(영문) 서울행정법원 2020.10.22. 선고 2019구합69674 판결

1. On March 26, 2019, the part of the disposition (attached Form 1) in relation to the fact-finding survey conducted by the Defendant to the Plaintiff on March 26, 2019 is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 7/8 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

As a result of the fact-finding survey conducted by the Defendant on March 26, 2019, the part of the [Attachment 2] [Attachment 2] List of Claim

【Disposition No. 1, 2, 3, 4, 6, 10, 11, and 12 No. 1, 2, 3, 4, 6, 10, 11, and 12 as a result of the investigation of actual conditions.”

Reasons

1. Details of the disposition;

(a) Status of a party;

1) B (1966) from around 195 to around 2015, while operating D (certified public accountants, and private teaching institutes preparing a qualifying examination for certified tax accountants) located in Seodaemun-gu Seoul, Seodaemun-gu established the Plaintiff as a private school for higher education on March 5, 2003. Thereafter, on October 27, 2003, upon authorization from the Minister of Education and Human Resources Development, the E University, a private university under Articles 2 and 3 of the Higher Education Act (F at the location of Pakistan), established and operated the said university, and worked as the president of the Plaintiff from March 2004 to March 2015.

2) The Defendant is a competent central administrative agency that can order correction or modification in a case where a school, etc. violates education-related Acts and subordinate statutes, etc. in accordance with the Higher Education Act and the Private School Act.

B. Criminal judgment on the Plaintiff’s founder B, etc.

1) On August 29, 2014, the Plaintiff’s founder and the former president: (a) embezzled E University teaching expenses of approximately KRW 10.8 billion, including school expenses in the name of advance payment of construction costs and school expenses in the name of the video lecture subsidies; and (b) used them as personal debt repayment, etc. for B; (c) was indicted on charges of around 2013 and charged for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (Embezzlement) and the Private School Act (Embezzlement), and the said judgment became final and conclusive on May 28, 2015 after the dismissal of the appeal and dismissal of the appeal (hereinafter “criminal judgment in 2014”).

2) On February 1, 2018, B was prosecuted again for the following charges on the grounds of suspension of execution following the final judgment of the Criminal Court in 2014. In other words, the crime of occupational breach of trust was committed by issuing two promissory notes with 1.5 billion won under the Plaintiff’s name without the resolution of the board of directors and the permission of the competent authorities, and delivering them to G who is the lessee of the Plaintiff, and then receiving KRW 300 million from H in exchange for borrowing money. ② The crime of occupational breach of trust is committed by receiving KRW 300 million under the name of the president’s illegal solicitation from H in exchange for borrowing money; ③ the contract for the production and use of online educational content between I and the Plaintiff in exchange for the deposit of KRW 38,750,000 from the Plaintiff’s office, ④ the crime of occupational embezzlement of KRW 1.6 billion under the name of the interested parties of B or K corporation (hereinafter “K”) and returning KRW 980,000,000 from the Employment Security Act.

3) A criminal case was entered into with B and investigated by the investigative agency. ① President of E University (the Plaintiff’s president from June 29, 2015 to July 11, 2016; the president of E University from May 23, 2016 to July 2019); ② N, the director of E University Industry Cooperation Foundation, the director of E University and Cooperation Foundation, the director of E University as professor of E University, and ③ from March 1, 2015 to May 22, 2016, H& who served as the president of E University, was indicted with the Co-Defendant B.

4) On August 13, 2019, B was sentenced to imprisonment with prison labor for one year and four years for the crime of attempted occupational breach of trust and taking over occupational breach of trust in the case of Goyang-gu District Court High Court 2018Da41, 56 (Joint) and 2019Kahap132 (Joint) on August 13, 2019, and was legally detained. In addition, as co-defendant 1, M was sentenced to a suspended sentence of five years and a violation of the Labor Standards Act due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), the crime of occupational breach of trust, the crime of violating the Employment Security Act and the violation of the Labor Standards Act 20 hours due to the failure to pay overtime allowances, and ② N was sentenced to a suspended sentence of two years and the community service order of 80 hours under the Employment Security Act, ③ a suspended sentence of three years and 120 billion won under the suspension of execution of imprisonment with prison labor for occupational embezzlement and evidenceing crimes (hereinafter referred to as “the previous judgment”).

5) On the above judgment, the Seoul High Court filed an appeal with B, M, N, and H as Seoul High Court No. 2019No1890. On January 17, 2020 in the above appellate case, the judgment of reversal was rendered separately for the reason that the first instance court’s trial procedure in relation to B and M was erroneous in the procedure of confirming the intention of a participatory trial. Accordingly, the above criminal case against B and M was returned to the first instance court again, and the present Government District Court No. 2020Rahap51 was pending, and the case against N and H was still being detained as bail on April 2, 2020. Meanwhile, the current criminal case against N and H continues to be "after the date of trial in the above appellate court".

1) From August 6, 2018 to August 10, 2018, the Defendant conducted a fact-finding survey on the Plaintiff and E University (hereinafter referred to as “fact-finding survey of this case”) as a result of the following measures:

List of votes

A person shall be appointed.

2) Accordingly, the Plaintiff submitted a written objection on December 15, 2018, and the Defendant submitted 18 of the 18 cadastral matters.

3. In regards to the improper management of teachers' lease and corporation (hereinafter referred to as "the improper management of teachers' management costs"), the original correction (collection) disposition is modified to the notification disposition to E University, and the objection to the 15 points pointed out are all dismissed, in addition to partly referring to the improper correction of the regulations relating to the period of 17. Amendment and the 18. Evaluation items of School Teachers' Services Evaluation (hereinafter referred to as "evaluation items") to the original notification disposition.

3) On March 26, 2019, pursuant to Article 60 of the Higher Education Act, the Defendant issued a disposition to the Plaintiff on May 27, 2019 regarding the 18 intellectual property (Evidence A5-2) as a result of the fact-finding survey that the Plaintiff performed the disposition by no later than May 27, 2019. The part disputing the Plaintiff is as follows: (a) the annual disposition related to 8 intellectual property, such as No. 1, 2, 3, 4, 6, 10, 11, and 12 of the report of the fact-finding survey (Evidence A-2) as stated in the list of the attached Table; and (b) the following (hereinafter collectively referred to as the "disposition in this case").

List of votes

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, significant facts in this court, Gap evidence 1 through 6, 17 (including each number; hereinafter the same shall apply), Eul evidence 20, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The grounds for each disposition concerning the total eight intellectual matters that constitute the instant disposition (hereinafter referred to as the “instant disposition”) are unlawful as a misunderstanding of facts. ② Of them, the demand for disciplinary action against employees, etc. who are not private school teachers, is unlawful as there are no reasonable grounds. ③ The demand for heavy disciplinary action against the president of E University is unlawful as the absence of grounds for disciplinary action, the prescription period, and the deviation and abuse of discretionary power. The instant disposition should be entirely revoked.

B. Relevant statutes

[Attachment 3] The entry of "related Acts and subordinate statutes" is as follows.

C. Whether there exists a reason for the disposition or mistake of facts

1) The reasons for the disposition of the cadastral matters No. 1 annually

A) The plaintiff's assertion

Of the reasons for the instant disposition, the portion indicated in the instant disposition is unlawful as a mistake of facts. In other words, with respect to the matters concerning embezzlement of school expenses, such as the production of content, (i) a video supply contract was aimed at performing the recommendations of the Ministry of Education, not to repay the debt to J, which is an essential element for learning; and (ii) a contract for the provision of the same image was executed with the aim of performing the recommendations of the Ministry of Education. In relation to the matters concerning the borrowing of money and valuables for appointment of faculty members, the concurrent faculty of the E university constitutes a teacher under the Private School Act who is not an employee under the Labor Standards Act, and (ii) most concurrent faculty members stated that they were irrelevant to the lending of money and appointment of faculty members, and even without lending money, it is difficult to deem that

B) Determination

According to Articles 28(1) and 29 of the Private School Act, when a school foundation intends to sell, donate, exchange, change the purpose of its use, provide as security, or bear obligations or waive rights, it shall obtain permission from the competent agency. The accounts of the school foundation shall be divided into accounts belonging to the school that it establishes and operates, and the revenues belonging to the accounts of the school foundation shall not be transferred or lent to other accounts. Meanwhile, according to Article 15 of the Regulations on Special Cases concerning the Rules on Financial and Accounting of Private School Institutions (Ordinance of the Ministry of Education), the accounts of the private school foundation shall be fairly handled based on reliable objective data and evidence. Furthermore, according to Article 32 of the Employment Security Act, a person who intends to recruit workers and a person engaged in the recruitment business shall not receive money or other benefits in relation to the recruitment from the subscribers under any pretext.

In light of the language and purport of the above provision, the above evidence, evidence Nos. 6 through 12, and evidence Nos. 1 through 8, and 19, the following circumstances, which can be seen by comprehensively considering the overall purport of the pleadings, are justifiable in the judgment of the defendant as to the part of the disposition No. 1 points out of the grounds for disposition of this case (unfair enforcement such as embezzlement of school expenses by the founder B and president M), and the plaintiff's assertion that the grounds for disposition of this case are groundless.

(1) Of the matters pointed out in 1 a year, ① the embezzlement of school expenses such as content production expenses, ② the borrowing of money and valuables for the appointment of concurrent professors, ③ the business embezzlement, occupational embezzlement, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the Employment Security Act in relation to the borrowed matters without permission from the competent authorities, M is a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), occupational malpractice, and the Employment Security Act; N is a violation of the Employment Security Act; H is a violation of the Employment Security Act; H is a criminal prosecution on February 1, 2018 due to occupational embezzlement; and is convicted on the basis of all the evidence, such as the statements of relevant witnesses and witnesses, etc.

(2) In the process of the instant fact-finding survey, the president M and the Secretary R signed and submitted to the investigating public official a certificate to recognize most of the matters pointed out in No. 1 annually. At that time, there is no special circumstance to suspect the authenticity or credibility of the certificate, such as there is external pressure or revolving in the process of signing the said certificate.

(3) Even in the criminal judgment in 2014, B appears to have been convicted of the crime of embezzlement of the Plaintiff’s tuition fees by paying the Plaintiff’s tuition fees to the business entity that it operated on behalf of the Plaintiff. Likewise, as shown in the 1st century, B, in order to repay personal debt to J, is likely to enter into a contract for the production and use of online education content with the Plaintiff only formally on behalf of the Plaintiff, and to have paid the Plaintiff’s tuition fees of approximately KRW 1.4 billion to J as its price, and there is no circumstance to believe that it is a legitimate act to implement the recommendation of the Ministry of Education as alleged by the Plaintiff.

(4) According to the direction of B, H is deemed to have paid KRW 760 million to J, as if he produced and supplied online video lectures within the E University, as if he produced and supplied online video lectures in the publication of books, and even if the above contract amount paid by B to a business entity operated by B, including the expenses incurred in the afforestation and editing and the expenses incurred in online reproduction of the video lectures, it is presumed that the above contract amount paid by B to a business entity operated by the creditor, much more than the price formed by normal transactions, and it is difficult to evaluate the execution amount as a legitimate price as asserted by the Plaintiff.

(5) Even if a university professor was not subject to specific direction and supervision as to the contents and method of lectures by the school or was granted discretion as to the operation of the contracting department, this is merely due to the autonomy of the university or the nature of the lecture performed through intellectual activities, and such circumstance alone does not readily deny employee status (see Supreme Court Decision 2012Da81609, Dec. 24, 2014). It is reasonable to deem that the teaching faculty of the E university constitutes an employee who provided labor to the E University for wage purposes. B, M, N, requested 19 concurrent teaching faculty applicants to provide 50 million won in total at the time of employing the teaching faculty, and transferred 50 million won in total to the account under the name of the K or E University Industry-Academic Cooperation Foundation operated by B, and the person who paid money appears to have been employed as a professor at the entire E university, and there is considerable room to deem that there was economic benefits, such as money and valuables, etc. in return for employment of teaching faculty who are full employees.

(6) As long as the relevant criminal judgment on the same violation of the Act does not provide for the confirmation of the relevant criminal judgment as the requirement for a disposition, it cannot be said that there was procedural violation on the ground that the relevant administrative disposition was issued prior to the final and conclusive judgment.

2) Reasons for disposition on the cadastral matters No. 2 annually

A) The plaintiff's assertion

Of the reasons for the instant disposition, the part regarding the instant disposition is unlawful as a mistake of facts. That is, ① the need to conclude a contract for the provision of dynamics with respect to the matters regarding the unfair conclusion of a contract for student education, and the amount under the contract for the provision of dynamics is not excessive, and is also the matters determined through a resolution of the Council of the Department of Universities and Colleges of the E University. ② In relation to the non-collection of rent for K, K cannot be deemed to have leased Y'

B) Determination

According to Article 29 (6) of the Private School Act, income or property belonging to the accounts of school expenses shall not be transferred or lent to other accounts. According to Articles 4 and 21 of the Financial and Accounting Rules of private school institutions, the financial and accounting of corporations and schools shall be operated in a sound manner, and shall not be contrary to the obligations of the State and society as public institutions and the purpose of its establishment, and the expenditure budget of the accounts of corporations shall not be used for any purpose other than its original

In light of the above provisions, the above evidence and the whole purport of the pleadings, the judgment of the defendant on the part of the 2 points pointed out in the Disposition Grounds of this case (production and purchase of contents for student education) is just, and the plaintiff's assertion disputing this point is without merit.

(1) On March 6, 2017, the E University concluded a contract with the Z (hereinafter referred to as “Z”) to supply a video-recording course, including a certified tax accountant, for an examination preparation and payment of one billion won in return, from March 1, 2017 to February 28, 2018. However, in relation to the conclusion of the said contract, there is no circumstance to deem that the contract had undergone a substantive prior examination procedure as to the adequacy of the said video-recording course or the reasonableness of the said contract amount, except through a meeting of the school affairs committee, etc. in the form of the instant contract, and the said contract may be terminated only once a year, notwithstanding the automatic renewal provision on the grounds of a decrease in the number of persons taking the video-recording course.

(2) In the criminal judgment before remanding, B was convicted of attempted occupational breach of trust. The criminal facts of B are as follows: “B, the president of the AA Group, an affiliate company, leased 6 billion won deposit and 2 billion won advance payment deposit, and issued two copies of promissory notes with the face value of 1.5 billion won on December 31, 2013 and July 29, 2014 in the name of the Plaintiff to secure the return of the deposit, while leasing 2 bonds of Seodaemun-gu Seoul, Seodaemun-gu, Seoul, the principal’s ownership on September 13, 2013, to G, which is the president of the AA Group, B, the affiliate company of the Z affiliate company, and it is difficult to view that the purpose and process of the conclusion was justifiable.

(3) On March 9, 2018, the E University entered into a contract for the production and use of online contents that require K to record and receive lecture records from E University from March 1, 2018 to February 28, 2019 and pay 600 million won out of the production cost. However, in light of ① average viewing rate of the same video class under the above supply contract is 1.05%, 2016 and 2017, the average viewing rate of the same video class provided before the publication is 2%, which is considerably low in the actual utilization rate of the same video class, ② the supply contract with K university from March 9, 2018 to February 28, 2019, which is merely 200 million won, and the contract amount is 1.7 billion won to be determined by the applicant for the above contract without examining the production cost of the video class to 200 million won.

(4) Even though K actually occupied E University platform Y, while performing all duties, such as taking and editing lecture pictures and dynamics, etc. under a video supply contract, K did not demand reasonable rents, etc. from the side of E University. Furthermore, it does not appear to have been discussed about the free occupation and use of lecture rooms at the time of concluding the initial contract, nor have been explicitly indicated in the contract clause, and it is inevitable to view that the free use of lecture rooms was unreasonably implied in accordance with the superior position of B.

(iii) reasons for disposition on the cadastral matters No. 3 annually;

A) The plaintiff's assertion

Of the instant disposition grounds, it is unlawful to mislead the factual basis into mistake. In other words, regarding the matters concerning the execution of the rent for teachers including lecture room, this is a corporation established for a public-private partnership project with the permission of the Ministry of Education, which is set at KRW 700 million a year, and the rent for the living hall operated by the O was increased thereafter, and thus, it cannot be deemed unfair to pay rent. ② With regard to the enforcement of the accounts for the management expenses, it is merely merely that the payment of rent for the small amount of repair expenses was made on the part of the E University, while the rent is overdue, and it cannot be deemed unfair to pay rent for the following reasons. ③ In relation to the matters concerning the payment of rent for the future, it is only that the payment of rent for the small amount of repair expenses was made on the part of the E University, while the payment of rent is overdue, and it is not reasonable to pay rent for the future. ③ In relation to the matters concerning the payment of rent for the loan to B, it is a company with separate legal personality from the Plaintiff.

B) Determination

In light of the following circumstances, the above evidence and the statements in Gap evidence Nos. 5, 13, 14, 15, 18, and Eul evidence Nos. 9 through 12, the defendant's judgment on the part of the disposition ground of this case No. 3 points out of the year's disposition ground of this case (the improper execution of teacher's rent and the improper execution of management expenses, etc.) is just, and the plaintiff's assertion disputing this point is without merit.

(1) On December 28, 2007, E University’s side executed a total of KRW 7.35 billion from 2008 to August 2018 on the premise that part of the space in the building in the 3rd life hall, which is scheduled to be newly constructed and extended, for the purpose of using the lecture room, etc., from 50 billion won to 30 billion won, from 2008 to 7.35 billion won per annum. However, on the other hand, the Plaintiff’s assertion that the rent for the average area of the office space, such as the store, cafeteria, and office, of E University is merely KRW 9,00,07. On the other hand, it is difficult to view that the rent for 141,851 won paid under the above lease contract was reasonable, and that it is difficult to view the rent for 10 years to be paid for 10 billion to 30 billion, more than the first rent for the building in 200,000 won per 208.

(2) Since the management, operation, and beneficial rights of the E University are owned by theO, it is natural that the use of management expenses, such as maintenance and repair, should be borne by the E University. However, the E University paid KRW 269,78,00 for the expenses of waterproof construction, personnel expenses, etc. for the maintenance and management of the third life hall, which should be borne by an objection during the period from August 2014 to August 2018, including the third life hall: (a) it is reasonable to see that the payment of the management expenses is made by an unjust execution, such as the Defendant’s intellectual property; (b) there is no evidence that the E University’s settlement of the unpaid rent and the management expenses paid in comparison with the above payment is set off by the E University’s account; and (c) the school juristic person’s account is divided into the school juristic person’s account into the school juristic person’s income and the income of the school juristic person that belongs to the school juristic person’s expenses cannot be seen as an unlawful execution of the school accounting expenses.

(3) If the financial standing of 0 aggravated, the plaintiff and E-university should provide financing in accordance with the financing supplement agreement (Article 30 of the concession agreement for financing of students E-university under the agreement on January 29, 2008). This provision on December 31, 2016 with B on December 31, 2016, the payment period of KRW 1.3 billion per annum, overdue interest rate of KRW 8% per annum, KRW 15% per annum, and KRW 14,357,00 per annum, but it was not entirely repaid by 2018. In light of the following circumstances, the above amount of financing of 0' B is more than half of the financing burden, but there is no possibility that the defendant's demand to recover the above amount of financing of KRW 400 million can not be deemed to have been made by the defendant to have been found to have been found to have been found to have been found to have been found to have been guilty by the court below's judgment of 200 million.

4) Reasons for disposition as to No. 4 items annually

A) The plaintiff's assertion

On January 2, 2017, the amount paid as litigation costs for overdue wages in the E-university is equivalent to personnel expenses necessary for school operation under Article 13(2)1 of the Enforcement Decree of the Private School Act or other expenses directly required for school education under Article 13(2)5 of the same Enforcement Decree, and thus, the portion of the instant disposition No. 4 points is unlawful by mistake of facts or misapprehension of legal principles.

B) Determination

In accordance with Article 29 of the Private School Act and the Enforcement Decree of the same Act, the accounts of school juristic persons are divided into the accounts of school juristic persons and the accounts of juristic persons, and the revenues of school expenses are strictly limited to those of the school accounts that are not transferred or lent to other accounts, so if the accounts of school expenses are used for other purposes, embezzlement is established (see, e.g., Supreme Court Decision 2002Do235, May 30, 2003). This also applies to cases where the funds belonging to the accounts of school expenses under the Private School Act are used for other accounts of school expenses of the same school that belong to the same school juristic person (see, e.g., Supreme Court Decision 2001Do1779, May 10, 2002). Meanwhile, Article 13(2) of the Enforcement Decree of the Private School Act provides that the expenses of school expenses are personnel and goods expenses necessary for school operation (title 1); expenses for research expenses of school teachers; expenses for school teachers; expenses for school education expenses and equipment directly necessary for school expenses (No 3).

In light of the above legal principles and provisions as seen earlier, the above evidence and evidence No. 13 were revealed in light of the purport of the entire pleadings, the Defendant’s judgment on the part of the instant disposition No. 4 points out of the grounds for disposition (unfair execution of corporate expenses) is justifiable, and the Plaintiff’s assertion disputing this point is without merit.

(1) In light of the purport of Article 13(2) of the Enforcement Decree of the Private School Act, it is reasonable to strictly interpret the purpose and purpose of the item of expenditure for school expenses according to the meaning of the language and text. Although the litigation costs related to overdue wages are acknowledged as partially related to the operation of the school, they cannot be deemed as " personnel expenses necessary for school expenses" or "expenses directly required for school education," and thus, they cannot be deemed as "expenses for school expenses." The reasons are as follows: ① The authority of appointment and dismissal of teachers and the liability for payment of salaries for school expenses, etc. shall be attributed to the school juristic person which is the legal entity, and the liability for payment of overdue wages shall be attributed to the school juristic person which is the legal entity, as well as the liability for payment of overdue wages and the litigation expenses due to the loss of the relevant lawsuit shall be ultimately disbursed from the school juristic person's expenditure budget of the school juristic person [Article 29 of the Private School Act and Article 25 of the Enforcement Rule of the Private School Act shall be included separately from the school juristic person's expenditure budget of the school juristic person.

(2) On January 2, 2017, the Plaintiff spent 7.7 million won as litigation costs for the case of the money and other valuables in arrears to AB, a law firm, from the accounts of school expenses. This constitutes an unlawful execution of the accounts of school expenses in violation of the accounting principles under the Private School Act, with the payment of the items to be executed in the accounts of school expenses exclusively from the accounts of school expenses.

5) Reasons for disposition on the cadastral matters No. 6 annually

A) The plaintiff's assertion

B It is nothing more than a supplementary explanation of the relevant regulations, etc. in the event that there is an agenda related to the accounting of the pertinent university as an accountant and the founder of the E University, and there is no interference with the deliberation and resolution by the board of directors. Therefore, part of the designated matters in the instant disposition is illegal as a mistake of facts

B) Determination

According to Article 14, 15, and 16 of the Private School Act, not less than seven directors and not less than two auditors as an executive officer of a school juristic person shall be appointed by the articles of incorporation, one of the directors shall be appointed, and the board of directors of a school juristic person may consist of only the directors, and the auditor may attend and speak at the board of directors, and when the chief director or the director has an interest with the school juristic person, the chief director or the director shall not participate in the decision on the relevant matter. In addition, Article 22 subparagraph 1 of the same Act provides that a person falling under Article 33 of the State Public Officials Act shall be disqualified as an executive officer of a school juristic person, and Article 33 subparagraph 4 of the State Public Officials Act provides that "the person in whose case two

In light of the language and purport of the above provision, the above evidence and the evidence No. 14, which can be seen by comprehensively considering the purport of the entire pleadings, the defendant's judgment on the part of No. 6 points out of the grounds for disposition of this case (in the case of the founder B's improper involvement in the board of directors), is just, and the plaintiff's assertion disputing this is without merit.

(1) B became final and conclusive in the criminal judgment in 2014 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against the Plaintiff, etc., and was subject to the suspension period from May 28, 2015 to May 28, 2020, and the approval of taking office was revoked on May 28, 2015. On February 1, 2018, the Plaintiff was charged with embezzlement, etc. for the victim and was investigated by the investigative agency. As such, B cannot be deemed to have any authority to attend the board of directors insofar as the approval of taking office was revoked as the executive officer of a school juristic person is disqualified and the approval of taking office is not the Plaintiff’s regular executive officer.

(2) Nevertheless, from February 17, 2016 to June 20, 2018, B continuously attended the Plaintiff’s board of directors at a total of 17 times and presented a supplementary explanation or opinion directly or indirectly on important matters, such as lease of basic property for profit and establishment of university restructuring regulations, etc., or on accounting agenda, as the former president and founder. At the time, the Plaintiff appears to have received the attendance of B’s board of directors under the consent of the Plaintiff’s spouse, the president of the board of directors at the time.

(3) Regardless of whether there is any conflict of interest between B and the corporation directly or indirectly related to B and the Plaintiff among the multiple items of the board of directors present without any authority, it appears that B, the former president, was unable to attend the board of directors, and thus, it appears that the free exchange of opinions between the board of directors was somewhat difficult. Accordingly, it is highly probable to deem that there was a considerable risk that the free process of the deliberation and resolution by the board of directors would be hindered. As such, it is reasonable to deem that the Plaintiff was practically allowed to allow B, who is not an officer qualification, to unfairly

6) Reasons for disposition on the cadastral matters No. 10 annually

A) The plaintiff's assertion

In most cases, students of the E University have resided in a dormitory and conducted evaluations to prepare for the acquisition of qualification certificates at the weekends, and M&D, the president, also worked at the weekends and disbursed expenses incurred in performing duties while managing and supervising students. As such, the part regarding the designated items No. 10 of the instant disposition is unlawful as a mistake of facts.

B) Determination

In full view of the provisions of Article 29(6) of the Private School Act and Articles 12 and 17(1) [Attachment Table 1] of the Regulations on Special Cases concerning the Financial and Accounting Rules of Private School, the president of a school foundation and the head of a school shall not spend funds in excess of the fund budget or use funds for any purpose other than the purpose set forth in the fund budget, income or property belonging to school expenses shall not be transferred to other accounts or used unlawfully for any purpose other than the purpose set forth in the fund budget, and the "business promotion expenses" shall be limited to the use of funds for the management of the school foundation's business as expenses incurred particularly in the implementation of the business. Meanwhile, according to Articles 9 and 10 of the "Guidelines on the Management and Use of the Corporate Card of the E university", business promotion expenses shall be subject to prior approval of the secretary general, and the corporate card shall be used for the personal purpose related to the business of the university, and it shall not be used for the personal purpose, and the revenue or property belonging to the school expenses shall be used considerably beyond the jurisdiction.

In light of the language and purport of the above provision, the above evidence and the evidence Nos. 15 and 16, which can be seen by comprehensively considering the purport of the entire pleadings, the defendant's judgment on the part concerning the matters pointed out in No. 10 (the execution of the general business promotion expenses) among the disposition grounds of this case is justifiable, and the plaintiff's assertion disputing this is without merit.

(1) On June 11, 2016, M of E University: (a) paid 11,600 won (user: AC) using a corporate card without any justifiable evidence as to the purpose of use related to the promotion of business affairs on Saturdays; and (b) around that time, M of E University executed totaling KRW 30,204,596 on a total of 387 occasions in the name of business promotion expenses without evidence as to the inevitable purpose of use on Saturdays and Sundays from that time to July 29, 2018.

(2) However, in light of the following circumstances, i.e., (i) there is no objective evidence of the use of Saturdays and Sundays Corporation Card repeatedly conducted over two years; (ii) the use place of the above Corporation Card seems to have been widely distributed not only in the case of Pakistan, the location of E University, but also in the case of the president M’s residence, etc.; (iii) the size and use place of the amount of use and the health care place which is deferred to the size and use place; and (iv) most of the amount of use are used for the purpose and purpose related to the personal daily life of the president, it is reasonable to view it to have been used arbitrarily for any purpose other than for legitimate management and promotion.

7) The reasons for the disposition of the cadastral matters No. 11 annually;

A) The plaintiff's assertion

The corporate card of B, the former president and the former president, was inevitably used at the end of the week, and B was a part-time lecturer of E University, so it was legally possible to use the founder's room. Of the reasons for the instant disposition, the portion of the points pointed out in this case is unlawful by mistake of facts.

B) Determination

According to Article 29 (6) of the Private School Act, revenues or property belonging to accounts for school expenses shall not be unlawfully used for the purpose other than transferring to, lending to, or lending to other accounts. According to Articles 4 and 43 of the Financial and Accounting Rules of private school institutions, financial affairs and accounts of corporations and schools shall be operated in a sound manner, and shall not be contrary to the obligations and purposes of establishment of the State policies and society as public institutions, and fundamental property for education and general property for school which belong to schools shall be the head of the school.

In light of the language and purport of the above provision, the above evidence and evidence No. 17 as well as the following circumstances, which can be seen by comprehensively considering the purport of the entire pleadings, the defendant's judgment as to the part of the 11 points out of the disposition grounds of this case (the illegal use of the corporate card and school facilities in the founder B) is justifiable, and the plaintiff's assertion of this issue is without merit.

(1) The President of E University M shall deliver a corporate card with the authority to use only to B who is his/her spouse, and B shall settle the amount of KRW 189,00 on May 23, 2016 and AD Internet website without evidentiary documents, such as the purpose of use. From around that time to July 31, 2018, the sum of KRW 31,401,892 on the pretext of business promotion expenses shall be 414 times in total as business promotion expenses without distinguishing the end of July 31, 2018. However, it is reasonable to view the amount of the corporate card as being used for 10 years or more, i.e., objective evidentiary documents (business trip, internal decision, etc.) on the use of the said corporate card for 10 years or more, 20 years or more, 10 years or more, 20 years or more, 20 years or more, 10 years or more, 20 years or more, 10 years or more, 20 years or more.

(2) In addition, even after the resignation of the president, E University changed only the name of the second floor U room of this Sub-section, which had been used as the president’s office, from April 2015 to August 2018, and continued to use the name from April 2015 to August 2018. However, for B, for the resignation of the president of E University and only part-time instructors at that time, there is no reasonable ground to provide B with the office, the use of which is limited by the Plaintiff’s private property, for the purpose of business, as the founder’s personal use. The provision of personal office space for B cannot be evaluated as a legitimate business performance even if he/she is in office as the founder, even if he/she is in office as the president.

8) Reasons for disposition on the cadastral matters No. 12 annually

A) The plaintiff's assertion

The term “university restructuring regulations” of the E University is merely to prepare a procedural framework for restructuring in order to comply with the Ministry of Education’s request for the consolidation of departments and the adjustment of recruitment units, and the right to decide school administration cannot be deemed to infringe upon the president’s authority through the above provisions. Furthermore, even according to the provisions on the restructuring of universities, the Plaintiff cannot be deemed to infringe on the president’s authority because the president has the authority to decide all matters related to the restructuring as the chairperson of the University Restructuring Deliberation Committee. Therefore, the portion pointed out in the grounds for disposition in this case is erroneous.

B) Determination

In full view of the provisions of Articles 16, 19, and 20-2 of the Private School Act, Articles 6, 15, and 27 and 85 of the Higher Education Act, the board of directors shall deliberate and resolve on the matters concerning the budget, settlement of accounts, loans, and the acquisition, disposal, and management of property of the school juristic person, the matters concerning the amendment of the articles of incorporation, the matters concerning the merger or dissolution of the school juristic person, the matters concerning the appointment and dismissal of officers, the matters concerning the appointment of the heads and teachers of the private schools established by the school juristic person, important matters concerning the management of the private school established by the school juristic person, profit-making matters, other matters concerning the private school established by the school juristic person, the board of directors shall represent the school juristic person, perform duties prescribed by the articles of incorporation, exercise overall control over the affairs of the school juristic person, and deal with matters delegated by the board of directors or the president.

In light of the language and purport of the above provision, the above evidence, evidence Nos. 16, and evidence Nos. 18, which can be seen by comprehensively considering the purport of the entire pleadings, the defendant's judgment on the 12 points out of the grounds for disposition of this case (the violation of president's authority on the administration of school affairs by an executive officer of a corporation) is just, and the plaintiff's assertion disputing this is without merit.

(1) At the time, according to the direction of M, the Plaintiff, at the time, prepared “university restructuring regulations providing for the standards, procedures, etc. for the restructuring of universities, such as the adjustment of the fixed number of admission to recruitment units belonging to the authority of the president of E University, the establishment, abolition, and consolidation of recruitment units, the coordination of curriculum, etc., and notified the E University on February 28, 2016 by the resolution of the board of directors, and required the E University to apply and implement such regulations.

(2) However, the Plaintiff’s above act appears to have unilaterally enacted and amended school regulations, namely, ① school regulations may be enacted and amended by the head of a school, and the establishment of a major and the fixed number of students, etc. may be stipulated in school regulations, but the Plaintiff’s board of directors appears to have unilaterally enacted regulations on the standards for restructuring of school regulations, which are the matters subject to school affairs administration belonging to the school affairs administration under the direction of the president, without due process for gathering opinions from the members of the relevant school. ② In ordinary cases where a university is applied to enact and amend regulations requiring resolution by the board of directors, the procedures for the president to request the board of directors to prepare and deliberate and resolve a proposal. However, in light of the fact that the Plaintiff’s selection of departments subject to restructuring without prior consultation with the school’s side, the recruitment rate of students among the existing departments would be less than 85% average for the last two years, employment rate is less than 50% for the last two years, and the president’s authority to autonomously regulate and coordinate the Plaintiff’s school affairs is difficult.

(d) Whether the request for disciplinary punishment against employees, etc. who are not private school teachers is illegal.

1) The plaintiff's assertion

With respect to the part on the request for disciplinary action during the disposition of this case, each notice (refluence) disposition in B, director P, director P, director N corresponding to part-time instructors, director Q. Q. 3, and 4, respectively, inasmuch as there is no legal basis for the defendant to request disciplinary action against employees, etc. who are not teachers of private schools, is unlawful (the plaintiff's assertion about the same nature as the year is omitted, but it is deemed that it is included in the plaintiff's assertion to the same purport).

2) Determination

Article 54 (3) of the Private School Act provides that when a teacher of a private school falls under the grounds for dismissal or discipline as provided in this Act, the competent authorities may request the person who has authority to appoint the teacher concerned to dismiss or discipline him/her. In such cases, Article 54-2 (1) of the same Act provides that "If the head of the relevant school falls under any of the following subparagraphs, the competent authorities may request the person who has authority to dismiss the head of the relevant school. In such cases, the person who has authority to whom a request for dismissal has been made shall comply with it unless there are any special reasons." In such cases, Article 58 (1) 1 provides that "If the person who has authority to appoint the teacher falls under any of the subparagraphs of paragraph (2) of the same Article, the provisions of subparagraph 2 of the same Article provide that "when the teacher violates education-related Acts or orders issued under this Act or other Acts and subordinate statutes related to education," Article 2 of the Private School Act provides that "when the teacher violates orders issued under this Act or orders issued under other Acts and subordinate statutes related to the Private School Act, he/she shall not apply the same Act:

In light of the language and purport of the above provisions, the competent authorities can only request the person who has the authority to appoint and dismiss for disciplinary action against the ‘part-time lecturer' and ‘head of each school' who are in the position of teachers in guarantee of the status of private school, and there is no other legal basis for the defendant to demand disciplinary action against the general staff. In addition, the provisions of Articles 5(1) and 60(1) of the Higher Education Act, Article 48 of the Private School Act, which provide that the defendant is a legal basis for the disposition of each notice (regument) shall be limited to the provisions concerning general duties guidance and supervision of private schools or school juristic persons by the competent authorities, and it is inappropriate to interpret them as the regulations concerning the request for disciplinary action by general staff, which deviates from the interpretation of the language and text. Article 19 of the Audit Regulations of the Ministry of Education, which is merely an instruction of the Ministry of Education, does not have any legal effect to externally bind the people or the court. Thus, it cannot be a legitimate ground for the disposition of the request for disciplinary action

Therefore, the defendant cannot make any request for disciplinary action against the administrative staff in charge of the administrative affairs and other affairs of the school. Thus, it is not possible to punish the administrative staff of the plaintiff or the school. The disposition of notification related to the matters pointed out in the No. 1, which is the request for disciplinary action against the plaintiff or the executive staff of the school, N(N(N) of the Director of the Industry-Academic Cooperation Foundation, Q and R(N), Q and P, the notification related to the matters pointed out in the No. 2, the request for disciplinary action against P(n.b., disciplinary action), and notification related to the matters pointed out in the No. 3, the year of request for disciplinary action against Q(n., a warning), and notification (n., a warning), the disposition related to the matters pointed out in the No. 4, the request for disciplinary action for disciplinary action against Q(S.) is unlawful without legitimate legal basis. The plaintiff's assertion pointing this out within the above scope of recognition (the plaintiff's ground for disciplinary action against the defendant's status as a teacher B is without merit.

On the other hand, in the event that the plaintiff does not comply with the request for disciplinary action against the plaintiff's employee, there is a significant disadvantage in the relevant laws and regulations, and there is a legal interest in seeking the cancellation thereof against the plaintiff. On the other hand, the defendant's defense against the safety that "the above notification does not cause any disadvantage to the plaintiff, and thus the disposition is not recognized."

E. Whether a request for heavy disciplinary action against the President of E University is unlawful

1) Whether grounds for disciplinary action exist

A) The plaintiff's assertion

Among the dispositions in this case, there is no grounds for disciplinary action against the president M with respect to the matters pointed out in 1, 2, 10, 11 of the year, and the part of the request for heavy disciplinary action against M should be revoked illegally.

B) Determination

In full view of the above evidence and the overall purport of the oral argument, M was recognized as follows. ① With respect to the instant disposition, M was sentenced to a suspended sentence of imprisonment due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), the crime of occupational breach of trust, and the crime of violating the Employment Security Act in the criminal judgment prior to remand. ② M was engaged in an improper execution of approximately KRW 2.4 billion from the school expenses accounts, and was engaged in borrowing KRW 50 million in exchange for the appointment of faculty members, and was unjustly executed from the school expenses accounts by unfairly concluding a contract for the production of contents for student education, and was deemed to have executed KRW 60 million from the school expenses accounts. Such counter-matterss are sufficiently recognized by the evidence submitted in the instant litigation proceedings. ③ Such acts of M are deemed to have aggravated school finances in violation of relevant Acts and subordinate statutes, such as the Private School Act, and constitute grounds for disciplinary action under Article 64-2(1) of the Private School Act.

In light of the above circumstances, the defendant's request for heavy disciplinary action against M is recognized, and the defendant's request for heavy disciplinary action against M is justifiable to consolidate all the points pointed out on October 11, 200 per year to the plaintiff for dismissal of the president. The plaintiff's argument disputing this request is without merit.

2) Whether the statute of limitations is unlawful due to the intent of the disciplinary action

A) The plaintiff's assertion

No. 3 Of the matters pointed out 1, the "matters concerning borrowing without permission from the competent authorities" is more than 3 years of the statute of limitations, and cannot be used as a ground for the disposition. This part of the disposition based on this premise is illegal.

B) Determination

Even if a single disciplinary measure is taken in regard to various grounds for a disciplinary measure, in cases where the legitimacy of the remaining grounds for a disciplinary measure is recognized even if some of them are not legitimate, such a measure shall not be deemed unlawful (see, e.g., Supreme Court Decision 2010Du15674, Dec. 9, 2010). Moreover, any misconduct for which the statute of limitations has expired may be deemed as consideration materials for a disciplinary measure (see, e.g., Supreme Court Decision 94Da52294, Sept. 5, 195).

In light of the aforementioned evidence and the overall purport of oral argument, the Plaintiff’s assertion on this part is without merit, in light of the legal principles as seen earlier. (iii) Matters concerning loans without permission from the competent authorities among the disposition in this case were issued as promissory notes with the face value of KRW 1.5 billion on December 31, 2013 and July 29, 2014, each of which date of issuance occurred. [2] However, each of the above violations cannot be deemed as cases where money and valuables and entertainment are received, and thus, the three-year statute of limitations as stipulated in the main sentence of Article 66-4(1) of the Private School Act is applied. As such, the instant disposition was conducted on March 26, 2019, where the three-year statute of limitations elapsed. (4) It is difficult to recognize that the instant disposition was made on March 3, 2019, and that the instant disposition was made on the grounds that the Defendant’s request for disciplinary action was not included in the total amount of punishment for breach of trust (excluding the foregoing intellectual property breach of trust). (2)

3) Whether the discretionary authority is deviates or abused

A) The plaintiff's assertion

In light of the degree and circumstances of the plaintiff's violation, the defendant's request for heavy disciplinary action against M is illegal as violating the principle of proportionality because of excessive excessive disposition.

B) Determination

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the grounds for the disposition, the public interest purpose to be achieved by the relevant disposition, and the relevant circumstances (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

Examining the following circumstances based on the aforementioned evidence and the purport of the entire argument, in light of the legal principles as seen earlier, the Defendant’s request for dismissal of heavy disciplinary action against president M pursuant to Article 60(1) of the Higher Education Act and Article 54-2(1) of the Private School Act is too harsh and thus violating the principle of proportionality, and it cannot be deemed unlawful. Accordingly, the Plaintiff’s assertion on the premise is without merit.

(1) A broad discretion is granted to the Defendant regarding the implementation of the fact-finding survey of this case and the establishment of its evaluation criteria. Unless there are special circumstances to deem that the criteria or policies established by the Defendant are objectively unreasonable in light of relevant statutes or the purpose and purpose of the structural reform of universities and the resolution of irregularities, etc., the Defendant’s determination is right to respect as much as possible, and it cannot be determined that such a disposition deviates from the scope of discretion or abused discretion.

(2) Of the instant disposition, the president’s motive, content, degree of misconduct, result of infringement of legal interests, and the legislative intent of relevant laws and regulations regarding the matters pointed out in 1, 2, 10, 11 annually among the instant disposition, the possibility of criticism against the violation of M by the president, organizedly and repeatedly, does not seem to be negligible, and accordingly, substantial damage to the school side, the student, and the faculty members.

(3) In order to improve the quality of university education and educational environment, the instant disposition is to ensure the financial soundness of private schools, to protect the public nature and autonomy of private school education, and to promote the sound development of private school education. Since such public interest value and necessity cannot be deemed to be less than the private damage of the plaintiff or M, it is difficult to evaluate the heavy disciplinary measure against M as a violation of the principle of proportionality. Other special grounds to see that the instant disposition is considerably unreasonable in light of the content of the relevant violation and the content and purport of the relevant statutes, etc.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.