(영문) 서울고등법원 2018.5.29. 선고 2017누76366 판결

2. On January 26, 2017, a disposition taken by the Defendant to appoint a school foundation I provisional director against D, E, F, G, or H on January 26, 201 and a disposition to appoint an I provisional director of a school foundation to K on February 1, 2017 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

This Court's reasoning is as follows, except for the part added or used as follows, and thus, it is identical to the corresponding part of the reasoning of the judgment of the first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○○ Following the second two pages of the judgment of the first instance, “Plaintiffs (0 side)” was followed by: “The deceased B (at the time of filing an appeal, but at the time of filing an appeal, died on February 27, 2018, and this court declared the termination of the lawsuit against B at the first day of pleading on March 27, 2018); “B” was added after “Plaintiffs” on March 27, 2018; “the third nine, fourth, first one; “Plaintiffs” on the third, fourth, and second, the third, third, and fourth, and six parallel “Plaintiffs” on the fourth, fourth and fourth, and “Plaintiffs” on both “Plaintiffs and B”.

○ Following the 3rd instance judgment of the first instance court, the 5-6th instance judgment (Seoul High Court 2014Nu72691) (hereinafter referred to as “the second instance judgment”). This case is currently being tried by the Supreme Court (Supreme Court 2015du56400). The final appeal was dismissed on December 28, 2017 and final and conclusive on December 28, 2017 (Seoul High Court 2014-72691, Supreme Court 2015Du56540, hereinafter referred to as “the revocation judgment of the approval of taking office of this case”).

○○ Under the 4th sentence of the first instance judgment, “(the replacement of the Plaintiffs and B among temporary directors shall be H, J, and K)” shall be added to the end of the 11st sentence.

○○ 4) Subsequent to “No. 5” below the 10th day below the text of the first instance judgment, the phrase “(including the number of branch numbers)” shall be added.

2. Relevant statutes;

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

3. Determination as to the defendant's defense prior to the merits

A. Summary of the defendant's assertion

Since the term of office of the plaintiffs and B expired and the temporary directors appointed as the disposition of this case expired, there is no interest in claiming the cancellation of the disposition.

B. Determination

Even if the term of office originally determined for the regular directors of the school juristic person whose appointment approval was revoked expires and the period of disqualification for the officers has expired, such directors have the right to take emergency measures concerning the performance of their duties by applying Article 691 of the Civil Act mutatis mutandis until the appointment of the succeeding director. Accordingly, the autonomy of private school that was illegally lost by appointing the succeeding director can be restored and corrected. As for the regular directors of the school juristic person whose appointment approval was revoked, there is a legal interest in seeking revocation of appointment approval and revocation of the appointment disposition of the temporary directors, and furthermore, even if the lawsuit seeking revocation of the appointment of the preceding temporary directors has been replaced with the subsequent temporary directors, it is reasonable to view that there is a legal interest in seeking revocation of the appointment disposition of the preceding temporary directors (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

Therefore, even if the terms of office of the plaintiffs and the provisional directors appointed by the disposition of this case have expired all, the plaintiffs, who are regular directors, have a benefit to seek cancellation of the disposition of this case.

4. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Even though the Defendant was sentenced to the revocation of a provisional director appointment disposition against U, the Defendant did not appoint a new regular director and instead did not correct the unlawful state, and instead, revoked the disposition of approval of executive officers against the regular director including the Plaintiffs by the old room. At the time of the instant disposition, the Defendant again appointed a provisional director after the revocation disposition of approval of executive officers was revoked by the judgment of the second instance court at the time of the instant disposition, and even when the status of the Plaintiffs was recovered by the decision of the instant suspension of execution, the instant disposition was subject to the instant disposition. The instant disposition was unlawful

2) Even if the instant disposition is in accordance with the provisions on the selection and appointment of temporary directors under the Private School Act, since only one director who falls short of the quorum at the time of the instant disposition, the instant disposition that appointed temporary directors in excess of the quorum was unlawful.

B. Determination

1) Article 25(1) of the Private School Act provides that provisional directors shall be appointed after deliberation by the Private School Dispute Mediation Committee (Article 20-2) for a director who exceeds the quorum of the board of directors under Article 18(1) as the school juristic person fails to fill the vacancy of directors (Article 25(1) of the Private School Act). This is interpreted as a provision to prevent the violation of the students’ right to education by appointing temporary directors and normalization of the quorum of the board of directors within the early time limit of the school juristic person (Article 20-2(1) of the Private School Act for the reason that approval of the appointment of temporary directors for the appointment of some of the directors can only be cancelled, and the remaining provisional directors shall not be cancelled if the temporary directors are appointed within the prescribed time limit of 2). The same applies to a case where approval of the appointment of temporary directors is cancelled by the board of directors for the reason that the appointment of temporary directors would not be cancelled by the appointment of a majority of the directors under Article 20-2(1) of the Private School Act (Article 2).

2) The Defendant revoked the approval of taking office for all of the above five directors on March 14, 2014 when there remain seven directors of I among the seven directors, and the Seoul High Court rendered a judgment revoking the approval of taking office for the Plaintiffs and B on October 16, 2015, on the ground that the instant revocation disposition against the Plaintiffs and B was illegal, and on the 26th of the same month, the said decision became final and conclusive on January 7, 2016 by making a decision suspending the validity and enforcement of the instant revocation disposition of taking office.

3) As above, since the revocation disposition of the approval of taking office against the plaintiffs and B was revoked by a judgment, and its validity and enforcement were suspended, the plaintiffs and B whose approval of taking office was revoked, and as such, the plaintiffs and B, whose status of taking office was revoked, recovered again as one director, it cannot be deemed that the reasons under Article 25 (1) 1 and 2 of the Private School Act exist with respect to the plaintiffs and B, and thus, the appointment disposition of H, J, and K provisional directors is unlawful

4) Meanwhile, even if the status of officers of the plaintiffs is recovered, it is true that the plaintiffs alone lack the quorum for the selection and appointment of a successor director, or that part of the reasons attributable thereto seems to be the defendant. In other words, even though the defendant continued the dispute between the temporary directors without properly appointing a director and continuing to obstruct the operation of the I director, it is difficult to accept that the defendant's assertion that the reason for the selection and appointment of a temporary director has not been resolved due to such result, but rather, it is difficult to accept that there is a reason for the appointment of a temporary director under Article 25 (1) 1 of the Private School Act as to the remaining temporary directors except three temporary directors such as H, and even if the status of directors is recovered, the plaintiffs and B are three directors, and one of them is a mother and child, so there is a reason for temporary appointment under Article 25 (1) 2 of the Private School Act with respect to one temporary director, but it cannot be said that there is no reason for the appointment of a temporary director other than the above four temporary directors.

5. Conclusion

Therefore, the plaintiffs' claim shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked.