(영문) 대전지방법원 2018.8.23. 선고 2017구합107499 판결

1. On September 29, 2017, the disposition that the Defendant rendered against the Plaintiff on September 29, 2017 rejecting the application for approval of taking office against the Plaintiff is revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff was the former director of the school juristic person B (hereinafter “B”) and the president of Cuniversity established and operated by B.

B. On March 28, 2014, the date on which the Plaintiff’s director’s term of validity expires; B, January 3, 2013, 2014, opened the 6th board of directors to decide that the Plaintiff be reappointed as a director; and on February 21, 2014, filed an application with the Defendant for approval of taking office for reappointment of the Plaintiff (hereinafter “instant application for approval”).

C. On April 29, 2014, the Defendant sent a reply to suspend the above approval, since it is scheduled to process the Plaintiff’s approval of taking office according to the result of the investigation of the civil petition filed against B, who is subject to approval of taking office.

D. On October 8, 2014, the Defendant filed a lawsuit seeking the revocation of the request for disciplinary action against D, E, and F, an officer or employee of the Daejeon District Court 2014Guhap104963 on December 23, 2014, which filed a lawsuit seeking the revocation of the request for disciplinary action against D, E, and F, and the said judgment became final and conclusive around that time.

E. After the final judgment became final and conclusive, B requested the Defendant to grant approval of taking office for the Plaintiff’s reappointment repeatedly from August 20, 2014 to January 14, 2016, on a total of eight occasions, but the Defendant did not respond thereto.

F. On March 17, 2016, the Plaintiff filed a lawsuit against the Defendant with the Daejeon District Court 2016Guhap10111, which sought confirmation of illegality of omission against the Defendant’s request for taking office against the Plaintiff and sought confirmation of illegality of omission. On April 26, 2017, the said court rendered a favorable judgment against the Plaintiff that the Defendant’s above omission is illegal, and the said judgment became final and conclusive around that time.

G. After the judgment became final and conclusive, the Defendant rejected the Plaintiff’s application for approval of taking office on October 10, 2017 for the following reasons (hereinafter “instant disposition”).

○ The Supreme Court held that an executive officer of a school foundation may refuse approval of taking office from the competent agency even if there is a ground for revocation of taking office under Article 20-2 of the Private School Act (2005du9651). The Plaintiff, after September 1, 2015, after the expiration of the term of office ( March 28, 2014), falls under the ground for revocation of approval of taking office, the Plaintiff’s knowing (the scope of participation of the director at the expiration of the right to take emergency measures of the board of directors within the prescribed scope of the board of directors set forth in the Private School Act) and the Supreme Court’s decision (2017du48130). Accordingly, during the year 2015, the Plaintiff violated the Private School Act, etc. Accordingly, the Plaintiff violated the Private School Act, and failed to comply with the order. The Plaintiff’s decision that the Plaintiff’s application for rejection of the instant school operation, such as C University, by causing a dispute between executives at the meeting of the board of directors in 2015 year 2010 and 3.27.

In the event that a director is approved due to the power of being sentenced to a fine of one million won due to the recognition of a suspected crime, the approval of the director is against the reason that the corporation and the school are highly likely to cause confusion again.

[Reasons for Recognition: Descriptions A, 3 to 9, 11, 12, and 10 of Gap (including paper numbers; hereinafter the same shall apply)]

2. Summary of the plaintiff's assertion

A. The defendant's act of unfairly delaying the treatment of the application for approval of this case after the expiration of the plaintiff's term of office, which was about one year and six months after the date of the application, is an issue of the participation of the board of directors, and thus, it is improper to take the measure of this case. Furthermore, the issue of whether the plaintiff was entitled to participate in the board of directors is the cause of disposition, and the issue of whether the plaintiff was entitled to participate in the board of directors is attributable to the defendant's improper omission.

B. Since the defendant's order concerning the scope of attendance of directors at the expiration of the term of office is against B, the plaintiff shall not make the instant refusal disposition on the ground that the plaintiff did not comply with the above order.

C. In addition, in order to refuse approval of taking office on the ground that there is a ground for revocation of approval of taking office, the ground for disposition that the Plaintiff caused a dispute between the board of directors participating in the year 2015 and the officer’s meeting causes serious obstacles to school operation, the board of directors of any institution cannot be seen as having caused a dispute, and all of the serious obstacles to school operation caused by that cause. In addition, in order to refuse approval of taking office on the ground that there is a ground for revocation of approval of taking office, the ground for revocation should have occurred at the time when the board of directors was held in the former officer’s position. In the year 2015, the Plaintiff was not the Plaintiff at the time

D. The Defendant’s imposition of a fine of one million won upon the Plaintiff’s embezzlement of the accounts for school expenses requires the public interest to return the instant application for approval on the grounds that the school members oppose the Plaintiff’s taking of office. However, in light of the circumstances where the lower court rendered a suspended sentence in the instant case, it is difficult to deem that the Plaintiff’s embezzlement of the accounts for school expenses is necessary for the significant public interest to the extent that it justified the instant refusal disposition.

3. Relevant statutes;

The entries in the attached statutes are as follows.

4. Whether the disposition of this case is unlawful

(a) Relevant legal principles;

(1) According to Article 14(1) of the Private School Act, an executive of a school foundation shall consist of not less than seven directors and not less than two auditors. According to Article 20(1) and (2), an executive officer shall be appointed at the board of directors as prescribed by the articles of incorporation and shall take office with the approval of the competent agency. Meanwhile, Article 22 of the Private School Act and Article 20-2(1) of the Private School Act provide for the grounds for revocation of the approval of the officer's taking office, respectively. Article 24 of the Private School Act provides that an executive officer shall fill the vacancy within two months when the vacancy occurs in the office of director or auditor. Article 4(1) of the Administrative Procedures Act provides that administrative agencies shall faithfully and faithfully perform their duties

(2) The competent agency’s approval of taking office for an executive officer of a school foundation under Article 20(2) of the Private School Act is a subordinate administrative act that serves the legal effect by supplementing the act of appointing an executive officer of the school foundation (see, e.g., Supreme Court Decision 92Nu5461, Sept. 22, 1992). Thus, the competent agency shall approve the executive officer of the relevant school foundation, who appointed by the board of directors of the school foundation and applied for approval of taking office, unless there exist grounds for refusal of taking office, such as grounds for disqualification under Article 22 of the Private School Act or grounds for revocation of taking office under Article 20-2(1). The approval of taking office of the relevant executive officer shall not be denied for reasons not stipulated in the relevant statutes (see, e.g., Supreme Court Decision 2005Du9651, Sept. 22,

(3) As seen earlier, the Private School Act takes the procedures for appointing executives into account the appointment of the board of directors and the appointment approval of the competent agency. This ought to be considered to respect the autonomy of school juristic persons and to take into account the public interest elements of the organization of executives of a private school. Moreover, Article 24 of the Private School Act provides that a director shall fill the vacancy within two months after the occurrence of a vacancy in the board of directors, thereby promoting the smooth and continuous operation of the board of directors, which are the decision-making body of the school juristic person, by preventing the prolongedness of the vacancy in the board of directors. The purport of such provision of the Private School Act is to ensure the smooth and continuous operation of the board of directors, as a procedure for appointing executives of the school juristic person, and all the procedures for appointing executives of the board of directors and the approval of taking office of the competent agency. In other words, the board of directors of the school juristic person must immediately take the procedure for appointing directors if a vacancy in the board of directors occurs, and the competent agency upon receipt of the application shall take the disposition of refusal of taking office as soon, barring such circumstances.

(4) Of course, the legality of an administrative disposition is clear whether it is a disposition by an application or by an ex officio exercise, and in principle, it is determined based on the law and factual basis at the time of the disposition (see, e.g., Supreme Court Decisions 95Nu8461, Nov. 10, 1995; 95Nu8461, Nov. 10, 1995). Thus, if there were grounds for refusal of acceptance of appointment as prescribed by the above law between the time of application for appointment and appointment of an officer and the time of disposition

(5) However, in principle, when a provision of the relevant Act and subordinate statutes is amended before the time of a disposition after the time of filing an application, it shall be based on the standard prescribed by the amended Act and subordinate statutes enforced at the time of the disposition. However, when an administrative agency's acceptance of an application and delayed processing without any justifiable reason and thus changes in statutes and standards for dispositions during the period, a disposition made in accordance with the amended Act and subordinate statutes and the disposition standards shall be deemed unlawful (see Supreme Court Decision 2012Du23501, Jul. 24, 2014). Such a legal principle aims to ensure the legality of administration and ensure that all administrative actions take place in accordance with the good faith principle. Therefore, the purport of the legal principle is equally reasonable not only in cases where "the Act and subordinate statutes are amended at the time

(6) In addition to the above legal principles, considering the purport of the Private School Act intending to eliminate the vacancy of an officer of the school foundation which belongs to the conciliation division, it shall be deemed unlawful to reject the appointment approval only for the reason that the competent agency delayed the acceptance of the appointment approval at the time of the initial application for taking office without justifiable grounds, as a result of the school foundation’s completion of the appointment appointment procedure and delayed disposal for a long time without justifiable grounds.

(b) Fact of recognition;

(1) On March 28, 2014, B requested the expiration of the term of office of the Plaintiff on April 23, 2014, which was due to the Plaintiff’s former term of office having expired, to approve the Plaintiff’s appointment as soon as possible, and that it is difficult to hold the board of directors as a quorum due to the Plaintiff’s vacancy. In this regard, the Defendant notified the expiration of the term of office, including the Plaintiff, that it is possible to allow the officer whose term of office is expired to attend the board of directors for urgent and urgent agenda handling.

(2) Subsequent to September 11, 2014, when the Plaintiff appeared on September 11, 2014, the third board of directors passed a resolution to appoint G as a new executive director; and on September 22, 2014, when the Plaintiff appeared on September 22, 2014, the fourth board of directors passed a resolution to appoint H and I as a new executive director. On February 26, 2015, the Defendant, along with the JJ appointed on the sixth board of directors, approved the above G, H and I to take office.

(3) Meanwhile, on September 1, 2015, the Defendant demanded on March 25, 2015 that the term of office of directors K and L should expire, respectively, to appoint a vacancy, and notified that the scope of the directors whose term of office at the expiration of the pertinent right to take emergency measures for the appointment of directors should be minimized to the extent that the quorum of the board of directors is insufficient. Since then, the Defendant required on October 28, 2015, and on November 23, 2015, the appointment of a vacancy director and the appointment of a new president as well as on November 23, 2015, as well as on the appointment of a new president for the school juristic person and its affiliated schools, and further required to process a revised budget for correction and a revised budget for the number of years 2014 as well as a proposal for appointment of teachers for the school juristic person and its affiliated schools.

(4) On October 29, 2015, B opened the 4th board of directors on October 2015, 2015, and processed the proposal for teacher appointment and additional revision. On November 27, 2015, B opened the 6th board of directors and the 7th board of directors as well as the 2015th board of directors as of December 27, 2015, and appointed the J as the president, and decided to appoint new directors M and N. Meanwhile, the Plaintiff was present at the 6th and 7th board of directors to exercise its voting rights.

(5) On December 10, 2015, B reported that the Defendant fulfilled all of the Defendant’s above demands. However, on December 16, 2015, the Defendant pointed out that B attended and resolved the 6th and 7th meeting of the board of directors who are not qualified as the Plaintiff and K at the expiration of the term of office (the Plaintiff and K) and notified the Defendant of its supplementation. However, B did not comply with the Defendant’s above request for supplementation.

(6) From the Daejeon District Court on July 7, 2017, the Plaintiff was sentenced to a fine of KRW 1 million for the crime of occupational embezzlement and violation of the Private School Act by participating in a lawsuit requesting the revocation of a decision on review of an appeal made by the professor of Cuniversity from B with respect to a disposition taken by the President of Cuniversity at the time of his/her office as the president of Cuniversity, and paying the attorney’s fees from the accounts of school expenses. Following the judgment, the Plaintiff was sentenced to a suspended sentence of KRW 1 million by the appellate court on July 12, 2017.

(7) Meanwhile, the Defendant stated that the presentation materials of the press published on February 2015 are required for one to three days, and that the approval of taking office is required for one to three days, except in extenuating circumstances.

[Grounds for Recognition: Evidence No. 4, 5, 13, 15, 17, 19, and evidence No. 3, the purport of the whole pleadings]

C. Determination

(1) Examining these facts in light of the legal principles as seen earlier, the instant disposition taken after about three years and six months from the time of the instant application for approval on the ground that it occurred after about one year and six months from the time of the instant application for approval on the ground that the instant disposition was unlawful unless there were justifiable grounds for refusing to grant the approval on the ground that the instant disposition was delayed for more than the period ordinarily required, even though there were no grounds for refusing to grant the approval on the initial time of the said application for approval and for the period ordinarily required to determine whether to grant the approval.

(2) Therefore, we examine whether the Defendant’s refusal to approve the Plaintiff’s taking office against the Plaintiff for about three and a half years, and on the following grounds recognized in light of the aforementioned facts, it cannot be deemed that there is a justifiable reason for the Defendant to delay the instant disposition for about three and a half years from the time of filing the application. Accordingly, the instant disposition is unlawful and thus should be revoked.

(A) On April 29, 2014, immediately after the first application for the approval of taking office against the Plaintiff, the Defendant respondeded to suspend the above approval in order to deal with the Plaintiff’s approval of taking office according to the result of the investigation of the civil petition that was filed against B, etc., and thereafter, requested the Plaintiff to take warning according to the result of the investigation of the above civil petition status, but did not take any measures against the Plaintiff. However, if there were grounds for refusing taking office against the Plaintiff as a result of the so-called civil petition status investigation that the first Defendant had taken the place for suspending disposition, the Defendant should have issued a disposition rejecting taking office against the Plaintiff, and if not, it should have immediately taken office against the Plaintiff. Nevertheless, continuing the Defendant to take any action is against the purport of the Private School Act and subordinate statutes, as well as the fact that the warning against the Plaintiff does not constitute a ground for refusing taking office against the Plaintiff as a result of the investigation of the above civil petition status.

(B) Although B filed a revocation lawsuit against the result of the investigation into actual status of civil petition, since the part concerning the Plaintiff was omitted in the part concerning B, the above revocation lawsuit cannot be deemed an obstacle to determining whether to approve the appointment of the Plaintiff. Moreover, the Defendant immediately approved the application for taking office for other directors (G, H, I, etc.) of B, and on the other hand, in the explanatory materials submitted by the media related to the approval of taking office, the approval of taking office was required for 1 to 3 days unless there are special reasons. Nevertheless, the Defendant did not assert and prove any inevitable reasons for delaying only the decision on approval of taking office only for the Plaintiff.

C) As to the part of the grounds presented by the Defendant as the instant disposition that the Plaintiff was present at the board of directors since 2015 after the 6th anniversary of the Plaintiff’s qualification, even if the scope of the right to urgent treatment of the director at the expiration of the term is recognized only to the extent that the quorum falls short of the quorum as alleged by the Defendant, in light of the fact that another director whose term of office expires and the year 2014 immediately after the expiration of the Plaintiff’s term of office is not recognized as having raised any objection to the Plaintiff’s attendance at the board of directors, it cannot be deemed that the Defendant failed to take a disposition as to whether to apply for the instant approval in order to resolve legal disputes regarding the scope of the right to urgent treatment of the director at the expiration of the term of office, and even

D. Although the Defendant is also concerned with the fact that the Plaintiff was subject to criminal punishment due to embezzlement of school expenses according to the president’s holding office, such fact was incurred from December 17, 2014 to February 3, 2015, and it occurred after about 10 months from the time of applying for approval of taking office for the Plaintiff, and the indictment therefor was made on February 17, 2017, and the first instance court rendered a fine of KRW 1 million at the first instance court and was mitigated to the suspended sentence of a fine in the appellate court, it cannot be deemed as a justifiable reason for delaying the disposition of the Plaintiff’s taking office approval.

If the defendant decided that taking office of the plaintiff was inappropriate from the beginning of each time, the defendant should promptly refuse taking office, thereby giving the plaintiff an opportunity to proceed to the relief procedure, such as appeal litigation. Nevertheless, the defendant confirmed that the omission was illegal, and the defendant issued the disposition in this case on the ground that the illegal omission occurred during the period during which the illegal omission continued. Even though the defendant's disposition in this case does not go against the binding force of the judgment that found the above illegal omission, the defendant's rejection of taking office at the time of the disposition in this case after the expiration of the period of time from the application for approval in this case, deeming the disposition in this case lawful merely because there is a circumstance that can be viewed as a ground for refusal of taking office at the time of the disposition in this case after the expiration of the period of time from the application for approval in this case, not only contravene the purpose of the Private School Act to prevent the occurrence of a vacancy in school

(F) In full view of these circumstances, the Defendant cannot be deemed to have justifiable grounds for delaying the instant disposition for a long time.

(3) Thus, although there is no ground to refuse to accept the acceptance of the instant disposition at the time of the initial application for the acceptance of the appointment, the Defendant, who is the competent agency, refused to accept the acceptance of the instant disposition on the ground of the ex post facto delay in handling the instant application without justifiable grounds, and without any need to examine the Plaintiff’s assertion disputing the legitimacy of the individual disposition grounds cited by the Defendant.

5. Conclusion

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