[1] The legal nature of the approval of taking office by the supervisory authority for an officer of the school foundation (=the supplementary administrative act)

[2] Where a school foundation applies for approval of the appointment of a director to the supervisory authority, the term of office of the director is stated differently as stipulated in the articles of incorporation, and the supervisory authority approves the appointment of a director as it is, the validity of approval of the appointment of a director (=approval of the appointment of a director without designation of a term of office) and the term of office of

[3] The case holding that in case where a provisional disposition is taken to suspend the performance of duties of the chief director of a school juristic person and to appoint him, the former chief director cannot perform his duties as a director under the relevant provisions of the articles of incorporation of the school juristic person in relation to the quorum for opening of the board of directors and the acting director has the authority to perform his duties as a director

[1] The approval of the appointment of a supervisory authority for an executive officer of a school foundation under Article 20 (2) of the Private School Act is a supplementary administrative act to supplement the act of appointing an executive officer of the school foundation to complete the legal effect, and the approval disposition itself does not have any legal effect, regardless of its nature.

[2] Article 20 (1) of the Private School Act provides that "the executives shall be appointed by the board of directors as prescribed by the articles of incorporation," and Article 20 (3) of the same Act provides that "the term of office of the chief director, directors, and auditors shall be determined by the articles of incorporation, but the term of office of the directors shall not exceed five years, and the term of office of the directors shall not exceed two years." Thus, when the supervisory authority approves the appointment of directors, it is only possible to approve the resolution of the board of directors of the school juristic person itself, and the term of office of the directors cannot be determined. Even if the school juristic person applies for the appointment of directors to the supervisory authority, if the term of office of the director is stated differently as stipulated by the articles of incorporation, and the approval of the appointment of directors shall only become effective as the approval of the appointment without the designation of the term of office. The term of office

[3] The case holding that in case where a provisional disposition to suspend the performance of duties of the chief director of a school juristic person and appoint the acting director is taken, the former chief director cannot perform his duties as a director under the relevant provisions of the articles of incorporation of the school juristic person in relation to the quorum for opening of the board of directors and the acting director has the authority to perform his duties as a director

[1] Article 20 (1) and (2) of the Private School Act, Article 1 of the Administrative Litigation Act / [2] Article 20 (1), (2) and (3) of the Private School Act, Article 1 of the Administrative Litigation Act / [3] Articles 15, 17, 18, and 20 of the Private School Act, Article 714 (2) of the Civil Procedure Act, Article 1 of the Administrative Litigation Act [general]

[1] Supreme Court Decision 86Nu152 delivered on August 18, 1987 (Gong1987, 1472), Supreme Court Decision 90Nu1557 delivered on June 14, 1991 (Gong1991, 1939), Supreme Court Decision 92Nu5461 delivered on September 22, 1992 (Gong192, 3019), Supreme Court Decision 94Da12371 delivered on April 14, 1995 (Gong195, 1844)

Plaintiff 1 and one other (Law Firm Gangseo-dong General Law Office, Attorneys Park Jung-chul et al., Counsel for the plaintiff-appellant)

The Chairperson of the National Labor Relations Commission

Defendant Intervenor’s Intervenor (Attorney Jeong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 97Gu42399 delivered on June 3, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Article 20 (2) of the Private School Act provides that "The term of office of the chief director, director, and auditor shall be five years, and that of the board of directors shall not exceed two years, the term of office of the board of directors shall be determined by the articles of association, and the term of office of the director shall not be determined by the law, regardless of the nature of the basic act as a supplementary administrative act to complete its legal effect (see, e.g., Supreme Court Decisions 86Nu152, Aug. 18, 1987; 90Nu1557, Jun. 14, 1991)." Meanwhile, Article 20 (1) provides that "the term of office of the chief director, director, and auditor shall be determined by the articles of association, and the term of office of the board of directors shall not exceed two years." Thus, the supervisory authority shall only approve the appointment of the board of directors, and even if the term of office of the director is approved by the supervisory authority, the term of office of the director shall not be determined by the articles.

The court below held that the term of office of a director newly appointed by the board of directors of the Intervenor (hereinafter referred to as the “ Intervenor”) is four years according to the Intervenor’s articles of incorporation, and that his term of office does not vary even if his term of office was written differently as if he had been appointed as a director after his term of office in April 9, 192 and approved the appointment of a director by the Minister of Education on May 16, 1992. Thus, his term of office is four years from May 16, 1992 to May 15, 196, who was appointed as a director as prescribed by the articles of incorporation, and that his term of office does not change even if his term of office was approved by the Minister of Education on April 9, 192. Thus, the Intervenor did not err in the misapprehension of legal principles as argued in the Grounds for Appeal.

2. The lower court: (a) decided on January 11, 1996 that the Intervenor’s new number of directors shall be suspended from performing his/her duties and that the court’s provisional disposition that appoints No. 2 as his/her acting president was taken; (b) the Intervenor’s fixed number of directors is nine; (c) the quorum of the board of directors is a majority of the fixed number of directors; and (d) on January 11, 1996, five members of the board of directors, who attended the meeting to appoint five members of the general service, such as class No. 2 and class No. 3 as a disciplinary measure for the first five members of the board of directors; and (b) the number of new directors whose term of office was suspended after the commencement of his/her duties was 5; and (c) the resolution that was held by the 19th president of the board of directors and the 19th president of the board of directors, including the resolution that was held on February 16, 196, which was held by the 196th president of this Act.

However, although only the duties of a new chief director are suspended by provisional disposition and a yellow class was appointed as a chief director, under the relevant provisions in the Articles of Incorporation of the Intervenor, the chief director is elected from among the chief director, and the chief director is convened in the meeting of the board of directors, and the meeting of the board of directors is carried out as a chairperson in the case of the meeting of the chairman, and the number of the intervenor's directors is limited to nine. In this case, there seems to be circumstances to interpret that the new chief director can not perform his duties as a chief director, and instead, he has the authority to perform his duties as a chief director. Accordingly, the number of the intervenor's directors is still nine and five members who are the majority of the total number of directors of the board of directors of the board of directors on January 11, 1996, and the former resolution of the board of directors was withdrawn on March 21, 1996 and confirmed the new resolution of April 25, 196.

Nevertheless, the court below held that the resolution of the board of directors on January 11, 1996 is null and void, and that disciplinary action or dismissal resolution against the plaintiffs of the disciplinary committee composed of disciplinary committee members appointed based on this determination is also null and void. The court below erred by misapprehending the articles of incorporation of the school juristic person, misunderstanding the legal principles on the suspension of the performance of duties of the board of directors and the provisional disposition of the appointment of the acting director, or failing to exhaust all necessary deliberations

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Zwon (Presiding Justice)