(영문) 서울행정법원 2017.7.6. 선고 2016구합66001 판결

1. The Defendant’s disposition of appointing the Defendant as a director of the Intervenor joining the Defendant’s Intervenor on April 19, 2016 is revoked.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

Purport of claim

The text shall be as shown in the text.

Reasons

1. Details of the disposition;

A. Operation of the Intervenor Intervenor C Educational Foundation C (hereinafter referred to as the “ Intervenor Educational Foundation”) of JI

1) On March 9, 1967, the Intervenor’s school foundation was established by L on March 9, 1967, and its name was changed into “School Foundation M” on January 1, 1979, and “School Foundation C” on September 1, 1995. The Intervenor’s school foundation currently operates the National University (0 universities prior to the change, “P University”).

2) Around 1977, J acquired 'K of a school juristic person,’ and changed the name of the juristic person into 'school juristic person M’. On May 20, 1992, J retired from office as a director of an intervenor and operated the intervenor school juristic person by April 1994 where Q2 actually operated the intervenor juristic person by not later than April 2, 1994.

3) Meanwhile, on September 10, 1987, the Plaintiffs assumed office as a director of the Intervenor educational foundation, and Plaintiff A served until June 30, 1992, and Plaintiff B until September 29, 1990.

(b) Transfer or acquisition of school juristic persons;

1) On June 1993, J was bound by the suspicion of embezzlement of approximately KRW 5.5 billion ( approximately KRW 8.1 billion, which became final and conclusive after conviction) by withdrawing the public funds of the Intervenor’s educational foundation to the Intervenor and using them for operating funds of the Intervenor’s educational foundation (as for the Intervenor’s educational foundation, KRW 5.1 billion out of the R’s shares), and as at the time of J’s Dongbook, S, the chief director of the educational foundation at the time of J, around August 1993, escaped from the default of checks and bills issued in the name of the Intervenor’s educational foundation.

2) Some directors who are bound by the J, and due to the escape of S, have been unable to normally operate the school juristic person of the Intervenor, were appointed by the direction of the J as a chief executive officer, prepared a false meeting minutes of the board of directors and obtained the Defendant’s approval, and U performed the role of the chief executive officer.

3) The Ministry of Education, from October 13, 1993 to 27 of the same month, conducted an audit on the intervenor school juristic person, and as a result, demanded correction of the identified illegal matters. The Ministry of Education, despite the repeated demands of the Ministry of Education, notified the intervenor school juristic person to take disciplinary measures including cancellation of approval of taking office if the intervenor school juristic person fails to take corrective measures by February 1994.

4) U presented to J a third party the opinion that the school juristic person ought to transfer to the third party having the ability to take over the school juristic person in order to resolve the immediate financial problem. At that time, J, which had been under the influence of U, also agreed to do so and had the third party take over the school juristic person colored by U.S.

5) After U decided as the assignee of T Co., Ltd. (hereinafter referred to as “T”), on January 8, 1994, on behalf of the intervenor school juristic person, Q and Q as the representative director of T, and written a contract for transfer of the school juristic person to the school juristic person (Evidence A 12-1) on behalf of the intervenor. The wife of J guaranteed the above contract. After doing so, U prepared a written agreement (Evidence A No. 12-2) including Q and the following (hereinafter referred to as “transfer agreement”) on March 15, 1994, stating that it would be desirable for the person in charge of education to correct the expression that the person concerned with the Ministry of Education sells and sells the school juristic person.

O T shall contribute money to the intervenor within the limit of 13.5 billion won to repay the obligations of the intervenor’s school juristic person, but the debt settlement affairs shall be governed by the decision of the Debt Settlement Committee consisting of the intervenor’s school juristic person and T. The photograph of the intervenor’s educational foundation shall submit T resignation and shall hold a board of directors at the same time.

A resolution for dismissal, the chief director designated by T, and the appointment of directors shall be adopted. The educational foundation of the ○○ participant shall submit a written waiver of the founder to T.

6) After that, the board of directors was convened on April 8, 1994. At that time, WT, X, U, Y, and Z, which had been a director, attended the board of directors at the time, and all existing directors (the Plaintiff A submitted a letter of resignation and the power of attorney) resigned, and decided to appoint AA, AB, AC, AD, AE, and AF designated by Q and Q (hereinafter referred to as the "resolution of the board of directors on April 8, 1994"), and the newly appointed directors on the same day were elected Q as the chief director.

7) New directors, including Q, obtained approval of taking office from the Defendant on May 10, 1994. On September 1, 1995, the name of school juristic person as of September 1, 1995 was changed to a school juristic person C.

(c) the invalidity of the resolution of the board of directors made on April 8, 1994 and the appointment of provisional directors;

1) In the appellate court of the case where the intervenor school foundation filed a claim for cancellation of the ownership transfer registration against AG and AH, the Daegu High Court rendered a judgment dismissing the lawsuit of the intervenor of the school foundation on the ground that the plaintiff was not entitled to represent the intervenor of the school foundation on January 1, 1990 through August 23, 1993 without holding the board of directors on one occasion from January 1, 1990 to August 23, 193, and individually, the intervenor of the school foundation took charge of the intervenor's affairs on 67 occasions. Thus, the minutes of the board of directors were prepared falsely by using seals of the directors who were kept in the intervenor's office whenever necessary every time 67 times. Accordingly, the Y, U, and Z attended the resolution of the board of directors on April 8, 1994 by the participant of the board of directors without the resolution of the board of directors, and Q elected by the chief director in the invalid board of directors did not represent the intervenor's school foundation (the intervenor was dismissed).

2) Upon the final and conclusive judgment, Q applied for a provisional director appointment to the Defendant on December 12, 1997, and the Defendant appointed seven provisional directors, including AI, on January 16, 1998.

(d) Appointment of regular directors by temporary directors; and

1) The above provisional directors held a temporary directors meeting on February 7, 1998 and appointed seven persons, including Q, as regular directors (hereinafter referred to as the “decision of the temporary board of directors on February 7, 1998”). The regular directors approved the Defendant to take office on February 12, 1998, and held a board of directors on the same day and elected Q as the chief director.

2) Afterward Q was entrusted to the AJ by the main office, childcare center, and physical training of the former P college operated by the Intervenor’s educational foundation, and was transferred to the AJ due to the occurrence of a rain fund and the purchase of real estate and golf membership.

3) On March 4, 200, the Intervenor’s directors held a board of directors around March 200, and removed AK from the board of directors and the chief director, and appointed AL as directors and the chief director.

4) In a lawsuit against the Intervenor, the Daegu District Court rendered a ruling dismissing the lawsuit of the Intervenor’s school foundation on the ground that the Intervenor’s school foundation did not have the right to appoint a regular director on February 16, 2012, since a temporary director appointed by the Defendant on February 7, 1998, a temporary director who was appointed by the temporary directors on February 7, 1998 is null and void, and the regular directors appointed by the invalid resolution of the board of directors are not qualified as directors, and the resolution of the board of directors on March 4, 200 that appointed AL as the chief director and appointed by the non-qualified directors as the chief director is null and void (i.e., the AL is not entitled to represent the Intervenor’s school foundation). (ii) The judgment dismissing the lawsuit of the Intervenor’s school foundation on the ground that “AL is not entitled to represent the Intervenor’s school foundation.” (iii) The appeal by the Intervenor’s school foundation (Seoul High Court Decision 2012Na1628), appeal (Supreme Court Decision 2013Da32703).725.7.

(e) Process of appointing temporary directors and normalizing school foundations;

1) Upon the final and conclusive judgment of the Daegu District Court 201Gahap13399, the Defendant reported that the Intervenor did not have a director in the Intervenor’s school foundation on September 12, 2013 (hereinafter “Mediation Committee”).

2) On October 17, 2013, at the meeting of the Special Sub-Committee on Law at the second meeting of the Mediation Committee on Special Cases on Law, there is a dispute as to whether the instant transfer or acquisition contract becomes null and void, or whether the intervenor’s right to operate the school foundation has been substantially transferred, and thus, the Mediation Committee decided to normalize the school foundation based on the determination of who actually has the right to operate the

3) At the 95th meeting on January 16, 2014, the Mediation Committee decided to appoint 8 provisional directors (2 members of the J recommendation, 2 members of Q recommendation, 1 members recommended by the competent authorities, 1 member recommended by the competent authorities, 1 member recommended by the Daegu Local Bar Association, and 1 member recommended by the Daegu Local Bar Association). On March 1, 2014, the temporary directors recommended as above were appointed.

4) Afterwards, the Conciliation Committee held a hearing between J and Q, and received relevant materials as to whether to implement the instant transfer concession agreement. During that process, the J raised suspicion that Q Q Q has contributed to the agreed amount of money under the instant transfer transfer agreement by embezzlement of teaching expenses.

5) On June 29, 2015, at the 112th meeting of the 112th meeting, the Mediation Committee decided to appoint 7 temporary directors (2 members of the J recommendation, Q recommendation, 1 member of the Q recommendation, and 4 members of the competent agency). In the event that additional data on whether temporary directors have paid contributions under the instant transfer or acquisition contract are confirmed, the Mediation Committee submitted them to the Mediation Committee.

(f) Appointment of regular directors;

1) The Conciliation Committee decided that the Intervenor’s right to operate the Intervenor’s school foundation was transferred from the J to Q. On February 22, 2016, at the 120th meeting of Q. Around February 22, 2016, it decided to appoint 7 full-time directors, including 5, 5, 1, J’s recommendation recommendation, and 2, 7, 5, 2, 5, respectively.

2) On March 18, 2016, the J appealed against the above resolution and requested a new trial to the Defendant, but the Mediation Committee dismissed it at the first meeting on March 23, 2016.

3) The J did not recommend the candidates for directors. On April 19, 2016, the Defendant appointed E, G, F, AM (P, including QN, recommended five persons), D, and I recommended by domestic members, as a director of the Intervenor Educational Foundation (hereinafter “instant disposition”).

4) After that, on April 18, 2017, the Defendant appointed NN as a director of an intervenor at a school foundation.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 6, 7, 12, 32, Eul evidence Nos. 12 and the purport of the whole pleadings

2. The plaintiffs' assertion

A. The Defendant shall appoint a regular director who can represent the subject and identity of the school juristic person by respecting the intent of the founder in normalizing the school juristic person in which a provisional director is appointed. In this regard, the Mediation Committee, in principle, provides for the principle of normal deliberation to grant the right to recommend a regular director at least half of the total governance structure to the previous director without changing the large framework of the governance structure, in the absence of an agreement by interested parties. However, the transfer contract in this case is null and void through several preceding decisions, and the board of directors led by Q Q is not legitimate, even though Q Q is confirmed to have been actually transferred to Q, the Mediation Committee violated the principle of normal deliberation so that the intervenor may grant the right to recommend directors at a majority of the previous directors to Q.

In addition, the Court did not agree to transfer the intervenor's school foundation to T, and Q has the appearance that Q has shown to have performed the obligation to contribute the intervenor's money by embezzlement of the intervenor's money, and did not properly perform the obligation to contribute under the transfer or acquisition contract of this case, but the Mediation Committee made a wrong judgment that the intervenor's right to operate the intervenor's school foundation has been substantially transferred.

Therefore, the instant disposition following the deliberation by the Mediation Committee, which decided to grant a majority of the recommendation right to a regular director to Qua who is a de facto operator of the intervenor school juristic person for a certain period, is a deviation from and abuse of discretion.

B. On January 26, 1998, the defendant sent a civil petition to J that "if prior to the legal confirmation of the validity of the transfer or acquisition contract of this case, it will be resolved according to it." After the judgment of the court, even though the transfer or acquisition contract of this case was confirmed to be null and void, the disposition of this case, which proceeded with the normalization of school juristic persons centered on Qua, is in violation of the principle of trust and good faith and the principle of gold speech

C. The board of directors of an intervenor, composed of unqualified directors, amended the articles of incorporation on June 10, 2005 and October 18, 2006, and changed the fixed number of directors from 7 to 8. However, the amended articles of incorporation is null and void. As such, the fixed number of directors under the articles of incorporation of the intervenor in the school foundation is still 7. However, since the Mediation Committee determines that the fixed number of directors under the articles of incorporation is valid as of the invalid date and decided to appoint eight regular directors, the instant disposition taken therefrom is in violation of the articles of incorporation of the intervenor in the school foundation.

3. Judgment on the main defense of this case

A. The defendant's assertion

The plaintiffs cannot be seen as the so-called "previous Director", and even if they fall under the previous director, they cannot be viewed as having a direct interest in the matter of appointing a regular director suitable for realizing the objective of the establishment of the intervenor's educational foundation, so there is no legal interest in dispute over the disposition of this case.

B. Determination

1) Relevant legal principles

The freedom of private school under the Constitution, which is recognized for school juristic persons, is in a relationship to be selected and appointed in succession.In this respect, it is practically realized by directors who can be seen as being on the connecting line. Among them, it is the one who is the most adjacent to the duties of securing the independence and identity of ordinary school juristic persons, and thus, the former director who is legally selected and retired before a temporary director under the Private School Act was appointed under the Private School Act (hereinafter referred to as "previous director") can be the one who is in a position to represent the independence and identity of the school juristic persons. Thus, if the reasons for the selection and appointment of temporary directors exist after the existence of the former director consisting of only the temporary directors appointed by the Minister of Education, regardless of whether he/she recovers his/her status as the regular director or whether he/she has the authority to appoint a new regular director, he/she shall be the one who has a direct interest in the matter of appointing an appropriate regular director in realizing the purpose of the establishment of the school juristic person (Supreme Court en banc Decision 206Da19054 Decided May 17, 207

(ii) the facts of recognition

A) With respect to the time when J independently started to operate the intervenor school juristic person by preparing the minutes of the board of directors in a false manner, the above Daegu High Court Decision 95Na505 decided January 1, 1990 and the Seoul Administrative Court Decision 99Gu3378 decided January 1, 1989.

B) From September 10, 1987 (the time when the plaintiff was appointed as a director) to April 18, 1994 of an intervenor’s school foundation confirmed in the corporate register (Evidence A) shall be as follows:

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3 evidence, Eul evidence 1, the purport of the whole pleadings

3) Determination

A) From January 1, 1990 without holding a board of directors by J (or from January 1, 1989)

By August 23, 1993, directors who were appointed by means of false preparation of the meeting minutes of the board of directors were not qualified as directors. Since both the resolution of the board of directors on April 8, 1994 and the resolution of the temporary board of directors on February 7, 1998 and the resolution of the temporary board of directors on February 7, 1998 are null and void, all of the directors appointed by each of the above resolutions and the subsequent directors appointed by each of the above directors were not qualified as directors. Thus, the participant educational foundation did not have any lawful appointed director from January 1, 1990 (or from January 1, 1989) to the date of the instant disposition.

Therefore, the plaintiffs, S, W, X, and J, who were duly selected and appointed as temporary directors before March 1, 2014, and who were in charge of directors before January 1, 1990 (the plaintiffs are previous directors even if they were based on January 1, 1989).

B) As to this, the defendant asserts that the directors appointed before January 1, 1989 can not be readily concluded that the directors appointed before the J voluntarily selected directors without holding the board of directors and operated the school juristic person independently, and therefore, the plaintiffs cannot be viewed as the previous directors.

However, the Supreme Court held in 91Da4409 that "if a company is registered as a director or auditor in its corporate register with respect to corporate registration, it shall be presumed to be a legitimate director or auditor appointed through due procedures unless there are special circumstances, barring special circumstances." Considering that in the case of a company with frequent transactions, it is necessary to recognize the presumption power for corporate registration in order to protect the safety of transaction, there is no difference in the corporate registration of the school juristic person. However, in the case of a school juristic person, the fact that it is possible for the director appointed by the board of directors of the school juristic person to be duly appointed if the director is registered in the corporate registration to be appointed by the competent agency, the director qualification cannot be denied without permission only because it is likely that the director would not be duly appointed if it is registered in the corporate register. In addition, if the facts are confirmed that are inconsistent with the contents of corporate registration, the contents of the corporate registration can not be deemed to be valid, but in this case, the defendant or the intervenor cannot be lawfully asserted only the objective records that it had been appointed by J in its previous final judgment.

Therefore, we cannot accept this part of the defendant's argument.

C) In addition, the defendant asserts that the main reason for the decision of 2006Da19054, which held that the previous director has an interest in the matter of appointment of a regular director, is that the previous director is the one who is the most closely adjacent to the duty of the school juristic person to ensure the independence and identity of the school juristic person. The participant’s actual right to operate the school juristic person was committed by J. The actual subject of the transfer contract of this case is merely J. No decision-making authority related thereto cannot be deemed to have been made by the plaintiffs, and the plaintiffs did not submit any opinion in the process of the normalization of the school juristic person, and therefore, the plaintiffs cannot be deemed to have a location most adjacent to the duty of the intervenor to secure the independence and identity of the school juristic person. Thus, even if the plaintiffs are deemed the previous director

However, the fact that the plaintiffs have the status as the former director is due to the fact that they had been in the position of director prior to January 1, 1990 (or January 1, 1989). Thus, even before the above time, evidence is difficult to find to deem that the plaintiffs were merely in the position of director based on the false meeting minutes of the board of directors without the resolution of the board of directors.

On the other hand, the foregoing en banc decision held that the founder had a direct interest in the establishment of a school foundation in that the purpose of the establishment of a school foundation is constantly realized through the director system in which the founder appoints the succeeding director in succession by appointing the succeeding director. However, considering the fact that the Plaintiffs are the directors appointed in sequential order as above, and that the school foundation ordinarily has a influence on the other directors of the school foundation or a person behind the school foundation, it does not change the legal interest in the appointment of the succeeding director, solely on the ground that the management of the intervenor’s school foundation was decided by the intention of the J, or that the J has a close interest in the operation of the school foundation or the transfer and takeover contract of the instant case, rather than the Plaintiffs, the Plaintiffs do not change the legal interest in the appointment of the succeeding director.

In addition, the fact that the plaintiffs did not present any particular opinion in the process of normalizing school juristic persons cannot be deemed to have expressed their intent not to exercise the authority as the previous director.

Furthermore, although the Defendant asserts that it is only J and directly interested in the instant disposition, it is not desirable in that it is the adequate guarantee of the right to exercise a trial, to block and abolish the course of the court’s decision on the instant disposition by making it impossible to dispute the instant disposition due to the death of J and thus, it is not desirable to resolve the instant disposition.

D) Accordingly, the Defendant’s main defense is without merit.

4. Whether the instant disposition is lawful

(a) Facts of recognition;

1) The main contents of the Principles of Normalization Deliberation are as follows, which are internally prescribed by the Conciliation Committee in relation to the normalization of school juristic persons.

1. The consent of at least 2/3 of the interested parties (members) equivalent to the agreement or agreement and the consent of a majority of the previous directors shall be respected and dealt with in accordance with the proposed agreement.2. In the event that no agreement is reached or no agreement does not reach an extent equivalent thereto, the right to recommend regular directors shall be granted to the previous directors at least to the extent that the former directors do not change the large framework of governance structure.3. In the event that the former directors have committed serious harm to the management of the school, such as corruption, or debris crimes, anti-wheeled crimes, violent crimes, etc., the right to recommend regular directors shall be restricted in whole or in part, taking into account the degree of corruption and efforts for normalization.

2) The conciliation committee focused on whether Q Q fulfilled the obligation to contribute under the instant transfer or acquisition contract by deliberating on the Intervenor’s normalization plan of the educational foundation. On January 16, 2014, the conciliation committee decided to appoint eight temporary directors around January 16, 2014, and demanded temporary directors to ascertain the degree of implementation of the contributions made by Q black.

3) The Conciliation Committee held a hearing on whether or not the obligation to contribute under the instant transfer and acquisition agreement against J and Q Q has been fulfilled, and Q Q Q alleged that it contributed approximately approximately KRW 18.5 billion (including the contribution of Q and Q, AJA Q, and the actual owner of Q), E (a denial), and QS (including the contribution of Q). The J argued that the contributions of Q Q Q Q Q is the money embezzled in a way that the Intervenor was in bad faith after the Intervenor’s educational foundation and embezzled the construction cost, and that the construction cost was not covered, and that the actual contribution was merely about KRW 1.8 billion.

4) On October 19, 2015, temporary directors inquired of whether there was a request for additional data to the intervenor’s school juristic person, and the J requested 53 additional data. Temporary directors submitted to the Mediation Committee the part which they deemed necessary.

5) The Conciliation Committee requested the Korea Private School Foundation, Korea-ro Forest Accounting Corporation, and Q Q accounting corporation to review the scope of recognition of contributions made by Qua in order to verify whether Q Q Q has fulfilled its obligation to contribute funds under the instant transfer or acquisition contract. After examining data submitted by Q Q, the said Foundation and the accounting corporation submitted a review report to the Coordination Committee that the amount of contributions confirmed by the account transaction details, etc. was approximately KRW 16 billion.

6) At the time of the establishment of the Intervenor K of the original L Educational Foundation, five directors were the directors.

The fixed number of the directors of the incorporated educational foundation of the intervenor approved by the defendant on February 3, 1999 was seven, and the fixed number of the directors of the incorporated educational foundation of the intervenor as amended on February 18, 2013 is eight.

[Reasons for Recognition] Unsatisfy, Gap evidence 11, Eul evidence 3 and 4, the purport of the whole pleadings

B. Whether the discretionary authority is deviates or abused

1) The premise of the discussion

(A) The meaning of school juristic person normalization and the purport of the conciliation committee system

The founder of a private school shall establish a school juristic person by contributing property to fulfill the educational purpose he/she pursues. However, if the established school juristic person satisfies the requirements of the juristic person, the founder shall have independent legal personality from the founder. As such, the founder shall operate the invested property in the future in accordance with the articles of incorporation, specifying the direction of operation or operating methods of the invested property in accordance with the articles of incorporation, and shall appoint persons who can realize the purpose of establishment in accordance with the articles of incorporation as directors and manage the school juristic person in compliance with the established ideology. In this regard, the identity of the school juristic person can be represented by the articles of incorporation in which the established ideology is embodied

Meanwhile, as a principal agent responsible for conducting public education and guaranteeing the school system, the State has the authority to supervise and control the operation of a private school and, in certain cases, may participate in the operation of a private school by either cancelling the appointment of a director or appointing a temporary director. However, depending on the degree, the State’s involvement in the operation of a private school is likely to be able to fully reorganize the organization of the board of directors corresponding to two brains of the school juristic person, resulting in the State’s acceptance of private schools in an indirect and indirect manner, and the autonomy of private schools is likely to be fundamentally damaged. Accordingly, the Private School Act intends to set up a mediation committee with members with fairness and expertise to deliberate on private school disputes, and to minimize the problems arising from national intervention by having the competent authorities follow the resolution of

The Private School Act does not have any provision regarding who is to be appointed as a regular director according to any standard in normalizing the school foundation for which temporary directors are appointed, but the Mediation Committee shall take into account the following circumstances. In other words, the Private School Act guarantees the freedom of private school establishment realized due to human continuity (Articles 10(2) and 20(1) and guarantees the freedom of private school establishment (Articles 10(2) and 20(1). However, the Private School Act guarantees the public nature of private school education through the minimum restriction on qualifications of directors (Articles 21 and 22), the supervision of directors by competent authorities, and the selection and appointment system of temporary directors where the normal operation of the school foundation is difficult, so the legislative purpose of the Private School Act to secure the independence of private schools and promote the public nature should be respected. In addition, the State shall exceptionally intervene in the operation of the school foundation to resolve the difficulties in the operation of private school by itself, which would not undermine the identity of the school foundation, so that it should not appoint regular directors who can operate the school foundation according to the establishment ideology of the

The principle of normal deliberation prepared by the conciliation committee also seems to take these circumstances into account. In other words, since the previous directors represent the identity of school juristic persons, they may grant them the right to recommend regular directors to secure the independence and identity of school juristic persons' operation by giving them the right to recommend regular directors, and they may limit their right to recommend regular directors if they obstruct the public nature of education or the realization of the identity of school juristic persons by committing corruption in the operation of school juristic persons.

(B) Issues of the intervenor school juristic person

Then, prior to determining whether the determination by the Mediation Commission deviatess from or abused discretionary power, this Court stated the following questions in relation to the above discussion.

The J has operated the Intervenor’s school juristic person in a single manner by preparing the minutes of the board of directors in a false manner, and was convicted by embezzlement of a large amount of school juristic person funds. Although whether the transfer or acquisition of the instant school juristic person conforms to the intention of the J, the invalidity of the transfer or acquisition agreement in April 8, 1994 can also be seen as arising from the operation of the original school juristic person by the J in a single manner. Meanwhile, Q also concluded a construction project with AJ, which had almost little records of construction work with the Intervenor in the name of T, for a long time after having the Intervenor enter into the construction project with the excessive amount of money appropriated by the Intervenor. Since the public funds of the AJ embezzled by Q were created by the Intervenor’s unfairly excessive payment of construction expenses, the victim is the Intervenor.

Ultimately, it is difficult to respond to the question of the legislative purpose of the Private School Act to secure the public nature of school juristic persons that normalize educational foundation based on one of the J and Q, and whether it is appropriate to realize the educational purpose under the articles of incorporation of the school juristic person.

Even so, the Mediation Committee should take into account various circumstances equally to determine whether there is any problem in the following judgment.

2) Whether there is a problem in the standard for normalization of the Mediation Committee

As seen earlier, the conciliation committee has discussed whether the school juristic person’s operational right has been substantially transferred pursuant to the instant transfer or acquisition agreement while deliberating on whether the school juristic person’s operational right has been practically transferred, among the J and Q, a transferor of the right to operate the school juristic person.

In the case of another school juristic person whose right to manage the school juristic person has been transferred, the Mediation Committee has been going through several times centering on the transferee. In such a case, it can be seen that the transfer contract itself did not have any separate problem and the previous director seems to have been the personnel of the transferee. However, in this case, the legal effect of the transfer contract of this case has been denied by the court, and the previous director of the participant juristic person is not only the transferor, but also the former director of the participant juristic person is the personnel of the transferor, even if the right to recommend the regular director is actually transferred, the granting the right to recommend the regular director to the transferee on the ground that it is not consistent with the principle of the Normalization Deliberation that grants the right to recommend the regular director to the former director on the ground that it is not consistent with the principle of the actual transfer of the right to manage the school juristic person.

However, in the case of this case, it cannot be deemed reasonable in light of the following circumstances by formally applying the principle of normalization deliberation to determine directors immediately before a provisional director is appointed, and granting a majority of the right to recommend the previous directors solely on the ground that they are previous directors.

(1) Where a temporary director is appointed based on a transferee’s will after an agreement on transfer of right to operate a school foundation has been entered into, but the transferee failed to perform all his/her obligations under a transfer agreement, resulting in a dispute over transfer, and subsequent temporary directors have been appointed, and the school foundation normalization has been made, then the school foundation normalization or appointment of directors based on a transferee’s will is made solely on the ground that the director appointed by the transferee according to the transferee’s will falls under the previous director because he/she has no legal problem in the appointment and retirement. If a temporary director is appointed on the ground that the procedure for appointment of directors was defective in the course of normal operation of the school foundation, then the normalization of the school foundation centered on the sole ground that the pre-transfer of right to operate the school foundation was a previous director, but it cannot be deemed reasonable in that it takes precedence over the extent that the pre-transfer of

② According to the Private School Act and subordinate statutes, a conciliation committee may hear the opinions of interested parties (Article 9-6 of the Enforcement Decree of the Private School Act). The conciliation committee or competent agency did not comply with the opinion of a property contributor, founder, former director, etc. of a school juristic person, or did not recommend candidates for regular directors. Even under Article 13(1) of the Regulations on the Operation of the conciliation committee, if it is necessary to deliberate on the normalization of the conciliation committee or to deliberate on the appointment of directors, the conciliation committee may hear the opinions of retired directors, and it does not grant the former directors the right to recommend a majority.

Even if the right to operate a conciliation committee is transferred, there is a question as to whether the principle of uniform deliberation on the normalization of a school juristic person has been established. Even if so, the principle of normalization is required to comply with the principle of normalization of a school juristic person centering on the previous directors, but there is room to reflect its substance by setting the principle of normalization in consideration of the situation of each school.

Therefore, it is reasonable to judge whether the normalization of a school foundation centering on one side accords with the purpose of the Private School Act that respects the autonomy of the school foundation while it does not undermine the public nature of the school foundation in this case, as well as ascertaining the identity of the previous director, as well as the background leading up to the formation of an agreement on the transfer of the right to operate the school foundation, the reason leading up to the dispute over the agreement on the transfer of the right to operate the school foundation, whether the transferee can be deemed to have actually transferred the right to operate the school foundation by performing his/her duty of contribution under the agreement on the transfer of the right to operate the school foundation. Therefore, it is difficult to view that the

3) Whether a school juristic person’s operating right is deemed to have been substantially transferred

A) The conciliation committee focused on whether the instant transfer and acquisition contract was concluded by U who is not entitled to represent the educational foundation of the intervenor, and whether Q Q actually performed the obligation to contribute funds under the instant transfer and acquisition contract. This is based on the premise that the instant transfer and acquisition contract was concluded according to the intention of J. Therefore, it first examines whether there is any problem in such judgment.

In light of the fact that the J has filed a civil complaint against Q Q’s acquisition of the right to operate the Intervenor’s school juristic person continuously from April 12, 1994 after the conclusion of the instant transfer and acquisition contract, it is somewhat doubtful whether the Intervenor consented to the instant transfer and acquisition contract.

However, the U.S., upon the restraint of the J, presented his opinion that the intervenor’s right to operate the intervenor’s school foundation should be transferred to the J, and the J appears to have been acceptable. ② Prior to the conclusion of the transfer contract, the Ministry of Education urged the intervenor’s school foundation to promptly recover the amount of the tuition fees according to the audit results, and the J appears to have not been able to choose any other choice; ③ the J drafted a letter to the effect that the transfer contract of this case is ratified; ③ Q and money compensation and the participant’s construction of the kindergarten site and its ground building should be transferred to Q and the participant’s school foundation; ② If the intervenor transferred the intervenor’s right to operate the intervenor’s school foundation to Q along with Q on February 5, 194, and Q transferred the intervenor’s right to operate the school foundation, the Ministry of Education, prior to the conclusion of the transfer contract of this case, may not conclude the transfer contract of this case by taking into account the above intent and agreement, and thus, there is no room to conclude the transfer and acquisition agreement of this case.

B) Next, we examine whether Qua fulfilled its duty to contribute under the instant transfer or acquisition agreement.

① Reviewing whether Q Q’s obligation to contribute funds under this case’s transfer and acquisition contract in the course of the intervenor’s normalization of the school foundation, the conciliation committee requested the intervenor’s private school foundation, the Han-ro Forest Accounting firm, and the lender accounting firm to confirm the fact that Q contributed about about 16 billion won in a number of rulings, and recognized the facts similar to Q. ② Although the above accounting firm’s judgment and fact-finding of the judgment did not confirm the source of the contributions, it is difficult to find that Q embezzled the intervenor’s public funds in addition to the embezzlement by embezzlement of the AJ’s public funds after overappropriating Q’s public funds, it is difficult to find that there was no suspicion of embezzlement as a result of the audit conducted by the Ministry of Education; ③ The conciliation committee requested the intervenor to appoint more than a number of temporary directors upon the second request of the J., so that Q would verify the materials of embezzlement of the public funds in Q Q. However, considering the fact that Q did not find any particular suspicion, it is difficult to view that Q’s testimony was made solely by taking account of the witness’s.

C) In full view of the foregoing circumstances, it cannot be deemed that there was any defect in the result of the conciliation committee’s deliberation that judged that the intervenor’s right to operate school foundation Q has been substantially transferred to Q.

4) Sub-determination

Therefore, it is difficult to deem that there was an error of deviation from or abuse of discretionary power on the disposition of this case as the result of such deliberation by the Mediation Committee.

C. Whether the principle of trust protection is violated

In addition to the statement in Gap evidence No. 10, the Supreme Court's decision that Q was invalid on April 28, 1994, which held that Q would not be entitled to represent the intervenor school foundation (96Da55648) was rendered that Q would not be entitled to represent the intervenor school foundation. The J requested the defendant to return the intervenor school foundation and requested the provisional director dispatch. On January 16, 1998, the defendant appointed the provisional director to the intervenor school foundation on January 16, 1998, and then on January 26, 1998, the J confirmed that "the school foundation was acquired by the transfer contract of this case in relation to the request for return of the foundation, so the legal confirmation of the validity of the transfer contract of this case should be prior to the conclusion of the transfer and acquisition contract of this case."

Even according to the above facts of recognition, it is nothing more than the defendant's answer that legally confirming the validity of the transfer contract of this case should be prior to the review of return of foundation.

If the legal effect of a takeover contract is null and void, it cannot be deemed that the public opinion was expressed to normalize the school foundation centered on the J.

Therefore, in a case where the legal effect of the transfer contract of this case is null and void, as long as it is difficult to find out circumstances to deem that the defendant granted trust in the normalization of school juristic persons centering on the J side, the disposition of this case cannot be deemed to violate the principle of trust protection.

Therefore, we cannot accept this part of the plaintiffs' assertion.

(d) Whether the articles of incorporation violate the fixed number of directors;

In the normalization of school juristic persons, even if wide discretion is recognized by the Mediation Committee, it is a duty to comply with the articles of incorporation of the school juristic person. Thus, if a decision on appointment of a director in violation of the articles of incorporation was made, it would infringe on the freedom of operation of the private school.

As seen earlier, the articles of incorporation of the school juristic person organized by the Intervenor was amended from February 3, 199 to February 18, 2013, and the fixed number of its directors was changed from 7 to 8. However, at that time, the directors of the school juristic person organized by the Intervenor were elected as temporary directors or all of their successors were not qualified as directors. Thus, the resolution of the board of directors that the board of directors composed of them was adopted to amend the articles of incorporation is invalid.

Thus, since the number of the directors under the articles of incorporation in force of the school juristic person of the intervenor is seven, the deliberation based on the premise that the conciliation committee is eight the fixed number of the directors under the articles of incorporation of the school juristic person of the intervenor is in violation of the

In light of the fact that the defendant could not secure the articles of incorporation of the intervenor school foundation before April 1994 at the time of deliberation by the conciliation committee, and the number of the directors at the time of establishment of the school foundation K was five, but the J arbitrarily operated the intervenor school foundation by preparing false minutes from January 1, 1990 (or from January 1, 1989), it is also impossible to determine the legitimacy and validity of the articles of incorporation at a certain time. Thus, it is also impossible to determine the legitimacy and validity of the articles of incorporation. Therefore, there is no problem to decide to appoint directors according to the current number of directors of the articles of incorporation.

However, as seen earlier, even before January 1, 1989, it is difficult to find out that the intervenor was seven directors of the school foundation, and that the J prepared a false minutes and amended the articles of incorporation even before January 1, 1989. Even according to the defendant's argument, it cannot be determined at the time when the fixed number of directors of the school foundation which was the intervenor cannot be changed to seven persons, but it is apparent that such change is invalid in the articles of incorporation because it is apparent that the fixed number of directors of the school foundation which was the intervenor was changed to eight persons. Thus, the above argument by the defendant is not acceptable in that it is reasonable to view the legitimate and effective number of directors of the school foundation of the intervenor as seven persons.

Therefore, this part of the plaintiffs' assertion is justified.

(e) Conclusion;

Therefore, the defendant is only able to appoint 7 directors of the intervenor school juristic person. On the premise that the number of directors is eight, the mediation committee grants 5 directors and 2 directors to the side of the members in the school and J to recommend 1 directors.

Accordingly, the Defendant appointed 6 directors (4 directors recommended by Q Q and 2 members recommended by the members of the intra-school composition) based on the instant disposition. After that, the Defendant appointed directors to Q Q Qn recommended by the Defendant, thereby making up all 7 members of the Intervenor’s legitimate number of directors in the Intervenor’s educational foundation. However, this result is deemed to exceed the prescribed number of directors in that it does not have room for appointing one director recommended by the JJ in the future. This is essentially derived from the fact that the Mediation Committee considered eight directors as the prescribed number of directors.

Furthermore, one of the six directors (or seven directors including those additionally appointed after the instant disposition) appointed as a director other than the prescribed number of directors cannot be specified. Thus, the instant disposition to appoint the said six directors shall be revoked in its entirety.

5. Summary of the judgment; and

The defendant asserts that even if the disposition of this case is unlawful due to the violation of the fixed number of directors, the right to recommend directors to be granted to the J side does not exceed one person, and thus revocation of the disposition of this case does not benefit the plaintiffs. On the other hand, the conflict surrounding the operation of the intervenor educational foundation continues to exist and the student and school personnel suffered damages, resulting in a significant violation of public welfare. Thus, the ruling of the circumstances under Article 2

However, since maintaining an illegal administrative disposition is against public welfare, the ruling should be limited under strict requirements. In determining whether it is clearly inappropriate for public welfare, the ruling should be made by comparing and comparing the necessity for cancellation or modification of illegal and unreasonable administrative disposition and the situation against public welfare that may arise therefrom (see, e.g., Supreme Court Decision 2008Du13828, May 28, 2009). In light of the meaning of the articles of incorporation or director in school juristic person, the illegality of the disposition in violation of the fixed number of directors in the articles of incorporation is very serious, while it is difficult to find out that the disposition in this case is revoked, which causes confusion in school and causes damage to students and school personnel, and even if it is not so, it can be resolved by preparing a plan consistent with the fixed number of directors and by re-dispositioning it accordingly. Therefore, the ruling under Article 28 of the Administrative Litigation Act is not necessary.

Therefore, we cannot accept this part of the defendant's argument.

6. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.