[1] Whether a school is recognized as a party’s ability in a civil lawsuit (negative in principle), and whether such a legal doctrine is the same as a non-contentious case (affirmative)

[2] In a case where Eul, a director of Gap's foreigners' school, filed an application for appointment of provisional director of Gap's school, the case holding that the judgment below erred by misapprehending the legal principles on the ground that the above application is inappropriate as it is not a party's ability of the school Gap, and thus, it should be dismissed

[1] Since a school is not a juristic person as a name of educational facility, but is not an unincorporated association or foundation with a representative, as a matter of principle, it is not recognized as a party to a civil lawsuit. This legal doctrine also applies to non-contentious cases.

[2] In a case where Eul, a director of Gap's foreigners' school, applied for the appointment of a provisional director of Gap's school, the case holding that the court below erred by misapprehending legal principles in holding that Gap school's application should be dismissed on the ground that it is not recognized as a party to Gap's school's ability, and thus it cannot be deemed that Gap's application constitutes an unincorporated association or foundation with independent existence and activity, since Gap's school's establishment and operation cannot be deemed as an unincorporated association or foundation because it is unlawful because it is not recognized as a party to Gap's school's establishment and operation, and it is erroneous in the misapprehension of legal principles as to Gap school's application.

[1] Articles 51 and 52 of the Civil Procedure Act / [2] Articles 51 and 52 of the Civil Procedure Act; Article 33 of the Non-Contentious Case Litigation Procedure Act; Article 4 of the former Elementary and Secondary Education Act (Amended by Act No. 11384, Mar. 21, 2012); Article 12 of the former Rules on Various Schools (Amended by Ordinance of the Ministry of Education No. 57, Mar. 5, 2015; Article 2 of the Addenda to the Enforcement Rule of the Elementary and Secondary Education Act)

[1] Supreme Court Decision 76Da1478 Decided August 23, 197, Supreme Court Decision 2001Da21991 Decided June 29, 2001 (Gong2001Ha, 1737), Supreme Court Decision 2014Da208255 Decided March 15, 2017 (Gong2017Sang, 739)

Applicant (English name 1 omitted) (LLC, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the plaintiff-appellant)

○○ ○ foreigners’ school

Interested Parties 1 (English name 2 omitted) and 2 others

Seoul High Court Order 2016Ra20260 dated October 10, 2016

The order of the court below shall be reversed. The decision of the court of first instance shall be revoked, and the application of this case shall be dismissed.

Judgment ex officio is made.

1. A school is not a juristic person, but an unincorporated association or foundation, a representative of which is not a juristic person, as a name of educational facility, and thus, in principle, is not recognized as a party to a civil lawsuit (see, e.g., Supreme Court Decisions 76Da1478, Aug. 23, 197; 2001Da21991, Jun. 29, 2001; 2014Da208255, Mar. 15, 201). This legal doctrine also applies to non-contentious cases.

2. The applicant filed the instant application that the provisional director of the principal of the case would be appointed.

According to the records, the principal of the case was authorized as a school established by an individual (Korean name 3 omitted) pursuant to Article 4 of the former Elementary and Secondary Education Act (amended by Act No. 11384, Mar. 21, 2012); Article 12 of the former Rules on Various Schools (amended by Ordinance of the Ministry of Education No. 57, Mar. 5, 2015) from the superintendent of education of Gyeonggi-do on June 12, 2006; and it cannot be deemed that the principal of the case constitutes an unincorporated association or foundation whose existence and activities can be independently and independently from the founder and operator.

Therefore, the instant application should have been dismissed as it is unlawful because it is not recognized as a party capacity of the instant case. Nevertheless, the first instance court dismissed the instant application with its excessive charge, and the lower court maintained the first instance court as it is. Therefore, the lower court erred by misapprehending the legal doctrine on party capacity, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the order of the court below is reversed. Since this case is sufficient for the court to directly render a judgment, it is decided to revoke the decision of the court of first instance and to dismiss the application of this case. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)