(영문) 서울행정법원 2016.7.22. 선고 2016구합53647 판결

A. School Foundation K (hereinafter referred to as “K”) is a school foundation that establishes and operates L University, M University, six special schools, two kindergartens, etc. established on January 18, 1964. The Plaintiffs are executives of K. The positions and terms of office are as listed below:

A person shall be appointed.

B. On December 31, 2013, the Defendant: (a) took corrective measures against the entire K directors, including the Plaintiffs, on the ground that there was a dispute among executives, a vacancy officer (one open director, two auditors), a failure to appoint four schools (L University, M University, R School, and S School) and a failure to appoint a director by January 20, 2014; (b) took corrective measures to recommend two candidates for regular directors after the expiration of their terms of office, and submit the result thereof.

C. On March 14, 2014, the defendant revoked the approval of taking office for five directors of K, including the plaintiffs, N, etc., pursuant to Article 20-2 (1) 1, 2, and (2) of the Private School Act through the hearing procedure, and notified K and the plaintiffs (hereinafter referred to as "the part against the plaintiffs in the disposition of taking office of this case"). The specific reasons are as follows.

1. Disputes between executives causing serious trouble in operating the school (hereinafter referred to as "reason 1"), 6 directors under K normalization and one temporary director, and the method of holding the board of directors. On May 25, 2012, this director was elected as the chief director through the 20th meeting, the board of directors was operated in the absence of the plaintiffs.- On December 30, 2012, the 201 board of directors was normally operated on September 12, 2013, 3rd, which was the president of L University, after the election of the president at the 2nd meeting, the 4th anniversary of the Defendant's request for the normalization of the operation of the board of directors, the 4th anniversary of the change in the place of holding the board of directors and the adjustment of agenda items, etc., the Defendant did not have reached an agreement on the appointment of the 2nd meeting of the above 3rd members of K and the 3rd members of the 3rd members of the public school (hereinafter referred to as "grounds 2").

The major issues such as reappointment, promotion, teachers' disciplinary action, and appointment and dismissal of members of the Disciplinary Committee have not been dealt with, which cause significant obstacles to the operation of a school established by clearly neglecting the duty of care as a director.

D. On May 28, 2014, pursuant to Article 25 of the Private School Act, the Defendant appointed U, V, W, X, X, Y, Z, and A as K temporary directors for a term of one year (from May 28, 2014 to May 27, 2015) (hereinafter referred to as “disposition 1 on the appointment of temporary directors”), and from the temporary directors system, the Defendant approved T University as the president of L University.

E. The Plaintiffs filed a lawsuit against the Defendant seeking the revocation of the revocation of the instant revocation of the appointment approval by the Seoul Administrative Court 2014Guhap54691, but on November 20, 2014, the Plaintiffs, the directors of the previous director, sought compromises with the directors of the members of the academic community, seeking compromises with each other, and continued consumable disputes between them without making efforts to normalize the operation of the board of directors, thereby leading to the failure of the board of directors.

The auditor and the principal of the school did not appoint the auditor and the principal of the school, resulting in significant obstacles to K's school operation, and the defendant did not implement or undertake any improvement even after receiving a continuous corrective order from the defendant. Thus, the dismissal decision was rendered on the ground that the grounds for disposition Nos. 1, 2, 3, and 5 among the grounds for the disposition of revocation of the appointment approval in this case are recognized, and that it is recognized as necessary for important public interest to justify the revocation of the appointment approval

F. Accordingly, the plaintiffs appealed as Seoul High Court Decision 2014Du72691 (hereinafter "the preceding case"), and Seoul High Court Decision hereinafter "the preceding judgment") on October 16, 2015, the defendant issued a disposition of selection and appointment of a provisional director as of July 14, 201, even though the grounds for appointment of a provisional director have ceased to exist at the time of the decision of normalization of the Private School Dispute Mediation Committee, and the decision of revoking Q with the decision of revoking the appointment of a provisional director, which decided to appoint a regular director as of the follow-up of the provisional director, by failing to appoint two candidates even after the previous director was recommended by the former director, which caused a pending dispute between the plaintiffs and the members of the school, and thus, the main reasons for the 1,3,5th and 20th of the above disposition were to be attributable to the defendant, and thus, the defendant did not have any reason for revocation as to the 20th of the final appeal and 24th of the above disposition.

G. On October 19, 2015, the Plaintiffs filed an application with Seoul High Court for suspension of the execution of the instant disposition of revocation of appointment approval. The Seoul High Court rendered a decision to suspend the validity and enforcement of the instant disposition of revocation of appointment approval until the judgment of the instant preceding lawsuit became final and conclusive on October 26, 2015, and the Defendant appealed with Supreme Court Decision 2015No679 but was dismissed on January 7, 2016.

H. Meanwhile, on July 31, 2015, the Defendant appointed D, E, F, G, H, I, and J as temporary directors of K for six months (from July 31, 2015 to January 30, 2016) under Article 25 of the Private School Act (hereinafter referred to as “temporary appointment disposition of temporary directors”) (hereinafter referred to as “temporary appointment disposition of temporary directors”) and issued a disposition suspending D, E, F, G, H, I, and J as temporary directors of K on January 29, 2016 (hereinafter referred to as “the instant temporary appointment disposition”).

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 through 4 (including each number if there is a tentative number) and the purport of the whole pleadings

2. Whether the appointment and appointment of temporary directors of this case is legitimate

A. The plaintiffs' assertion

Even after being sentenced to the judgment revoking a provisional director appointment disposition of Q, the defendant appointed a new regular director and instead did not correct the illegal state, but instead revoked the appointment approval disposition of this case as an old office. Even though the revocation disposition of the appointment approval of this case was revoked in the previous lawsuit of this case and the validity and suspension of its execution was decided, the disposition of this case in order for K to be placed under the defendant's management and control through the dispatch of provisional director, so the disposition of this case must be revoked as unlawful.

B. Relevant provisions

It is as shown in the attached Form.

1) Article 25(1) of the Private School Act provides that provisional directors shall be appointed through the deliberation of the Private School Dispute Mediation Committee (Article 20-2) for a director who exceeds the quorum of the board of directors under Article 18(1) as the school juristic person fails to fill the vacancy of directors (Article 25(1) of the Private School Act). This is interpreted as a provision in order to prevent the violation of the students’ right to education by appointing temporary directors and normalizing the number of school juristic persons within the early time limit of the appointment of temporary directors (Article 20-2(1) of the Private School Act, even in cases where a school juristic person is unable to carry out its functions, it is reasonable to cancel the approval of the appointment of temporary directors in the form of partial cancellation of the appointment of temporary directors (Article 20-2(1) of the Private School Act). The same applies to cases where the appointment of temporary directors is approved by the board of directors for the reason that some of the temporary directors is approved by the appointment of temporary directors should be cancelled without delay.

2) The Defendant revoked the approval of taking office of all the above five directors on March 14, 2014 when K’s seven directors consisting of the Plaintiffs,O, and N5 directors. On October 16, 2015, the Seoul High Court rendered a judgment revoking the approval of taking office of the Plaintiffs on the ground that the revocation disposition against the Plaintiffs was illegal, and on the 26th of the same month, the said decision became final and conclusive on January 7, 2016 by making a decision suspending the validity and enforcement of the revocation disposition of taking office of this case on the 20th of the same month.

3) As above, the revocation disposition of the appointment approval of the plaintiffs was revoked by the judgment, and its validity and enforcement were suspended, the plaintiffs whose appointment approval was revoked again restored their status as K director. Meanwhile, even if the status of the plaintiffs was recovered, one of the plaintiffs as three directors is the mother and child, so the defendant is entitled to appoint one temporary director to meet the quorum of the K board of directors pursuant to Article 25 (1) 2 of the Private School Act, and one of the temporary directors is entitled to appoint one temporary director to satisfy the quorum of the K board of directors. However, one of the seven temporary directors, such as U.S., appointed by the first temporary director, and six temporary directors, from among the seven temporary directors, who were appointed by the first temporary director, did not have any reason for appointment. Thus, the provisional director appointment disposition of the above seven is all unlawful, and the provisional director appointment disposition of this case and the provisional director disposition of this case are also unlawful.

4) Regarding this, the defendant asserts that the revocation of the appointment approval of this case is legitimate, and thus, the provisional director appointment disposition of this case is also legitimate. However, as seen earlier, since the validity of the revocation of the appointment approval of this case and the suspension of execution became final and conclusive, the revocation of the appointment approval of this case is not effective regardless of its legitimacy, unless the revocation of the prior appointment approval in the court of final appeal of this case is revoked on the grounds that the revocation of the appointment approval of this case is legitimate. Thus,

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and it is so decided as per Disposition.

Judges

The judges of the presiding judge;

Support for Judges

Judges Kim Jae-nam

Note tin

1) The term “final fixed-term director” means a retired director who was legally appointed before an ad hoc director under the Private School Act was appointed.