council consisting of the university autonomous council consisting of the university council; (e) the current board of directors should be responsible for the absence of a director; and (e) the current board of directors should be dismissed; and (e) the appointment of temporary directors should be reported to the private school dispute mediation committee on August 28, 2017.

(3) Around September 2017 and October 2017, N, M, and Plaintiff B posted a notice to waive the right of emergency treatment of directors on the website of the K University. Around that time, the Defendant also expressed the above intent.

(4) On October 30, 2017, the Private School Dispute Mediation Committee submitted a document on the grounds that the Defendant would not recommend a candidate for an open director to the instant school juristic person, and decided that the said school juristic person should be appointed as a temporary director as a result of deliberation on October 30, 2017, and decided that six temporary directors on November 27, 2017, and three temporary directors on December 18, 2017, respectively.

B. Relevant regulations and legal principles

Article 14 (1) of the Private School Act provides that a school juristic person shall have not less than seven directors as its executives, and Article 14 (3) of the same Act provides that a school juristic person shall appoint directors (hereinafter referred to as "open directors") equivalent to one-fourths of the fixed number of directors (Provided, That this shall be rounded to a minority number) from among the persons recommended by the recommendation committee at two times at the recommendation committee. Article 14 (4) of the same Act provides that the recommendation committee shall have a board of directors under Article 26-2 or a school steering committee under Article 31 of the Elementary and Secondary Education Act, and the organization, operation, and composition of such board of directors shall be determined by its articles of association, but the fixed number of members shall be five persons or more, and Article 14 (5) of the same Act provides that a school juristic person shall recommend a board of directors within 30 days if the recommendation committee recommends an open director pursuant to paragraph (3) of the same Article. Article 7-2 (1) of the Enforcement Decree of the Private School Act provides that the recommendation Committee shall recommend a new director within 14 months from the date.

The purpose of this open director system is to enhance transparency and fairness in the operation of private schools by requiring more than 1/4 of the total number of directors of school juristic persons to be appointed from among the persons recommended by the outside of the board of directors, and to provide them with opportunities to participate in school operation by various school members to participate in the recommendation committee (see, e.g., Constitutional Court en banc Order 2007Hun-Ma189, 1190, Nov. 28, 2013).

Meanwhile, Article 25(1) of the Private School Act provides that a temporary director shall be appointed through deliberation by a private school dispute mediation committee (hereinafter referred to as "mediation committee") at the request of an interested party or ex officio in any of the following cases. Under each subparagraph, when a school juristic person fails to fill the vacancy of directors and thus makes it difficult for the school juristic person to normally operate the school juristic person (Article 25(1)), when the approval of taking office of a school juristic person is cancelled pursuant to Article 20-2 (Article 18(1) (Article 18(2)); when temporary directors are dismissed pursuant to Article 25-2 (Article 25(3) of the Private School Act (Article 25-3). In addition, Article 25-3 of the Private School Act provides that a temporary director shall report the results of normalization of a school juristic person for which a temporary director has been appointed; (2) a school juristic person who has appointed a temporary director shall evaluate the performance results and notify the matters concerning temporary directors and normalization of the relevant school juristic person to the competent agency; (3)

The functions and contents of duties performed by the board of directors of a school foundation are the most important matters in establishing a physical and human foundation providing education (Article 16(1) of the Private School Act); and even in cases where the board of directors is unable to perform its functions with respect to these matters due to the vacancy of directors, it is difficult to expect that a school foundation, in essence, is a single-class school foundation of the incorporated foundation, to recover its functions by itself due to the legal characteristics that no partner exists. However, damage therefrom does not belong to the inside area of the incorporated foundation, and return all the members of the school, such as students, teachers, and parents, to the school foundation, and ultimately violates students’ right to receive education. Therefore, the provisional director system is institutional purpose of preventing infringement of students’ right to receive education by normalization (see, e.g., Supreme Court en banc Decision 2012Du19496, Jul. 23, 2015; en banc Decision 2005Hun-Ba105, Apr. 30, 2015).

In light of the language, purport, and structure of the above-mentioned statutes, the recommendation system for candidates for open directors under the jurisdiction of Article 14(5) of the Private School Act is a system under which the competent agency recommends candidates for open directors from the public interest point of view in order to prevent the occurrence of vacancy of open directors because the recommendation committee failed to recommend candidates within the period stipulated by the law, so that the competent agency may continue to appoint candidates for open directors. On the other hand, the provisional director system under the Private School Act is a system where the school juristic person is unable to properly operate its function such as the autonomous organization of board of directors under the circumstances where it is difficult for the school juristic person to fill vacancy of directors, such as "where it is deemed difficult for the school juristic person to normally operate its normal operation because it does not fill vacancy of directors." In addition, the provisional director system under the Private School Act is not different from the requirements and effects, but it is more likely that the temporary director system may restrict the autonomous operation of the school juristic person compared

c) must be viewed.

Therefore, where the recommendation committee requested the competent agency to recommend candidates for open directors pursuant to Article 14(5) of the Private School Act because it was impossible to recommend candidates for open directors within 30 days after it received a request from the chief executive officer of the school juristic person, the competent agency should first recommend candidates for open directors. However, in full view of the composition of the board of directors, the continuous period of the board of directors, the reason why the latter director was not appointed during that period, etc., it is difficult to deem that normal directors are appointed even if the competent agency recommends candidates for open directors. If it is deemed that the normal operation of the school juristic person is difficult due to the vacancy of directors, it should be deemed that provisional directors can be appointed without recommending candidates for open directors.

C. Specific determination

In light of the aforementioned legal principles, the following facts were revealed: (i) even before the Plaintiffs were appointed as directors, the educational foundation of this case was left unattended of long-term vacancy in directors due to the school regulations; (ii) even if there was a vacancy in open directors on March 28, 2016, it did not select and appoint open directors due to the difference in the composition of the recommendation committee with the existing directors, including the Plaintiffs, until February 25, 2017, which was the expiration date of the terms of office of the Plaintiffs; (iii) the term of office of all of the nine (9) directors of the educational foundation of this case was expired; (iv) N, B, and M expressed its intention not to exercise emergency treatment rights; and (iv) it is difficult to expect that the Defendant would not have made a normal resolution on the appointment of open directors even if the Defendant recommended open directors due to the lack of the remaining four (4) directors to exercise the right to recommend the appointment of open directors; and therefore, even if the Defendant did not expect the remaining vacancy in the school foundation of this case, it cannot be deemed unlawful.

6. Conclusion

Therefore, all of the plaintiffs' primary and conjunctive claims are without merit, and they are dismissed. It is so decided as per Disposition.