Plaintiff 1 and two others (Law Firm Suwon, Attorneys Lee Young-dae et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Superintendent of Education (Law Firm Yang Jae, Attorney Kim Jong-hwan, Counsel for plaintiff-appellant)

November 9, 2011

1. On July 15, 201, the Defendant’s revocation of the approval for the appointment of a director of Nonparty 1 School Foundation (hereinafter “Non-Party 1”) against the Plaintiffs is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. Nonparty 1’s school foundation was established on April 25, 1964 and established and operated ○ High School, and the Plaintiffs are directors of Nonparty 1’s school foundation.

B. On December 1, 2010, the Defendant conducted a special audit according to the inspection request of Nonparty 1’s educational foundation. On February 7, 2011, Nonparty 1 notified Nonparty 1’s 27 points out and demanded correction of some of the points. Nonparty 1 fulfilled part of the matters requested for correction. On April 14, 201, Nonparty 1 demanded correction of the matters that were not corrected by Nonparty 1’s educational foundation and provided that approval of taking office may be revoked according to the result of corrective measures.

C. On July 15, 2011, the Defendant revoked the approval of taking office of the Plaintiffs and Nonparty 12 (hereinafter “instant disposition” for the cancellation of the approval of taking office of Nonparty 1’s school foundation as to the Plaintiffs, and indicated the instant disposition grounds in the table below in the same manner as “instant disposition 1” in accordance with the sequence above) [Although the Defendant stated in the letter of cancellation of taking office of Nonparty 1’s educational foundation (Evidence A) on the grounds for disposition of cancellation of taking office of Nonparty 1’s educational foundation, “important public interest need, such as prevention of recurrence,” it is not a reason for cancellation of taking office under Article 20-2 of the Private School Act, it is deemed that it is merely a explanation supporting the legitimacy of exercising the discretionary exercise of the approval of taking office, rather than a reason for cancellation of taking office under strict meaning.]

본문내 포함된 표 순번 대분류 소분류 세부사항 1 법인 이사회 운영의 위법·부당 이사회 심의·의결 위법·부당(회계부정 승인) (1) 원고들은 2009. 7. 20. 이사회에서 소외 3 전 이사장이 2007. 9. 14. 소외 2 교회로부터 입금받았다가 감사 소외 4의 지적에 따라 2009. 7. 9. 소외 2 교회로 반환한 ○○고등학교 행정동 증축 지원금 4,000만 원(이하 ‘이 사건 증축지원금’이라 한다)을 소외 2 교회로부터 빌렸다가 반환한 돈인 것으로 심의·의결하여 소외 1 학교법인에 재정적인 손실을 입혔다. (2) 원고들은 2009. 7. 20. 이사회에서 소외 2 교회가 2008.경 기다종합건설 주식회사(이하 ‘기다종합건설’이라 한다)에 ○○고등학교 행정동 엘리베이터 1대의 설치비용을 지급하였다가, 차후에 ○○고등학교가 서울특별시교육청을 기망하여 위 엘리베이터 1대 설치비용을 포함한 증축공사 설치비용을 지원받아 기다종합건설에 지급하자, 2009. 6. 17. 기다종합건설로부터 반환받은 엘리베이터 설치비용 7,000만 원(이하 ‘이 사건 엘리베이터 설치비용’이라 한다)을 소외 1 학교법인이 소외 2 교회로부터 빌렸다가 반환한 것으로 심의·의결하여 소외 1 학교법인에 7,000만 원 상당의 재정적 손실을 입혔다. 2 법인 임원 선임 지연 원고들은 장기간 개방이사를 공석으로 방치하고, 2009. 8. 소외 3 전 이사장 사망, 2009. 10. 22. 소외 5 전 이사 사망, 2009. 10. 22. 소외 6 전 이사 사임, 2010. 1. 3. 소외 7 전 이사 사임으로 인한 임원 결원을 보충하지 않았다. 3 장학금과 회계부정 감사보고서 방치 원고들은 2010. 7. 14. 소외 1 학교법인 감사 소외 9가 확인한 장학금 부적합 운영 사실을 관할청에 보고한다거나 이사회의 안건으로 상정하지 않았다. 또한 원고들은 소외 1 학교법인 감사 소외 4가 2010. 1. 26.부터 2010. 4. 22.까지 3회에 걸쳐 내용증명 우편으로 발송한 회계부정 감사보고서에 관하여 이사회를 2회 개최하였으나 면밀히 검토하여 시정하는 등의 적절한 조치를 취하지 않았다. 4 이사회 회의록 미작성 및 미공개 이사장 직무대행인 원고 1은 2010. 11. 25. 이사회 회의록을 작성하지 않았다. 또한 2007. 3. 13.부터 2010. 11. 25.까지 개최된 27회의 이사회 중 제405차 이사회 회의록을 제외한 나머지 이사회 회의록이 학교홈페이지에 공개되지 않았다. 5 학교회계 운영 위법·부당 학교회계 세출예산 목적 외 사용 원고들은 소외 1 학교법인 소유의 서울 은평구 (이하 1 생략)(대법원판결의 이하 생략) 지상 무허가 건물에 관한 2006. 6. 30.부터 2010. 3. 19.까지의 변상금 및 임대료 23,034,700원, 2007. 3. 30.부터 2010. 3. 19.까지의 법인협의회비 7,602,000원 합계 30,636,700원을 법인회계가 아닌 학교회계에서 집행한 것을 묵인하고 방치하였다. 6 위법한 예산편성 (1) ○○고등학교는 2008년 140,000,000원, 2009년 130,000,000원을 조상충용하고도 관련 서류를 관할청에 보고하지 않았고, 2010년에는 본예산 반환금으로 130,000,000원을 편성하는데, 원고들은 이를 간과하여 회계질서 문란을 방치하였다. (2) ○○고등학교는 2009학년도, 2010학년도 예산편성시 학교의 예산편성요령을 정하지 않았고, 학교구성원에 대한 사전교육을 실시하지도 않았으며, 부서별 또는 개인별 예산요구서를 접수하지 않는 등 예산편성절차를 준수하지 않았는데, 원고들은 이를 간과하여 회계질서 문란을 방치하였다. 7 재산관리 위법·부당 재산의 미등기 및 증자보고서 미제출 원고들은 소외 1 학교법인 소유의 행정동 건물을 등기하지 않았고, 위 건물과 서울 은평구 (이하 1 생략) 소재 무허가 건물에 관한 증자보고서를 제출하지 않았다. 8 수익용 기본재산 관리 부당 원고들은 소외 1 학교법인의 수익용 기본재산인 서울 용산구 용산동2가 (지번 생략) 외 5필지 484.3㎡를 타인이 무단 점유하고 있음에도 1990. 10. 12. 무단점유사실에 대한 통지를 한 이후로 아무런 조치를 취하지 않았다. 또한 원고들은 2009. 6. 30. 수익용 기본재산으로 허가된 구 ○○중학교 건물에 관하여 수익 창출을 위한 노력을 하지 않았다. 9 교육용 기본재산 관리 부당 (1) 원고들은 소외 1 학교법인의 교육용 기본재산인 서울 은평구 (이하 2 생략) 소재 관리동 84㎡를 소외 2 교회 부목사 소외 10이 무상사용하고, 서울 은평구 (이하 1 생략) 소재 무허가 건물 52.47㎡를 소외 2 교회 관리집사 소외 11이 무상사용하는 것을 묵인하고 방치하였다. (2) 원고들은 1988. 10. 소외 2 교회 설립 이후 교회와 학교의 건물 및 토지 사용 영역이 중복되고(특히 100주년 기념관과 구 ○○중학교 건물의 일부), 행정동은 교육용 기본재산임에도 엘리베이터를 이용하여 교회(강당)를 방문하는 신도들의 통행로로 제공되고 있는 등 학교와 교회의 경계가 불명한 채로 혼용되고 있음에도 이를 묵인·방치하여 법인 및 학교에 재정상 손실을 가져오게 하였다.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition is unlawful for the following reasons.

1) Non-existence of grounds for disposition

A) Of the instant disposition grounds, corrective measures were completed regarding the matters for which the Defendant requested correction.

B) Of the grounds for the instant disposition, matters for which the Defendant did not request correction are not directly unfair acts by the Plaintiffs, but rather matters for neglecting supervision over others’ unfair acts, but were based on mistake of fact, and the correction of which could have been completed.

2) A deviation from or abuse of discretionary power

Even if some of the grounds for the instant disposition is recognized, it cannot be deemed as a serious misconduct to revoke the approval for the appointment of directors.

(b) Related statutes;

Private School Act

Article 18-2 (Preparation, Disclosure, etc. of Minutes)

(1) The board of directors shall prepare the minutes containing the following matters: Provided, That where it is impracticable to prepare the minutes on the date the board of directors is held, a meeting protocol recording the results of deliberation and resolution by agenda item may be prepared:

1. The date and time of opening, suspension and adjournment of meetings;

2. Agenda;

3. The proceedings;

4. Names of officers and employees present;

5. The number of votes;

6. Other matters deemed necessary by the chief director.

(3) In cases where the meeting record is prepared pursuant to the proviso to paragraph (1), the minute shall be prepared as soon as possible: Provided, That when the minute is urgently needed, the meeting record may be submitted to the competent agency in lieu of the minute.

(4) Minutes shall be disclosed to the public: Provided, That matters prescribed by Presidential Decree need not be disclosed to the public following a resolution of the board of directors.

(5) The period and procedure for disclosure of minutes and other necessary matters shall be prescribed by Presidential Decree.

Article 19 (Duties of Officers)

(1) The chief director shall represent a school juristic person and perform duties prescribed by this Act and the articles of incorporation, and exercise overall control over other affairs within the school

(2) If the chief director becomes vacant or is unable to perform his duties due to an accident, the articles of association shall govern, and if not provided in the articles of association, other directors shall act for the chief director.

(3) Directors shall attend the board of directors to deliberate on and determine matters concerning the affairs of school juristic persons, and handle matters delegated by the board of directors or the chairperson.

(4) The auditor shall perform the following duties:

1. To audit the state of property and the accounts of the school juristic person concerned;

2. To audit matters concerning the operation and duties of the board of directors;

3. To report to the board of directors and competent agency on illegal or defective points which have been found as a result of audit of matters concerning the state of property of the school juristic person or operation and duties of the board of directors;

4. To request the convocation of a meeting of the board of directors as necessary for making a report referred to in subparagraph 3.

5. To state opinions to the chief director or directors on matters concerning the state of property of the school juristic person or operation and duties of the board of directors;

Article 20-2 (Cancellation of Approval of Taking Office)

(1) If an executive commits an act falling under any of the following subparagraphs, the competent agency may revoke its approval of his taking office:

1. When he violates the provisions of this Act, the Elementary and Secondary Education Act or the Higher Education Act, or fails to execute orders given pursuant to those Acts;

2. When he causes a dispute between executives or commits fraudulent accounting or other serious irregularities, which results in a serious obstacle to the operation of the relevant school;

3. When he infringes on the authority of the head of a school in regard to school administration;

4. Deleted.

5. Deleted.

6. Where it fails to comply with the request for disciplinary action against the head of the school.

7. Deleted.

(2) The revocation of the approval of taking office under the provisions of paragraph (1) shall be limited to the case where the competent agency fails to comply with it even after 15 days have elapsed from the date on which the school juristic person concerned requested correction, accompanied by a statement of the reasons therefor: Provided, That in the case where it is evident that it is impossible to correct it even if the request for correction is made, or the extent of the corruption, such as accounting fraud, embezzlement, and bribery and bribery, etc. is serious, the approval of taking office may be revoked without the request for correction, and detailed criteria therefor shall be determined by the Presidential Decree.

Article 24 (Filling Vacancy of Officers)

If a vacancy occurs in the office of directors or auditors, it shall be filled within two months.

Enforcement Decree of Private School Act

Article 8-3 (Period, etc. for Disclosure of Minutes)

(1) Minutes of the board of directors shall be disclosed for three months by posting them on the website of the relevant school within ten days from the date of the meeting.

Article 9-2 (Detailed Criteria for Revocation of Approval of Taking Office without Request for Correction)

(1) The approval of taking office may be cancelled without a request for correction pursuant to the proviso to Article 20-2 (2) of the Act shall be as follows:

1. Where it is evident that the competent agency cannot correct the violation within the time limit for request even if it requests for correction;

2. Where the account fraud is clearly confirmed by a court judgment or by the auditor of the competent agency with respect to at least 30 percent (at least 50 percent in cases of an educational foundation lower than a high school) of profit-making assets of the relevant educational foundation, which should be secured pursuant to Article 7 (1) of the Regulations on the Establishment and Operation of Universities and Colleges, Article 7 (1) of the Regulations on the Establishment and Operation of Cyber Colleges, and Article 13 (1) of the Regulations on the Establishment and Operation of Schools at Lower Levels than High Schools;

3. Where it is clearly confirmed by a court ruling or the competent agency that an executive has embezzled the property of the school juristic person, received money and valuables in connection with the employment of school personnel and facility construction, etc.;

(2) Where the competent agency revokes approval of taking office pursuant to Article 20-2 (2) of the Act, it shall hold a hearing.

C. Determination

1) Whether the grounds for disposition are recognized

In order for the competent authorities to revoke the approval of taking office of a private school, there is a reason prescribed in each subparagraph of Article 20-2 (1) of the Private School Act, or there is a serious accounting fraud, embezzlement, and acceptance of bribe to the extent falling under the proviso of Article 20-2 (2) of the Private School Act, and Article 9-2 (1) 2 and 3 of the Enforcement Decree of the Private School Act. The defendant presented the ground for the disposition in this case only as the ground for the disposition in Article 20-2 of the Private School Act, and did not specifically state the ground for the disposition in this case as specified in Article 20-2 (2) and (2) of the Private School Act. However, the analysis of the contents of the evidence No. 1 (the notice of the cancellation of taking office)

본문내 포함된 표 ？ 법률상 근거 이 사건 처분사유1 사립학교법 제20조의2 제1항 제2호 이 사건 처분사유2 사립학교법 제20조의2 제1항 제1호 (위반한 법률 : 사립학교법 제24조) 이 사건 처분사유3 사립학교법 제20조의2 제1항 제1호 (위반한 법률 : 사립학교법 제19조 제3항) 이 사건 처분사유4 사립학교법 제20조의2 제1항 제1호 (위반한 법률 : 사립학교법 제18조의2) 이 사건 처분사유5 사립학교법 제20조의2 제1항 제2호 이 사건 처분사유6 사립학교법 제20조의2 제1항 제2호 이 사건 처분사유7 사립학교법 제20조의2 제1항 제2호 이 사건 처분사유8 사립학교법 제20조의2 제1항 제2호 이 사건 처분사유9 사립학교법 제20조의2 제1항 제2호

Article 20-2(1)1 of the Private School Act provides that “When an executive violates the provisions of this Act, the Elementary and Secondary Education Act, or the Higher Education Act, or fails to comply with an order issued thereunder,” the revocation of approval of taking office pursuant to the above Article 20-2(1)1 of the Private School Act provides that the revocation of approval of taking office pursuant to the above Article 20-2(1)1 of the Private School Act shall be recognized for each reason for the violation of specific provisions of the Private School Act, the Elementary and Secondary Education Act, and the Higher Education Act. In addition, Article 20-2(1)2 of the Private School Act provides that “when a dispute, accounting fraud, or other significant unfair practices among the executives causes serious trouble to operating the relevant school” due to the revocation of approval of taking office, it shall be recognized that the revocation of approval of taking office pursuant to the above Article

A) Whether the disposition grounds 2 to 4 of this case fall under Article 20-2 (1) 1 of the Private School Act

First of all, we examine the instant disposition ground 2 as to the instant disposition ground 2. According to Article 24 of the Private School Act, the vacancy of the director or auditor is filled within two months. However, Nonparty 1’s former chief director, Nonparty 3, and the former chief director Nonparty 5, 6, and 7 did not fill the vacancy until two months elapse after the occurrence of the vacancy from his position, and the fact that the Plaintiffs was a director of Nonparty 1’s school at the time of the occurrence of the vacancy is not a dispute between the parties, which is in violation of Article 24 of the Private School Act, and is attributable to the Plaintiffs. Accordingly, the instant disposition ground 2 falls under Article 20-2(1)1 of the Private

Next, this case’s disposition’s grounds for disposition are three as follows. Article 19(3) of the Private School Act provides that “The director’s duty is to attend the board of directors to deliberate and decide on matters concerning the school juristic person’s business, and to deal with matters delegated by the board of directors or the chief director.” Thus, the case where a violation of the above provision of the Act is established is limited to the case where a director does not deliberate and decide on matters concerning the school juristic person’s business, or does not deal with matters delegated by the board of directors or the chief director, and the case where the contents and contents of the deliberation and decision can be the cause under Article 20-2(1)2 of the Private School Act. However, the defendant’s assertion that the plaintiffs held the board of directors to deliberate on matters pointed out by Nonparty 4, but the contents of deliberation and decision or subsequent measures are insufficient. Thus, Article 20-2(1)1 of the Private School Act’s disposition’s grounds for disposition does not fall under Article 20-2(1)1 of the Private School Act (However, the defendant did not clearly present the legal grounds for disposition.)

Finally, I examine the instant disposition 4 as to the instant disposition grounds. According to Article 18-2 of the Private School Act, the board of directors shall prepare the minutes of the board of directors and disclose them to the public, except in extenuating circumstances. Nonparty 1’s board of directors did not prepare the minutes of the board of directors as of November 25, 2010; there is no dispute over the fact that the minutes of the board of directors from March 13, 2007 to November 25, 2010 did not disclose the minutes of the board of directors from November 25, 207; and there is no other evidence to acknowledge the legitimate failure and non-disclosure grounds. Thus, the instant disposition grounds 4 falls under Article 20-2(1)

B) Whether the instant disposition grounds 1, 3, 5, and 9 fall under Article 20-2 (1) 2 of the Private School Act

Article 20-2 (1) 2 of the Private School Act provides that "when a dispute, accounting fraud, or other serious unfair practices between executives causes a serious obstacle to the operation of the relevant school" due to the grounds for cancellation of approval of taking office. Thus, a dispute, accounting fraud, or serious unfair practices among executives is merely an example of causes causing a serious obstacle to the operation of the relevant school. Therefore, to fall under the grounds for disposition prescribed in the above Article 20-2 (1) 2 of the Private School Act, the existence of misconduct, such as a dispute among executives, and the

In addition, the Private School Act aims to promote the sound development of private schools by securing the independence and promoting the public nature of private schools. In order to harmonize the conflicting values of private schools' autonomy and public nature, it is desirable to interpret the law to emphasize the public nature as it is highly related to the educational functions of schools such as selection of new students and classes, and to emphasize the autonomy as low as the relevant relationship is low. Therefore, as a ground to justify the extreme public involvement of school juristic persons' cancellation of approval of taking office, the term "major disability in school operation" in Article 20-2 (1) 2 of the Private School Act as provided in Article 20-2 (1) 2 of the Private School Act as a ground to justify the extreme public involvement of school juristic persons such as the selection of new students and the education functions of schools such as class, even if there is a certain degree of harm to the autonomy of private schools, it is reasonable to interpret that it conforms to the purpose of the Private School Act, as well as to interpret Article 20-2 (1) 2 of the Private School Act faithfully.

As to the instant case, some of the grounds for the instant disposition Nos. 1, 3, 5 through 9 are deemed to have violated the director’s duties, but all of the grounds for the instant disposition are not directly related to the education function of ○ High School. The evidence submitted by the Defendant alone is insufficient to recognize that there was a serious impediment to the important part of the educational function of ○ High School operated by ○○ School Foundation 1 due to reasons for the instant disposition No. 1, 3, 5 or 9. Thus, the grounds for the instant disposition No. 1, 3, 5 or 9 do not constitute Article 20-2(1)2 of the Private School Act.

C) Whether there was a defect in the grounds for the instant disposition 2 and 4 without undergoing the corrective order procedure

According to Article 20-2 of the Private School Act and Article 9-2 of the Enforcement Decree of the Private School Act, the competent authorities may cancel approval for the appointment of directors only if there is a reason prescribed in each subparagraph of Article 9-2 (1) of the Enforcement Decree of the Private School Act, and in other cases, the competent authorities may first issue a corrective order and cancel approval for the appointment of directors only if it is not possible to comply with such order. In addition, in light of the language and text of the above provision of Article 9-2 (1) 1 of the Enforcement Decree of the Private School Act, "where it is obvious that the competent authorities cannot make correction within the required period even if the request for correction is made."

The reason for the instant disposition is that the time limit for filling the vacancy of an officer under the law was exceeded, and even if the vacancy of an officer is filled with the statutory period, it is ordinarily difficult to deem that the remaining directors have no particular obstacle to the operation of the board of directors, barring any special circumstance. Therefore, in order to constitute the reason for revoking the approval of taking office, the corrective order should be issued. However, the fact that the vacancy of the chief director on July 25, 2009, August 22, 2009, and October 32, 2010, and September 1, 2010, of the same year, the fact that the vacancy of the chief director occurred on April 8, 2010, and the defendant did not dispute between the parties, and in addition to the purport of the argument in the evidence No. 1 of the same year, the defendant did not accept the fact that the instant corrective order was issued within a considerable period of time to fill the vacancy of an officer of the school foundation.

Next, the instant disposition 4 violated the statutory compulsory preparation and disclosure obligation of the meeting minutes of the board of directors, and compelling the preparation and disclosure of the meeting minutes of the board of directors to the effect that the executive officers and employees of the school juristic person, school staff, students, parents, etc. can respond appropriately to the agenda items discussed at the meeting of the board of directors as soon as possible after the resolution of the board of directors is made by the board of directors, so it is an act requiring urgency and therefore, it is obvious that the corrective measure is not effective.

D) Intermediate conclusion

Therefore, among the grounds for disposition 1 through 9 of this case, it is recognized as legitimate grounds for disposition 2,40,000 won.

2) Whether the instant disposition was a deviation or abuse of discretionary power

A disposition to revoke approval of taking office under Article 20-2 of the Private School Act constitutes a punitive administrative disposition. Whether a punitive administrative disposition deviates from or abused the scope of discretion under the generally accepted social norms or not shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages that an individual would suffer due to such disposition by objectively examining the content of the relevant act of violation and the public interest to be achieved by the relevant act of disposal and all the relevant circumstances (see Supreme Court Decisions 2001Du7138, Feb. 5, 2002; 2006Du19297, Jul. 19, 2007, etc.).

With respect to this case, the following circumstances are revealed by adding the whole purport of argument Nos. 7, 9, 4, 5, and 7, namely, legitimate reasons for the disposition of this case are only 2,4 of the grounds for the disposition of this case, and an officer vacancy of the school foundation of this case was late to fill the vacancy, and up to now, the above rejection disposition was cancelled by the court, and it is difficult to see that the operation of ○○ High School was seriously difficult due to the reasons for the disposition of this case Nos. 2, 4 of this case, and 1, 3, 5, and 9 of this case were difficult to be deemed legitimate reasons for the disposition of this case, and even if all such circumstances are acknowledged, since it did not substantially interfere with the educational function of ○○ High School's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's high school's appointment.

3) Intermediate conclusion

Therefore, the instant disposition is unlawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judge Oi- (Presiding Judge) and Lee Jae-in