[1] Whether the appointment of a director for the normalization of a school juristic person for which a provisional director is appointed violates the private school foundation's freedom of private school and the previous director's private school under Article 24-2 (2) 3 and the main sentence of Article 24-2 (4) and Article 25-3 (1) of the Private School Act (negative), and whether the founder or the previous director's property interest in the private school operation is legal (negative)

[2] Where the superintendent of education of the Seoul Special Metropolitan City Office of Education dismisses temporary directors and appoints regular directors in the course of normalization of the school foundation A, the case affirming the judgment below which held that the school foundation B has no legal interest protected by the Private School Act concerning dismissal and appointment of temporary directors

[1] Although freedom to operate a private school is the fundamental right derived from Articles 10, 31(1), and 31(4) of the Constitution, there is no intrinsic difference between the national and public schools in that the private school takes charge of the daily interest of public education. Therefore, it is natural for a country responsible for guaranteeing a public school system to exercise the authority and responsibility for supervising and controlling the operation of a private school to a certain extent. Thus, the degree of discipline is naturally different depending on the situation of the times and the situation of various levels of schools. Thus, insofar as it does not infringe on the essence of education, it ultimately belongs to the freedom to form the legislator. In this regard, since the private school’s freedom to teach the appointment of directors for the normalization of a school foundation for which a provisional director is appointed is appointed, it is nothing more than that of the previous school foundation to have the right to command the private school foundation’s private school foundation’s private interest and fairness in its personnel function and expertise, and the previous school foundation’s existing school foundation’s private school foundation’s freedom to hear and maintain its property rights through its establishment process.

[2] In a case where the superintendent of education of the Seoul Special Metropolitan City Office of Education dismissed temporary directors and appointed regular directors in the course of the normalization of the school foundation Gap, the case affirming the judgment below which held that there is no legal interest protected under the Private School Act as to the removal and appointment of temporary directors and appointment of directors, on the ground that Eul is not an interested party in the procedure where temporary directors are dismissed and directors are appointed to normalize the school foundation of Article 25-3 (1) of the Private School Act, and since Eul is not an interested party in the procedure where temporary directors are appointed to normalize the school foundation of Article 25-3 (1) of the Private School Act, it does not grant the interested party the right to claim and state opinion.

[1] Articles 24-2(2)3 and (4), and 25-3(1) of the Private School Act; Articles 10, 23(1), and 31(1) and (4) of the Constitution / [2] Articles 24-2(2)3 and (4), and 25-3(1) of the Private School Act; Article 12 of the Administrative Litigation Act

[1] Constitutional Court en banc Order 201Hun-Ba136, 180, 2012Hun-Ba279 Decided November 28, 2013

Lee Chemical Institute and five others (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Superintendent of an Office of Education (Law Firm Won, Attorneys Jeon Young-hoon et al., Counsel for the plaintiff-appellant)

Seoul National Institute of Arts (Law Firm Barun, Attorneys Kim Gi-chi et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu22053 decided February 8, 2012

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

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

1. As to the grounds of appeal Nos. 1 and 2

A. Although freedom to operate a private school is the fundamental right derived from Articles 10, 31(1), and 31(4) of the Constitution, there is no intrinsic difference between the national and public schools in that the private school also takes charge of the benefit of public education. Therefore, it is natural for a State, which has the responsibility to guarantee a public school system, to have the authority and responsibility for supervising and controlling the operation of a private school to a certain extent. Thus, the degree of discipline is naturally different depending on the situation of the times and the situation of various levels of schools, and ultimately, insofar as it does not infringe on the essence of education, it ultimately belongs to the freedom of legislators’ formation. In this regard, it is not only a matter of law that the private school foundation, which grants the power to lead to the appointment of directors for normalization of the school foundation, to which the temporary directors are appointed, and it is merely a matter of law that the previous school foundation or the previous directors have no choice but to have the right to participate in the operation of the private school, and thus, it cannot be seen that the school foundation or the previous directors have no more specific interests.

B. The court below accepted the judgment of the court of first instance, and determined that the disposition of this case cannot be deemed as an infringement of the freedom of private school or the property right of the plaintiff Lee Jong-chul, on the ground that the defendant, after deliberation by the Mediation Committee, ordered the management of the intervenor and excluded the previous directors by taking over the intervenor and taking over the intervenor as well as not properly followed the procedure for this, and it is unclear whether the third party, the third party, took over the intervenor and taken over the intervenor, and it is not likely that the purpose of the intervenor's establishment is considerably damaged. In fact, it is difficult to view that the purpose of the plaintiff's establishment was damaged due to the change of the name, etc., although the non-party 1 took over the intervenor and changed the name, and thus, it cannot be deemed that the disposition of this case was an infringement of the freedom of private school or the property right of the plaintiff Lee Jong-chul.

Examining the record in light of the above legal principles, the above determination by the court below is just and acceptable, and there were no errors by misapprehending the legal principles on the management rights and property rights of school juristic persons, the private school freedom, and the autonomy of education.

2. Regarding ground of appeal No. 3

The lower court, based on the circumstances stated in its reasoning, determined that the Plaintiff Chemical Institute cannot be deemed the Intervenor’s founder, and that there was no legal interest protected by the Private School Act until the temporary director dismissal and the appointment of director in the procedure of appointing a director to normalize the school foundation under Article 25-3(1) of the Private School Act. Thus, even if the Plaintiff Chemical Institute constitutes an “interested person” who is the Intervenor’s founder and is entitled to a claim for the selection and appointment of a temporary director under Article 25(1) of the Private School Act, the lower court determined that such circumstance alone does not constitute a “interested person.”

Examining the records in light of the relevant provisions of the Private School Act, the above fact-finding and determination by the lower court are acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

3. Regarding ground of appeal No. 4

The court below accepted the judgment of the first instance, and determined that the defendant's selection and appointment of a provisional director by the intervenor was difficult to operate the school juristic person normally because the intervenor did not fill the vacancy of the director, and that the principal reason for the failure of normal operation was the intervenor's financial insolvency problem and conflict and conflict between the previous directors. The intervenor's financial insolvency problem was resolved due to the intervenor's selection of management intent and the measures of donation necessary for the normalization of management, etc., and the conflict and conflict among the previous directors was resolved by revoking the approval of the appointment of officers and the temporary directors and excluding them from the operation of the intervenor.

In light of the records, the above determination by the court below is just and acceptable, and there is no error by misapprehending the legal principles on the grounds for dismissal of temporary directors.

4. Regarding ground of appeal No. 5

The court below cited the judgment of the first instance, and rejected the plaintiffs' assertion that there was procedural defect that did not hear the plaintiffs' opinions at the time of the disposition of this case, on the ground that the mediation committee has a procedural defect that did not hear the plaintiffs' opinions, since Article 9-6 (3) of the Enforcement Decree of the Private School Act and Article 13 (1) of the Regulations on the Operation of the Mediation Committee provide that the mediation committee may hear opinions from interested parties, etc. if deemed necessary for deliberation of the case, and does not necessarily provide that the disposition of this case was made without hearing the plaintiffs' opinions from interested parties, etc.

Examining the records in light of the relevant provisions, the above fact-finding and determination by the court below is just and acceptable, and there is no error by misapprehending the legal principles on the legality of the hearing procedure.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)