(영문) 서울행정법원 2014.7.17.선고 2014구합57324 판결

1. The Defendant’s revocation of approval of taking office against the Plaintiff on April 25, 2014 is revoked. 2. The litigation cost is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. A. A school juristic person (hereinafter referred to as “school juristic person”) is a school juristic person that establishes and operates B University on January 18, 1964 and established B University. C around 1946, the Plaintiff established D, a telegraphic body of the school juristic person, and the Plaintiff is the two South-North E. Since 194, the Plaintiff was appointed as a director of the school juristic person from October 13, 201, and was appointed as the president from January 2001. (b) A school juristic person was a school juristic person from around 200 to 10 as a site for the camp site of B University, which was used as a site for the camp site of B University, and was divided into a semi-residential area and a commercial area and completed development around 209.

C. From January 201, 2013 to December 9, 2013, the Defendant audited the school juristic person and B University, and on January 13, 2014, notified the Plaintiff of the disposition that included 27 intellectual property and corrective matters (hereinafter “Notification of Audit Results”). On January 14, 2014, the Defendant notified the Plaintiff of the scheduled separate measure regarding the notice of audit results as follows:

-The result of the audit on the matters concerning the director and the chief director (the separate measure in the university support room of the Ministry of Education): 12 cases * 12 cases : pointed out 1. 'the improper management of basic property for profit-making 1. * 'the unjust management of basic property for profit-making 1. 2. 2. 3. 'the unjust management of funds', 4. 'the improper management of contributions for profit-making enterprises', 6. 8. 'the improper management of basic property for profit-making enterprises', 10. 8. 'the improper management of basic property for profit-making enterprises', 'the unjust management of basic property for profit-making enterprises', 'the discretionary use of basic property for profit-making 8. 10. 'the improper management of basic property for profit-making 10. 11.

D. On February 12, 2014, the Plaintiff filed an application for reexamination. On March 3, 2014, the Defendant submitted to the Plaintiff, on March 3, 2014, two warnings related to embezzlement, etc. of business promotion expenses to the Plaintiff, and on March 21, 2014, one warnings related to improper processing, such as construction contract, etc.; and Nos. 25; 27; and 75 warnings related to the management and operation of intellectual property rights; and the Plaintiff’s request for reexamination of the remaining notice of audit results; while dismissing the Plaintiff’s request for correction of matters pointed out in the audit results reflecting the result of reexamination, the Defendant completed the implementation by March 19, 2014, and submitted the result to the private university system and the private school audit office. In the event the implementation is not completed by the above deadline, the Defendant requested correction as to the expected portion of the cancellation of approval for taking office under Article 20-2 of the Private School Act; and (hereinafter “request for correction”).

E. On March 19, 2014, the Plaintiff submitted a performance report in accordance with the audit results and corrective measures to the Defendant. The Plaintiff reported the following matters among the audit results and corrective measures as “in the process of implementation”, and the Plaintiff reported the following matters as “the management of profit-making property, the management of profit-making property and the prohibition 2.”

A person shall be appointed.

F. On March 27, 2014, the Defendant notified the Plaintiff of the execution of the hearing by stating the following as the grounds for the disposition: (a) in relation to the cancellation of the approval of the taking office’s taking office, the Plaintiff: (b) improper management of basic property for profit-making use; (c) unjust management of funds; (d) unjust management of the dismissal from office by the senior executive officer; (e) unjust management of contributions by the senior executive officer; (e) unjust management of profit-making enterprises; (e) unjust management of basic property for profit-making; (g) unjust management of the senior executive officer’s use of basic property for profit-making; (e) unjust management of operating expenses by the chief executive officer

G. On April 25, 2014, based on Article 20-2 of the Private School Act, the Defendant issued a disposition to revoke the approval of taking office against the Plaintiff (hereinafter referred to as “instant disposition”) on the following 10 copies on the grounds that the approval of taking office is revoked.

A person shall be appointed.

[Ground of recognition] The descriptions of Gap evidence 1 to 5, 60, Eul evidence 1 and 2 (including branch numbers), and the purport of the whole pleadings

2. The plaintiff's assertion

① In relation to the grounds for disposition 1, 2, 4, 5 (the result of the audit and the request for correction Nos. 1, 2, 4, and 6), the Defendant did not separately request the Plaintiff to take personnel measures, and the school juristic person requested only the personnel measures and completed the correction. In addition, the grounds for disposition 7 (the result of the audit and the request for correction No. 10) that did not request the correction and the reasons for completing the correction are not the grounds for revoking the approval of taking office pursuant to Article 20-2 of the Private School Act. ② The grounds for each disposition of this case are unlawful because they were erroneous by misapprehending the facts or by misapprehending the legal principles. Even if the grounds for disposition 3 exist, the disposition of this case is unlawful by abusing or

3. Determination as to the existence of the reasons for the disposition

A. Criteria to determine revocation of approval of taking office

1) Article 20-2(1) of the Private School Act provides that “When an executive officer violates the provisions of the Private School Act, the Elementary and Secondary Education Act, and the Higher Education Act, or fails to comply with an order issued thereunder” (Article 20-2(1)); “When a dispute or accounting fraud among executives causes serious obstacles to the relevant school operation (Article 20-2(2)). Therefore, revocation of the appointment of an executive officer pursuant to subparagraph 1 shall be recognized for each reason as a violation of the Private School Act, the Elementary and Secondary Education Act, the Elementary and Secondary Education Act, and the Higher Education Act, and the revocation of the appointment of an executive officer pursuant to subparagraph 2 shall be recognized as having caused a serious impediment to the operation of the relevant school in full view of all the grounds for the disposition based thereon.

2) Article 20-2 (2) of the Private School Act provides that the revocation of approval of taking office under paragraph (1) of the same Article shall be limited to cases where the competent agency fails to comply with such request even after 15 days have elapsed from the date on which the competent agency requested the school foundation to correct the reasons therefor: Provided, That where it is clear that it is impossible to correct the request even if it is made, or the extent of corruption, such as accounting fraud, embezzlement, bribery, etc. is serious, the approval of taking office may be revoked without a request for correction, and the detailed standards may be prescribed by the Presidential Decree, and Article 9-2 of the Enforcement Decree of the Private School Act provides that "where it is obvious that the competent agency may cancel the approval of taking office without a request for correction even if the request for correction is made by the competent agency" (Article 1). The purport of the above provision is that even if an officer of the school foundation appropriates the property of the school foundation, or finds an opportunity for taking office under subparagraph 2 of the same Article, he/she does not comply with the request for revocation.

In light of the above relevant statutes, in cases where the competent agency revokes the approval of the appointment of an executive officer of a school foundation on grounds of a violation of the Private School Act, the competent agency may first revoke the approval of the appointment, unless it falls under any of the subparagraphs of Article 9-2(1) of the Enforcement Decree of the Private School Act, unless it first demands correction from the school foundation and fails to comply with the request of the school foundation for correction even though the school foundation is requested to correct it. Therefore, even if the competent agency does not fall under any of the subparagraphs of Article 9-2(1) of the Enforcement Decree of the Private School Act, it is unlawful to revoke the approval of the appointment immediately without demanding correction from the school foundation (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007; 2012Du7783, May 29,

B. If the whole purport of pleadings is added to the statements in Gap evidence Nos. 1 through 5, 60 (the grounds for disposition Nos. 1, 2, 4, 5, 7) and the correction was not ordered, the defendant did not issue a separate request to the plaintiff at the time of the audit results as to the disposition ground Nos. 1, 2, 4, 5 (the audit result No. 1, 2, 4, 6) in addition to the warning measures to the related person at the time of the correction order, and the second (the audit result No. 10) in relation to the disposition ground Nos. 6 (the audit result), the defendant stated "the plaintiff, at the time of notification of the audit results, the amount from the related person, the collection of management fees, equipment or corresponding amount from the plaintiff from the plaintiff, the collection of rent for profit-making business and the notification of revenue to the plaintiff as a matter of disposition, ③ the plaintiff's explanation about the grounds for disposition No. 2, 4 and 5 related person, and the defendant did not complete the correction procedure within 2.

However, if approval of taking office can be revoked without a request for correction without the resolution of the board of directors or the procedure of permission of the competent agency, it is against the purport of Article 20-2(2) of the Private School Act that provides for a request for correction in principle to respect the autonomy of private schools, and it is unreasonable to revoke approval of taking office only with the violation of the procedure without complying with the gravity or possibility of correction. On the other hand, it is possible to obtain a resolution of the board of directors or permission from the competent agency after the fact that it is possible to obtain a resolution of the board of directors or permission from the competent agency, and it is not a ground for revocation of approval of the officer without a uniform request for corrective action against the property acts of the school juristic person which is not permitted by the competent agency, and it is necessary to first issue a request for corrective action, if it can be deemed that the ex post facto correction is completed, such as a mere monetary problem that can recover the amount unduly withdrawn, in consideration of each reason for disposition, if it is evident that the act cannot be corrected within a considerable period of time after the removal.

① The ground for disposition 1 is that the Plaintiff entered into an obligatory contract and paid management expenses without permission from the competent agency as a result of the board of directors’ resolution. It is necessary to review whether the above act is necessary to obtain permission from the board of directors or permission from the competent agency. Thus, it cannot be a ground for disposition merely without obtaining permission from the board of directors. Even if there was no resolution from the board of directors ex post facto, it cannot be a ground for disposition, and it is not obvious that it cannot be corrected within the required period despite the request for correction. ② The ground for disposition 2 is that an incorporated school foundation borrows funds and pays interest expenses without the board of directors’ resolution and permission from the competent agency. It is possible to recover the funds disbursed as a result of an unfair burden of the school foundation. This does not constitute a case where it is apparent that it can not be corrected within the required period even if the request for correction was made without the board of directors’ resolution or resolution. The three ground for disposition 4 is unreasonable to convert Q Q’s investment to the amount of investment to the school foundation’s investment without the resolution of the board of directors.

Therefore, in relation to the acquisition and sale of golf membership in the grounds of disposition 1, 2, 4, and 5, it is illegal for the defendant to revoke the approval for the immediate appointment without requiring the school juristic person to correct it.

3) The disposition of cancellation of taking office under Article 20-2 (2) of the Private School Act provides that a school foundation's failure to comply with the request for correction shall be deemed a ground for such disposition unless it falls under the proviso of Article 20-2 (2). Therefore, the matters for which correction has been completed according to the request of the competent agency cannot be deemed a ground for disposition.

With regard to the grounds for disposition 7, the Plaintiff may be deemed to have used F 4501 for a profit-making business as follows, and as long as it cannot be deemed to have obtained unjust benefits by using F 4501 for personal purposes at will, it shall not be deemed as a significant corruption, and as long as the school foundation has completed correction in accordance with the correction demand in accordance with the content

4) In short, the grounds for disposition 1, 2, 4, 5 among golf membership acquisition and sale, and 7 among golf membership acquisition and sale are not subject to the grounds for revocation of appointment approval (it shall be examined as individual grounds for revocation which must be resolved by the board of directors, etc.

1) Facts of recognition

A) On February 20, 202, 202, 202, the school foundation decided to change the use of land on the south of B University for profit from education, and obtained approval from the Ministry of Education and Human Resources Development on June 21, 2002.

B) A school foundation, at the first stage of the F project, intended to newly construct and sell a "F," a main building, in the Seoul Special Metropolitan City Gwangjin-gu S 418,415,185 square meters, (hereinafter referred to as "F"), entered into a contract with the Spanco Construction Co., Ltd. (hereinafter referred to as "Spanco") on May 14, 2003, and selected Spanco as a sales agency and a responsible contractor. F has completed sales around May 2003.

C) At the time of sale in F, there was a sports center in relation to the "golization of sports facilities", such as a golf practice hall, a insignia center, a Squitoco, a squiging program, a swimming pool, and a swimming pool in relation to the "golization of sports facilities", and upon the receipt of the sale in units, it was introduced that the above facilities are available, and that it is in charge of customer management, reservation management, atmosphere management, and receipt of inconvenience within the center.

D) F The first floor was included in the commercial facility zone designated as a sales facility and sports facility. The school foundation leased the entire commercial facility of the first floor underground in T in the F actual construction process, and T was seeking to establish and operate a complex sports center in the sports facility zone, but the sports facility zone was left public room by determining that accessibility was low in T burial and business feasibility was low.

E) Unlike the initial guidance for sale, occupants filed a civil petition against the school juristic person from around 2006 in order to lease the first basement sports facility in T, and to not provide the exclusive sports center for the occupants, and filed a civil petition with the competent authorities in relation to the construction of the commercial facility and the housing welfare facility for the elderly at the second stage of the F project.

F) A school juristic person has a dispute over the leased area between T and T. The school juristic person has filed a lawsuit against T (Seoul Central District Court 2007Gahap22946) for a claim for the payment of lease deposit, etc., and T.do educational juristic person has filed a counterclaim for a claim for damages (Seoul Central District Court 2007Gahap9984). On July 4, 2008, the school juristic person and T were sentenced to the above court's ruling of dismissing the principal claim and counterclaim, and the appeal (Seoul High Court 2008472150) was made on January 2, 2009.

G) On February 22, 2008, where T and a lawsuit were pending, the school foundation may guarantee the right to use 20 years free of charge exclusively for the F resident, and extend the same period only once, among the sales facilities used by T, for the sake of ensuring the right to use 20 years free of charge for the F resident. After the confirmation of the lawsuit, T and sports centers agreed to the effect that “the sports center shall establish sports center facilities within the limit of 3 billion won by receiving the requirements of the council of occupants’ representatives to the maximum extent.”

H) A school foundation organized a revised supplementary budget on February 6, 2012, included facility cost expenditure, and reported it to the board of directors on February 6, 2013. A school foundation has invested KRW 3 billion after 2012 in order to complete work, undergo interior works, and has part of the table gate, ice, indoor quota market, golf driving range, shooting range, and facilities, and maintains the public room.

I) The school juristic person has failed to consult with the council of occupants' representatives on the details of the operation, management expenses, etc., and thus has not been used by the occupants of the sports center until the date of closing the argument

[Grounds for recognition] Determination as to Gap evidence Nos. 6 through 10, 60, 76, 81 through 87, and the purport of the whole pleadings 3)

A) In the Private School Act, the board of directors shall deliberate and decide on “matters concerning the budget, settlement of accounts, loans, and the acquisition and management of property of a school juristic person” (Article 16(1)1), and where a school juristic person intends to sell, donate, exchange, change the purpose of use, or provide it as security, or where it intends to bear an obligation or waive a right, it shall obtain permission from the competent authorities, and the minor matters prescribed by the Presidential Decree shall be reported to the competent authorities (Article 28(1)). Article 11(5) of the Enforcement Decree of the Private School Act specifically provides for minor matters prescribed in the proviso of Article 28(1) of the Act.

It seems that a school foundation is obliged to obtain new approval from the board of directors or competent authorities as it imposes new obligations separate from the sales contract by granting the right to use the sports center to occupants.

As seen above, school juristic persons have determined the F’s plan for new construction and sale through the resolution of the board of directors, and obtained approval from the Ministry of Education and Human Resources Development for the change of the purpose of use of the development site for the purpose of profit-making. Since F’s first ground floor is to be used as the initial sports facilities, it appears that the establishment of a sports center for residents in the construction plan was included in the establishment of a sports center for residents in the construction plan. The content of the school juristic person’s guidance related to the sports center is very specific and important factors to select occupancy, and it is highly likely that it can be carried out as an incidental facility and sales contract beyond the simple abstract advertising level. Therefore, the contents related to the sports center of resident residents are accompanied by the existing F and the contents related to the existing plan, and it cannot be said that the school juristic person bears a new obligation or disposes of property as a school juristic person, and thus it cannot be said that the school

This was already resolved by the board of directors in the process of formulating the revised supplementary budget for the establishment of the sports center, and until now the school foundation has agreed only on basic matters with the occupants, not on the specific operation plan, so it is not possible to grant permission from the competent agency.

The health department and sports facility part concerning management expenses shall be managed by the school foundation after return from T, and the school foundation as the management entity shall not bear the joint management expenses according to the ratio of the area, and it is not necessary to pass a resolution of the board of directors on the matters included in the management affairs.

The grounds for the disposition shall not be the grounds for revocation of the appointment approval.

(b) Unfair borrowing of funds (Reasons for disposition 2);

1) Facts of recognition

A) A school foundation decided to newly build commercial facilities and residential welfare facilities for older persons at the second stage of the F project. A school foundation entered into a lease agreement with the KU on May 2006 to operate the department stores in the F Commercial Facilities for 20 years (hereinafter referred to as “instant agreement”). Around 2006, U entered into a contract with the KU to operate the department stores in the F Commercial Facilities for 118 billion won.

B) Under the instant lease agreement, the contents pertaining to the payment of rental deposit are as follows (A, school juristic person, U.S.).

제6조(임대보증금] ① 본 계약의 임대보증금은 ₩118,000,000,000원으로 한다. ② 제3조 3항에 따라 증가된 임대면적을 을이 임차하게 되어 제3조 2항에 따라 임대보증금을 증액 하여야 하는 경우 증액된 임대보증금은 제6조 3항의 중도금(증액된 임대보증금 총액의 6/8) 및 잔금(증액된 임대 증금의 18)의 지급비율과 지급시기에 따라 나 지급하기 하되(증액된 임 대보증금에도 불구하고 계약금의 액수는 동일하게 유지하는 것으로 한다), 선 집행되었어야 할 중 도금과 잔금이 있는 경우에는 임대보증금 증액분이 확정된 날로부터 3일 이내에 을이 갑에게 지 급하기로 한다. ③ 을은 아래 일정에 따라 제1항의 임대보증금을 갑의 아래 예금계좌에 지급한다. -생략 임대보증금 지급 일정: ④ 을이 제2항에서 정한 일정에 따른 납부기한까지 중도금이나 잔금을 납부하지 않을 경우 을은 갑 에게 연체금액에 대하여 국민은행 일반자금대출 연체기간별 연체이자율을 일별로 적용한 지연손 해금을 지급하여야 한다. ⑤ 제2항에서 정한 중도금의 납부기한보다 제5조에서 정한 임대기간의 기산일이 먼저 도래하는 경우 을은 납부기한이 도래하지 않은 중도금을 잔금지급일에 잔금과 합산하여 지급하여야 한다. -생략

3. (1) In order to establish a collateral security set forth in paragraph (8) above, A shall obtain the authorization of the Ministry of Education and Human Resources Development. (1) In the event the implementation of paragraph (9) of this Article is not possible, this Agreement shall become null and void, and A shall return the down payment made by B to A, and A shall pay B the interest calculated on a daily basis (based on the deposit interest rate

C) The public connecting route connecting 2 lines V stations adjacent to the department department stores was included in the district unit planning decision (Wed May 2, 2002, notice of Seoul), publicly notified by the Gwangjin-gu Office of Gwangjin-gu, the detailed plan for the development of the zone special zone development (X announced by the Gwangjin-gu Office of Gwangjin-gu, September 5, 2002), and was also included in the permission for the construction of P department stores as of January 7, 2003.

D) However, as the neighboring local merchants filed a civil petition opposing the installation of the public connecting passage, the installation of the public connecting passage was delayed. The school foundation obtained temporary approval on October 30, 2008 for the remaining commercial facilities except the public connecting passage, and the department store also commenced its business.

E) On April 209, a school foundation completed the implementation design of the public connecting passage, and deposited performance deposits with the Gwangjin-gu Office. A school foundation is anticipated to be installed in the public connecting passage, and requested U to pay the remainder of the lease deposit in advance. A school foundation made an agreement with U on July 28, 2009 to pay the remainder of the lease deposit in advance. A school foundation made an agreement to return the remainder of the lease deposit and the interest rate (one-year fixed deposit interest rate) applied when calculating the tax base of the value-added tax on the lease deposit for real estate notified by U during the period from the date of receipt of the payment of the remainder and the interest thereof to the scheduled date of the opening. A school foundation received ten billion won from U to receive the lease deposit as part of the lease deposit.

F) On April 16, 2010, the Mayor of Seoul Special Metropolitan City notified the Plaintiff that “the construction of a public passage is not, in principle, desirable as a result of deliberation by the Joint Committee on Urban and Building,” and that “the construction of a public passage is not possible to invest in improving the traffic environment in the relevant region,” and that “the collection of opinions from local residents, such as residents in the two district planning zone in Gwangjin-gu, at the time of non-establishment of a public passage.” As the implementation of the special agreement was impossible on July 28, 2009, U requested the school juristic person to return the remainder of the lease deposit and interest paid in advance.

G) On June 25, 2010, a school juristic person entered into a re-special agreement with U to refund any balance and interest (applicable to interest rate of 4.5% per annum for a period from the date of payment to the scheduled opening date) that the school juristic person has received, to the end of June 30, 201 with respect to the payment of KRW 10 billion.

H) When it became final and conclusive on October 2010 that the establishment of a public connecting passage was impossible, the school juristic person agreed to pay interest of KRW 150,411,00 with respect to the remainder of the lease deposit that U paid between U and U, as stipulated in the special agreement of June 25, 2010, with respect to the payment of the remainder of the lease deposit to U, as the school juristic person owns, and the interest was paid.

[Grounds for recognition] Determination as to Gap's evidence Nos. 11 through 17, 60, 77 through 79, 86, and the purport of the whole pleadings 2)

It is deemed necessary to adopt a resolution of the board of directors or permission of the competent authorities because a school foundation has borrowed funds with prior payment of lease deposit from U, and new obligation is borne by the school foundation.

In this case, U.S. is obligated to pay the remainder of the lease deposit after establishing a right to lease on a deposit basis, and there is no obligation to pay the remainder of the lease deposit to the Plaintiff solely with the approval for temporary use. ② The 10 billion won that a school foundation received from U is paid in advance the remainder of the lease deposit, not separately borrowed money. ③ The construction of a public connecting passage was included in the terms of the lease contract, and it was not problematic that the construction is promoted because the construction permit was granted. The results of deliberation by the Seoul City City Urban and Building Joint Committee on April 16, 2010 do not have been finally non-decision, and it was a school foundation that has no choice but to promote installation to implement the terms of the lease contract. ④ Each special agreement on June 25, 2010, which was concluded on July 28, 2009 and June 25, 2010, is paid in advance for the remainder of the lease deposit, and it cannot be paid in advance to U.S. interest rate of 14% per annum.

In other words, it can not be said that a new obligation is to pay an ordinary level of money in return for the payment of the remainder of the rental deposit from U.S. and the approval of the board of directors or the competent authorities is not necessary.

The grounds for the disposition shall not be the grounds for revocation of the appointment approval.

(d) Unfair disposition for dismissal from office for senior executives of accounting (grounds 3);

1) Facts of recognition

A) On May 23, 2012, the standing auditor of a school foundation: (a) on May 23, 2012, the board of directors deemed the illegality of the J of B University president at the board of directors; (b) the president, despite the absence of a large number of official expenses, the president used in cash and the accounts of the president as an agenda item; and (c) the president voluntarily withdraws from the board of directors. The J changed the time to express his/her intention, and the board of directors discussed whether the board of directors can immediately pass a resolution to dismiss the board of directors, but the following board of directors was determined as of June 2, 2012, and presented the “case concerning the removal of the president” as an agenda item of the board of directors. The J stated that he/she would express his/her intention to dismiss the board of directors before the date of the next meeting of directors.

B) Accordingly, the board of directors proposed to deliberate on the cases concerning the dismissal of the president of B University, and decided to hold a board of directors on June 2, 2012 with the consent of the directors.

C) On May 29, 2012, J submitted a written resignation on May 29, 2012, and the Plaintiff was dismissed and treated as a member of the Council.

D) On July 3, 2012, the board of directors discussed the election of the next president following the resignation of the J, and on July 1, 2012, the board of directors decided to file a civil or criminal complaint with the president before the J.

E) On April 29, 2013, the auditor discovered that AA, the secretary general of the school juristic person, embezzled KRW 26 million of the capital of the imported enterprise through the head of Department G. AA immediately recognized it and compensated for the money to the school juristic person, and was sentenced to a fine of KRW 3 million on October 31, 2013. F) A submitted the written resignation on April 30, 2013, and G on May 2, 2013, and the Plaintiff accepted it.

[Grounds for recognition] Determination of Gap evidence Nos. 18 through 22, 60, 66, and 67, and the purport of the whole pleadings 2)

A) When a teacher of a private school commits an act contrary to this Act and other education-related Acts and subordinate statutes, when he/she violates his/her duties or neglects his/her duties, or when he/she commits an act detrimental to his/her dignity as a teacher regardless of whether he/she is inside or outside of his/her duties, the person who is authorized to appoint and dismiss the teacher concerned shall request a resolution of disciplinary action, and take disciplinary action according to the result of a resolution of disciplinary action (Article 61(1)), and the teachers’ disciplinary committee shall be established to deliberate and resolve on matters concerning disciplinary action (Article 62(1)), and matters concerning the appointment and dismissal of the head of a private school and teachers shall be prescribed as matters subject to deliberation and resolution by the board of directors (Article 16(1)5 of the Act). Considering such provisions, the person who is authorized to appoint and dismiss shall have discretion to decide whether the act of a teacher of a private school constitutes grounds for disciplinary action. However, if it is objectively evident that the result of an investigation constitutes grounds for disciplinary action, he/she is obligated to request a resolution to the competent disciplinary committee (see Supreme Court.

Considering that the board of directors of May 23, 2012, there was a suspicion on the misconduct in the J part, but there was no objective verification that the dismissal of the president at the time of the board of directors on May 23, 2012 was objectively confirmed through specific data, and that the dismissal of the president at the time of the board of directors on May 23, 2012 was not an agenda item, and as a procedural problem, directors including the Plaintiff are against the president’s own resignation. ③ The directors were difficult to decide the dismissal of the president, and (3) the members agreed in the line to discuss whether to dismiss the board of directors, and (4) the school juristic person did not clearly reveal the illegality at the time of the board of directors, and the school juristic person did not file a criminal complaint on November 23, 2012, and brought a civil lawsuit, it cannot be said that the Plaintiff accepted the resolution against the resolution of the board of directors, and that there was an objective obligation to demand the disciplinary committee to accept the resolution of the disciplinary committee.

B) Article 88(1) of the School Foundation’s Articles of incorporation provides that disciplinary action against a general employee shall apply mutatis mutandis to a private school teacher, and Article 26 of the Regulations on the Personnel Management of School Teachers provides that disciplinary action may be taken where a former teacher falls under any of the following subparagraphs. Article 29 of the Regulations on the Personnel Management of School Teachers provides that disciplinary action against a teacher, disciplinary action, request for deliberation and resolution on disciplinary action, procedures for reexamination and correction shall be conducted at the school foundation on the recommendation of the president under the Special Act on the Improvement of Teachers’ Location, the Private School Act, the Enforcement Decree of the Private School Act, the Enforcement Decree

In relation to G, there is no evidence to acknowledge how G was involved in the misconduct of AA, and the investigative agency only received an investigation as a witness, and there is no evidence to be investigated as a suspect, and in fact only AA was subject to criminal punishment, and G did not file an accusation or bear liability for damages. It cannot be said that the Plaintiff had a duty to request the competent disciplinary committee to decide on a disciplinary action against G that did not reveal any illegality.

Since the illegality of AA was recognized specifically in the case of illegality, the plaintiff was dismissed from office without requesting disciplinary action even though he was obligated to request a disciplinary committee to make a disciplinary decision in accordance with Article 88(1) of the school juristic person's articles of incorporation and Article 61(1)

C) Only part of AA among the grounds for the disposition 3 constitutes grounds for revocation of appointment approval.

(f) Unfair management of investments in an importing business entity (Reasons for disposition 4);

1) Facts of recognition

A) In the articles of incorporation, the school foundation dividess corporate accounts into general accounts and profit-making accounts (Article 9(2)), and determines that ① real estate development and rental business, ② real estate sales and housing supply business, ③ agriculture, livestock and forestry business, ④ residential welfare facilities for the aged, ⑤ golf course development and operation business, ⑤ tourist accommodation business and all incidental business related thereto (Article 36) and the name of the enterprise established for profit-making business of the school foundation is “AB, ACAD, Q,00, and R” (Article 37).

B) A school foundation has carried out a construction project, which is a residential welfare facility for the aged, as a second phase of the F project. A school foundation recovered ‘ Qu' investment from which it has been enough to make an investment and converted it into an investment of '.'

C) The school foundation stated the details of the conversion of contributions in the school foundation’s budget settlement statement and balance sheet, and underwent deliberation and resolution by the board of directors on the settlement of accounts.

[Grounds for recognition] The descriptions of Gap evidence Nos. 23 through 26 and the purport of the whole pleadings

2) Determination

On the other hand, Article 6(4) of the Private School Act only requires school juristic persons to operate their accounts separately from school expense accounts and profit-making business accounts, and does not stipulate separate provisions on whether the accounts for profit-making business should be managed separately for each enterprise. School juristic persons operate five enterprises for profit-making business, but do not establish separate juristic persons for each enterprise, and all of them operate separate accounts for each revenue company for internal management purposes in the name of school juristic persons. In other words, the whole profit-making business accounts are managed as a single profit-making business account, and each profit-making business entity is treated as an individual business department established within one juristic person. As such, all rights and obligations arising from a profit-making business entity belong to a school juristic person, a school juristic person has managed separate accounts for the performance management of each profit-making business entity, and it cannot be deemed as the conversion of investments from Q to investments from a separate juristic person for profit-making business, and thus, it is not necessary to deliberate on the improvement plan and ratification thereof within the board of directors' meeting.

The grounds for disposition 4 shall not be the grounds for revocation of appointment approval.

(g) Unfair acquisition of golf membership, etc. (Grounds for disposal 5);

1) Facts of recognition

A) On May 24, 2006, the school foundation deliberated and resolved on May 24, 2006 that it acquired KRW 592,760,00 as an investment asset in relation to the acquisition of assets.

B) With respect to a financing operation plan, a school foundation supported university financial support, construction of a B substitute hospital, and profit-making business with profits obtained by building and selling F apartment houses, and executed P department stores, pay-charging sanatoriums for the aged, and AE golf course construction funds with deposit money for the F commercial buildings and future-paid elderly care facilities, and the remaining balance was deposited in financial institutions and received interest income after deposit in the financial institutions. The school foundation decided to make an investment with a low interest rate of KRW 5 billion by setting the investment period to be four years and a target return rate to be 35% and 35% of the target return. Investment is not subject to the resolution of the board of directors, and it is proposed from the finance division to obtain the approval of the Plaintiff.

was conducted.

C) Plastic Investment Partnership was determined on December 28, 2007 on the basis of its decision on December 28, 2007. In addition to school juristic persons, teachers and staff mutual aid associations, dong fire, and Korean banks have invested, and on October 2013, the rate of business return as of October 2013 is 3.4%.

D) A school juristic person began to invest in No. 19 of the Plastic Investment Association from December 20, 2007, and included this content in the settlement of accounts in 2007, and on May 23, 2008, the board of directors approved the settlement of accounts on May 23, 2008.

[Reasons for Recognition] Each entry of Nos. 27 through 29, the purport of the whole pleadings

2) Determination

A) The Private School Act provides that the property of an educational foundation shall be divided into basic property and ordinary property (Article 5 of the Enforcement Decree), and that in the event that the property is sold, it shall obtain permission from the competent authorities or report minor matters to the competent authorities (Article 28 of the Enforcement Decree).

Considering that there is a difference in the importance of fundamental property and ordinary property, and that there is a strict control, such as the permission, reporting, etc. by the competent authorities only with respect to fundamental property, the acquisition and disposal of all general property, other than fundamental property, shall not be carried out by a prior resolution of the board of directors. In other words, it is not necessary to make a prior resolution of the board of directors regarding the acquisition of common property, and if the board of directors is possible to make a subsequent resolution and undergo such procedures, it shall not be deemed a violation of Article 16(1) of the Private School Act.The purchase and disposal of golf club membership rights is the acquisition and disposal of common property, and it is not a violation of the procedures.

B) Considering the fact that a long-term investment is made with respect to the management of property and profit-making business, and the amount is likely to incur a considerable loss and it is necessary to execute as a result of the board of directors’ prior decision on whether to deposit in financial institutions at least loss and to accept the occurrence of investment, the amount, etc. cannot be deemed as an ordinary execution of the contents already determined, it is reasonable to view that the investment should undergo deliberation and resolution by the board of directors pursuant to Article 16(1)1 and 7 of the Private School Act.

C) Of the grounds for disposition 5, only the investment part against an investment association is subject to grounds for revocation of approval of taking office.

(h) Unfair use of general ministers for profit-making basic property (grounds 6);

1) Facts of recognition

A) From July 2010 to June 2012, B University leased 02 guest rooms from school juristic persons to use as president’s mission. J used the above guest rooms as president’s mission. School juristic persons set monthly management expenses at KRW 1,000,000 per month to collect more than KRW 2,750,000.

B) From July 2010 to July 375, 2010, B University used 66,039,240 won in total as management expenses from the accounts of B University’s school expenses. At around 59%, B University occupied only 153 guest rooms among total 375 guest rooms.

[Grounds for recognition] The descriptions of Gap evidence Nos. 29 to 32, and the purport of the whole pleadings

2) Determination

A) It is not clear that the issue of the reason for revocation of appointment approval in the grounds for disposition 3 is unclear. First of all, with respect to the part that the Plaintiff provided 0 or more houses as president’s official residence without a resolution of the board of directors, considering the fact that the Plaintiff was a profit-making business for the purpose of leasing the 0 guest rooms to the welfare facilities for the aged that were planned by the de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de

B) The Private School Act classify the accounts of school juristic persons into the accounts belonging to the school that it has established and operates and the accounts belonging to the business of the juristic person (Article 29(1)) (Article 29(1)). Article 25(1) of the Regulations on the Finance and Accounting of Private School provides that school expenses shall be organized and executed by the head of the school. Of the grounds for disposition 6, the portion that the school juristic person paid management expenses from the accounts of school expenses from among the accounts of private school institutions is not involved in the school juristic person’s affairs, and thus, it cannot be deemed as a violation of

C) Although the reason for disposition is not clear, considering the content of the audit results notification, the part of the management expenses was used from June 1, 2012 to June 30, 2012, which J resigned from the president’s office of president No. 1806, and it appears to the purport that the Plaintiff breached the duty of due care as a good manager, which was paid less than ordinary management expenses, even if the management expenses were used for an individual’s personal purpose, as in the case of using them for an official residence.

In light of the following: (a) B university provided official residence to the president of B university for convenience; (b) school juristic persons reduced management expenses because management expenses are incurred in the accounts of school expenses; (c) providing the president’s official residence was more effective property management; (d) providing the president’s official residence was paid for one month immediately after the resignation of the president; and (e) granting new benefits as the existing management expenses to the extent immediately after the resignation of the president; and (e) even if the management expenses were paid by the president after the resignation of the president, it is difficult to clearly divide the period of use as official residence by the number of days because it is necessary to adjust the work to the extent that the period of use as official residence is one month.

(i) Voluntary use of basic assets for profit-making purposes by the chairperson (7)

1) Facts of recognition

A) When concluding a contract for F new construction and sale in lots with Switzerland, the school foundation set forth in Article 9 of the Special Agreement that the school foundation will be given priority to the provision of the highest-class 1 household (F 4501) on the 99 square meters above the 9th floor.

B) As F’s executor, the school foundation completed the registration of ownership preservation on March 2, 2007 with respect to the F’s whole building, and the part other than F 4501, other than F 4501, completed the registration of ownership transfer to the buyer, and the school foundation completed the registration of ownership transfer to the buyer. The school foundation used F 4501 visit, event, and the public relations activities to move in. From February 15, 2013, the school foundation decided to lease the F 4501 without using No. 4501, and kept most of the equipment in the 30th and fourth warehouse above the ground.

D) The Plaintiff is residing in Jongno-gu Seoul Metropolitan Government AF Housing.

[Reasons for Recognition] Each entry of Gap evidence Nos. 6, 33 through 41, and the purport of the whole pleadings

2) Determination

First of all, it is necessary to pass a resolution of the board of directors to acquire F 4501. A school juristic person is deemed to have completed registration of initial ownership as a F’s executor, and it is not necessary to separately deliberate, resolve, or grant permission from the board of directors or competent authorities on the acquisition itself, as it was planned from the original construction phase. In F construction phase, the health expenses of the Plaintiff used F 4501 personally, as seen above, the Plaintiff does not need to use F 4501 because the Plaintiff was residing in a separate house, as it was found in the foregoing facts, and there was no need to personally use F 4501. In light of the fact that the Plaintiff actually used F 4501 from various documents such as a management fee disbursement resolution, etc., referring F 4501 to an external customer, and it appears that the school juristic person used F 4501 for the purpose of events or public relations, and there was no need to use it in the school juristic person for profit-making business.

The grounds for the disposition shall not be the grounds for revocation of the appointment approval.

(i) False employment, etc. of employees of a for-profit enterprise;

1) Facts of recognition

A) A school juristic person around 2007 determined the site used as a field for the field for the field for the field for the field for the field for the livestock industry of B University as a golf course and continued construction with permission (R; hereinafter “the instant golf course”).

B) Some of the site of a golf course (AG, AH, AI, AJ, AJ, and AK were owned by the Republic of Korea despite having been recognized as ownership in the past. On November 26, 2007, K et al. filed a lawsuit (Seoul Central District Court 2007Gadan427827) against the Republic of Korea for the procedure, etc. for the cancellation of registration of ownership preservation (Seoul Central District Court 2007Gadan427827) and the said judgment became final and conclusive as it is.

C) Even though a school foundation participated as an independent party in the above lawsuit, it was sentenced to dismissal judgment, and the school foundation filed a lawsuit against K, etc. claiming for ownership transfer registration (Seoul Central District Court 2008Gahap76940), on April 30, 2009, which was dismissed by the above court, and filed an appeal (Seoul High Court 200946851), and all appeals (Supreme Court 2010Da50700) were dismissed.

D) K et al.’s land constitutes a 10,11 hole of completed golf courses. A school juristic person obtained authorization of an implementation plan on August 21, 2009 under the condition that the right to use land or ownership is secured for private land in the project site from the Pakistan-si. On November 1, 2011, a school juristic person started a golf course business with conditional registration of a sports facility business on the condition that it shall be treated under the responsibility of the school juristic person upon occurrence of a civil petition. However, while refusing K et al. to sell land to a school juristic person and filing a civil petition at the time of strike, the school juristic person was unable to normally operate a golf course.

E) K et al. demanded the initial KRW 15 billion with the purchase price for the land, but through consultation, sold the land in total of KRW 4.4 billion, but demanded that K et al. be formally employed to the instant golf course for one to two years and pay it as personnel expenses. Accordingly, the school foundation entered into a sales contract with K et al. on June 19, 2012 to purchase the said three parcels, and completed the registration of ownership transfer on July 13, 2012. A school foundation completed the registration of ownership transfer on July 13, 2012. The school foundation paid KRW 4.4 billion with the completion of the registration of ownership transfer, and paid the remainder in the form of benefits.

[Reasons for Recognition] Items A to 50, Items A to 53, and the purport of the whole pleadings

2) Determination

Article 32, Article 33, and the proviso of Article 51 of the Private School Act stipulate matters necessary for the finance and operation of accounting of private school established and operated by juristic persons and their employees (Article 1). The finance and accounting of juristic persons and their schools shall be operated in a sound manner, and shall not be contrary to the obligations of the State and society as public institutions and the purpose of establishment thereof (Article 4), and the expenditure budget of accounts belonging to juristic persons shall not be used for any purpose other than the purpose (Article 21(1)).

A school foundation shall employ false K as an employee at the request of K, etc., and paid the purchase price as a salary. The expenditure of such school foundation may be deemed to violate the National Health Insurance Act or the National Pension Act. At the same time, it violates the basic principles of finance and accounting management (Article 4) prescribed by the financial and accounting rules of private school institutions, and Article 21(1) that provides for the prohibition of use other than the purpose of budget. The financial and accounting rules of private school institutions shall also be deemed to violate the provisions of Article 20-2(1)1 of the Private School Act based on the Private School Act.

The grounds for the disposition shall be limited to the grounds for revocation of the appointment approval.

(j) Contracts and execution of middle school teachers attached to the attached middle school (Grounds for Disposition 9);

1) Facts of recognition

A) On April 27, 2011, the school foundation made a tender to select a new construction company for middle and high school teachers (hereinafter “the instant construction”) affiliated with B University (hereinafter “the instant construction”). A school foundation has planned a construction period for 14 months, has awarded a contract to a minimum bidder below the expected price, has been awarded a bid for 14 months, 2 or more bidding will be conducted only for the relevant person, 2 or more bidding will be valid, and a minimum bidder shall be selected as a person eligible for preferential bargaining at the time of a bid. In case of a number of bidding, if a successful bidder is not selected in a number of bidding, a retender shall be conducted, and a certain bid and bidding method shall be determined later, and a gold Council shall not participate in a retender under the same conditions.

B) A school foundation determines the estimated construction cost as KRW 11,953,00,000, the estimated construction cost of which is 70%, and the estimated bid price was determined as KRW 93.5 billion (including value-added tax).

C) On April 27, 2011, as a result of the tender, the bid bid price of KRW 11,89,99,910,000, and the bid price of KRW 11,60,000,000, the tender price of KRW 11,600,000.

D) On June 11, 2013, the school foundation entered into a contract with the lowest bidder for the amount of KRW 9.35 billion, a projected price, which is 9.35 billion.

[Grounds for recognition] The descriptions of Gap evidence Nos. 54 through 58, the purport of the whole pleadings

2) Determination

Article 35 of the Rules on the Finance and Accounting of Private School institutions provides that a certain construction contract should be put into general competition, and there are no special restrictions on re-tenders, etc.In order for the school foundation to plan the construction period short by taking into account the semesters, etc., and to carry out only one-time bidding for this purpose, it is not a violation of the rules on the finance and accounting of private school institutions.

Of the grounds for disposition 9, the part related to the free contract and the bid price ratio is based on the "Articles 14 and 18 of the 2000s." However, the 200s. The 30s.0s. of the 200s. of the 200s. of the 200s. of the 200s. of the 200s.

In addition, the part that did not place an order for electrical construction, telecommunications construction, and did not pay statutory expenses does not constitute a violation of Article 20-2(1)1 of the Private School Act, Article 20-2(2)1 of the Private School Act, the Elementary and Secondary Education Act, the Elementary and Secondary Education Act, and the Higher Education Act, or a failure to comply with the order. Accordingly, it cannot be said that it caused a serious obstacle to the operation of the relevant school due to accounting fraud and significant unfair practices as provided in Article 20-2(1)2

The grounds for the disposition shall not fall under the grounds for revocation of the appointment approval.

(k) Failure to comply with a request for correction as a result of auditing (Grounds 10).

In addition to the reasons for the disposition that was referred to in the 10th 9th 7th 9th 7th 10th 7th 7th 7th 7th 7th 10th 7th 7th 7th 7th 7th 7th 7th 7th 10

In addition, it is difficult to clearly ascertain whether the Defendant’s failure to comply with a request for correction of the audit result, separately from 1 through 9, can be deemed as a ground for revocation of appointment. Article 20-2(1)1 of the Private School Act limits the grounds for disposition to any violation of Acts and subordinate statutes that may seriously affect the operation of an educational foundation, such as the Private School Act. However, under 10, the Defendant merely takes the underlying Acts and subordinate statutes as a ground for disposition, including the non-performance of the details of the request for correction of the audit result, and thus, it is not clear whether the school juristic person violated any Acts and subordinate statutes in relation to the additional grounds for disposition, and thereby, caused serious obstacles to the operation of the school provided for in the Private School Act. Moreover, among the audit result and matters of the request for correction, the Defendant’s failure to complete the Plaintiff’s implementation (for instance, the Plaintiff’s notification Nos. 21, 26, 27.) included in the specific grounds for disposition. In addition, the Defendant requested the Plaintiff’s request for correction as a different from the aforementioned ground for revocation.

Taking account of the fact that it is difficult for the Plaintiff to properly defend, that is, the fact that the notice of the implementation plan for a hearing is the cause of disposition, and that the Plaintiff did not fully mention the reason for additional disposition, and that the Plaintiff was unable to submit an opinion at the time of the proceeding of the hearing, it would result in revocation of the approval in violation of the procedural provisions prescribed in Article 9-2(2) of the Enforcement Decree of the Private School Act. The mere fact that the Plaintiff did not individually specify the reason for disposition and did not comply with the request for correction of audit results does not constitute a cause for revocation of appointment approval as prescribed in Article 20-

In this context, the defendant's additional reasons for acquiring and managing management rights in the U.S. university can not be readily concluded that a school foundation has failed to comply with a request for correction by filing an administrative litigation against the defendant and receiving a decision of stay of execution.

The grounds for disposition shall not fall under the grounds for revocation of the appointment approval.

4. Determination as to the deviation and abuse of discretion

A. The cancellation disposition of taking office under Article 20-2 of the Private School Act constitutes a punitive administrative disposition. Whether a punitive administrative disposition deviates or abused from the scope of discretion under the social norms should be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition by objectively examining the content of the offense committed as the ground for the disposition, the public interest purpose to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decisions 2001Du7138, Feb. 5, 2002; 2006Du19297, Jul. 19, 2007).

B. The grounds for revocation of the appointment approval among the grounds for the instant disposition are only part A of the grounds for disposition 3, the investment part of the grounds for disposition 5, and the grounds for disposition 8.

Considering the following: (a) part 3 of the grounds for disposition: (b) AA of the disposition was immediately returned by AA; (c) was accepted in consideration of the working conditions between them, such as long-term work and being given official commendation; (d) the investment part 5 of the disposition grounds is merely a procedural reason that did not go through a resolution of the board of directors; and (c) the investment decision itself does not seem to be significantly unfair considering other investors or the current yield of investment; (d) the assessment losses are still incurred at the time of the disposition; (d) the investment decision is not yet finalized; and (e) the investment decision is not a matter of self-determination; (e) the 8 grounds for disposition does not have to have paid the expenses required to be paid; and (e) the fact that the 5-year request for the cancellation of the approval of the appointment of the school foundation constitutes an abuse of discretionary authority by the head of the school foundation for which it was extremely unreasonable for the purpose of reducing the loss of the school foundation; and (e) the 5-year request for the appointment of the school foundation to take office for more than 14 years.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.