Whether a resolution of the board of directors to elect a new president may be interpreted as including a resolution to dismiss the existing president (affirmative with qualification)

A resolution to dismiss a president of a college educational institution and a resolution to elect a new president of a college educational institution differs from the grounds and procedures for such resolution. As such, in general, it shall not be deemed that a resolution to dismiss an existing president who serves in the term of office for the resolution to elect a new president of a college educational institution is naturally included. However, if deemed reasonable to view that a resolution to dismiss an existing president is included in the resolution to elect a new president in light of all the circumstances, such as the background and purpose of the resolution to elect a new president and the fulfillment of the resolution, the resolution to dismiss a new president may be deemed to have been adopted simultaneously with such election resolution.

Article 105 of the Civil Act, Articles 16 and 17 of the Private School Act

Plaintiff (Law Firm Sami General Law Office, Attorneys Shin Sung-chul et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na23152 delivered on March 30, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Comprehensively taking account of the evidence established and managed by the court below, the non-party 1, who was the president of the university established and operated by the defendant, resigned on February 28, 1998, held a board of directors on April 10, 1998, and the defendant, except for non-party 1 and non-party 2 directors at the time, adopted a resolution of the board of directors with the consent of five members (one member) from among the plaintiff and non-party 3, who were presumed to be the president at the above council of professors at the university, to be the president for four years from the date of reporting to the Minister of Education (hereinafter referred to as "the first board of directors' resolution"), and the above non-party 1, the non-party 2, who was the president of the university, reported the appointment of the president to the plaintiff on the 21st day of the same month, and the Ministry of Education revoked the above resolution of the non-party 1, the non-party 4, who was the defendant's director's rejection of classes at the above university.

2. In light of the records, the above fact-finding by the court below is just, and there is no error of law by failing to exhaust all necessary deliberations or by misunderstanding facts against the rules of evidence.

3. A resolution to dismiss a college educational institution’s president and a resolution to elect a new president is different from the grounds and procedures for such resolution. Thus, in general, it shall not be deemed that a resolution to dismiss an existing president under a term of office for the selection of a new president of a college educational institution is naturally included. However, if it is deemed reasonable to view that a resolution to dismiss an existing president is included in a resolution to elect a new president in light of all the circumstances, such as the background and purpose of the resolution to elect a new president and the fulfillment of the resolution to elect a new president, it may be deemed that such resolution to be adopted simultaneously with such election resolution.

According to the facts duly admitted by the court below and the records, provisional directors appointed by the Ministry of Education at the end of the school subcommittee of the Korea Foreign Language University shall be newly elected by the former board of directors in the situation that the plaintiff was elected as the president, but fails to perform his duties as the president. At the time of the above second board of directors resolution, the plaintiff and the non-party 3 were convened at the time of the above second board of directors resolution and presented opinions on the ground that the plaintiff and the non-party 3 were candidates, and the above resolution of the board of directors shall be adopted with the consent of seven members with the consent of the president. In addition to these circumstances, the above resolution of the board of directors shall have the quorum to dismiss the non-party 3 as the president. In addition, the above resolution of the board of directors shall be deemed to have been adopted at the time of the above resolution of the board of directors. On the other hand, it shall be reasonable to interpret that the resolution of the board of directors is valid if all the above resolution of the board of directors present at the time of the above second board of directors resolution.

The decision of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles as to the effect of the articles of association, the principle of intent, and the interpretation of the decision and expression of intent.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)