[1] Validity of a resolution of the board of directors, which was made without going through the procedure under Article 17(3) of the Private School Act (in principle, invalid) and where the board of directors of the school foundation fails to give legitimate notice of convening a board of directors, and a meeting is held without the presence of the director, the validity of the resolution of the board of directors (affirmative)

[2] Whether an auditor of a school juristic person has a benefit to seek confirmation of invalidity of a resolution of the board of directors upon the right to perform his duties (affirmative)

[1] The board of directors of a school juristic person is essential to the school juristic person and a resolution is made by a small number of directors participating in the sole deliberation and resolution agency, and Article 17(3) of the Private School Act provides that each director shall notify at least seven days prior to the meeting of the board of directors, stating the purpose of the meeting at least seven days prior to the meeting, except in the case where all the directors gather and request the meeting of the board of directors. In order to hold the board of directors, the school juristic person shall notify each director of the purpose of the meeting at least seven days prior to the meeting at least seven days prior to the date on which the board of directors is held, and the resolution of the board of directors by the school juristic person without a legitimate notice of convening a board of directors is null and void unless there are special circumstances. Even if the board of directors of the school juristic person did not have any influence on the establishment of the resolution of the board of directors by the directors

However, the purpose of the notice of convening a board of directors is to allow the school juristic person's directors to be informed of the purpose of the meeting in advance so that they may decide whether to attend the meeting or prepare for the appropriate exercise of the right to deliberation. Thus, the notice of convening a board of directors is limited to one day or two days delayed, and the period for convening a board of directors is limited to one day or two days delayed, and the directors shall attend the meeting without objection and participate in the resolution without any special circumstance to deem that the appropriate exercise of the rights to attend the

[2] There is no special provision in the Private School Act or the Civil Act as to who can file a lawsuit for confirmation of nullity against a resolution of the board of directors of a school foundation. Accordingly, any person who has interest in confirmation or legal interest, such as ordinary cases of a lawsuit for confirmation, has standing to sue. According to Article 19(4) of the Private School Act, an auditor is responsible for auditing matters concerning the operation and duties of the board of directors and reporting such matters to the board of directors and the competent agency at the time of discovery of illegality or incompetence. As such, an auditor of a school foundation has the interest to seek confirmation of invalidity of a resolution of the board of directors based on his/her authority and duties

[1] Article 17(3) of the Private School Act, Article 111(1) of the Civil Act / [2] Article 19(4) of the Private School Act, Article 250 of the Civil Procedure Act

[1] Supreme Court Decision 2011Du9164 Decided January 27, 2012 (Gong2012Sang, 351) Supreme Court Decision 2010Da51352 Decided April 13, 2012 / [2] Supreme Court en banc Decision 2006Da19054 Decided May 17, 2007 (Gong2007Sang, 873)

Plaintiff (Law Firm Barun, Attorneys Park Il-hwan et al., Counsel for the plaintiff-appellant)

○○ Private Teaching Institute (Law Firm Maritime River, Attorney Jeong Jae-ho, Counsel for defendant-appellant)

Defendant Intervenor (Law Firm Sejong, Attorneys Kim Yong-dam et al., Counsel for the defendant-appellant)

Busan High Court Decision 2013Na6414 decided June 19, 2014

The part concerning the invalidation of the resolution by the board of directors on September 23, 2011 among the judgment below is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal by the plaintiff and the defendant's appeal are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Plaintiff’s ground of appeal

A. As to the grounds of appeal Nos. 1 and 3

(1) The lower court determined that the resolution of this case No. 5 cannot be deemed null and void on the ground that it is difficult to view that the notice of convening a board of directors’ meeting was obstructed due to Nonparty 1’s reasonable exercise of rights and voting rights, on the ground that it is difficult to view that the notice of convening a board of directors’ meeting was obstructed due to Nonparty 1’s failure to exercise its rights and voting rights, on the ground that it is recognized that the notice of convening a board of directors’ meeting was delayed than the period stipulated in Article 17(3) of the Private School Act, but the purpose of the Private School Act is to allow the directors of the educational foundation to know in advance the purpose of the meeting, thereby allowing them to make preparations necessary for the proper exercise of rights and voting rights.

(2) However, it is difficult to accept the above determination by the lower court.

Article 17(3) of the Private School Act provides that the board of directors of a school juristic person shall be deemed to be null and void unless there are special circumstances, in view of the fact that the board of directors of a school juristic person is essential to the school juristic person and a small number of directors participate in and a resolution is made by the sole deliberation and resolution agency; that Article 17(3) of the Private School Act provides that each director shall be notified at least seven days prior to the meeting, stating the purpose of the meeting; Provided, That the same shall not apply where all the directors are gathered and all the directors request the holding of the board of directors. In addition, if the board of directors of a school juristic person fails to give legitimate notice for convening a board of directors, and a resolution of the board of directors is held without a notice for convening a board of directors, the resolution of the board of directors shall be deemed to be null and void only if the result did not affect the establishment of the resolution of the board of directors which had attended and voted (see Supreme Court Decision 2010Da51352, Apr. 13, 2012)

However, the above provision on the notice of convening a board of directors aims to allow a school foundation's directors to decide whether to attend the board of directors or to prepare for the appropriate exercise of the right to deliberate upon by allowing the school foundation's directors to know in advance the purpose of the meeting (see Supreme Court Decision 2011Du9164, Jan. 27, 2012). Thus, the notice of convening a board of directors is just one day or two days delayed, and the directors attend the board of directors' meeting without objection and participate in the resolution at the relevant board of directors' meeting, and there are special circumstances to deem that the right to attend the meeting and the appropriate exercise of voting rights are not impeded, such as where the directors participate in the resolution

Upon examining the reasoning of the judgment below in accordance with the above legal principles, since the notification of this case was delayed more than the period prescribed in Article 17 (3) of the Private School Act at the time of the resolution of this case, and the non-party 1 was aware of the fact that he did not participate in the resolution of this case, the resolution of this case is null and void, barring any special circumstances. In addition, according to the records, the non-party 1 is aware of the circumstances where the interests were not in conflict, such as the non-party 1's life and the defendant's intervenor who is the chief director and the board of directors several times, and it is difficult to say that the non-party 1 seems to have been well aware of the agenda of the resolution of this case 5 of this case with children of the defendant founder, and there is no special circumstance to deem that the non-party 1's right to attend the board of directors or the appropriate exercise of voting rights was not hindered

Nevertheless, the lower court determined that the instant resolution No. 5 cannot be deemed null and void solely for the reasons indicated in its holding. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on Article 17(3) of the Private School Act,

B. Regarding ground of appeal No. 2

For reasons indicated in its holding, the lower court rejected the Plaintiff’s assertion that: (a) resolution 1, 2, and 3 of this case is null and void, on the grounds that the directors Nonparty 2, 3, and 4 did not receive a legitimate notice of convening the board of directors on July 28, 2005, which was adopted a resolution 1 of this case; or that there is insufficient evidence to acknowledge that the defect was null and void due to

Examining the record, the reasoning of the lower judgment did not contain improper points, but the conclusion that rejected the Plaintiff’s assertion is justifiable. In so doing, there were no errors of inconsistency in the reasoning, omission of judgment, or violation of the rules of evidence that affected

2. As to the grounds of appeal by the defendant and the defendant assistant intervenor

A. As to the Defendant’s first ground of appeal

There is no special provision in the Private School Act, the Civil Act, etc. as to who can file a lawsuit for confirmation of nullity of a resolution of the board of directors of a school juristic person. Accordingly, any person who has a benefit of confirmation or legal interest as in ordinary cases of a lawsuit for confirmation shall have standing to sue (see Supreme Court en banc Decision 2006Da19054, May 17, 2007). According to Article 19(4) of the Private School Act, an auditor shall audit matters concerning the operation and duties of the board of directors and report such matters to the board of directors and the competent agency when he discovers that there is any illegality or influence as a result. As such, it is reasonable to view that an auditor of a school juristic person has the benefit to seek confirmation of nullity of a resolution of the board of directors based on his right to perform duties

Examining the records in accordance with the above legal principles, the court below is justified in rejecting the Defendant’s defense of safety, which the Plaintiff had no standing or legal interest to seek confirmation of invalidity of each of the resolution of the board of directors of this case. In so doing, the court below did not err by misapprehending the legal principles on standing or confirmation

The Supreme Court precedents cited by the Defendant differing from the instant case and thus are inappropriate to be invoked in the instant case.

B. As to the Defendant’s ground of appeal Nos. 2 and 3 as to the Defendant’s Intervenor’s ground of appeal

Examining the records in accordance with the above legal principles as seen in the Plaintiff’s grounds of appeal Nos. 1 and 3, the court below was justified in holding that the notice of convening a meeting of the board of directors on November 6, 2012, which was adopted the resolution No. 6 of this case, was delayed than the notice of convening a meeting under Article 17(3) of the Private School Act to Nonparty 5 on October 31, 2012, and the director Nonparty 5 was not present at the above board of directors, and there is no special circumstance in accordance with the above legal principles. Accordingly, the court below’s decision No. 6 of this case was justifiable in holding that the decision No. 6 of this case was null and void due to the defect in the convocation procedure. It did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, omitting judgment, violating the duty of explanation, or by misapprehending

C. As to the ground of appeal No. 1 by the Defendant Intervenor

The argument in this part of the grounds of appeal is that the notice of convening a board of directors under Article 17 (3) of the Private School Act shall be determined on the basis of the date of dispatch, as in the notice of convening a general meeting of an incorporated association under the Civil Act, a general meeting of shareholders under the Commercial Act, and a notice of convening a board of directors under the Commercial Act. However, in the case of a notice of convening a general meeting of an incorporated association under the Civil Act or a general meeting of shareholders and a notice of convening a board of directors under the Commercial Act, a notice of convening a board of directors shall be given explicitly in the legal text, while in the case of Article 17 (3) of the Private School Act, it shall be determined

D. As to the ground of appeal No. 4 by the Defendant Intervenor

The argument in this part of the grounds of appeal cannot be a legitimate ground of appeal, as it was first raised in the final appeal.

3. Conclusion

Therefore, among the judgment below, the part on the invalidation of the resolution of the board of directors made by the defendant on September 23, 201 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiff and the defendant's appeal are dismissed. It is so decided as per Disposition by the assent of all participating

Justices Lee Sang-hoon (Presiding Justice)