Plaintiff 1 and three others (Attorney Park Jae-hoon, Counsel for the plaintiff-appellant)

Gyeonggi-do Superintendent of the Provincial Office of Education (Law Firm Dongyang, Attorneys Kim Jong-he et al., Counsel for the plaintiff-appellant)

March 2, 2011

Changwon District Court Decision 2010Guhap588 Decided July 22, 2010

1. Revocation of a judgment of the first instance;

2. The defendant's disposition rejecting the approval of taking office of a same school foundation on November 11, 2009 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. A same-sex school foundation (hereinafter “ same-sex school”) is a school foundation that establishes and operates private female high schools established on December 30, 1964.

(b) Holding meetings of the board of directors of the same-sex driving school;

(1) On July 3, 2009, the official text called the 411th board of directors of the same-sexd Private Teaching Institutes (hereinafter “the instant board of directors”) was sent to each director of the same-sexd Private Teaching Institutes. The said official text explicitly stated the agenda item as “cases of corporate director preference and dismissal,” but did not state the personal details of the candidates to be newly appointed as directors.

(2) Meanwhile, on July 3, 2009, Nonparty 1, who was a director of a same-sex driving school, submitted a letter of resignation from office to the president of the same-sex driving school, and the said resignation was received at the same-sex driving school around that time.

(3) On July 14, 2009, the board of directors of the instant case was held. Nonparty 2, 3, 4, 5, 6, and 7, excluding Nonparty 1 who resigned prior to the holding of the board of directors, were present at the said board of directors.

(4) Among the directors of the same-sex driving school on July 27, 2009, those who were scheduled to terminate the term of office, including Nonparty 1, who had resigned from office in advance, were six of “Non-party 2, 4, 5, 6, and 7” including Non-party 1, and the board of directors of the instant case rejected the reappointment of five other than Non-party 7 among them. Accordingly, Non-party 3 proposed that the above board of directors appoint a new 6 director, and agreed with Non-party 3, 4, 5, and 64 regarding the said proposal.

(5) Nonparty 3 recommended the Plaintiffs 4, Nonparty 8, and 96 (hereinafter “Plaintiffs, etc.”) as new directors. Nonparty 7 and Nonparty 2 asserted that “In order to appoint a new director, it is reasonable to proceed with the appointment procedure at a new board of directors after undergoing the examination of documents on candidates.” However, Nonparty 3 asserted that “the appointment of a new director is reasonable.” However, Nonparty 7 and Nonparty 2 did not oppose the other four directors, the board of directors of the instant case was appointed as

(6) Nonparty 2 and Nonparty 7 did not sign the meeting minutes of the instant board of directors, and the said meeting minutes were recorded in seven fixed number of directors, seven registered directors, six participating directors, and one non-indicted director.

C. Determination on whether the defendant's appointment of executive officers is impossible

(1) On September 24, 2009, Nonparty 3 prepared an application for approval of taking office with the content that the Plaintiffs, etc. take office as a director of a same-sex teaching institute and submitted it to the Defendant (hereinafter “instant application for approval”). Nonparty 3, not the official seal of the president of the same-sex teaching institute, affixed a private seal to the said application.

(2) On November 11, 2009, the Defendant rejected Nonparty 3’s application for approval of taking office on the following grounds (hereinafter “instant disposition”).

◎ 사립학교법 제16조 제1항 및 제28조 제1항 위반

According to Articles 16(1) and 20(2) of the Private School Act, appointment and dismissal of officers shall be deliberated and decided by the board of directors to obtain approval from the competent authorities for taking office. According to Articles 28 and 12 of the Act, where a school foundation intends to sell, donate, exchange, waive rights, etc. fundamental property, it shall obtain permission from the competent authorities. Although the school foundation’s land site, teacher, physical training place, or research facility, etc. used directly for school education, can not be sold or offered as security, Nonparty 2, as of July 3, 2008, shall transfer to Nonparty 3 the basic property of the foundation of the same teaching institute for the school foundation and the basic property of the school, etc., and at the time of signing a contract, Nonparty 2, the president, after registering Nonparty 3 and 4 on the day of signing a contract with Nonparty 2, the director of the private teaching institute, after consultation with Nonparty 2, the director of the private teaching institute and Nonparty 2, the head of the non-party 1 and Nonparty 2, the same-party 3 and the auditor.

As above, the agreement on the appointment of executive officers in violation of Article 16(1) of the Act and the agreement on the transfer or acquisition of basic property in violation of Article 28 of the Act, among the terms of the “contract on the transfer or acquisition of a same-sex teaching institute” entered into between Nonparty 2 and Nonparty 3 at the time, shall be null and void as a matter of course, and a political party that a new director was appointed

would not be required.

◎ 사립학교법 제17조 제3항 위반

Article 17 (3) of the Private School Act provides that "the director shall notify each director of the purpose of the meeting by specifying the purpose of the meeting" requires the concreteness to the extent that the director can clearly understand what the contents of the meeting to call the meeting. However, it is not reasonable to specify only the title (the case of the corporate director's selection and dismissal) of the agenda in the 411 draft of the same teaching institute for the school foundation ( July 3, 2009) and not the specific personal details.

However, considering the statements and minutes of the former president, Nonparty 2 and the parties concerned, even if only the title of the agenda is specified and the detailed personal details were not provided, the reappointment of the directors at that time can be deemed to correspond to the initial agenda because the directors are well aware of the personal information of each director subject to reappointment. In addition, Nonparty 2 determined that the former president falls under the grounds for exclusion in the case of an executive director's deferred appointment, and that the first agenda was rejected as a result of deliberation and resolution under the appointment of the Speaker pro tempore (Non-party 6).

However, on the following agenda, Nonparty 3 recommended six new candidates for a new director, and proposed that some of the directors be deliberated and decided at the next session without going through a prior examination. However, the non-party 3 did not have any specific personal information of the directors recommended by the new director. However, the non-party 3 did not have any difficulty in operating the school due to the time strings and the rejection of the present consecutive terms. If re-convened after the examination of documents by the new photographic document, it would be inappropriate for the time to re-convene. Accordingly, the chairman of the Speaker who proposed to deal with the board of directors would be referred to voting by the said board of directors to decide whether to elect a new director, and as a result, the resolution that the board of directors elected a new director was passed, and the agenda that Non-party

In this process, six new directors recommended by non-party 3 are new agenda items, and new agenda items shall be notified by the chief director seven days prior to the meeting purpose in accordance with Article 17(3) of the Act, and it shall be subject to deliberation and resolution at the next meeting or by all the directors in accordance with the proviso of Article 17(3) of the Act, and the same shall not apply when all the directors request the holding of the board of directors.

If so, the 411th meeting of the board of directors intends to deliberate and resolve on the agenda that is additionally recommended by the non-party 3 to be a candidate for a new director, one director (non-party 1) was not present at the meeting on the same day, and sufficient deliberation data to be opposed by the two non-party 2 and 7 among the participating directors.

The decision of deliberation and resolution without the Do is in violation of Article 17 (3) of the Act.

(d) Articles of association of same-sex driving schools;

It is as shown in the attached Form.

[Ground of recognition] Unsatisfy, entry of Gap 1 through 8 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiffs' assertion

(A) The defendant's approval of taking office is a binding act that is not only a supplementary legal act regarding the appointment of executive officers of a same-sex driving school, and thus, it is necessary to approve the application unless there is a special reason not to refuse the application of this case.

(B) The subject matter of the instant board of directors was “the selection and dismissal of corporate directors.” However, the instant board of directors was held on July 14, 2009, and the majority of the directors at that time was held before the expiration of the term and 13 days before the expiration of the term, and was in an open relationship with the board of directors. At that time, the directors present at the board of directors included the appointment of new directors on the agenda of “the appointment of corporate directors” and the appointment of new directors at that time was rejected in entirety.

On the other hand, the relationship between the non-party 3 and the non-party 2 at the time of the resolution of the board of directors at this case, and the non-party 2, the president, provided the personal details of the new directors to the non-party 2, but did not include the personal details of the new directors in the convocation of the board of directors, so the defendant's assertion that the new directors' election agenda was not included in the subject of the board of directors' resolution at the time of the meeting is improper.

Even if there is a procedural defect that did not properly notify the purpose of the resolution of the board of directors of this case, it is reasonable to view that the above notice of convocation was cured in accordance with the proviso of Article 17(3) of the Private School Act, as long as the directors were not present at the meeting of the board of directors, but attended with the purpose of appointing and dismissing directors, and the non-party 7 and the non-party 2 who had an opposing interest participate in voting as to whether to appoint a new director.

(C) Meanwhile, Nonparty 2 filed the instant application on behalf of Nonparty 2, who was the chief director of Nonparty 3, with his private seal affixed to the pertinent private person. While Nonparty 2 was unable to affix the school juristic person’s seal with a seal affixed to the school juristic person, it is based on the authoritative interpretation of the Ministry of Education, Science and Technology that the remaining director’s request for approval of taking office by acting for the chief director when the vacancy of the chief director and the directors occur, there is no defect.

In addition, the defendant did not raise any question as to whether the non-party 3 applied for taking office of this case on behalf of the same-sex teaching institute at the time of the disposition of this case, and even if the grounds for the disposition of this case were not included, it is against the principle of trust, the principle of speech, and the principle of undertaking.

(2) The defendant's assertion

(A) In light of the purport of the relevant statutes, such as the Private School Act, the approval of taking office of an educational foundation is not a binding act, but a discretionary act. Therefore, if a resolution of the board of directors on the appointment of an officer violates the relevant statutes, it is lawful to refuse to grant

(B) Nonparty 2 and Nonparty 3 entered into a contract for transfer and acquisition of a same-sex teaching institute and then appointed the Plaintiffs, etc. to a new director as a means of implementing the said contract, is based on a contract for trading basic property of an educational foundation without permission from the competent agency. Thus, it is null and void against Article 28(1) of the Private School Act, which is a mandatory law, and the resolution of the board of directors of this case, which is invalid,

(C) The main text of Article 17(3) of the Private School Act provides, “When convening a board of directors, it shall be notified to each director of the board of directors by specifying the purpose of the meeting at least seven days prior to the meeting.” The purpose of the legislation is to enable the board of directors to effectively deliberate and resolve on such matters. In particular, in light of the high level of public nature of the directors of the school juristic person in respect of dismissal of directors or appointment of new directors, detailed information about new directors should be notified to each director at least seven days prior to the meeting. A school juristic person shall be subject to sale like private property, and a school juristic person shall be appointed as a director of the school juristic person without any substantive verification procedure and shall be appointed as a director of the school juristic person without any substantial deliberation to prevent the high level of public nature of the directors of the school juristic person, the requirements for “the

However, even though the board of directors of the same-sex driving school prior to the resolution of the instant board of directors, if new directors are selected and appointed, the board of directors of the instant case did not specify the agenda item as the subject matter of the meeting, and did not specify the election of new directors as the subject matter of the meeting. In other words, the agenda item of the instant board of directors did not constitute an agenda item of the board of directors from the beginning regarding the election of new directors, since the resolution of the instant board of directors violated the convocation procedure under Article 17(3) of the Private School Act.

As to this, the Plaintiffs asserted that the resolution of the board of directors of this case was lawful as long as all the directors were present at the board of directors pursuant to the proviso of Article 17(3) of the Private School Act, but Nonparty 1 did not attend the board of directors, and Nonparty 7 and Nonparty 2 opposed to the resolution of the board of directors, the proviso of Article 17(3) of the Private School

(D) Furthermore, Article 19(1) and (2) of the Private School Act provides that "the chief director shall represent a school juristic person, if the chief director is vacant or is unable to perform his duties due to an accident, he shall be governed by the articles of incorporation, and if the articles of incorporation do not exist, another director shall act on behalf of the chief director by the election of the board of directors." According to Article 28(2) of the articles of incorporation of the same-sex driving school, "the director appointed by the board of directors shall act on behalf of the chief director when the chief director is vacant, and the person appointed as the acting chief director under paragraph (3) of the same Article shall act on behalf of the chief director without delay, and the same-sex driving school shall take the procedure for election of the chief director without delay." However, the same-sex driving school applied for this case where Nonparty 3 applied for the approval of taking office on his personal qualification when the term of office of the former chief director was expired.

(E) Meanwhile, according to Article 14(3) of the Private School Act, a private school corporation should include more than two open directors, but the same-sex teaching institute did not include an open director appointed according to the procedures for appointment of open directors and filed the instant application.

(F) Comprehensively taking account of the above, the resolution of the board of directors of the instant case is null and void in violation of the Private School Act, and the instant disposition is lawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The legal nature of the act of allowing school juristic person to take office and the issues of this case

(A) The approval of the appointment of a supervisory authority for an officer of a school foundation under Article 20(2) of the Private School Act is an incidental administrative act that completes the legal effect by supplementing the act of appointing an officer of the school foundation, and the purport of the above provision is to exclude the appointment of an officer who is subject to the grounds for restrictions such as the grounds for disqualification of an officer under Article 22 of the Private School Act. Thus, the supervisory authority must approve the application for taking office unless such grounds for restrictions exist, and shall not refuse such approval for other reasons. The object of the approval of the appointment of an officer of the school foundation is the resolution of the board of directors (see Supreme Court Decision 92Nu5461 delivered on September 22, 192, etc.).

However, the approval of the appointment of an executive officer of a school juristic person under Article 20 (2) of the Private School Act cannot take any legal effect on the ground that the approval of the appointment of an executive officer of the school juristic person cannot take any effect on the ground of its nature regardless of the basic act, by itself. In a case where the act of appointing an executive officer of the school juristic person which is a basic act is not established or null and void, even though the approval of the appointment of an executive officer was granted by the supervisory authority, such appointment cannot be deemed null and void (see, e.g., Supreme Court Decision 86Nu152, Aug. 18, 197). Thus, it is reasonable to view that the supervisory authority

(B) Therefore, the legality of the instant disposition depends on whether the instant disposition itself constitutes a case in which the appointment of an officer was not established or null and void due to serious defects, such as violation of laws and regulations, in the instant resolution act itself, which is the basic act of the instant disposition.

(2) Determination as to whether rejection of approval of taking office on the ground of violation of Articles 16(1) and 28(1) of the Private School Act is justifiable

(A) The defendant asserts to the purport that the resolution of the board of directors of this case was legitimate since the resolution of this case was made by the board of directors in violation of Articles 16(1) and 28(1) of the Private School Act, since the non-party 2, who was the chief director of the same-sex driving school on July 3, 2008, transferred all property including the basic property of the same-sex driving school to the non-party 3 who is a director, and registered the non-party 3 and 4 as directors immediately, and the non-party 3, who was selected and appointed as a new director and auditor upon the resignation of the non-party 2, and the non-party 3 concluded a contract with the non-party 2 to pay 2.4 billion won as consolation money.

(B) With regard to this, except for the statement of evidence No. 1 and the statement of evidence No. 1, the pertinent board of directors was convened to conclude a contract for the transfer and acquisition of fundamental property of the same-sex teaching institute between Nonparty 2 and Nonparty 3, and there is no evidence to acknowledge the fact that the resolution of the instant board of directors was made.

(5) Even if non-party 2 and non-party 3 concluded a contract for the transfer and acquisition of the above contents, it is difficult to accept the defendant's assertion that the status of the plaintiffs, etc. is naturally granted pursuant to the above contract, since it was not a resolution of the board of directors but a resolution of the above contract, it is hard to accept the defendant's assertion that it violated Article 16 (1) of the Private School Act. ② The approval of the appointment of an officer of the school foundation under Article 20 (2) of the Private School Act is a supplementary administrative act that serves the completion of the law by supplementing the appointment of an officer of the school foundation, and thus, it is difficult to recognize the appointment of the school foundation as a non-party 2's non-party 2's non-party 3's non-party 2's non-party 3's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 3's non-party 2's non-party 3's non-party 2's non-party.

(3) Determination as to whether the rejection of the application for taking office on the ground of violation of Article 17(3) of the Private School Act is justifiable

(A) A director of a school foundation is a high-level public position with a position and authority corresponding to an independent agency for public interest, each of which is not a simple enforcement agency, and has a high-level public position to exercise his authority properly for public interest through mutual checks and balance. In light of this, new appointment of a director and dismissal of an existing director by the board of directors by the school foundation’s board of directors is likely to cause a direct change to the members of the board of directors, which is the core agency of the school foundation, and thus, the appointment and dismissal of the school foundation’s public interest activities. In particular, the procedures prescribed in the above Acts and the articles of incorporation of the school foundation are strictly applied so that the procedures for new appointment and dismissal of a director by the board of directors are consistent with the objectives of the Act on the Establishment and Operation of Private School and Public Interest Corporations, and the opportunity to prepare for an appropriate exercise of a director’s right to deliberation by the relevant school foundation shall be provided in advance. This applies to the case where a new director who has an interest in the appointment of the board of directors is presented in advance to the board of the board of directors.

(B) According to the overall purport of the statement and pleading by Nonparty 1, 3, 4, 8, and 1 to Nonparty 4, Nonparty 6’s new statement and argument that Nonparty 6 did not have any effect on July 3, 200 on the date and time: 11:0 of the meeting; 4: the chief director’s office, agenda for the meeting: 41 plenary session; 2. Nonparty 1’s resignation was submitted to the Private Teaching Institutes; 3. Nonparty 6’s new statement on July 3, 2009; 4. Nonparty 6’s new statement that Nonparty 6 would not have any effect on the resolution; 5’s new statement that Nonparty 6 would not have any effect on the election of the chief director; 3.5’s new statement that Nonparty 6 would not have any effect on the election of the chief director; 4. Nonparty 6’s new statement that Nonparty 6 would not have any effect on the election of the chief director; 4.7 Nonparty 2’s new statement.

(C) Whether the notification procedure was violated for failing to notify the personal details of the new photographic photo.

1) Comprehensively considering the evidence adopted earlier and the facts acknowledged earlier, ① the convening notice of the board of directors was sent to each of the directors on July 3, 209. The above public notice stated “the election of corporate director, dismissal, and other matters” as stated in the articles of incorporation No. 266 of the Commercial Act; ② The term of office of non-party 1 and non-party 2, 4, 6, and 7 of the board of directors on July 27, 2009 was imminent. Thus, it was planned that new directors will be appointed for the purpose of convening the board of directors’ meeting to the extent that “the appointment of directors is limited to the appointment of the existing directors” of the 3rd general meeting without any grounds; ③ the appointment of directors after the expiration of the term of office No. 2 of the 3rd general meeting would be deemed to have been omitted by the resolution of the 3rd general meeting of directors, as stated in the 4th general meeting of directors or by the 3rd general meeting of directors.

2) Even if the non-party 1 submitted a letter of resignation to the board of directors on July 3, 2009 on the day on which the notice of convening the board of directors was sent, the fact that the non-party 1 submitted a letter of resignation to the same-sex teaching institute around that time is received by the same-sex teaching institute is as seen earlier. Since the act of resignation of a corporate director is a sole act to which the other party exists and its declaration of intention reaches the other party and its effect takes effect at the same time (see, e.g., Supreme Court Decision 2007Da17109, Sept. 25, 2008). As long as all the other directors except the non-party 1 who lost the status of the director at the time of the resolution of the board of directors at the time of the instant case, while the agenda of appointing the new director was clearly notified in advance, the resolution of the board of directors at this case was cured pursuant to the proviso of Article 17

(4) Determination as to whether the application for taking office can be rejected on the grounds of other reasons

(A) The Defendant asserts to the effect that the instant disposition is lawful on the grounds that Nonparty 3’s application for the approval of the executive officer by holding a board of directors despite the expiration of the term of office of Nonparty 2, who is the chief director of the same-sex driving school, and without selecting a new chief director, Nonparty 3’s private person’s private person, is unlawful in itself. The instant application does not include an open director appointed according to the appointment procedure of open directors as stipulated in Article 14 of the Private School Act.

(B) In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the basic facts are recognized identical to those of the original disposition. The existence of the basic facts in this context is determined based on whether the basic social facts are identical in the basic facts prior to the legal evaluation of the grounds for disposition. The purport of the interpretation is to realize the substantial rule of law and to protect the other party's trust in the administrative disposition by guaranteeing the other party's right to defense against the administrative disposition, and the additional or modified grounds are not expressly stated in the original disposition, but are already existing in the disposition, and the other party is also aware of the fact (see Supreme Court Decisions 87Nu603, Jan. 19, 198; 87Nu603, Mar. 9, 198; 2008Du1985638, Mar. 29, 2008; 2005Du36081, Mar. 29, 2019).

(C) According to the above legal principles, the defendant's statement Nos. 1, 2, and 3 as to the non-party 2's request on September 30, 209. According to Article 18-2 (2) of the Private School Act, the non-party 2's signature on the non-party 3's meeting's non-party 2's non-party 2's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 2's non-party 2's non-party 6's non-party 3's non-party 6's non-party 2's non-party 2's non-party 2's non-party 6'

According to the above facts, the above circumstances cited by the defendant as grounds for non-approval of taking office other than the grounds for disposition of this case cannot be deemed identical to the grounds for disposition of this case. Thus, the defendant's assertion that the disposition of this case is lawful is without merit.

(5) Sub-decisions

Therefore, as seen earlier, insofar as there is no absence or invalidation of a resolution of violating the law cited by the defendant in the resolution of the board of directors, etc., the defendant cannot refuse the application for approval of this case, but the disposition of this case which rejected it is unlawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition after cancelling the judgment of the court of first instance and cancelling the disposition of this case.

[Attachment]

Judges Jeong-young (Presiding Judge)

(1) Nonparty 3 seems to have rejected Nonparty 7’s reappointment, and thus proposed six directors’ appointment. However, Nonparty 3’s minutes of Nonparty 3’s meeting do not have a part of the resolution against Nonparty 7.