2015Guhap52470 Action for the Confirmation of illegality of omission

A Educational Foundation

The Minister of Education

May 14, 2015

June 11, 2015

1. On February 25, 2013, the Plaintiff’s application for taking office against B, C, and D on February 25, 2013, confirming that omission for which the Defendant did not take any measure is illegal.

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

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a school foundation that establishes and operates E University.

B. Around January 2013, F, G, and H, while serving as the president and director, submitted a letter of resignation, and the Plaintiff held a board of directors on February 8, 2013 and decided to appoint B, C, and D as a successor director.

C. On February 25, 2013, the Plaintiff filed an application with the Defendant for approval of taking office for B, C, and D pursuant to Article 20(2) of the Private School Act. However, the Defendant did not respond to the Plaintiff up to now.

[Ground of recognition] Facts without dispute, entry of Gap's evidence (including branch numbers for those with branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Determination on this safety defense

As the Defendant submitted a resignation document to F on January 2013 and resigned from the position of director, the instant lawsuit is filed by a person who has no legitimate power of representation, and thus, the instant lawsuit is unlawful and deemed unlawful.

The relationship between a corporation and a director who is an institution, 7. The Civil Act is the same as the legal relationship between the delegating and the delegated person, and when the term of office of the director expires, the delegation relationship should be terminated in principle. However, if there is no director until the appointment and appointment of the succeeding director, a corporation, which is bound to perform an act by an institution, is placed in a situation where the normal activity of the current director cannot be discontinued, and this can be seen as the time when there is an urgent reason prescribed in Article 691 of the Civil Act. Thus, even if the term of office expires or the resignation is a director, the director may continue to perform his/her duties until his/her new director is appointed, unless there are special circumstances to deem it inappropriate to perform his/her duties (see Supreme Court Decision 95Da409

According to the statement No. 1, F submitted to the Plaintiff a letter of resignation to the effect that the Plaintiff would resign from the Plaintiff’s director on January 2013. However, in full view of the overall purport of the pleadings in the statement Nos. 2, 3, 1, and 2, the Plaintiff, which was held on February 8, 2013, decided that the board of directors held on February 8, 2013, the Plaintiff would appoint B as the director and appoint F as the latter chief director. On February 25, 2013, the Plaintiff filed an application with the Defendant for approval of taking office for B, etc. pursuant to Article 20(2) of the Private School Act, but the Defendant did not respond to the Plaintiff, and the Defendant may recognize the fact that the approval of taking office was revoked with respect to all the Plaintiff, Y, and the auditor including F on July 10, 2013.

As seen above, when the Defendant did not have a director representing the Plaintiff by cancelling approval of taking office for all of the Plaintiff’s directors and auditors, and the Defendant was omitted against the application for approval of taking office for a new director appointed by the Plaintiff, the Defendant should be deemed to have filed the instant lawsuit seeking confirmation of illegality of omission by the Defendant pursuant to Article 691 of the Civil Act as the former chief director (the Defendant asserts that there is no right to take emergency action due to special circumstances where the F, for whom approval of taking office was revoked due to a wrongful act, is inappropriate to perform the Plaintiff’s representative duty. However, as seen earlier, the Defendant’s filing a lawsuit seeking confirmation of illegality against the Defendant’s omission cannot be deemed as an inappropriate part of the former representative, in a situation where it is not possible for the latter to represent the Plaintiff due to the Defendant’s cancellation of taking office approval and omission against the application for taking office.

Therefore, the defendant's main defense is without merit.

3. The assertion and judgment

A. The plaintiff's assertion

On February 25, 2013, the Plaintiff filed an application with the Defendant for approval of taking office of B, etc. under Article 20(2) of the Private School Act, and the Defendant, who is the competent administrative agency, has the legal duty to respond to passive dispositions, such as accepting the application, dismissing, or rejecting the application, but has not given any response to the Plaintiff until now. Thus, such omission by the Defendant is unlawful.

B. Determination

A lawsuit for confirmation of illegality of omission is a system in which an administrative agency does not have a legal obligation to respond to a passive disposition, such as affirmative action accepting, rejecting, or rejecting an application based on a citizen’s legal or sound right within a reasonable period of time (see Supreme Court Decision 89Nu4758 delivered on September 25, 199). In a case where an administrative agency does not have a legal obligation to respond to a request based on a citizen’s legal or sound right despite the existence of a legal obligation to respond to the request, the purpose of which is to promptly eliminate a passive illegal state called omission or non-compliance with an administrative justice response through prompt confirmation and verification of illegality of the omission as at the time of closing the oral pleading of the facts at the time of the trial (see Supreme Court Decision 190Nu758 delivered on September 25, 199)

In addition, Article 20 (2) of the Private School Act provides that an executive of a private school takes office with the approval of the competent agency, a school foundation that establishes and operates a private school has the right to request the competent administrative agency to grant approval of an executive officer, and an administrative agency that receives such application from the other party has a legal response obligation to respond to a passive disposition, such as accepting an application within a reasonable period of time, dismissing, or rejecting such application. However, inasmuch as an administrative agency does not take any affirmative or passive disposition against the other party’s application, the omission of an administrative agency itself itself is illegal, and specifically whether the application can be accepted or not is determined within the main part of an appeal litigation against the passive disposition (see, e.g., Supreme Court Decision 2003Du7590, Apr. 14, 2005).

On February 25, 2013, the plaintiff filed an application for approval of taking office for B, etc. with the defendant on February 25, 2013 pursuant to Article 20 (2) of the Private School Act, but the defendant did not give any response to the plaintiff until now. The omission of the defendant who is legally responsible for responding to the plaintiff's application for taking office for the approval of the officer who has legal right under Article 20 (2) of the Private School Act is illegal. [The defendant's comprehensive audit and corrective measures against the defendant's E University are revoked and provisional directors are expected to be appointed, and the plaintiff appointed the F, G, and H as a director to maintain the existing management right, and then appointed the director to take office for B, etc., which constitutes abuse of rights, and the defendant's omission is legitimate. However, apart from the defendant's rejection of the application for taking office for the above reason, the defendant's application for taking office for the above passive disposition is not unlawful. Thus, the defendant's affirmative action or omission is not unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge and the assistant judge;

Judges Lee Do-young

Judges Kim Jae-sung