(영문) 대전지방법원 2016.12.8. 선고 2016구합100873 판결

A. School Foundation B (hereinafter referred to as “B”) is an educational foundation that establishes and operates C University, D High School, E High School, etc., and the Plaintiff is a person who has served as a director of B.

(b) The terms of office for directors B and their members shall be as follows:

A person shall be appointed.

C. Even after the expiration of the term of H and I, a successor director is not appointed. On September 1, 2015, the Defendant sent to B a letter demanding the appointment of executive officers with the following purport.

According to Article 24 of the Private School Act, the vacancy shall be filled within 2 months after the occurrence of the vacancy among the directors, so that the vacancy will be filled as soon as possible during September.* As a result of external legal advice from the Ministry of Education, the scope of participation of the expiration director of the right to take emergency measures of the board of directors shall be minimized within

D. On October 26, 2015, the Defendant issued to B a request for correction, such as the appointment of a vacancy director and appointment of a director, and notified B of cancellation of approval of taking office (hereinafter referred to as “request for correction of this case”).

In addition, the board of directors in 2015 did not deal with important issues, such as appointment of teaching staff members and settlement of accounts of the school, due to disputes between executive officers, resulting in a serious trouble in the operation of the school. ○○, the board of directors demanded correction by November 16, 2015, as follows, will report the result of implementation of the request for correction by November 16, 2015, and will take measures, such as cancellation of approval of taking office pursuant to Article 20-2 (2) of the Private School Act if the term is not fulfilled. 1. 2. To appoint two chief executive officers and two staff members until November 16, 2015; 2. To handle the 2014th anniversary of the appointment of the school juristic person and the school affiliated with the school (the school juristic person established and operated by the school juristic person) and the 2015th revised supplementary budget by November 16, 2015 (the 16th 13th 2015).

E. B requested the Defendant to extend the due date for the corrective measures, and the Defendant notified the Defendant to the effect that “after fulfilling the corrective measures by December 10, 2015,” the Defendant reported the result thereof through the second accusation to the Defendant on November 23, 2015.”

(f) B held the board of directors as follows:

1) On October 29, 2015, the fourth board of directors in 2015 (hereinafter referred to as “fourth board of directors”): M (Acting on behalf of the president), J, L, K, the Plaintiff, and I.

2) On November 27, 2015, the sixth Board of Directors for the Year 2015 (hereinafter referred to as “six Board of Directors”): J, L, K, H, and G attendance.

3) On December 7, 2015, 2015: J, L, K, H, and G attendance at the seventh session (hereinafter referred to as “ seventh session”):

G. On December 10, 2015, B reported to the Defendant on the implementation of the corrective measures as follows:

A person shall be appointed.

H. As a result of examining the performance report submitted by B on December 16, 2015, the Defendant notified that the 6th board of directors and 7th board of directors (hereinafter collectively referred to as the “Board of Directors”) attended and passed a resolution by the expiration director (H and G) who is not qualified in the process of emergency treatment agenda, and that the 6th board of directors and 7th board of directors attended and passed a resolution by December 31, 2015, and B did not supplement the Defendant’s corrective request.

I. Accordingly, on February 12, 2016, the Defendant issued a disposition to revoke approval of taking office of the Ministry of Education (hereinafter referred to as “instant disposition”) on the ground that the dispute between the executives of J, L, and K, including the Plaintiff, who is a director B, failed to comply with the Ministry of Education’s request for correction [the appointment of chief director and a vacancy, the settlement of accounts of school juristic persons and their affiliated schools, the appointment of teachers (C University President, D Senior Superintendent, and the appointment of teachers)] and caused serious obstacles to the operation of the affiliated schools.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 11, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reason for the instant disposition was that the Plaintiff’s failure to comply with the Ministry of Education’s request for correction due to disputes between executives and caused serious obstacles to the operation of the school. The reason for the instant disposition was that three remaining registered directors (J, L, K, hereinafter referred to as “the registered directors”) of B, except the Plaintiff, continued to operate the board of directors illegally. As long as the Plaintiff made efforts to normalize the operation of the board of directors by sending several certificates of content together with the Plaintiff, and filed an objection, the Plaintiff’s disposition of this case was unlawful as it was against the discretion and abuse.

(b) relevant laws and regulations;

It is as shown in the attached Form.

C. Determination

In full view of the following circumstances, even if the founder and manager of a school are respected in the autonomy of operating the school, the disposition of this case does not constitute deviation from discretion or abuse of discretion, even if the following circumstances are considered in full view of the respective descriptions of Gap evidence Nos. 12, 18, and 31 and the purport of the entire arguments.

1) A school foundation is a kind of incorporated foundation under the Civil Act, which enjoys the freedom of private autonomy in the area of the incorporated foundation law, and also is characterized as a judicial person that can claim fundamental rights in relation to the State, and specifically recognizes the freedom of establishment and operation of private schools, property rights, etc. The purpose of establishing such school foundation is to realize by the directors who are natural persons that form the decision-making body and the executive body. As such, the founder’s first director is to realize the purpose of establishing the school foundation’s director system by appointing the latter director in a successive manner in which the latter director is appointed, and then by appointing the latter director in a subsequent manner, it can be said that the purpose of establishing the school foundation is to realize the purpose of establishing the school foundation’s director system (Supreme Court en banc Decision 2006Da19054 Decided May 17, 2007).

2) Article 20-2 (1) of the Private School Act provides that "if an officer violates the provisions of the Private School Act or fails to comply with an order issued thereunder, and causes a serious trouble to the operation of the relevant school due to a dispute between executives, the competent agency may revoke its approval of taking office; and Article 20-2 (2) of the Private School Act provides that "the revocation of the approval of taking office under paragraph (1) shall be limited to a case where the competent agency fails to comply with such request even after 15 days have elapsed from the date on which the relevant school juristic person requested correction, stating the reasons therefor." Thus, the revocation of the approval of taking office under Article 20-2 of the Private School Act constitutes a disciplinary administrative disposition. Whether a disciplinary administrative disposition deviates from or abused from the scope of discretionary power under Article 20-2 of the Private School Act shall be determined by comparing and balancing the degree of infringement of public interest and the disadvantages suffered by an individual due to such disposition, by objectively examining the contents of the act of violation and all the related circumstances (see, e.g., Supreme Court en banc Decision 20017Du97.

3) The dispute over the operation of the B and C University has arisen for a considerable period due to the conflict between Q and R, which is the founder of P, and the dispute over the operation of the B and C University, due to such dispute and the situation in the study of the C University. During that period, the term of office of directors F, G, H, and I has expired in order, and four of the eight directors of B, including the Plaintiff, have expired since June 19, 2015. Nevertheless, even if the dispute over the opposition and the dispute between the directors of B, including the Plaintiff, continue to exist and until the request of this case was made, the settlement of accounts for the appointment of the chief director and the vacancy of B and the schools of B and the schools of 2014 at the time of the request of this case.

(W) In light of the following: (a) the revised supplementary budget processing of the year 2015; (b) the appointment of the principal of the school affiliated with C University and the principal of the D High School; and (c) the appointment of the principal of the school affiliated with the Plaintiff, including the principal of the D High School; and (d) the dispute between executives, including the Plaintiff, constitutes a case of causing serious obstacles to the operation of the relevant school; and (c) there are grounds for

4) On this issue, the Plaintiff raised an issue by sending the proof of contents with regard to the illegal operation of the board of directors, etc. The Plaintiff asserts that the approval of taking office for the same purpose as other directors is unreasonable, unless there is any reason attributable to the Plaintiff, unless it is attributable to the Plaintiff.

On October 26, 2015, the plaintiff was not present at the 1st meeting of the board of directors and the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 4th meeting.

5) Article 31 (1) of the Private School Act provides that "school juristic persons shall report and disclose the budget prior to the expiration of each fiscal year, after the expiration of each fiscal year, to the competent authorities, as prescribed by the Presidential Decree." Article 14 (1) of the Enforcement Decree of the Private School Act provides that "where a school juristic person reports and announces the budget and the settlement of accounts to the competent authorities pursuant to Article 31 (1) of the Act, it shall be reported and announced 5 days prior to the commencement of each fiscal year in the case of the budget, and within 3 months after the end of each fiscal year in the case of the settlement of accounts, it shall be made within 3 months after the end of each fiscal year in the case of the settlement of accounts." The 4th, 5th, when the board of directors is held at the time when the meeting of the board of directors is held, it is difficult to view that the plaintiff, who is a director B, has made efforts to process the settlement of accounts in accordance with the correction order of this case.

6) Meanwhile, K, J, L, etc. upon the expiration of the term of office of Ma, a chief executive officer, issued a notice of convening the board of directors with respect to the previous directors whose term of office expires before I, and the remaining directors of B, other than the Plaintiff, held on November 27, 2015 and December 7, 2015, were present at H and G, the most recent term of office of which expires, and the board of directors did not have the right to take urgent measures as a director due to the expiration of the term of office before the board of directors of the instant case. On December 16, 2015, the Defendant issued a notice to supplement the contents resolved by the board of directors of H and G, a director who is not qualified on December 16, 2015, the Defendant did not comply with the instant corrective measures, and eventually, the instant disposition was taken on the ground that the Plaintiff and the other directors of B, other than the Plaintiff, caused serious trouble to the operation of the B and the dispute between the directors.

7) Where revoking the approval of taking office of all the executives of the school foundation, it is inevitable to appoint a temporary director due to the impossibility of autonomous school operation and restrict the freedom to establish and operate a school. Thus, the cancellation of the approval of taking office of all the executives should be used as a last resort in the situation where normal school operation is impossible and it infringes students' right to learn. However, even if considering such circumstances, the defendant's corrective order of this case was not implemented normally even though the defendant's contents were very important for the existence and operation of the school foundation and its affiliated school, such as appointment of chief director and directors (board of directors), settlement of accounts, appointment of teachers, etc., and the above corrective order was not implemented normally. The cancellation of taking office under Article 20-2 of the Private School Act is to prevent recurrence of corruption and ultimately promote the sound development of the private school. To this end, it is necessary to respect the violation of laws and regulations created by the executive officer and to take measures to prevent recurrence, and thus, the director, including the plaintiff, cannot be viewed as having been urged to implement the instant order and to rectify any disadvantage the plaintiff's's.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.