(영문) 대전고등법원 2019.6.12. 선고 2018누12389 판결

The defendant's disposition of rejection of application for taking office against the plaintiff on September 29, 2017 against the school foundation B shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on this case is as stated in the reasoning of the first instance judgment except for the dismissal as set forth in the following paragraph (2). Thus, it is acceptable to accept this as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Parts to be dried;

○ The first instance court’s first instance judgment, in the first instance court’s first instance judgment, dismissed “ January 3, 2016” as “ January 13, 2016,” and deleted “after the final judgment became final and conclusive” during the third instance, and read “ October 10, 2017” during the first instance judgment as “ September 29, 2017.”

○ From 5th to 12th day of the first instance judgment, up to 4th day of the first instance judgment shall be as follows.

4. Whether the disposition of this case is unlawful

A. Relevant legal principles

1) Article 1 of the Private School Act provides that “The purpose of the Private School Act is to ensure the sound development of a private school by securing the independence and promoting the public nature of the private school” (Article 1). Article 1 of the Private School Act provides that the board of directors of the school foundation shall deliberate and resolve on the overall operation of the school foundation and the private school, such as the appointment and dismissal of executives, etc. (Article 16). (Article 20(1) provides that the establishment and operation of the private school and the appointment of executives shall, in principle, be entrusted to the school foundation’s autonomy in order to secure the public nature of the appointment, etc. of executives of the school foundation operating the private school (Article 22), the board of directors of the school foundation shall obtain approval from the competent agency for the appointment of executives of the school foundation (Article 20(2)); the school foundation’s application for the exclusion of an officer from office may not be subject to specific regulations such as ex officio revocation of the appointment of an officer (Article 20-2).

2) The approval of taking office of an executive of a school foundation under Article 20 (2) of the Private School Act is a subordinate administrative act that completes legal effect by supplementing the act of appointing executive officers of the school foundation (see, e.g., Supreme Court Decisions 92Nu5461, Sept. 22, 1992). However, the approval by the competent agency is related to the supervisory authority over the school foundation, and whether to approve the application for taking office of the school foundation is subject to the competent authority’s authority, and thus, it is not necessary for the competent agency to grant such approval as soon as possible, but it is necessary for the important public interest, such as the grounds for disqualification from the relevant Acts and subordinate statutes, the grounds for revoking taking office, or the occurrence of damage to the school foundation (see, e.g., Supreme Court Decisions 98Du1696, Jan. 28, 200; 201Du2874, Nov. 26, 2002; 207Du1685, Dec. 27, 2007

3) Even in cases where an applicable statute is amended, the application of an administrative disposition is limited to the application of the amended Act and subordinate statutes, unless otherwise specified in the transitional provision, barring any special provision. With respect to the application of such amended Act and subordinate statutes, in a case where the public confidence in the existence of the preceding statute prior to the amendment in the application of the amended Act and subordinate statutes is deemed more worthy of protection than the public interest demand for the application of the amended Act and subordinate statutes, the application may be limited to the protection of such public confidence. Therefore, in a case where an administrative agency’s delayed processing without justifiable cause and thus changes the relevant statute and compensation standards, the disposition made in accordance with the amended Act and subordinate statutes and compensation standards is unlawful. Here, “whether a disposition was delayed without justifiable cause” is determined by examining the specific developments and circumstances that were delayed based on the statutory processing period or ordinary processing period, and whether there was any motive or intent of the administrative agency seeking to avoid the application of the former Act and subordinate statutes prior to the amendment, and whether there was a possibility to avoid delay of the disposition can also be considered (see, e.g.

4) In full view of the relevant legal principles, the rejection of approval for taking office on the ground of a new reason for the delay in taking office without a justifiable reason is unlawful, barring any special circumstance, barring any special circumstance, and “the delay in taking office without justifiable reason” can be determined by examining the specific circumstances or circumstances for which the pertinent disposition was delayed based on the statutory processing period or ordinary processing period, and also taking into account the motive or intent of the administrative agency to avoid the disposition, as well as the possibility of easily avoiding delay of the disposition. Nevertheless, it is reasonable to deem that the Defendant’s rejection disposition can be determined by taking into account the following factors: (a) whether there is a significant reason for the refusal disposition; and (b) whether there is a motive or intention of the administrative agency to avoid the disposition; and

B. Facts of recognition,

1) On March 28, 2014, the Plaintiff’s previous term of office expired, on April 23, 2014, the Plaintiff requested that the Plaintiff approve the Plaintiff’s appointment as soon as possible, and that it is difficult to hold the Plaintiff’s appointment due to the vacancy in the board of directors. In this regard, on April 29, 2014, the Defendant notified the expiration of the term of office, including the Plaintiff, that it is possible to attend the board of directors for urgent handling of agenda items, and notified the Defendant, including the Plaintiff, of the notice of convening the board of directors.

2) Subsequent to September 11, 2014, when the Plaintiff appeared on September 11, 2014, the third board of directors passed a resolution to appoint G as a new executive director; and on September 22, 2014, when the Plaintiff appeared on September 22, 2014, the fourth board of directors passed a resolution to appoint H and I as a new executive director. On February 26, 2015, the Defendant, along with the JJ appointed on the sixth board of directors, approved the above G, H and I to take office.

3) Meanwhile, on September 1, 2015, the Defendant demanded that the term of office of directors K and L should expire on March 25, 2015, and June 19, 2015, respectively, appoint a vacancy, and notified that the scope of the directors with emergency handling rights to appoint the above directors should be minimized to the extent that the quorum of the board of directors is insufficient. Thereafter, on October 28, 2015 and November 23, 2015, the Defendant required to appoint a vacancy director and appoint a new president, as well as to appoint a new president on November 28, 2015, and to deal with the additional revised budget for settlement of accounts for the school year 2014 and that the school year 2015 also be dealt with.

4) On October 29, 2015, B opened the 4th meeting of the board of directors for the year 2015, and processed the draft teacher appointment and revised supplementary budget. On November 27, 2015, B opened the 6th meeting of the board of directors and the 7th meeting of the board of directors for the year 2015 as well as the 7th meeting of the board of directors for the year 2015 as of December 27, 2015, and appointed aJ as the chief director, and decided to appoint Ma and N as new directors. Meanwhile, the Plaintiff was present at the 6th and 7th meeting of the board of directors for the year 2015 and exercised its voting rights

5) On December 10, 2015, B reported that the Defendant fulfilled the Defendant’s above demands on December 10, 2015. However, on December 16, 2015, the Defendant pointed out that B attended and resolved the 6th and the 7th meeting of the board of directors, a director at the expiration of the term of office (the Plaintiff, and K), who is not qualified, passed a resolution. However, B did not comply with the Defendant’s above demands for supplementation.

6) On July 7, 2017, the Plaintiff was sentenced to a fine of KRW 1 million on the criminal facts that the Plaintiff participated in a lawsuit to request the revocation of decision on review of an appeal against the teachers’ appeals review committee at the time of the president’s extension of office, and that the attorney’s fees were paid from the accounts of school expenses, thereby committing an occupational embezzlement and a violation of the Private School Act (Seoul District Court Decision 2017Ma237), and the Plaintiff appealed against this, and on December 21, 2017, the Plaintiff was sentenced to a suspended sentence of a fine of KRW 1 million from the appellate court (Seoul District Court Decision 2017No2198).

7) Meanwhile, the Defendant stated that the explanatory materials of the press published on February 2015 are required for one to three days, and that the approval of taking office is required for one to three days, except in extenuating circumstances.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 4, 5, 13, 15, 17, 19, 20, Eul evidence No. 3, and the purport of the whole pleadings

C. Determination

1) Whether there exists a justifiable reason for the delay of the instant disposition

In full view of the following circumstances that can be acknowledged in addition to the above facts admitted and the purport of the entire evidence duly admitted, it is difficult to deem that there is a justifiable reason for the Defendant to delay in dealing with the Plaintiff’s approval of taking office.

A) Article 24 of the Private School Act provides that a vacancy occurs in the office of director or auditor within two months, and Article 4(1) of the Administrative Procedures Act provides that an administrative agency shall act in good faith in performing its duties. Meanwhile, the Defendant voluntarily stated that the procedure for approving taking office was ordinarily used for one to three days, and approved the application for taking office for other directors (G, I, H, etc.) of B after the instant application for taking office was filed within five months. However, the Defendant did not deal with the application for taking office for the Plaintiff more than ten times in total, including the instant application for taking office, from February 21, 2014 to January 14, 2016.

A. On September 29, 2017, three years and seven months after the filing of the instant application for approval, the instant disposition was rendered to refuse the instant application for approval. In light of the purport of the provisions of the Administrative Procedures Act that prescribe the duty of faithful performance of duties by the Private School Act and the administrative agency pursuant to the new and new law to prevent the prolongedization of the vacant position of directors, and the ordinary processing period for applying for taking office, the instant disposition is excessively delayed for a prolonged period.

B) On April 29, 2014, immediately after the filing of the instant application for approval, the Defendant respondeded to suspend the instant application for approval with respect to B, which was scheduled to process whether to approve the Plaintiff’s executive officer according to the results of the investigation of civil petition status. On October 8, 2014, the Defendant notified the Plaintiff of the cadastral matters and the written disposition to B, including the Plaintiff’s warning, according to the results of the investigation of civil petition status, and took the disposition under the B’s responsibility, and demanded shipment of the result until November 28, 2014. Thus, it may be difficult for the Defendant to deem that there was a justifiable reason for delaying the processing of the instant application for approval by October 8, 2014. However, if there was a reason for refusing to approve the appointment of the Plaintiff, the Defendant should have received the application for approval of taking office on that ground, and it is difficult to deem that the instant application for approval was delayed after two years and 11 months, etc. of the instant civil petition.

C) On March 17, 2016, the Plaintiff filed a lawsuit against the Defendant seeking confirmation of illegality of omission against the Defendant on the ground that the omission against the Plaintiff was unlawful (Seoul District Court 2016Guhap10111). Accordingly, the Defendant ordered B to minimize the scope of participation of the director at the expiration of the board of directors’ emergency treatment rights within the scope of the quorum of the board of directors set forth in the Private School Act. However, the Plaintiff attended the resolution of the board of directors and resolved, the decision of provisional disposition suspending the effect of the Plaintiff’s board of directors was accepted, resulting in significant obstacles to the operation of the school juristic person, and the Plaintiff’s occupational embezzlement, etc. while serving as the president of the Cuniversity.

On April 26, 2017, the court rendered a favorable judgment against the Plaintiff on the following grounds: (a) the Plaintiff could not be an officer of the school juristic person; and (b) the Plaintiff did not comply with the Defendant’s corrective order; and (c) the Plaintiff caused significant obstacles to the operation of the school due to dispute accounting fraud and significant unfair practices among the executives; and (b) thus, the Defendant’s non-approval of the Plaintiff’s application for taking office was lawful. However, on the other hand, the court rendered a favorable judgment against the Plaintiff on April 26, 2017 that the Defendant’s omission is illegal. The judgment on

2) Whether the instant disposition is lawful

In full view of the following circumstances acknowledged in addition to the above facts and the purport of the entire argument, it is reasonable to view the instant disposition that the Defendant refused the instant application for approval on the ground that the new ground, etc. was incurred while the Defendant delayed processing after the application for approval of the instant case without justifiable grounds.

A) The competent agency’s approval of the appointment of an officer of a school foundation under Article 20(2) of the Private School Act is a subordinate administrative act that serves as a supplementary administrative act that serves the legal effect by supplementing the act of appointing an officer of the school foundation (Article 20-2). Meanwhile, the competent agency may revoke its approval of appointment if a certain reason arises with respect to an officer who assumed office (Article 20-2). If an investigation or audit for cancellation of the approval of appointment is underway or serious damage to the operation of the school is likely to occur, the agency may suspend the performance of duties of an officer even before the approval of appointment is revoked (Article 20-3). If the vacancy of a director makes it difficult for the school foundation to normally operate the school foundation (Article 25). Temporary appointment of a director is recognized as the cause for the appointment of a director (Article 25-3). In full view of the nature of the Defendant’s approval of appointment and the purport of the provisions of the Private School Act, the pertinent agency’s ex post facto approval of appointment can be denied.

However, in light of the fact that the Defendant merely ordered the Plaintiff to take a warning measure and did not refuse to grant the appointment approval, it is difficult to view that the ground for warning against the Plaintiff does not constitute a ground for refusing to grant the appointment approval. Unlike the evidence submitted by the Defendant, it is difficult to recognize that there was a ground for refusing to grant the appointment approval of the Plaintiff on or around February 2014, which was at the time of the application for the approval of this case, or around October 2014. Even if there was no reason for refusing to grant the appointment approval of the Plaintiff at the time of the application for the approval of this case, the refusal of the application for the approval of this case is inconsistent with the purport of the provisions of the Private School Act as above, and the Defendant did not take any action for about three years and seven months from the date of the application for the approval of this case, thereby depriving the Plaintiff or the Plaintiff of opportunities to go to the remedy procedure, such as an appeal litigation. This is contrary to the principles of law administration.

B) The Defendant ordered B to minimize the scope of participation of the directors at the expiration of the board of directors’ emergency treatment right within the scope of the quorum for the board of directors under the Private School Act; however, the Plaintiff participated in the board of directors 6-9 times in 2015 without qualification and violated the Private School Act and its order by making a resolution on the appointment of the chief director, the successor director, and the settlement of accounts, etc.; and the Plaintiff rejected the instant application for approval on the ground that there exist grounds for revoking the approval of executive officers of C University, etc., by causing disputes among executive officers.

However, on April 29, 2014, the Defendant notified the term of office to the board of directors, including the Plaintiff, that it is possible for the Defendant to attend a meeting of the board of directors for the urgent handling of the instant case. The Defendant notified the term of office to the expiration of the board of directors including the Plaintiff. The Defendant did not raise any objection to the Plaintiff’s attendance at the board of directors in 2014 immediately after the expiration of the term; the board of directors in 2015, which was one year and nine months after February 21, 2014 when the first application for the approval was filed. At that time, the Defendant’s delay in disposal of the instant application and the expiration of the term of office of the director, etc., were difficult to operate B through a normal resolution of the board of directors; the reason for refusal of appointment approval is fundamentally difficult to view that the Defendant’s application for the approval of the instant case, which was postponed within the ordinary processing period or immediately after the completion of the approval of the fact-finding survey conducted by the Defendant, as well as that the Defendant’s freedom and reason for its establishment.

C) The Defendant opposed to the approval of the board of directors on the ground that the Plaintiff was a party to the dispute at the time of the Plaintiff’s holding office as president and director, and that it is highly likely that a corporation and school will fall into confusion if a director is approved as a director due to the power of being sentenced to a fine of one million won due to the recognition of the president’s holding office. Thus, the Defendant rejected the instant application for approval on the ground that the public interest, which is the public interest of education obtained by returning the approval of the director rather than the private interest gained by the Plaintiff’s approval as director, is greater.

However, as seen earlier, in light of the circumstances where the Defendant voluntarily demanded warning against the Plaintiff as a result of the investigation into the Plaintiff’s civil petition, etc., it is difficult to readily conclude that the evidence presented by the Defendant alone was a party to a dispute between the Plaintiff and its members, or that B would be subject to confusion if the Plaintiff approves the Plaintiff as a director. Furthermore, the Plaintiff’s occupational embezzlement and violation of the Private School Act was committed in February 2014, where the Defendant delayed the handling of the instant application without justifiable cause, and the prosecution was conducted on or around February 2015. The Defendant’s refusal of the instant application for approval on the ground that it did not constitute a fine for breach of the Private School Act, even if the Defendant handled the instant application for approval within the ordinary processing period or immediately after the completion of the instant disposition based on the investigation into actual status of civil petitions for which the Defendant withheld, it is difficult to view that the Plaintiff was sentenced to a fine for negligence of 6 months for the first time after the 20th anniversary of the instant application for approval on the ground that it did not constitute an unlawful act.

3) Sub-decisions

Therefore, without any justifiable reason, the Defendant delayed the handling of the application for taking office against the Plaintiff, and even if the Defendant’s disposition of the instant case cited by the Defendant was delayed for a long time without any justifiable reason, it is not only a new reason, but also a serious reason for refusing the approval of taking office of the Plaintiff after 3 years and 7 months from the date of the instant application for taking office. Thus, the Defendant’s disposition of the instant case is unlawful.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is justified with the conclusion, the defendant's appeal is dismissed as it is without merit.

Judges

Presiding Judge and full-time Assistance

Judge Maximum Order

Judge Lee Jin-ju

Note tin

1) The Defendant’s disposition of non-prosecution on January 9, 2019 regarding the Plaintiff’s occupational embezzlement, etc. (the suspension of indictment and the non-prosecution of indictment) asserted in the reference document for reference on March 14, 2019 is not recognized as identical to the basic factual relations with the occupational embezzlement, etc. of December 17, 2014, which is the instant disposition cause, and thus, it is not separately determined.

심급 사건

-대전지방법원 2018.8.23.선고 2017구합107499

대전고등법원 2019.6.12.선고 2018누12389

참조조문