2019Nu59785 Revocation of the approval of taking office

1. A;

2. B

3. C.

4. D.

5. E.

6. F;

Plaintiffs, Kim & Lee LLC, Counsel for the defendant-appellant

Attorney Park Tae-tae, Park Jong-tae, Park Jong-ok, and Jeong-tae

The Minister of Education

Attorney Doh-young, Counsel for the defendant-appellant

G of a school foundation

Attorney Kim Jong-il, Counsel for the defendant-appellant

Seoul Administrative Court Decision 2018Guhap89053 decided September 19, 2019

April 29, 2020

June 3, 2020

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On November 23, 2018, the Defendant revoked the revocation of the approval of taking office against the Plaintiffs.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Quotation of the first instance judgment

The reasoning of this court is as follows, and it is stated in the reasoning of the first instance judgment, except for the addition of the judgment as to the newly asserted part by the defendant in this court under Paragraph (2). Thus, it is accepted as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

【Partial Sheed Hand】

Under the second instance judgment of the first instance court, the "School Foundation G of the fourth instance (hereinafter referred to as the "School Foundation of this case")" shall be deemed as the "Supplementary Intervenor" (hereinafter referred to as the "Supplementary Intervenor"), and the "School Foundation of this case" in the part citing the first instance judgment thereafter shall be deemed as all the intervenors.

In the 11th page of the judgment of the court of first instance, the 2nd, 12th and 9th each "witness 2" shall be read as "Z of the court of first instance", the 18th and 17th "AD and Z" as "AD of the court of first instance", and the 21th "AD" as "AD of the court of first instance", respectively, shall be read as "AD of the court of first instance".

○○ Court of First Instance 10, No. 12, No. 21, No. 21, and No. 21, each "this Court" shall be applied to "court of First Instance".

2. Additional determination

A. Summary of the defendant's assertion

1) A resolution on the issue of appointment of directors to Plaintiff C and F, which was a director of the Intervenor, at the meeting of the board of directors dated January 12, 2015 and 29, was not actually present, and the resolution on the issue of appointment of directors to Plaintiff C and F does not take effect because it does not meet the quorum requirements prescribed in the Private School Act and the Intervenor’s articles of incorporation. The above Plaintiffs, C and F cannot be deemed lawful directors. As such, the board of directors of August 30, 2016 and the Plaintiff B, and F, who were reappointed in this society on November 21, 2016 at that meeting, cannot be recognized as a director. Accordingly, the Defendant’s disposition of approval of the Defendant’s taking office to Plaintiff A, B, C, and F constitutes a case where there is a significant and obvious defect in the administrative disposition procedure, and thus, the Defendant may revoke this ex officio

The grounds for the first disposition against the plaintiffs include "ex officio revocation" in the meaning of declaring the invalidity due to the chain invalidation of the resolution of the board of directors as above, and even if it is a new reason for the first disposition, there is no room to regard it as a violation of the plaintiffs' right of defense due to the same factual basis as the grounds for the first disposition in this case. Thus, it is legitimate for the defendant to include it or add it as a new reason for the disposition.

2) As such, the invalid appointment of the Plaintiff A, B, C, and F participated in the resolution of the Plaintiff A, B, and F, which was held for about two years after December 29, 2015, becomes null and void, and the Intervenor’s decision-making function was substantially interrupted, and the Intervenor’s decision-making function was substantially interrupted. This is also liable to Plaintiff D and E with the knowledge that the minutes of the board of directors were falsely prepared, as well as the above Plaintiffs, and the Plaintiff D, and E, who signed the Plaintiff’s signature with the knowledge of the fact that the minutes of the board of directors were falsely prepared. This alone does not mean that each of the dispositions

B. Determination

1) Determination as to the assertion that a legitimate ground for disposition is added

A) In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the basic factual relations are deemed identical to the original grounds for the disposition, and the existence or absence of the basic factual relations here shall be determined based on whether the basic social factual relations are identical in the basic facts prior to the legal evaluation of the grounds for the disposition, and shall not be permitted on the ground that the basic factual relations and facts are different from those of the other party to the administrative disposition, thereby ensuring the other party’s right to defense of the administrative disposition, thereby realizing the rule of law and protecting the other party’s trust in the administrative disposition, and the reason for the addition or modification shall not be deemed identical to the original grounds for the disposition, unless the grounds are specified in the original disposition, and it shall not be deemed that the party had already existed at the time of the disposition and had been aware of the fact (see, e.g., Supreme Court Decision 2001Du827, Dec. 11, 2003).

B) According to the following circumstances, Gap evidence Nos. 2, 3, and Eul evidence Nos. 1, 2, 13, 24, 26, and 28 (including various numbers) and the overall purport of pleadings, it cannot be deemed that the grounds for "ex officio revocation in the meaning of declaring the invalidation of the defendant's assertion" are included in the grounds for Disposition No. 1 of this case, and further, it is difficult to view the above grounds as identical to the grounds for Disposition No. 1 of this case, and thus, it is not allowed to add them to the grounds for Disposition in this court. Accordingly, the defendant's assertion in this part is without merit.

(1) On the first page of the Disposition (Evidence A) of this case, under the title "an improper operation of the board of directors and a false preparation and exercise of minutes" as the grounds for the Disposition (Evidence A) 1, "the preparation of a false minutes of the board of directors is deemed to have participated in the deliberation and resolution on the agenda presented by a director who does not attend the board of directors at the board of directors". In addition, the defendant's demand for correction and the notice of the defendant's comprehensive audit results cited in the above order (Evidence A No. 2) are stated only as "1. Illegal operation of the board of directors and the preparation and exercise of false minutes of the board of directors" and the defendant's comprehensive audit results cited in the above order (Evidence 1) are stated as the facts that the plaintiffs prepared or signed the minutes of the board of directors as above, and there is no indication as alleged by the defendant.

Rather, in light of the legal principles that "ex officio cancellation in the meaning of declaring invalidation" and the cancellation disposition of taking office approval in accordance with the above Private School Act shall be divided (see, e.g., Supreme Court Decision 87Du256, Jun. 23, 1987) with regard to matters that cannot be corrected, such as the Private School Act related to the contents of the pertinent disposition, and that "ex officio cancellation in the meaning of declaring invalidation" and "ex officio cancellation in the meaning of declaring invalidation" shall not be deemed to include "ex officio cancellation in the meaning of declaring invalidation" as alleged by the Defendant.

(2) In addition, as seen earlier, the reason for Disposition 1 was written or signed on the minutes that the J was present at the meeting of the board of directors of October 29, 2015, December 10, 2015, and December 29, 2015 on the total three occasions of December 29, 2015. The reason for the Defendant’s assertion is that not only the board of directors of December 29, 2015, but also the board of directors of August 30, 2016 and the board of directors of the board of directors of August 30, 2016 and the resolution for the appointment of directors of Plaintiffs A, B, C, and F was invalid due to the procedural defect of the board of directors of the Plaintiff of December 30, 2016.

Therefore, the first disposition is an issue of illegality of the act of falsely recording or signing the meeting minutes of the board of directors. However, regardless of the false preparation or signature of the meeting minutes of the board of directors, the defendant's grounds alleged by the defendant cannot be recognized as the validity of the resolution of the board of directors due to the defect in the requirements of the board of directors' own resolution, and the subsequent resolution of the board of directors is not valid annually. Thus, the basic facts between the two

(3) The Defendant alleged that the board of directors appointed at the board of directors with such procedural defect as above was so notified that the Plaintiff C and F was disqualified as an executive officer (Evidence B). However, the above notification was made as of November 26, 2018, which was subsequent to each of the instant dispositions, and the content of the notification was also notified that the temporary director is scheduled to be appointed, and thus, it is not related to each of the instant dispositions (the Defendant, in fact, ordered the Intervenor to appoint each temporary director on February 1, 2019 and February 8, 2019 after the above notification, and the separate lawsuit for revocation is in progress (Seoul Administrative Court Decision 2019Guhap63508).

2) Determination on the assertion that it should be taken into account in determining the deviation and abuse of discretionary power

Since the disposition of cancellation of taking office under Article 20-2 of the Private School Act provides that "non-compliance with the request for correction" as a ground for disposition, it is not possible to consider the defendant's failure to take into account in determining whether the defendant has deviates from or abused the discretionary power of each of the dispositions of this case (see, e.g., Supreme Court Decision 2001Du7138, Feb. 5, 2002). Accordingly, as seen earlier, it cannot be deemed that the grounds for disposition of this case are included in the grounds for disposition 1, and the defendant's assertion that the defendant should consider the matters such as the "ex officio cancellation" in the meaning of declaring the invalidity of the "non-permission for addition as a ground for disposition" or the "math cost of school administration due to the chain invalidation of the resolution of the board of directors"

3. Conclusion

Therefore, all of the plaintiffs' claims are justified, and the judgment of the court of first instance is just, and all of the appeals against the plaintiffs are dismissed. It is so decided as per Disposition.

Equal judges of the presiding judge;

Position of judge transfer;

Judges Gin Jae-ho