Plaintiff 1 and one other (Law Firm continental Aju, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

The Minister of Education, Science and Technology (Law Firm and Persons, Attorneys Southern-in)

Hanyang Institute of Education (Attorney Park Chang-chul, Counsel for defendant-appellant)

December 15, 2010

1. The plaintiffs' claims are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs, including the costs incurred by the supplementary participation.

The Defendant’s decision to appoint Nonparty 2, 3, 4, 5, and 6 on March 10, 2010 as a director of the Intervenor joining the Defendant is revoked.

1. Basic facts

A. On May 3, 1947, the Plaintiffs established the Seoul Women’s Research Institute and appointed as a director. The said foundation changed to the Seoul Women’s Research Institute on January 25, 1964, and the said school foundation changed to the name of the school foundation on May 17, 1972, and the name of the school foundation was changed to the Daeyangyang Institute on May 17, 1972 (hereinafter “participating”). Meanwhile, the Seoul Women’s Research Institute was operated by the school foundation on the other hand, the name of the said school was changed to the Sejong Institute on October 1978.

B. After the establishment of the Seoul Women’s Research Institute, the Plaintiffs had been in charge of the dean, graduate school principal, and president. Nonparty 1 (the Nonparty in the judgment of the Supreme Court) who is the Plaintiffs, from around 1978, has been in charge of the president of the management graduate school, the planning director, the vice president, the director, and the chief. Meanwhile, the Intervenor is currently establishing and operating the Sejong University, Sejong Cyber University, the Seoul Sejong High School, and the Sejong High School.

C. Article 1 of the Intervenor’s Articles of incorporation provides that “the purpose of an intervenor is to conduct elementary and general education, high level general education, and university education on the basis of the educational ideology and the spirit of the Republic of Korea” (On the other hand, Article 1 of the Articles of incorporation at the time when the Seoul Women’s Research Institute, an incorporated foundation, was changed into Seoul Women’s Research Institute, provides that “this foundation’s purpose is to provide higher education and education on the basis of the basic ideology of education in the Republic of Korea).” Moreover, the academic decoration of Sejong University is virtue, creativity, service, practice, and teaching character of Sejong Sejong’s Navy’s pathic spirit, which simple the monthly coefficient that symbolizes the honor and morality of the Sejong Sejong’s pathic spirit, and thus enhances the moral spirit of the Republic of Korea (GAPE), which is the first of all, the founders and founders of the Republic of Korea’s own culture and culture, and that it is more meaningful than the world’s pathic spirit of culture and culture.

D. On September 19, 1978, the intervenor established a Sejong Investment Development Co., Ltd. (hereinafter “SP”) and operated a profit-making business, such as operating a Sejong Hotel (the intervenor’s share of 100%). The plaintiff 2 and the non-party 1 and the non-party 8, who are these children, have been working as a director or a representative director of Sejong Investment Development. In addition, the plaintiff 2, the non-party 1 and the non-party 8 entrusted the director or the representative director of the Korea Tourist Products Development Co., Ltd. (the SP development shares of 49.85%) to a company that supplies various goods to Sejong Hotel, etc., and the non-party 1 operated the company such as the plaintiff and the non-party 1, a corporation that carries on the business related to the development of Sejong Investment.

E. On December 13, 2002, Nonparty 1 passed a resolution of the board of directors to serve consecutive terms on January 16, 2003 by a resolution of the board of directors and approved by the competent agency, but the Plaintiffs asserted that Nonparty 1 was guilty of the minutes of the board of directors and obtained approval for the appointment of the president illegally, and Nonparty 11 also submitted a written application to the Minister of Education and Human Resources Development to this effect on September 24, 2003.

F. On November 29, 2003, the plaintiffs prepared and announced a public statement to the effect that "the non-party 1, the president of the plaintiff's son's son's son, became aware of the fact that he committed a serious corruption related to the intervenor, and in the future, the intervenor's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's Professor's 13.

본문내 포함된 표 순번 주요 지적내용 신분상 조치 대상자 1 수익사업 관리태만 이사 전원 - 참가인은 1999.부터 2003.까지 세종투자개발의 배당 가능 이익잉여금 약 108억 원을 배당받지 않음 - 참가인의 이사장과 설립자 등은 세종투자개발에서 근무하면서 약 38억 원의 보수를 받음 - 세종투자개발의 주식매입 관련 허가조건을 이행하지 않아 1995.부터 2003.까지 4,596,748,000원의 결손 발생 감사 전원 - 세종투자개발은 설립자 또는 그 가족이 운영하는 주식회사 세종월드투어, 주식회사 한국관광용품유통센타, 주식회사 지이에스의 주식의 시장성이 없다는 점이 감사보고서에 지적되어 있음에도 불구하고 투자 주식에 대하여 별도의 조치를 취하지 않음 2 교육용기본재산처분허가조건 미이행 및 회계처리 부당 이사 전원 - 서울 광진구 군자동 (지번 1 생략) 등 3필지(1,484㎡)의 매각대금 2,004,281,500원 중 50%는 수익용 기본재산에 재투자 하고, 50%는 세종대학교 교사 건축비로 사용하여야 하나, 위 매각대금의 약 46%만 수익용 기본재산에 재투자한 것으로 추정되고(관련 지출증빙자료 미보존), 위 매각대금 중 약 24%는 교비회계로 전출하지도 않았으며, 교비회계로 전출한 26%도 그 중 일부만을 세종대학교 교사 건축비로 사용하였음. - 참가인에서 전출된 법정부담금에 대한 회계자료를 임의로 수정하였음 감사 전원 3 수익사업(세종주차장) 관리부당 이사장 - 참가인의 수익용 기본재산인 서울 종로구 관수동 (지번 2 생략) 등 9개 필지(657.7평) 소재 세종주차장을 직영으로 관리해오다가 이사회 결의나 시장 조사 없이 임대료를 월 49,500,000원으로 정하여 이사장 및 그 가족과 특수관계에 있는 법인이 98%의 지분을 소유하고 있는 주식회사 지이에스에 운영을 위탁하였음. - 위와 같은 위탁운영 이후 참가인의 수익은 증가되지 않은 반면, 원고 1은 주식회사 지이에스에서 실제 근무한 사실이 없음에도 불구하고 2002. 6.부터 2003. 8.까지 매월 3,000,000원씩 총 45,000,000원의 보수를 받았음. 4 대학교 시설사용료 및 기부금의 법인 수입처리 부당 이사장 - 대학평가에 대비하여 법인의 대학에 대한 전입금 비율을 높일 목적으로 세종대학교 교비회계로 수입하여야 할 시설임대료 등 대학시설 사용료 및 기부금 약 46억 원을 법인회계로 수입 후 2001.부터 2003.까지 연도별로 약 13회로 나누어 다시 교비회계로 전출시킴. 5 전출실적 확대를 위한 노후시설 등 기증 이사장 - 세종투자개발 소유의 공장 및 건물, 세종투자개발 서적사업부가 보관 중이던 활용가치가 낮은 재고도서 8,310권, 주식회사 한국관광용품센타가 세종호텔에 설치·운영하다가 사업 중단으로 사용가치가 없어진 포도주판매장비 합계 882,630,000원을 참가인이 기부 받은 다음 세종대학교로 전출시켰으나 위 공장 등의 사용실적이 거의 없음. 6 이사회 운영 부적정 이사장 - 교육용 기본재산 취득시 계약체결 또는 등기완료 후에 비로소 이사회에서 심의하거나 이사회에서 심의하지 않음 - 원고 1·소외 16·소외 1 등 신임 임원 선임시 신임 임원이 참석한 가운데 의결하였음에도 불구하고 이사회 회의록에는 신임 임원이 퇴장한 상태에서 의결한 것으로 조작하였고, 사무총장이 이사들의 인장을 보관하면서 이사회 회의록에 이사들 대신 날인 7 학교법인 이사장의 법인 및 대학 업무 지장 초래 이사장 - 소외 1은 사단법인 세종연구원의 이사장이자, 재단법인 세종과학기술원(참가인으로부터 출연 받은 350,000,000원에 관한 이자수입이 위 재단법인의 주된 수입원임)의 이사장의 직무를 행하면서 세종연구원과 세종과학기술원의 행정업무를 참가인 사무처 직원들에게 처리하게 하고, 외부 연구용역도 세종대 교수들에게 하도록 함 8 이사장 인건비 집행 부당 이사 전원 - 이사장은 상근 임원이 아니고 정관상 보수 지급 규정이 없음에도 2001. 3.부터 2004. 2.까지 약 639,186,000원(세금 포함)을 보수로 받음 감사 전원 9 법인 직원 등 급여 관리 부당 이사장 - 법인 직원의 연봉액을 정함에 있어 실질심사를 하지 않았고, 이사장 결재 없이 연봉을 정하기도 하였으며, 사무총장, 사무국장에 대하여는 과다한 급여를 지급하였고, 재무처장 소외 7은 법인 직원이 아님에도 급여를 지급하였음. 10 대학직원의 학교법인 파견근무 부당 이사 전원 - 참가인은 세종대학교 기획과장 소외 9 등 4명을 세종대학교로부터 파견 받아 법인업무 전담하게 하고 위 직원들에 대한 인건비 1억 6700만 원을 교비회계에서 지급함 감사 전원 11 법인 사무조직 및 인사 관리 부당 이사장 - 사무국장의 직급·소관사무·채용 등을 규정 없이 또는 규정과 다르게 운영 - 참가인의 직원은 법인 업무 외의 영리 업무에 종사할 수 없음에도 불구하고, 사무총장 소외 10은 주식회사 한국관광용품센타의 상근임원(부사장)으로 근무하는 등 설립자 가족이 운영하는 8개의 사기업체의 임원으로 근무하였고, 사무국장 소외 18도 세종투자개발의 이사로 근무하여 영리업무 금지규정을 위반함 12 문서관리 부당 및 감사업무 방해 이사장 - 보존문서 기록대장을 비치하지 않고, 수시로 대차대조표 등 보존문서를 폐기 - 재산대장 및 수입지출총괄부를 문서화하지 않고, 과거의 전산기록을 삭제 - 감사를 위한 회계 관련 서류 제출 요구에 부당하게 응하지 않음 13 대학출판부 파주사옥 부지 매입 및 건축비 교비 집행 부당 이사 전원 - 출판 관련 제조시설(공장)은 교육용 시설이 아니고 교육용 시설로 활용할 수 없음에도 불구하고 대학출판부 파주사옥 부지를 매입하고 건축공사를 추진하여 교비회계 5,486,878,000원을 집행. - 교재 이외의 도서를 출판할 수 있도록 출판사 등록을 하고 출판제조업을 사업자등록상 업태에 추가함 감사 전원 - 위 파주사옥의 교육용시설 활용 가능 여부에 관한 이사회 심의를 토지매입 및 공사가 거의 완료된 때에 비로소 함 14 토지 및 건물 매입 부당 이사 전원 - 성남시 하대원동 소재 40필지, 경기 광주시 일대 15필지, 마산시 일대 31필지 등 토지 1,081,697㎡와 건물 189㎡를 7,925,120,000원에 매입하면서 교육적 환경의 적합 유무, 활용가치 등 제반 사항을 검토하지 않았고, 위 토지 중 약 1.6%를 제외한 나머지는 교육용으로 활용하지 않음 - 위 토지 중 일부는 이사장 소외 1 등 가족들이 매입한 토지의 주변 토지 및 건물임 감사 전원 - 위 토지 중 일부에 대하여는 본예산에 편성하지 않은 채 토지 매입 후 추경예산에 편입하기도 하였고, 일부의 경우 토지매입에 관한 이사회 결의를 거치지 않거나 사후 심의만을 하기도 함 15 종합강의동 외 4개동 신·증축공사 집행 시공 부당 이사장 - 세종대학교 연구동 설계용역계약을 체결함에 있어, 관계법령에 따르면 일반경쟁입찰 및 현상설계공모에 의하여야 함에도 불구하고 수의계약에 의하였고, 비용 23,746,000원을 과다 계상하였음. - 세종대학교 종합강의동 외 4개동 신·증축공사시 세종호텔 공사와 함께 입찰을 실시하였고, 낮은 입찰금액을 제시한 업체를 부당하게 제외시켰으며, 세종호텔공사에 유리하도록 공사비를 책정하는 등 공사계약 업무를 부당하게 집행

G. From March 11, 2005, in order to take a comprehensive audit and inspection result of the instant case, the Sejong University’s total student association occupied the president’s office, demanding the withdrawal of the president, the promotion of the president, and the dispatch of democratic directors. From April 1, 2005, the Intervenor’s trade union also demanded the Intervenor’s trade union to dispatch wages, democratic directors, and began with the full strike.

H. On July 15, 2004, the prosecutor of the Seoul Central District Public Prosecutor's Office investigated the list 13 in the table No. 13 of the above "the above "F," and made a disposition that the non-party 1 does not have any suspicion of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement). In addition, the prosecutor of the Seoul East East District Public Prosecutor's Office investigated the non-party 1's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the charge of attempted occupational breach of trust on October 23, 2009, the non-party 1's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), occupational embezzlement, occupational embezzlement, occupational embezzlement, coercion, and obstruction of business (the non-party 1 does not have any duplicate charges), the non-party 1 does not have any suspicion of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the non-party 1 does not have any evidence).

I. On Aug. 15, 2004, the plaintiff 2 asserted that on Sep. 15, 1994, the non-party 1 donated to the Sejong Research Institute, a chief director, the non-party 1, the non-party 1, the non-party 2, the non-party 2 donated to the intervenor as the site of the Sejong University, the non-party 1, the non-party 1, the non-party 1 voluntarily donated the above incorporated association using his seal imprint, and the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 1, the non-party 1, the non-party 2, the title of which

(j) Meanwhile, at the time of the instant comprehensive audit and inspection disposition, seven of the nine directors of the Intervenor (Nonindicted 1, 1, 12, 13, 11, 14, 15) were resigned on May 14, 2005, which was subsequent to the instant comprehensive audit and inspection disposition, and the Intervenor’s director left 16,170,000.

(k) On May 20, 2005, the Defendant appointed Nonparty 19, 20, 21, 22, 23, 24, and 25-7 (hereinafter “the first provisional director”) as the temporary director of the Intervenor on the ground that the Intervenor failed to fully implement the indicated matters as a result of the instant comprehensive audit and inspection, and had the Intervenor organize the board of directors of the Intervenor as well as Nonparty 16 and 17, who did not resign among the directors of the Intervenor.

E. On June 30, 2005, the provisional directors mentioned in the preceding paragraph entered into a sales contract with 25 billion won for the sale of the above land, building, and trees to Cheongju-gun, Chungcheongnam-gun, Chungcheongnam-do, Chungcheongnam-do, which owned the Sejong-do Investment Development (number 4 omitted) and 42 lots of land (number 5,512 square meters in total), and the meeting minutes of the board of directors were altered although there was no legitimate resolution of the board of directors concerning the sale of the above land, building, and trees, and on the same day, the non-party 26 entered into an agreement with Daju-do, which was substantially operated by the non-party 28, who is the representative director of Gohap-do Construction, to invest 19 billion won in the Korea-do. However, on the ground that there was no resolution of the board of directors on sale, the above sales contract became null and void on February 6, 2007 (Seoul Central District Court).

(m) Nonparty 1 and 8, etc. were indicted on the ground that: (a) executive officers of Sejong Investment Development Co., Ltd., three years of suspended sentence of imprisonment with labor for Nonparty 8; (b) the method of excessive appropriation of the construction cost paid from Sejong Investment Development; (c) the development of Sejong Investment; (d) employment of employees who do not actually work in SP; and (e) payment of wages; and (c) employment of employees for personal purposes; and (d) employment of Nonparty 1 for the purpose of personal purposes. On July 22, 2005, Nonparty 1 was indicted on the ground that the relevant documents were formally approved as its executive officers; and (e) there was insufficient evidence to prove that Nonparty 8 was aware of the creation and embezzlement of the aforementioned funds; and (e) three years of suspended sentence of imprisonment with labor for Nonparty 8 (Seoul East District Court Decision 2004Da20202, Mar. 29, 2007.

n. The defendant, on April 12, 2006, ordered the intervenor to submit to June 30, 2006 a plan for normalization, which means conversion into a regular director system, as the grounds for appointing a provisional director have ceased to exist. On July 3, 2006, the plaintiffs expressed to the effect that on July 3, 2006, Nonparty 1 was thoroughly excluded from the process of normalization, thereby allowing the intervenor to grow into a private school where he is respected, and the intervenor submitted to the defendant by gathering opinions from the members of the school on July 2006 and November 2006.

(o) On July 20, 207, the term of office of the first provisional director expired, the Defendant re-appointed Nonparty 32, 33, 21, 34, 35, 36, and 37 as the temporary director (hereinafter the above seven persons are referred to as “second provisional director”) and on January 15, 2008, the Intervenor’s director became eight.

(p) On January 14, 2008, the board of directors of the Intervenor constituted a subcommittee on normalization, and collected opinions from the Plaintiffs, the former president, Nonparty 1, and the president of Sejong University, who was the founder of the same month, on the 28th day of the same month. The Plaintiffs consented to the above criteria, but requested to exclude Nonparty 1 from the process of normalization, which was the cause of the subdivision of Sejong University, on the grounds that the intervenors did not have the right to gather opinions on normalization. Nonparty 1 did not present its opinion on April 28, 2008. On April 28, 2008, the Intervenor submitted the normalization plan prepared by the Defendant after gathering opinions, etc. (hereinafter “instant normalization plan”). The above normalization plan divided the number of directors other than Nonparty 17 directors whose term of office is in existence, into 315 directors and 15 members recommended by the candidates from among the following 15 directors, respectively.

Four candidates for directors recommended by all professors: Nonparty 38, 39, 40, 41

Two candidates for directors recommended by all employees: Nonparty 42, 43

Two candidates for directors recommended by the ○○ Association of Total Students: Nonparty 44, 45

One candidate for director recommended by the ○○ East-gu Council: Nonparty 46

Two candidates for directors recommended by the founder: Nonparty 47 and 48

Furthermore. According to the Intervenor’s submission of the Intervenor’s normalization plan, on May 15, 2008, the Defendant requested the Private School Dispute Mediation Committee (hereinafter “Mediation Committee”) to deliberate on the Intervenor’s normalization plan. In particular, at the third meeting of the Second Special Sub-Committee held on October 15, 2008, five former directors, including Nonparty 1, including Nonparty 1, who were held in the second Special Sub-Committee held on October 15, 2008, expressed their opinions to the effect that the right to recommend a standing director should be granted to the board of directors immediately, and eight members, including Plaintiff 2 and the president of Sejong University, were unable to return to the former president of Nonparty 1, who is the party to various corruption, and that the appointment cycle of a standing director is possible based on the instant normalization promotion committee formulated by members of the school, and any person, who is not a student-related party, can receive opinions as a standing director in the case of neutral personnel affairs.

(r) On June 11, 2009, the Defendant re-appointed seven directors (excluding Nonparty 49,50,51,52,53,54,55) as temporary directors of the Intervenor upon the expiration of the term of office of the second temporary directors on June 11, 2009. Meanwhile, Nonindicted 56 was appointed as temporary directors of the Intervenor on July 21, 2009, but the execution of duties was suspended from October 29 to March 9, 2010. Nonparty 17 directors retired on July 22, 2009, and again assumed office on September 22, 2009. On the other hand, Nonindicted 17 directors and the final directors (hereinafter “previous directors”) prior to the appointment of the first temporary directors, who did not present any opinion on the recommendation of the candidates during the process of formulating the normalization plan of the former directors (hereinafter “Nonindicted 16, 14, 156, 156, etc.”).

(s) Around December 2009, Nonparty 1 recommended candidates for appointment of directors (hereinafter “regular directors”) pursuant to the normalization of the school foundation (hereinafter “regular directors”) to the Mediation Committee. On December 10, 2009, the Mediation Committee decided to recommend Nonparty 1 to recommend Nonparty 1’s previous directors, 5’ previous directors, and the founder’s side (the meaning of “installer’s side” referred to by the Mediation Committee refers to both the founder and the Plaintiffs, as well as all the persons who presented opinions on the plan of normalization of the instant case) and two competent authorities.

(t) On February 22, 2010, the Mediation Committee decided to appoint a full-time director according to the following criteria, in which the previous directors are divided, and Nonparty 1 was not subject to criminal punishment in relation to the operation of a school, and thus, it is difficult to regard the case where the right to recommend a full-time director is excluded pursuant to subparagraph 2 below, in consideration of the specific circumstances, such as that it is difficult to regard the case where the previous directors are divided, and respect the opinions of the previous directors, rather than the Plaintiffs who have established the previous directors, the mediation committee at the fourth 49 Mediation Committee decided to appoint a full-time director, five persons who have recommended the previous directors and two persons who have established the former directors.

(1) In principle, the previous directors shall be given at least a half of the number of directors who can maintain the management rights of the corporation.

(2) However, the foregoing shall not apply when it is significantly impossible to pay in light of social norms, such as corruption, morality, school management capacity, and the people’s legal sentiment.

(3) If the previous directors are divided, the intention of the directors representing a majority shall be respected.

(4) If the previous directors are divided into the same number, the compromise shall be induced, but if it is not possible to compromise the other, the conciliation committee shall determine from the viewpoint of harmonization with the independence, identity, and public interest of the private school, and in this case the opinion of the former directors shall be respected first than the founder.

(u) On March 10, 2010, the Defendant appointed seven regular directors [the non-party 2, 3, 4, 5, 6 (the non-party 1's recommendation of the previous director), the non-party 47 (Recommendation of the founder), and the non-party 43 (Recommendation of the whole employees of the intervenor)] (hereinafter in this case, the above regular directors' recommendation was referred to as the "disposition of this case") on March 10, 2010.

[Ground of recognition] Facts without dispute, Gap's 1 through 3, 5, 6, 8 through 10, 15 through 18, 19, 27, 28, 31 through 33, 39, 40, 45, 53 evidence, Eul's evidence, 7, 14, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

Plaintiff 2 is not a previous director, and is not a standing to sue.

B. Determination

(1) Legal principles

Article 12 of the Administrative Litigation Act provides that “a person who has a legal interest in seeking the revocation of a disposition, etc.” may file a lawsuit for revocation. The instant disposition is a disposition that a defendant appoints a director after deliberation by the Mediation Commission pursuant to Article 25-3 (Standingization of Educational Foundation with which Temporary Directors are Appointed) of the Private School Act, and so if such appointment of a director affects the legal interest of the plaintiffs, the plaintiffs as the plaintiffs shall have legal interest in seeking the revocation

However, since de facto interests cannot be deemed to be included in the category of legal interests (see, e.g., Supreme Court Decision 9Du8565, Sept. 28, 2001), in order to recognize certain interests as legal interests, there must be legal grounds for such interests. Accordingly, the following is to first examine the statutes related to the disposition of this case, and then examine whether it can be the basis for the plaintiffs' interests related to the disposition of this case, and then determine whether to recognize the plaintiffs' legal interests by examining whether the disposition of this case affects such legal interests (the defendant is the standing to sue of only the plaintiff 2, and this safety defense is to be raised only by the founder, and as recognized earlier, the plaintiff 1 is also in the position of the founder as well as the previous director, and therefore, the plaintiff 1 is to review the standing to sue of the founder by using the expression "installer" or "Plaintiff" for convenience).

(2) Direct ground law for the instant disposition

Of the statutes directly based on the instant disposition, the substantive laws and regulations are Article 25-3(1) of the Private School Act. The Plaintiffs are not the other party to the instant disposition, namely, “election of a regular director” based on the said provisions, and the said provisions are not construed to have taken into account the founder of a school juristic person in light of the language and text, so the said provisions cannot serve as the basis for the

Next, Articles 24-2, 25-3(1), 9-6, and 8 of the Enforcement Decree of the Private School Act, and Articles 9-3(3), (9), and 13 of the Regulations on the Operation of the Mediation Commission. Among them, the provisions related to the founder of a school juristic person in Article 25-3(1) of the Private School Act are “after deliberation by the Mediation Commission,” Article 9-6(3) of the Enforcement Decree of the Private School Act, and Article 13 of the Regulations on the Operation of the Mediation Commission (hereinafter “instant Procedure Act”). The instant procedural statutes are deliberated by the Mediation Commission when the Defendant issues the instant disposition, but the Mediation Commission may hear the opinions of interested parties, such as a person who contributed property equivalent to at least 1/3 of the basic property amount of the relevant school juristic person. Therefore, the instant procedural regulations are insufficient to be the legal basis for the Plaintiff’s benefits independently. However, in light of the purport of the relevant Acts and subordinate statutes, if the Defendant, who is the founder of the instant disposition, can be deemed legal basis for the benefits of the instant provision.

(3) Independence of private schools under Article 1 of the Private School Act

(A) Whether the autonomy of a private school as stipulated in Article 1 of the Private School Act is a legal basis for a founder’s freedom to establish an educational foundation

Article 1 of the Private School Act provides for one of the purpose of the Private School Act. The autonomy of private schools is ① Independence in establishing a founder’s school foundation (section 1 and Sections 2 of Chapter II of the Private School Act), ② Independence of school foundations established (the remainder except Sections 1 and 2 of Chapter II of the Private School Act concerning the establishment of school foundations), ③ Independence of teachers belonging to private schools (section IV of the Private School Act) (the part concerning the establishment of private schools) is three minutes of autonomy of teachers belonging to private schools (Article 4 of the Private School Act). As such, a private school is a social entity without legal personality, and a law is bound to be centered on the subject of legal personality. Therefore, it appears that the legislators enacted the Private School Act centered on the founder of legal personality, the principal agent of legal personality, the school foundation, and the private school teachers which are closely related to private schools instead of private schools).

Of course, Article 1 of the Private School Act provides that the autonomy of a founder of a private school is not the autonomy of a founder of a private school, but the private school is born only after the founder establishes a school foundation. However, the Private School Act regulates the establishment of a founder (see Sections 1 and 2 of Chapter II of the Private School Act). However, considering the fact that the establishment of a private school is regulated by the Higher Education Act or the Elementary and Secondary Education Act (see, e.g., Article 10(2) of the Private School Act), the Private School Act guarantees considerable freedom of establishment of a founder as the founder requires the founder to appoint all initial directors (see, e.g., Article 10(2) of the Private School Act), it is reasonable to view that the autonomy in establishing a school foundation also deals with the contents of “private school autonomy” under Article 1 of the Private School Act. Accordingly, Article 1 of the Private School Act is the legal basis for the benefit of the founder’s freedom in establishing a school (in this time, autonomy in establishing a school foundation means that the founder is not interfered by any

(B) Whether the appointment of a director as a measure of normalization of an educational foundation for which a temporary director is appointed has any impact on the independence in the establishment of the educational foundation

1) The identity of the school juristic person and the substance of appointing directors

Since a school juristic person is a kind of incorporated juristic person established by the formation of the founder’s property contribution and the preparation of the articles of incorporation, the identity of the school juristic person is to realize the purpose that the founder has determined at the time of establishment in the nature of the incorporated juristic person (inasmuch as a school juristic person establishes a school juristic person, all the founders are the object of education of the incorporated juristic person, but this is common to all public schools as well as all private schools, and therefore it is difficult to view it as an element of determining the identity of the school juristic person. The identity of the school juristic person is determined according to what direction the purpose of education is achieved, and this is directly connected to the independence and independence of the private school). However, since the concept of the original juristic person is conceptually, it is impossible to form an intention without the help of a natural person, the school juristic person which

As such, a school juristic person appoints directors and allows them to realize the purpose of the school juristic person’s appointment. The appointment of directors of the school juristic person is similar to a delegation contract, and thus the trust relationship between the school juristic person and directors is the principal element. However, since the trust can be formed by human beings with interest and integrity, the trust granted to the school juristic person in the appointment of directors constitutes a new appointment of directors by a natural person participating in the appointment of directors, and such trust is deemed to be the trust of the newly appointed directors of the school juristic person.

In ordinary cases, the appointment of a director of a school foundation is made by a resolution of the board of directors (Article 20 (1) of the Private School Act). As such, the trust of a new director of a school foundation is the trust of the previous directors who participated in the resolution of appointment of a new director, and this is deemed as the trust of the school foundation.

However, the first director of a school juristic person is appointed at the same time as the establishment of the school juristic person and thus cannot be appointed by the board of directors, unlike the next directors that are already established and appointed by the school juristic person. Therefore, unlike the appointment of directors in ordinary cases, the trust of the directors constituting the school juristic person’s board of directors cannot be deemed as the trust of the school juristic person’s board of directors. From a practical point of view, it is determined by the founder’s articles of incorporation (Article 10(2) of the Private School Act). As such, the substance of the trust of the school juristic person’s first director is the trust of the founder’s first director. In other words, in the case of the first director of the school juristic person, the trust of the first director in the case of the founder of the school juristic person is deemed as the trust of the school juristic person’s first director. Such

In addition, a school is to be operated successfully so that the founder can achieve the purpose of the school juristic person. In ordinary cases, it is our reality that the founder sets forth in detail the identity of the school and the methods of operating the school to realize the identity of the school, such as the articles of association, and depends on the personal trust of the first director appointed by him/her rather than on securing the successful operation of the school. Therefore, the appointment of the first director at the time of establishment of the school juristic person has the meaning as a device to ensure the successful achievement of the school juristic person's purpose. Therefore, it can be evaluated as an important establishment element not to contribute property and prepare the articles

Meanwhile, the competent authorities appoint directors according to the result of deliberation by the Mediation Committee (Article 25-3(1) of the Private School Act). Unlike ordinary directors, the appointment of regular directors is a structure that enables the trust of the members of the Mediation Committee in the school juristic person subject to normalization (if the Water Dispute Mediation Committee appoints regular directors in accordance with the opinion of the founder or the previous director, the reliance sources are listed as the founder or the previous director): Provided, That even if the reliance members of the reliance upon which the regular directors received do not contact the founder of the school juristic person or the previous director, unless they are the school juristic person’s directors, they have the duty to realize the purpose of the school juristic person determined by the founder under the intrinsic nature, and do not perform their duties for the defendant or the Mediation Committee giving a substantial trust to them.

(ii) the similarity between the appointment of static directors and the appointment of Initial directors;

In full view of the following points, the appointment of the regular directors is similar to the appointment of the initial directors of the founders in the practical aspect.

○ Provisional Directors do not have the right to appoint regular directors, so if a majority of the directors were replaced with temporary directors after the incorporation of a school foundation, then the existing directors remaining without being replaced with temporary directors cannot take a quorum for appointing regular directors. As such, insofar as the board of directors of a school foundation cannot pass a resolution for appointing regular directors, which is a procedure for granting trust to new directors, the appointment of regular directors shall be made in the structure that makes it difficult for the school foundation to make the trust of those other than the directors of the school foundation in the trust of the school foundation. As seen earlier, the appointment of initial directors shall be made in the structure that makes it difficult for the school foundation to obtain trust to the directors outside the school foundation.

Even from the actual point of view, inasmuch as the Defendant is to appoint a director in accordance with the deliberation of the Mediation Committee, the substance of the reliance of the school juristic person on the party director is deemed to be reliance on the trust of the school juristic person, as in the reliance on the initial director.

The appointment of regular directors for the whole number of directors is meaningful to form a new board of directors, and the appointment of a majority of the total number of directors as regular directors is similar to the new board of directors when taking into account the quorum of the board of directors. In the case of the establishment of a school foundation, a new board of directors

3) Whether the appointment of a regular director affects the independence of the establishment of the school juristic person

As seen above, the following circumstances are as follows: ① the identity of the school foundation realizes the purpose that the founder determines at the time of establishment; ② the appointment of the first director is a device to ensure the achievement of such purpose; ② the principal element of the appointment of the director of the school foundation is the trust of the founder; ② the reliance of the reliance is the reliance on the initial director of the school foundation; ③ the appointment of the ipso facto director is made after the reliance on the initial director of the arbitr; ③ the appointment of the ipso facto director is made after the arbitr’s trust up to the final director before the arbitr was appointed; ④ the appointment of a majority of the directors of the school foundation is also carried out the duty of realizing the purpose of the arrative foundation as long as the arr is a director of the school foundation; ④ the appointment of the ipso facto director is based on Article 25-3(1) of the Private School Act’s initial authority but is in the sphere of guaranteeing autonomy in the establishment of the school foundation; thus, the Defendant seems to have to consider the opinion of the ar in its appointment of the ar.

(4) Intermediate conclusion

As above, as long as the Defendant’s appointment of a director affects the autonomy in the establishment of an educational foundation, which is a benefit protected by the Plaintiffs pursuant to Article 1 of the Private School Act (specificly, the protection of the founders’ intention at the time of appointing a director), the Plaintiffs are legally interested in seeking the cancellation of the instant disposition (Provided, That as seen earlier, the trust in the initial director of the founders leads only to the succeeding director through the initial director, and it does not lead to the relatives and descendants of the founders, and thus, the relative relatives and descendants of the founders cannot be the subject of independence in the establishment of the educational foundation in connection with the organization of the board of directors. Accordingly, there is no legal interest to dispute over the appointment of a director).

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition shall be revoked on the ground that it is unlawful for the following reasons.

(1) If the founder is alive and is in conflict with the former director, the former director cannot be deemed to succeed to the identity of the school juristic person, and is in the position of the mandatary to realize the intent of the founder. Therefore, the person recommended by the founder in the appointment of a regular director should be the majority.

(2) Nonparty 1 was illegally reappointed in the office of president, consecutively reappointed in the office of president, and operated various school corruption. Nonparty 1, his parents, committed an act of pathy to the Plaintiffs, but at will, distorted the Intervenor’s establishment year, and distorted the “ Sejong” to the effect that it would become the thirdest rather than the symbol of the Dominial spirit. Unlike the purport of the founder, Nonparty 1 was trying to sell the Sejong High School’s closed school and its site. In addition, Nonparty 1 attempted to sell the land owned by Sejong High School without permission. Nonparty 1 did not have a status to represent the Intervenor’s identity, as it did not want to sell the land owned by Sejong High School in his name. Since Nonparty 1 tried to register the name of the Sejong High School and establish various companies with trademark rights and to use opportunities to trade in profits with the Intervenor and to acquire personal benefits through profit-making business of the Intervenor, such as Sejong High School rather than providing education.

(b) Related statutes;

Attached Form (2) shall be as specified in attached Table (2).

C. Determination

According to Article 24-2 (4) of the Private School Act, the Defendant shall follow the result of deliberation on the normalization of school juristic persons (hereinafter referred to as “the result of deliberation”), and the Mediation Committee has considerable discretion in appointing regular directors pursuant to Article 25-3 (1) of the same Act. Considering the structure of the instant disposition, whether the instant disposition is lawful in light of the content of the instant disposition can be determined by whether it deviates from or abused the discretionary power as a result of deliberation by the Mediation Committee, which is the content of the instant disposition.

(1) The level and intensity of judicial review of the exercise of its discretion by the Mediation Commission

In establishing the degree of judicial review on the appointment of a regular director, it is necessary to consider what is the normalization of the school juristic person which is the purpose of exercising the discretionary authority. The normalization of the school juristic person is to restore the operation of the school juristic person by temporary directors to the operation of the school juristic person by the regular director. ① correct the abnormal operational status, such as the corruption of the school juristic person, and ② resolve the abnormal situation of the composition of the board of directors by temporary directors. In other words, the substantial meaning of the normalization of the school juristic person is to restore the trust of the directors of the school juristic person which has been appointed by the initial director on the premise that the normal operational state of the school juristic person which caused the appointment of a temporary director was restored to normal state, under the premise that the primary meaning of the appointment of a regular director is the restoration of the trust of the directors of the school juristic person which has been appointed by the initial director. Therefore, it is reasonable to respect the opinions of the previous directors located at the final point of trust in the case of the founder, barring any special circumstance.

However, even if the primary meaning of the appointment of a full-time director is to restore the reliance of the appointment of a full-time director, the core content is that the appointment of a full-time director is also a type of the appointment of a school juristic person. Therefore, it is insufficient to simply connect the external reliance with the appointment of a full-time director, and only when the persons eligible to be granted the reliance of the school juristic person are appointed as a full-time director, the appointment of a full-time director is consistent with the intrinsic nature of the appointment of a full-time director. Therefore, if the Mediation Committee appoints a person whose reliance with the school juristic person due to the improper interest in the operation of the school, etc., as a full-time director, and decided by the said person to reach a majority of the total number of directors, this decision is inconsistent with the intrinsic nature of the appointment of a full-time director and the normalization of the school juristic person. However, it is unreasonable to conclude that it would immediately constitute a majority of the board of directors without prejudice, regardless of the extent of the lack of rationality and the extent of the previous decision.

Of course, the judiciary, as mentioned above, may use a strict examination method which considers that the appointment of a regular director is unlawful as it goes against the essence of the normalization of the school juristic person, even one of the regular directors appointed by the school juristic person instead of the examination method, as to whether the majority of the fixed number of directors is disqualified. However, the Private School Act allows all of the initial directors to be appointed by the board of directors, and subsequent directors to be appointed by the board of directors according to the resolution of the board of directors (Articles 10(2) and 20(1) of the Private School Act). This is to respect the autonomy of the private school in terms of the composition of the board of directors, but it appears that the public nature of the private school is the legislator’s decision to secure the appointment of a regular director through independent supervising the performance of duties of the appointed directors (Article 14(3) and (4) of the Private School Act provides that one fourth of the fixed number of directors should be appointed from among the personnel recommendation committee recommended by the open board of directors, and thus, it is not appropriate for the court to appoint the remaining members by the committee to appoint a regular director.

In addition, according to the Private School Act, the Mediation Committee shall be composed of 11 members recommended by the President, the Speaker of the National Assembly, and the Chief Justice of the Supreme Court. The results of deliberation by the Mediation Committee require more than 15 years of experience in law, education, accounting, educational administration, etc. for members of the Mediation Committee. The results of deliberation by the Mediation Committee are based on professional knowledge about education, comprehensively taking into account various circumstances surrounding the school foundation. The Mediation Committee has broad discretion pursuant to Articles 24-2(2)3 and 25-3(1) of the Private School Act, and Article 9-6(3) of the Enforcement Decree of the Private School Act, and it is not deemed unconstitutional to establish the Mediation Committee and grant broad discretion on the normalization of school foundation. Considering the above, it is reasonable to respect the legislative committee as much as possible in examining the legitimacy of the results of deliberation by the Mediation Committee, barring any special circumstances such as the absence of substantial deliberation by the Mediation Committee. Therefore, it is also reasonable to relieve the discretion of the Mediation Committee on the normalization of school foundation.

(2) Whether the review result, which served as the basis for the instant disposition, is legitimate

Comprehensively taking account of the following circumstances, the degree of damage to the trust of Nonparty 1 and the Intervenor does not seem to reach the extent that Nonparty 1 does not recommend a regular director who constitutes a majority of the board of directors quota. Therefore, the results of deliberation, which served as the basis for the instant disposition, are deemed to have the minimum rationality in the appointment of a regular director.

In view of the fact that the quantitative dependence on private school is rapidly increasing as the school of higher level in the reality of the Republic of Korea, the importance of the higher school education is increasing as a result of the development of our society, and the organization and operation of the board of directors of the school juristic person is the essential contents of the autonomy of private schools, it is necessary to guarantee the freedom of private school of founders of school juristic persons or previous directors in the appointment of regular directors.

According to Article 21(7) of the Private School Act, even if the approval of taking office was revoked due to school corruption, etc., if the approval of taking office was obtained from 2/3 of the registered directors after the lapse of five years, it may be appointed as an executive. This provision seems to the purport that the damage of trust with the school foundation due to school corruption does not mean the exclusion of the participation of the board of directors.

In light of the above point, if a majority of the number of directors has been replaced with temporary directors due to an error in the operation of school juristic persons such as corruption, it shall be reasonable to deem that the trust between school juristic persons and previous directors has been damaged unless there exist any special circumstances. However, in full view of the degree of corruption and the degree of recovery of the founders or previous directors, unless the degree of damage to the trust between the school juristic persons and the previous directors falls under the degree that it is significantly impossible to pay it under the social rules, it cannot be said that the organization of a founder who is deferred to the interest of the directors or a person recommended by the previous directors is a minimum rationality.

In the case of Nonparty 1, it is difficult to recognize that the acquisition of personal benefits by using the school juristic person was the principal cause of damage to the trust of the school juristic person. The fact that there was no criminal punishment due to the negligence; the property preservation measure of KRW 11.3 billion ordered in the comprehensive audit result of this case was fully implemented; Nonparty 1’s corruption led to an fatal compromise between the financial status of the school; or substantial damage to the morality and ethical value of the school; the disposition of this case was issued four years and ten months after the previous director resigned from the office; the acquisition of personal benefits by using the school juristic person; the reasons for damage of Nonparty 1, other than the acquisition of personal benefits by using the school juristic person, etc., against the plaintiffs, cannot be evaluated as the principal reason for damage to the trust of the school juristic person’s non-party 1, which was ordered by the comprehensive audit result of this case; and it is difficult to find that the intervenor’s trust in the non-party 1 was damaged to the extent that it could not be sufficiently impaired in terms of social rules.

(3) Intermediate conclusion

Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judge Ori (Presiding Judge) Kim Young-sik