(영문) 서울북부지방법원 2012.10.10.선고 2011가합10567 판결

1. On February 5, 2010, the board of directors of the board of directors confirms that the resolution to appoint ○○ as a director each director on February 17, 2010, the resolution to appoint ○○○ and Kim○○ as a director on February 16, 2012, the board of directors of the board of directors on February 16, 2012, the resolution to appoint ○○ and Kim○ as a director, and the resolution to appoint ○○ as a director on June 6, 2012, the resolution to appoint ○○ as a director by the board of directors

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Facts of recognition;

A. The Defendant was established pursuant to Kim XX, with the purpose of conducting higher education according to the fundamental ideology of education of the Republic of Korea around December 1952, and operated ○○ University around April 1954.

B. The defendant around March 1, 1998, around 1998, had this Dol, the wife of Kim XX, as the chief director, the plaintiff Park○-○, Gangnam○, Dol○, Dol○, Dol○, Dol○, Dol○, *, *, Dol* as the chief director.

C. The Ministry of Education, from April 9, 1998 to April 24, 1998, performed a comprehensive audit on Defendant and ○○○ University, and notified the Defendant of the audit results pointed out the negligence of duties of the president of this △△, violation of relevant Acts and subordinate statutes, such as the improper use of the school expense budget by the Plaintiff Park ○○, and the failure in the operation of the board of directors, and requested the Defendant to correct

D. The Ministry of Education provides that the defendant did not take corrective measures according to the result of the comprehensive audit.

7. From July 18, 198 to August 3, 1998, the Defendant’s directors were dismissed through the expiration of the term of office, cancellation of approval for directors, notification of invalidity of approval for directors, dismissal of directors from among directors, etc. From July 18, 1998 to August 17, 199 *, *, gambling*, *, *, Kim △△, this***, **, Kim **, Kim ***, Kim ** on December 1, 199, the above temporary directors were appointed on December 2, 199, and the third temporary directors were appointed on or around December 18, 201 and January 3, 202.

E. On January 16, 2004, the Ministry of Education and Human Resources Development appointed Kim ○, head of △△, head of *, gambling*, this*, this*, this**, new*, *, *,00 on March 17, 2004, and the above provisional directors held a board of directors on March 17, 2004 and made a resolution to appoint him as a regular director (hereinafter referred to as the "resolution of the board of directors of this case") * Kim○, head of ○○, head of ○○, Kim ○○, Kim ○○, Kim Il, White, and head of △△△, which was composed of a resolution of the board of directors of this case) on March 29, 204, and retired on March 30, 204. The Ministry of Education and Human Resources Development adopted a resolution of the board of directors of this case * ○○, ○○○, and ○○, 304.

F. After that, the Defendant’s board of directors on February 5, 2010, on February 5, 2010, 17, 2010

This ¡¿ A resolution was passed on February 16, 2012 to appoint the ○○○, Kim○, and the ○○ on June 6, 2012 as a director. A resolution was passed to appoint the ○○ as a director on the appointment of each director on June 6, 2012. The Defendant’s director or chief director around the closing date of the instant pleadings is Kim○○, ○○, ○○, 00, 00, 00, 00, 00, 00,

[Grounds for Recognition] Facts without dispute, Gap 1, 3, 4, 15 evidence, Eul 1, 7, 9, 15, 16-1, 2, Eul 20 through 24, and the purport of the whole pleadings

2. Determination as to the cause of action

A. Relevant legal principles

In light of the basic rights of school juristic persons, the legislative purpose of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter referred to as the "former Private School Act"), and Article 25 of the same Act, as special provisions of Article 63 of the Civil Act, have separate provisions on the grounds for appointment of temporary directors, duties, the period of office, and restrictions on the appointment of regular directors, etc., when a temporary director appointed by the Minister of Education pursuant to Article 25 of the former Private School Act is unable to achieve the purpose of school juristic persons or is likely to cause damage because of a vacancy of directors, temporary directors appointed by the Minister of Education pursuant to Article 25 of the former Private School Act shall be interpreted as having the same authority as regular directors, unlike temporary directors under the Civil Act, to be limited to the act related to the operation of general school juristic persons (see, e.g., Supreme Court Decision 2010Da306783, Oct. 28, 2010).

B. Determination

In light of the above legal principles, the board of directors resolution of this case is invalid, unless there are special circumstances, by a resolution made by those who do not have the authority to appoint a regular director. Accordingly, the following resolutions made by the board of directors appointed by the resolution of this case as invalid by the board of directors shall be null and void: Kim○, Head○, Head○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○, ○, ○, ○○, ○, and ○○, as seen above, by the board of directors composed of temporary directors appointed by the Minister of Education and Human Resources Development as the defendant’s regular director.

3. Determination as to the defendant's assertion

A. Summary of the defendant's assertion

The former Private School Act does not have any provision regarding the normalization plan for private schools to which temporary directors are dispatched at the time of the resolution of the board of directors. Thus, if temporary directors are appointed under the former Private School Act, it shall not be always null and void, but if the selection process conforms to the general principles under the Civil Act, it shall be deemed valid. The resolution of the board of directors of this case is valid in light of the fact that the former president of this case brought by the defendant against the Minister of Education and Human Resources Development at the time of this case in the process of a lawsuit seeking cancellation of the appointment of temporary directors against the Minister of Education and Human Resources Development, the defendant president of this case, and the Ministry of Education and Human Resources Development, all of the defendant-related persons, such as the defendant president at the time of this case, determined a regular director through consultation with the defendant's founder to prevent any damage to the defendant's freedom of private school operation, identity, and identity of the defendant's private school. The revised Private School Act after this case also stipulates that the appointment of ○○○○ et al.

B. Relevant legal principles

A provisional director under the former Private School Act is not entitled to appoint a regular director, and there is no authority to appoint a regular director, such as a retired director, even if the temporary director was legally appointed before the appointment of a temporary director. Thus, the appointment of a regular director without authority can not be valid on the ground that the temporary director appointed a new director after consultation with the aforementioned regular director, etc. (Supreme Court Decision 2011).

9. 8. See Supreme Court Decision 2009Da67115 Decided 2009

C. Determination

1) As seen earlier, the resolution of the board of directors of this case is a person who, without authority of the defendant's provisional directors, appoints regular directors without authority, and even if there was an agreement between the defendant's chief director, the defendant chief director, and the Ministry of Education and Human Resources Development, the competent agency, etc., at the time, such circumstance alone does not immediately mean that the resolution of this case is valid. However, under the former Private School Act, where the reason for the selection and appointment of provisional directors is terminated, it would be equivalent to the general principles of the Civil Act, and the freedom of private school under the Constitution, which is recognized to school juristic persons, is in the relationship of appointment in sequential order, it is substantially realized by the connecting directors. Among them, the former directors are those who are located most adjacent to the duty of securing the independence and identity of the school juristic persons, and thus, it can be deemed that the resolution of this case is not valid or that the resolution of this case is valid, despite the fact that the resolution of this case is not valid in 14th of May 17, 2007.

On December 199, 199, the term of office of the temporary directors appointed by the Ministry of Education, appointed the second temporary directors, and appointed the third temporary directors around December 2001 and around January 2002.

On March 29, 2002, the Ministry of Education and Human Resources Development filed a lawsuit against the Minister of Education and Human Resources Development to revoke the appointment of a provisional director on March 29, 2002.

○ Meanwhile, as the members of the Defendant and the ○○ University demanded normalization as a regular director system even among the members of the Defendant and the ○○ University, the president of the ○○○ University sent a proposal to the Defendant on the following grounds: (a) the head of the external vice president, the president of the faculty council, the president of the planning and coordination division, the president of the labor union, the president of the Seoul Student University, and the 22 list of the candidates for recommendation of regular directors via a meeting from May 2003 to June 200; (b) the president of the ○○○ University and the president of the entire Dong-dong University shall be ex officio directors; and (c) the participation of regular directors prior to the provisional director system oppose it, while considering the purport of this ○○ University’s minimum participation, it shall be given consideration to the Defendant.

○ The Defendant Red ○○○ (the third provisional director), and the Minister of Education and Human Resources Development. The Minister of Education and Human Resources Development. 203.

12. 17. 17. The Ministry of Education and Human Resources Development agreed to appoint the Defendant’s regular director, one person recommended by the Minister of Education and Human Resources Development, one person recommended by the Minister of Education and Human Resources Development, and two persons who contributed to the Defendant’s finance (in case where the entry of financial contributors is not determined by December 15, 2003, two persons recommended by the Minister of Education and Human Resources Development) among the candidates listed in the letter of recommendation referred to in the preceding paragraph.

On March 17, 2004, the board of directors consisting of temporary directors at the fourth temporary directors, with the agreement of the preceding paragraph, ① Kim ○○, ② ○○○○○○, the president of the Dong of the OOO University recommended by the Ministry of Education and Human Resources Development *,*, Kim*, *, *, ○○○ (the Ministry of Education and Human Resources Development recommended three persons, since the establishment of financial contributors has not been confirmed). ④ On the recommendation of the president of the OOO university, the board of directors, composed of four temporary directors, appointed Kim Il-dae, 00, and ○○ as the Defendant’s regular director, and the board of directors, composed of regular directors, decided whether to appoint the president of the ○○○○ University.

In light of the following circumstances acknowledged by the above facts, i.e., the regular directors appointed by the resolution of the board of directors of this case, who were appointed by the resolution of this case, three ex officio directors were selected and appointed by the vote of the provisional directors of the fourth director. Three persons were appointed by the Minister of Education and Human Resources Development. The organization of the regular directors was determined by the agreement between the defendant Red○○ (third provisional directors), and the Ministry of Education and Human Resources Development, which are the chief director at the time, at the time, and the former directors and the remaining directors were not likely to reflect the opinions of the plaintiffs and the former directors, as alleged by the defendant. It is difficult to view that the resolution of the board of directors of this case was faithfully reflected without the exclusion of the opinions of the parties who represent the defendant's identity and autonomy, and it is difficult to deem that the resolution of this case was valid despite the defect of the resolution of the board of directors of this case, and there is no sufficient evidence to acknowledge this differently. Therefore, the defendant's assertion is without merit.

4. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.