[1] Where objective facts are acknowledged that grounds for revoking approval of taking office have occurred under Article 20-2 (1) of the Private School Act, whether grounds for revoking approval of taking office exist (affirmative in principle), and whether the requirements for revoking approval of taking office are satisfied solely on the ground that a school foundation which received a request for correction pursuant to Article 20-2 (2) of the Private School Act did not make correction (affirmative)

[2] Whether the disposition of revoking taking office under Article 20-2 of the Private School Act constitutes an act of discretion (affirmative), and the method of determining whether such a disposition deviates from or abused the scope of discretion under the social norms

[1] Article 20-2(1) of the Private School Act provides that “When a school juristic person violates the provisions of the Private School Act or the Higher Education Act or fails to comply with orders issued thereunder (Article 1), or when a dispute between executives causes serious obstacles to operating a school (Article 20-2(2)), etc. may revoke approval of taking office of the school juristic person. In such a case, the competent agency may revoke approval of taking office of the relevant officer if the relevant officer fails to comply with a request for correction for the reason that such cause arises. The competent agency may revoke approval of taking office of the relevant officer if it requests the school juristic person to rectify the dispute, provides the officer with an opportunity to resolve the dispute and normalize operating the school.”

If the objective fact is found that the cause stipulated in Article 20-2(1) of the Private School Act has occurred, the reason for the disposition to revoke approval of taking office is deemed to exist, unless there is any justifiable reason not to mislead the relevant officer into the failure to perform his/her duties in relation to the occurrence of such cause.

Likewise, Article 20-2(2) of the Private School Act also provides that if a school juristic person upon receipt of a request for correction fails to correct it, the requirement for revocation of approval of taking office is satisfied, and that it simply makes the best efforts to correct it does not conform to the language and text. Thus, such circumstance is only an element for determining whether the approval of taking office deviates from or abused discretion.

[2] The disposition of cancellation of taking office under Article 20-2 of the Private School Act constitutes an act of discretionary authority, and whether such disposition deviates from or abused the scope of discretionary authority under the generally accepted social norms, shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages that an individual would suffer from such disposition by objectively examining the content of the act of violation as the ground for disposition, the public interest to be achieved

[1] Article 20-2 of the Private School Act / [2] Article 20-2 of the Private School Act

[1] [2] Supreme Court Decision 2006Du19297 decided July 19, 2007 (Gong2007Ha, 1291)

Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Jeong Dong-dong et al., Counsel for the plaintiff-appellant)

The Minister of Education (Attorney Nam-soo, Counsel for defendant)

Seoul High Court Decision 2014Nu72691 decided October 16, 2015

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the grounds for revoking the approval of taking office

A. Article 20-2(1) of the Private School Act provides that “When a school juristic person violates the provisions of the Private School Act or the Higher Education Act or fails to comply with an order issued thereunder (Article 1), or when a dispute between executives causes serious obstacles to operating a school (Article 20-2(2)), etc. may revoke the approval of taking office of the school juristic person. In the event that such a cause arises, the competent agency may revoke the approval of taking office of the relevant executive (Article 20-2(2) of the Private School Act). In the event that a cause arises, the competent agency requests the school juristic person to correct the cause and provide the officer with an opportunity to resolve the dispute and normalize operating the school, and if the request for correction

If the objective fact is found that the cause stipulated in Article 20-2(1) of the Private School Act has occurred, the reason for the disposition to revoke approval of taking office is deemed to exist, unless there is any justifiable reason not to mislead the relevant officer into the failure to perform his/her duties in relation to the occurrence of such cause.

Likewise, Article 20-2(2) of the Private School Act also provides that if a school juristic person which received a request for correction fails to correct it, the requirements for revocation of approval of taking office are satisfied, and that it simply makes the best efforts to correct it does not conform to the language and text. Thus, such circumstance merely serves as a factor to determine whether the approval of taking office deviates from or abused discretion (see Supreme Court Decision 2006Du19297, Jul. 19, 2007).

B. However, the lower court determined that there was no ground for revocation of approval of taking office provided by Article 20-2(1) of the Private School Act, on the premise that, even if a ground for revocation of approval of taking office occurred, this would result in the Defendant’s main cause for the same, and that the responsibility of executive officers is relatively small, then it does not constitute a ground for revocation of approval of taking office. However, the lower court did not err by misapprehending the legal doctrine on the requirements for revocation of approval of taking office provided by Article 20-2(1) of the Private School Act.

2. As to deviation from and abuse of discretionary power

A. The disposition to revoke approval of taking office under Article 20-2 of the Private School Act constitutes an act of discretionary authority. Whether such disposition deviates from or abused the scope of discretionary authority under the generally accepted social norms shall 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 act of violation as the ground for disposition, the public interest to be achieved by such disposition, and all the relevant circumstances (see Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007, etc.).

B. The lower court, on the following grounds, determined that the person subject to the disposition in this case was an unlawful act of deviating from and abusing discretion in relation to the selection and exercise of disposition authority, even if the grounds for revocation exist.

① The grounds for revoking the approval of taking office of this case were fundamentally attributable to the mistake that the Defendant and the Private School Dispute Mediation Committee did not allocate a majority of the board of directors number to the previous directors against the normalization principle in the process of normalization of ○○ Private School established by the school foundation. Although the Defendant and the Private School Dispute Mediation Committee appointed illegal temporary directors, the mistake that did not endeavor to resolve such unlawful state was also a major reason for the occurrence of the foregoing revocation disposition. When the Defendant issued the approval of taking office of this case, such circumstance should be considered.

② Although the Plaintiffs, a previous director, made efforts to normalize the ○○ Driving Schools, there was a problem in the composition of the board of directors that caused trouble in operating the schools.

(3) When revoking the approval of taking office of all directors of a school juristic person, re-returns to the temporary directors system, which shall be used as the last resort.

④ The Defendant’s revocation of taking office of this case is in violation of equity in comparison with the case of other school juristic persons.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretion, thereby adversely affecting the conclusion of the judgment.

D. Therefore, the lower court erred by misapprehending the judgment that the grounds for revoking the approval of taking office could not constitute the grounds for revoking the approval of taking office on the grounds that the grounds for revoking the approval of taking office occurred mainly due to the Defendant, but the lower court’s revocation of the said revocation on the ground that there was an error of deviation and abuse of discretion in the cancellation of the approval of taking office of the instant case

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)