2017Guhap60925 Revocation of a disposition of selection and appointment of temporary directors

1. A;

2. B

3. C.

The Minister of Education

September 15, 2017

September 29, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's disposition of provisional directors of school foundation D, E, F, G, and H on January 26, 2017 and the disposition of appointment of the first provisional directors of school foundation I to J and K on February 1, 2017 shall be revoked.

1. Details of the disposition;

A. School Foundation I (hereinafter referred to as “T”) was established by the network L on January 18, 1964 and has established and operated MU, NU, six special schools, two kindergartens, etc.

B. At around 1993, in relation to the appointment of the president of MU, I had a dispute between the disputing directors’ wife and Q (P and 0). The Defendant cancelled the approval of the appointment of directors for all executives of I on February 22, 1994 and appointed a temporary director. The Defendant has replaced the temporary directors whose expiration date has expired to a new temporary director.

C. On November 1, 2011, the Private School Dispute Mediation Committee (hereinafter referred to as the “Private Sector”) decided to appoint the Plaintiffs (0 side), Q, Q, R, and S (Defendant Recommendation) as a regular director, and the Defendant accordingly decided to appoint a regular director (term: from November 1, 201 to October 31, 2015) and a provisional director. The Defendant appointed a regular director (term: from November 1, 201 to October 31, 2015) and a temporary director. The Defendant appointed T as a temporary director on November 8, 2012 after the resolution of the Private Sector Division on October 31, 201 (a disposition to appoint a temporary director of the Seoul Administrative Court 2012Guhap43246, Seoul High Court 2013Nu5239, Dec. 30, 2012).

D. On March 14, 2014, the Defendant revoked approval of taking office of the Plaintiffs, Qu and R on the ground of “major pending issues in the schools that were established and operated by a static director due to disputes between executives, which may seriously obstruct the operation of the school, appointment of vacant executives, non-election of the head of a school who is established and operated, and subsequent appointment of a temporary director whose term of office expires.” On October 16, 2015, the Defendant filed a lawsuit seeking revocation of the above approval of taking office of the Plaintiffs. On November 20, 2014, the first instance court rendered a judgment against the Plaintiffs on the ground that “the revocation of the approval of taking office of the said executives shall not be abused by respecting the autonomy of school juristic persons,” and that some of the reasons for the disposition is not recognized, there is a need for significant public interest to justify the relevant disposition” (Seoul Administrative Court Decision 2014Gu54691, Feb. 20, 2015).

E. On January 29, 2016, the Defendant selected and appointed 1 temporary directors: V, W, F, X, X, Y, D, and G as the temporary directors. On July 22, 2016, the first instance court rendered a judgment in favor of the Plaintiff on the ground that the Defendant’s appointment of 7 temporary directors was a disposition against the suspension of execution, etc. (Seoul Administrative Court Decision 2016Guhap53647) as the Plaintiffs recovered the status of the director in accordance with the instant decision to suspend the execution, and thus, the judgment was final and conclusive (Seoul High Court Decision 2016Nu60937, Seoul High Court Decision 2016Du65671). Meanwhile, while the first instance court rendered a favorable judgment as above, the lower court dismissed the Plaintiffs’ application for the suspension of execution (Seoul Administrative Court Decision 2016Da10189, 20120). However, the Plaintiffs appealed all of the appeals by Seoul High Court (Seoul High Court Decision 2016Da1316164).

F. On January 26, 2017, the Defendant appointed D, E, F, G, and H as I temporary directors (the term of office: from January 31, 2017 to January 30, 2018), J on February 1, 2017, and K as I temporary directors (the term of office: from February 1, 2017 to January 30, 2018) (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, entry of Gap 1 to 5 evidence, purport of the whole pleadings

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Judgment on the defendant's main defense

A. Summary of the defendant's assertion

Among the dispositions of this case, provisional directors for D, E, F, and G who are not the succeeding temporary directors of the plaintiffs among the dispositions of this case are not the interests of the plaintiffs to seek revocation thereof.

C. Determination

In light of the following facts and circumstances revealed in accordance with the aforementioned facts and the purport of the entire arguments and the following facts, ① the number of one director shall be seven including the chief director, and the board of directors shall open with the attendance of a majority of the board of directors, and pass a resolution with the consent of a majority of the board of directors (at least four persons). Accordingly, the plaintiffs who intend to operate I need to secure a majority of directors, and for this purpose, the plaintiffs should be able to seek revocation of any temporary director appointment disposition as well as the subsequent temporary directors, and ② the plaintiffs have to seek revocation of any temporary director appointment disposition as to seven persons, including the following seven persons, even in the lawsuit seeking revocation of the provisional director appointment disposition as of January 29, 2016. The plaintiffs are also interested in seeking revocation of the provisional director appointment disposition as to D, E, F, and G. The above assertion by the defendant is rejected.

4. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

According to the judgment of the second instance court and the decision to suspend the execution of the instant case, the Plaintiffs, for whom approval of taking office was revoked, have recovered their status as directors again. Meanwhile, the Defendant may appoint only ad hoc director with the number of directors (one person in this case) capable of meeting the quorum of the board of directors (Seoul Administrative Court 2016Guhap53647). Nevertheless, the Defendant issued the instant disposition in which all the seven directors were appointed as temporary directors, and thus, the instant disposition was unlawful.

B. Determination

In full view of the following facts and circumstances revealed by the purport of the entire pleadings, I constitutes “when it is deemed difficult for the school juristic person to normally operate the school juristic person because the school juristic person fails to fill the vacancy of directors” as prescribed by Article 25(1)1 of the Private School Act. In addition, the necessity for the appointment of 7 directors who are the full number of directors as temporary directors is recognized. The Plaintiffs’ assertion is unacceptable.

1) The judgment of the second instance of this case sentenced the defendant to revoke the disposition revoking the approval of the appointment of director against the plaintiffs, and the present case is still pending in the Supreme Court.

2) On October 26, 2015, a disposition to revoke the approval of taking office by a decision to suspend the execution of the instant case was effective and suspended, but the term of office of the Plaintiffs was terminated on October 31, 2015.

3) The Defendant’s provisional director appointment disposition against D, etc. on January 26, 2016 became final and conclusive by the court. However, except for the instant decision to suspend the execution, the court dismissed the Plaintiffs’ application for suspending the execution on the grounds that the Plaintiffs’ application is likely to cause irrecoverable damage and that it is not necessary to suspend the validity and enforcement of the disposition to prevent such damage, in light of the content and circumstances of the instant disposition, the status and terms of the Plaintiffs,

4) On November 1, 201, the Ministry of Strategy and Finance decided to appoint the Plaintiffs (0 side), Q, R (P), and S (Defendant Recommendation) as a regular director and decided to appoint T as a temporary director. In the decision, the Plaintiffs, Q, and R, which may be considered as the founder of 1, have been appointed as a regular director and guaranteed a majority. Nevertheless, the disputes between the Plaintiffs (0 side) and Q Q, continue until now, and either party has failed to secure a majority of the total number of directors, and thus the school juristic person’s normal operation is difficult (in the present situation, even if the instant disposition was revoked, it does not seem that the Plaintiffs can normally operate the school juristic person).

5) When the school operation is operated for a long time, the trust of professors, school personnel, and school juristic persons of students shall be damaged, and irreparable damage shall occur, such as infringement of students’ legitimate learning rights.

5. Conclusion

The plaintiffs' claims of this case are all dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the Korean Judge;

Judges Kim Gin-han

Judges Lee Jae-he

A person shall be appointed.