(영문) 대전지방법원 2018.6.28. 선고 2017구합105486 판결

It is confirmed that the Defendant’s failure to recommend the Plaintiff’s request for recommendation of an open director (six candidates) on April 21, 2017 is illegal.

Reasons

1. The process of the instant lawsuit;

A. The Plaintiff is a school juristic person that establishes and operates A University. On January 22, 2014, the Plaintiff opened a board of directors and appointed B, C, and D as an open director under Article 14(3) of the Private School Act, and E as a director who is not an open director (hereinafter referred to as “general director”). On February 26, 2014, the Plaintiff obtained approval for the appointment of each director from the Minister of Education. Since then, E who is appointed as a general director was appointed to the Defendant’s president.

B. The details of the Plaintiff’s articles of incorporation on the appointment, term of office, and appointment procedure 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 officers (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 officer shall be three years and may be reappointed.1. The term of office of directors shall be three years, but may be renewed.Article 24 (Method of Appointment of Officers) and (1) Directors and auditors shall be appointed with the approval of the competent agency.Third, if a vacancy occurs among the officers, the number of open directors of the juristic person shall be filled within 2 months.The number of open directors of the juristic person shall be three.Article 24-2 (Method of Appointment of Open Directors) and (1) The chief director (in the case of a second director, 3 months) and (2) shall request the committee for recommending open directors (hereinafter referred to as the "committee for recommending open directors") within 30 days after the date on which the cause for appointment of open directors occurred:

C. Upon the occurrence of a vacancy of three open directors on March 28, 2016 by an open director D, who is an open director B and C, prior to the expiration of the term on February 25, 2017, the Plaintiff board of directors pursuant to Article 24-4(2) Subparag. 4 of the Articles of incorporation on January 5, 2017, a resolution of selecting five members recommended by the Plaintiff from among the 11 members of the open directors recommendation committee (hereinafter referred to as the “recommendation committee”) in the A university university university university university council (hereinafter referred to as the “university council”) pursuant to Article 24-4(2)4 of the articles of incorporation, and notification of the designation of five members by the board of directors’ resolution at the board of directors on January 6, 2017, and notification of the appointment of five members of the recommendation committee at the relevant regulations.

It was requested to recommend two (6) copies of the subject(3).

D. On January 13, 2017, the board of trustees requested the Plaintiff to re-recommended five members of the recommendation committee as neutral personnel. On January 25, 2017, the Plaintiff urged the Plaintiff to re-recommended the recommendation of open directors without re-recommendationing the members of the recommendation committee. On February 1, 2017, the board of trustees demanded the Plaintiff to delegate the corporate authority to recommend five members of the recommendation committee to the school members.

E. Despite the above recommendation, the Plaintiff’s directors, E, etc. did not recommend a candidate for an open director, and the term of office expired on February 25, 2017, and the Plaintiff’s directors, including E, etc. were operated by the board of directors through the emergency handling authority of former directors because the former director was not appointed. On April 20, 2017, the Plaintiff’s board of directors decided to request the Defendant to recommend six candidates for an open director. Accordingly, on April 21, 2017, the Plaintiff requested the Defendant to recommend six candidates for an open director.

F. Upon receipt of the above request, the Defendant did not recommend a candidate for an open director. On September 22, 2017, the Plaintiff’s president, on behalf of the Plaintiff, filed the instant lawsuit seeking illegality in the omission of recommending an open director by appointing an attorney on behalf of the Plaintiff as an attorney and appointing an attorney on September 22, 2017.

G. After filing the instant lawsuit, the Defendant appointed G, H, I, J, K, and L as temporary directors through the Private School Dispute Mediation Committee on November 28, 2017, and appointed M and N as temporary directors on December 19, 2017 (hereinafter referred to as “the instant temporary directors”). Since then, M was selected as the Plaintiff’s president on February 8, 2018.

H. On December 19, 2017, E, which had been the former president, and B, had been an open director, filed a lawsuit against the Defendant on December 19, 2017, seeking confirmation of invalidity and revocation of the appointment of temporary directors in the instant case as Daejeon District Court 2017Guhap10734.

I. Since then, on March 23, 2018, M submitted a written withdrawal of lawsuit to this court as the president of the Plaintiff (hereinafter “instant written withdrawal”). The former legal representative presented his/her written opinion to the effect that he/she has an objection to the withdrawal of lawsuit to this court on March 26, 2018, and on March 27, 2018, M notified the former legal representative of the termination of the contract for delegation of lawsuit, and reported the dismissal of the legal representative to this court on March 28, 2018. The former legal representative submitted a written opinion to the effect that he/she has an objection to the written withdrawal of lawsuit to this court on March 29, 2018.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 9, Eul evidence 1 to 4 (including additional numbers), the facts in the records of this case, and the purport of the whole pleadings]

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Whether the withdrawal of the instant lawsuit is valid

A. Directors are deemed to have no representative authority with respect to a matter in which the interests of a corporation and directors conflict with each other (Article 64 of the Civil Act). The matters mentioned above, which conflict with the interests of a corporation and directors, include not only cases in which the corporation and directors become the parties to a direct transaction, but also all the matters in which the director’s personal interests conflict with the interests of a corporation and the performance of his/her duties as a good manager cannot be expected as a good manager (see Supreme Court Decision 2010Da91831, Nov. 28, 2013). In addition, in a lawsuit duly instituted by a corporation, the lawsuit instituted by a corporation has no representative authority (see Supreme Court Decision 90Meu27785, Apr. 12,

B. Whether the interest in the lawsuit was extinguished in the lawsuit of this case to seek confirmation of illegality of omission

(1) A lawsuit seeking confirmation of illegality of omission is intended to take an affirmative action citing an application based on a party’s legal or sound right within a reasonable period of time, or to remove a passive illegal state, which is called omission or non-compliance with an administrative agency’s response promptly by ascertaining illegality of omission, and further, to compel the administrative agency to take any action through the binding force of the quoted judgment, and ultimately to protect the party’s rights and interests when dissatisfied with the action (see Supreme Court Decision 91Nu7361, Jul. 28, 1992). Thus, even if the above omission is confirmed to be unlawful due to a party’s change in circumstances after the party’s request, if it is impossible to seek confirmation of illegality of the above omission’s rights and interests infringed upon the party’s nationality or are relieved of interference with the party’s rights and interests, the Plaintiff’s benefits should not be deemed unlawful (see Supreme Court Decision 200Du4758, Apr. 28, 200). 208.

(2) Article 14(1) of the Private School Act provides that a school juristic person shall have not less than seven directors as its officers. 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 total number of directors (Provided, That this shall be rounded to a minority number) from among the two-folds recommended by the recommendation committee. Paragraph (4) of the same Article provides that the recommendation committee shall have the board of directors under Article 26-2 or the school steering committee under Article 31 of the Elementary and Secondary Education Act, and its organization, operation and composition shall be determined by its articles of incorporation, and the prescribed number of members shall be five or more persons and one-half of the recommendation committee members shall be recommended by the board of trustees or the school steering committee. Article 7-2(1) of the Enforcement Decree of the Private School Act provides that the recommendation committee shall recommend a director within 30 days if the recommendation committee recommends an open director pursuant to paragraph (3) of the same Article.

In addition, Article 25 (1) of the Private School Act provides that the competent authorities shall appoint temporary directors after deliberation by the Private School Dispute Mediation Committee (hereinafter referred to as the "Mediation Committee") at the request of interested parties or ex officio in cases falling under any of the following subparagraphs. In addition, Article 25 (1) of the Private School Act provides that when the 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 1), when the approval of taking office of the school juristic person is cancelled pursuant to Article 20-2 (Article 18 (1) (Article 18 (2); however, it is limited to when the approval of taking office is cancelled for directors exceeding the quorum of the board of directors pursuant to Article 18

(3) The purpose of the open director system is to enhance transparency and fairness in the operation of private schools by having the school foundation appoint more than 1/4 of the total number of directors recommended by the outside of the board of directors from among the persons recommended by the board of directors, and to provide them with opportunities to participate in operating the school by having various school members participate in the recommendation committee (see, e.g., Constitutional Court en banc Order 2007Hun-Ma1189,1190, Nov. 28, 2013). The open director recommendation system of the competent agency under Article 14(5) of the Private School Act is to prevent the vacancy of the board of directors due to the vacancy in the board of directors due to the vacancy of open directors, such as where the recommendation committee fails to autonomously resolve the vacancy of the board of directors due to the vacancy of open directors within the school foundation, such as the failure of the recommendation committee to recommend candidates for open directors from the perspective of public interest, and the school foundation may continue the appointment procedure for recommended candidates for open directors.

In addition, the provisional directors system under Article 25 of the Private School Act, even in cases where the board of directors is unable to perform its functions due to the vacancy of directors, etc., it is difficult to expect that the school juristic person, which is a class of the incorporated foundation, will restore its functions by itself due to the legal nature that there is no partner. On the other hand, damage therefrom is not only within the territory of the incorporated foundation but also return to all the members of the school, such as students, teachers and staff, parents, etc., and ultimately, it is an infringement on the right of students to receive education. Thus, the provisional directors system aims to prevent the infringement of students’ right to receive education by normalization of the school juristic person, which is in crisis, within the prompt time limit (see, e.g., Supreme Court Decisions 2012Du19496,19502, Jul. 23, 2015; 2005Hun-Ba101, Apr. 30, 2009).

Considering such institutional purport of the system of recommending candidates for open directors by the competent agency and the provisional director system, the interest of the school juristic person which is infringed or interfered with due to the omission by the competent agency on a request for recommending candidates for open directors by the competent agency shall be deemed to be the interest to prevent the operational gap in the board of directors due to the vacancy of the school juristic person by continuing the procedures for appointing candidates for open directors recommended by the competent agency. Therefore, even though a vacancy, such as the expiration of the term of office of open directors, the competent agency which received a request from the competent agency for recommending candidates for open directors from the school juristic person because the recommendation committee failed to recommend open directors within the period prescribed by the law, and the relevant school juristic person did not take measures against such vacancy, unless the relevant school juristic person appoints temporary directors pursuant to Article 25 of the Private School Act and the vacancy of directors has been resolved, it shall be deemed that the relevant school juristic person’s defect in the appointment of temporary directors is serious and apparent, and thus, the relevant school juristic person’s interest has already been resolved.

In addition, a provisional director appointed under Article 25 of the Private School Act shall be deemed not to have the authority to appoint a regular director as a risk manager who is temporarily in charge of the operation of the school juristic person in cases where the vacancy of the director makes it impossible to achieve the purpose of the school juristic person or is likely to cause damage (see, e.g., Supreme Court en banc Decision 2006Da19054, May 17, 2007). Thus, even if a failure to recommend a candidate for an open director is confirmed by judgment, the subsequent procedures for appointing an open director, which is an open director, cannot be carried out at the board of directors comprised of temporary directors of the relevant school juristic person, due to the change in circumstances after the request for recommending a candidate for the open director of the school juristic person, this constitutes a case where it is impossible to ultimately violate the right and interest of the school juristic person or protect and remedy the right and interest of the juristic person. Therefore, it shall be deemed that there is no benefit to confirm the illegality of omission

(4) According to the facts acknowledged earlier, the Defendant’s appointment of a provisional director against the Plaintiff on November 28, 2017 and December 19, 2017, in the proceeding of the instant lawsuit seeking confirmation of illegality in omission against the Defendant’s request for recommendation of a candidate for an open director. Such defect in the provisional director appointment disposition cannot be deemed as null and void as a matter of course because it is serious and obvious (E and B were dismissed at the same time in the instant lawsuit seeking confirmation and revocation of the provisional director appointment disposition as the court 2017Guhap10734). According to the above legal principles, the Plaintiff’s interest in the lawsuit seeking confirmation of illegality in the Defendant’s request for recommendation of a candidate for an open director should also be deemed null and void.

C. Whether the withdrawal of the instant lawsuit constitutes the conflict of interest between the Plaintiff and the director

The Plaintiff’s submission of the written withdrawal of a lawsuit to this court on March 23, 2018, as the Plaintiff’s president’s submission of the written withdrawal of the lawsuit to this court on March 23, 2018, is difficult to escape the dismissal of the lawsuit, and thus, the revocation of the lawsuit that cannot be subject to the judgment on the merits cannot be seen as conflicting with the interests of the Plaintiff’s individual director and the Plaintiff, an educational foundation, or breach of the duty of care as a good manager of M who is a director. Therefore, such withdrawal of the lawsuit does not

4. Conclusion

Therefore, the instant lawsuit is deemed to have been terminated by the Defendant’s consent to the withdrawal of the lawsuit on March 23, 2018 and its conclusion. Therefore, the instant lawsuit is decided as per Disposition by the declaration of termination of the lawsuit.