[1] Whether a school foundation can seek confirmation of invalidity of a resolution of the board of directors solely on the ground that it is a founder of the school foundation or successor to its status (negative)

[2] In a case where a former director or auditor whose term of office expires can perform his/her previous duties until a new director or auditor is appointed, whether there is a legal interest to seek confirmation of the invalidity of the resolution of the board of directors appointed by the former director or auditor whose term of office expires, or a subsequent director (affirmative)

[3] The scope of authority of provisional directors under the Private School Act

[4] The case holding that it is unlawful for temporary directors to arbitrarily appoint persons who have no relationship with the formation of school foundation as regular directors and deprive them of their right to manage school without completely excluding the previous directors of the school foundation, since it causes changes in the governance structure of the school foundation, and thus deprive them of their right to manage school

[1] Since there is no legal interest in seeking confirmation of invalidity of a resolution of the board of directors of a corporation solely on the ground that a school foundation has a deferred interest in establishing the school foundation, barring any special circumstance, the school foundation may not seek confirmation of invalidity of a resolution of the board of directors in the position of the founder

[2] Notwithstanding the expiration of the term of office of all or some of the directors or auditors of a corporation under the Civil Act, if there is no appointed directors or auditors, or there is no appointed directors or auditors thereof, the resolution of appointment becomes null and void, and in case where other directors or auditors whose term of office has not expired are unable to perform their normal corporate activities, barring any special circumstance where it is deemed inappropriate for the former directors or auditors whose term of office has expired to perform their corporate activities, the former directors or auditors may perform their previous duties until appointed directors or auditors. In this case, the former directors or auditors have legal interest to seek confirmation of invalidation by asserting the defects of the resolution of the board of directors who appointed directors or auditors whose term of office has expired as part of their duties.

[3] Ad hoc directors under the Private School Act shall be interpreted as a temporary crisis manager appointed by the Minister of Education and Human Resources Development to maintain the integrity of a private school as well as to have the authority to conduct an act which belongs to the ordinary affairs of a school juristic person, unlike temporary directors under the Civil Act.

[4] The case holding that it is unlawful for temporary directors to arbitrarily appoint persons who have no relationship with the formation of school foundation as regular directors and deprive them of their right to manage school without completely excluding the previous directors of the school foundation since it causes changes in the governance structure of the school foundation.

[1] Article 250 of the Civil Procedure Act / [2] Article 250 of the Civil Procedure Act, Article 691 of the Civil Act / [3] Articles 20-2 and 25 of the Private School Act (amended by Act No. 7802 of Dec. 29, 2005), Article 63 of the Civil Act / [4] Articles 20-2 and 25 of the Private School Act (amended by Act No. 7802 of Dec. 29, 2005)

[1] Supreme Court Decision 63Da15 delivered on April 18, 1963 (No. 11-1, 269), Supreme Court Decision 99Da43103 delivered on November 23, 199, Supreme Court Decision 2001Da1171 delivered on January 10, 2003 (Gong2003Sang, 597) / [2] Supreme Court Decision 97Da26142 delivered on December 23, 1998 (Gong199Sang, 216), Supreme Court Decision 2004Da6536 delivered on March 25, 2005 (Gong205Sang, 670)

Plaintiff 1 and four others (Law Firm Kim & Lee, Attorneys Gyeong-sung et al., Counsel for the plaintiff-appellant)

Defendant Private Teaching Institutes (Attorney Hah Ho et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2004Gahap52 delivered on April 8, 2004

December 20, 2005

1. Revocation of the first instance judgment.

2. On December 18, 2003, the board of directors comprised of the defendant's provisional directors on December 18, 2003, confirming that the resolution that the defendant appointed Nonparty 1, 2, 3, 4, 5, 6, 7, 8, and 9 as directors is null and void.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

(a) Establishment of the Defendant Driving Schools;

(1) On March 6, 1962, the Defendant’s private teaching institute began with the mother of Nonparty 11 Incorporated established by Nonparty 10. When Nonparty 11 Incorporated obtained authorization for closure due to financial difficulties, etc., the Defendant’s private teaching institute acquired the name “(the name of the Defendant’s private teaching institute omitted)” from Nonparty 10 on November 28, 1973, Plaintiff 1, who was the temporary director of Nonparty 11 Incorporated, taken over the non-party 11 Incorporated Foundation from Nonparty 10 as the third president, and changed the name “(the name of the Defendant’s private teaching institute omitted).”

(2) The Plaintiff 1 purchased the school site in the U.S. P., U.S. Island, and contributed to the Defendant’s private teaching institute, and established the first university on the basis thereof.

(3) On September 21, 1981, Plaintiff 1 changed the initial officer of the establishment of the articles of incorporation of Defendant 1’s private teaching institute from Nonparty 10, etc. to eight (8) including Plaintiff 1, etc. with the approval of the President of literature issuance.

B. Change of directors of Defendant Private Teaching Institutes

(1) As of April 28, 190, the board of directors of the Defendant Private Teaching Institutes, which was operated mainly by Plaintiff 1, consisting of Plaintiff 1, Plaintiff 2, 3, 4, 5, Nonparty 12, and 13 (the death at that time) as the chief director and directors at the time of April 28, 1990, and Plaintiff 1, whose term of office expires at the board of directors at April 28, 1990, concurrently worked as the chief director, Plaintiff 2, 3, 5, and Nonparty 12, who were reappointed as directors, and Nonparty 14 was newly appointed as directors instead of Nonparty 13 who died.

(2) On May 8, 1990, Defendant Private Teaching Institutes filed an application with the Minister of Education for the appointment of directors for the above directors with the minutes of the above board of directors meeting attached to the Minister of Education, and the Minister of Education approved the appointment on June 9, 1990, the board of directors of Defendant Private Teaching Institutes was composed of the above directors and Plaintiff 4 who was appointed as directors on November 9, 1989.

(c) Inspection in school and appointment of temporary directors;

(1) After the abolition of the department of herb materials at the first university in 1992, there were academic studies surrounding the issues of handling the students of the above department and the revocation of appointment of full-time instructors.

(2) Among those, the property of Plaintiff 1, a member of the National Assembly of Korea, was disclosed on March 1993, and the issue of the property held became a social issue, and the prosecution was bound by the suspicion of receiving money and valuables related to illegal admission, etc. around April 1993, when the prosecution went through investigation.

(3) All of the directors of Defendant Private Teaching Institutes were responsible for the long-term internal decentralization, and submitted a lump sum list around April 21, 1993. On May 1, 1993, the board of directors of Defendant Private Teaching Institutes decided to resign of all of the above directors under the presence of Nonparty 12, who is the president of Defendant Private Teaching Institutes, and appointed seven new directors, including Nonparty 15, 16, 17, 18, 19, 19, 20, 21.

(4) Accordingly, on May 4, 1993, Defendant Private Teaching Institutes applied for the appointment of the above new directors to the Minister of Education.

(5) As a result of a fact-finding survey on Defendant Private Teaching Institutes, the Minister of Education determined that Defendant Private Teaching Institutes applied for the approval of the appointment of directors to the Minister of Education by falsely preparing and attaching the minutes of the board of directors on April 28, 1990, although the board of directors was not lawfully convened and formed, the resolution of April 28, 1990 is null and void, and accordingly the approval of the appointment of directors is null and void as a matter of course. Even if the Minister of Education did not carry out a corrective order based on the fact-finding survey on the corporate operation conducted from March 27, 1993 to April 1, 1993 by the Minister of Education, on the ground that the failure of Defendant Private Teaching Institutes to carry out the corrective order based on the fact-finding survey on the corporate operation conducted from March 27, 1993 to April 1, 193, it was impossible to achieve the purpose of establishment of the school juristic person, including the Plaintiffs, as the officers of June 9, 1993.

(6) On May 1, 1993, the Minister of Education, at the same time, rejected the application documents for approval of the appointment of directors on the ground that a resolution of the appointment of directors on May 1, 1993, who appointed new directors on June 4, 1993, was made by an unauthorized person, or was made in violation of the convocation period under the Private School Act, and appointed temporary directors to normalize the operation of the Defendant Private School pursuant to Article 25 of the Private School Act.

(d) Orderly appointing temporary directors;

After that, the Minister of Education has replaced the temporary directors whose term of office expires by a new temporary director in sequence, and due to this, the defendant's private teaching institute has been operated as a management system for temporary directors for not less than 10 years until the approval of the appointment of the regular director listed in paragraph 5

(e) Resolution of selection of regular directors and approval of the Minister of Education and Human Resources Development;

On December 31, 2001, nine provisional directors, including Nonparty 22, etc., appointed as temporary directors of the Defendant Driving Schools by the Minister of Education and Human Resources Development on December 18, 2003, shall hold a board of directors on December 18, 2003, appoint nine directors (hereinafter referred to as “regular directors”) in comparison with temporary directors appointed by the Minister of Education and Human Resources Development (hereinafter referred to as “the resolution of this case’s board of directors”). The Minister of Education and Human Resources Development approved that the above senior directors are directors of the above senior directors on December 24, 203.

F. The progress of criminal procedure against the plaintiff 1

On the other hand, the plaintiff 1 was prosecuted for the crime of interference with business and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) on June 16, 1993 due to the suspicion that he received money from his parents and embezzled the money of the first university to pay as construction cost, etc., and was sentenced to three-year imprisonment with prison labor for the crime of interference with business, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and embezzlement, etc., and appealed by the Seoul Criminal District Court on October 16, 1993, and was sentenced not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the crime of embezzlement in Seoul High Court on October 16, 193, and was sentenced to one year and six months of imprisonment with prison labor for the remaining crimes, and was sentenced by the

G. Administrative litigation by plaintiffs etc.

(1) Meanwhile, the plaintiff 1, 2, 4, 5 and the non-party 12 filed an administrative litigation against the disposition of revocation of approval for the appointment of a director on June 4, 1993 and the disposition of rejection of approval for the appointment of a director on December 14, 1995. On July 4, 1996, the Seoul High Court declared that the plaintiff 4 was dismissed the above lawsuit on the grounds that the appointment of a director of the defendant's driving school or the appointment of a director is revoked on the expiration of each of the terms of office on November 8, 1993, the plaintiff 1, 2, 5, and non-party 12 cannot return to the director of the defendant's driving school or even if the appointment of a provisional director is revoked on the expiration of each of the terms of office on June 9, 194, the plaintiffs et al. appealed appealed the appeal, but it was dismissed on June 11, 199.

(2) On October 16, 200, Plaintiff 1 filed a lawsuit against the Minister of Education seeking revocation of the above amendment of the articles of incorporation when the Minister of Education approves the amendment of the articles of incorporation of the Defendant’s private teaching institute, which made the first executive officer of the Defendant’s private teaching institute change from 8 Plaintiff 1 to 8 Nonparty 10. However, on February 16, 2001, the Seoul Administrative Court dismissed the above claim on the ground that the Defendant’s disposition is legitimate since the initial executive officer of the Defendant’s private teaching institute was Nonparty 10 and Nonparty 8. While Plaintiff 1 appealed, the Seoul High Court sentenced Plaintiff 1 to the dismissal of the appeal at the Seoul High Court on October 15, 2002. The second appeal was filed, but the Supreme Court sentenced the dismissal of the appeal on October 28, 2004.

[Ground of recognition] Facts without dispute, Gap 1, 3, 7, 8 evidence, Eul 2, 3 and 4 evidence (including paper numbers) and the purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. The plaintiffs' assertion on the claim of this case

On December 18, 2003, which consists of only nine temporary directors, including non-party 22 and non-party 9, the board of directors appointed under Article 25 of the Private School Act. The provisional directors appointed under Article 25 of the Private School Act are merely able to perform an act that falls under ordinary business as in the same manner as the acting directors of a corporation under the Civil Act, and appoint directors without a right to change or make decisions on the basic organization or important business of a school juristic person. Thus, the resolution of the board of directors made on December 18, 2003 by the board of directors made by the temporary directors who appointed the regular directors is null and void, and since the above resolution of the board of directors made on December 18, 2003 was unlawful in the procedure of not convening a meeting in accordance with legitimate procedures under the articles of incorporation of a private teaching institute

B. The defendant's main defense

The defendant asserts that the plaintiffs' action in this case must be dismissed, since there is no legal interest in the defendant's school's regular director before April 28, 1990 and there is no legal interest in the defendant's school's regular director, so there is no legal interest in seeking confirmation of invalidation against the resolution of the board of directors made after the resignation of the director.

As to this, the plaintiffs asserted that the temporary directors did not have the authority to appoint the regular directors of the defendant driving school, as they were appointed and retired by the temporary directors beyond their authority, the plaintiffs, who are the immediately preceding directors of June 4, 1993 who were subject to the revocation of the approval for the appointment of the regular directors, could perform their duties until the appointment of the regular directors, as well as the plaintiffs 1, who succeeded to the status of the founder of the defendant driving school, can contest the invalidity of the resolution of the board of directors as of December 18, 2003.

(c) Markets:

(1) As to Plaintiff 1’s claim as the founder, founder, or successor to the status

Although the fact that Plaintiff 1 acquired the Defendant’s driving school from Nonparty 10 is as seen earlier, it cannot be said that there is a legal interest to seek confirmation of invalidity of the resolution of the board of directors solely on the ground that the school foundation has a good interest in establishing the school foundation (see, e.g., Supreme Court Decisions 63Da15, Apr. 18, 1963; 9Da43103, Nov. 23, 199; 2001Da1171, Jan. 10, 2003), Plaintiff 1 cannot seek confirmation of invalidity of the resolution of the board of directors as the founder of the Defendant’s driving school or the successor to the status thereof, barring any special circumstance.

(2) As to claims as directors whose term of office expires

(A) Legal interest as a person holding an authority to perform duties

In the event that no successor director or auditor has been appointed, or another director or auditor whose term of office has expired, despite the expiration of the term of office of the former director or auditor, or the latter director or auditor was appointed, the appointment resolution becomes null and void, and in the event that another director or auditor whose term of office has not expired is not sufficient to perform activities of a normal corporation, the former director or auditor may perform the former duties until he/she is appointed, unless there are special circumstances to deem it inappropriate to have the former director or auditor whose term of office has expired to perform the duties of the corporation, and in this case, the former director or auditor has legal interest in claiming the defect in the resolution of the board of directors appointed by the latter director or director whose term of office has expired as part of his/her duties and seeking confirmation of its invalidation (see, e.g., Supreme Court Decision 97Da26142, Dec. 23, 1998).

The plaintiffs' full-time directors who were disqualified for directors by a disposition to revoke approval for the appointment of directors on June 4, 1993 are as seen above. Thus, if the temporary directors have no effect of the resolution of the board of directors all of them, it would be impossible for the defendant private teaching institute to engage in its normal activities since there are no other directors whose term of office expires. However, prior to the resolution of the board of directors of this case, there are temporary directors operating the corporation of this case. However, there is no reason to seek confirmation of the invalidity of the resolution of the board of directors of this case as the parties who adopted the resolution of the board of directors of this case, and the temporary directors after June 4, 1993 including the immediately preceding temporary directors did not have the authority to appoint the full-time directors, the right to dispute the defects of the board of directors of the defendant private teaching institute of this case cannot be viewed as being inappropriate for the plaintiff private teaching institute to have been appointed and appointed by the board of directors of this case as the plaintiff private teaching institute of this case before the expiration of the term of office without any special reason for dismissal.

(B) Legal interest as an interested person of a school juristic person

Article 25(1) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005) provides that the appointment of a provisional director shall be made even at the request of an interested party in cases where there are grounds for appointment of a provisional director, and that a provisional director shall hold office until such grounds for appointment cease to exist. An interested party of a school foundation may request the Minister of Education and Human Resources Development to appoint a provisional director if there are grounds for appointment of a provisional director, and where the Minister of Education and Human Resources Development unfairly maintains a provisional director system even though the grounds for appointment of a provisional director have ceased to exist (see Supreme Court Order 2005Ma53, Apr. 16, 2005).

Therefore, as seen earlier, if the Plaintiffs, who were previous directors prior to the appointment of the provisional director of the Defendant Driving Schools, could not contest the validity of the resolution of the board of directors of this case, this would result in infringing upon the Plaintiffs’ right to apply for dismissal of provisional directors, and further, the court’s judicial review as to the validity of the resolution of the board of directors would be excluded, thereby infringing the Plaintiffs’ right to request a trial. Accordingly, the Plaintiffs, as interested parties of the Defendant Driving Institute, have legal interest in dispute as to the validity of the resolution of the board of directors of this case

3. Judgment on the merits

A. Determination on the assertion on procedural illegality

The plaintiffs asserted that the above resolution of the board of directors of the defendant Institute is null and void, since the board of directors of the defendant Institute on December 18, 2003 did not convene due process in accordance with due process under the articles of incorporation of the defendant Institute.

Article 17 (3) of the Private School Act provides that "When convening a board of directors, at least seven days prior to the meeting shall be notified to each director by specifying the purpose of the meeting: Provided, That this shall not apply in cases where all the directors are gathered and all the directors request the holding of the board of directors." Article 34 (2) of the articles of incorporation of the defendant Institute provides that this shall be followed (no dispute between the parties). In full view of the purport of the entire pleadings in the statement in evidence No. 4-2, the board of directors held the meeting on December 18, 2003 at least nine provisional directors, including Nonparty 2, etc., and it is recognized that the board of directors held the meeting, regardless of whether the board of directors notified each director of the purpose of the meeting seven days prior to the meeting, it cannot be said that there was an error in the procedure of the above resolution.

Therefore, the plaintiffs' assertion on this part is rejected.

B. Determination as to the assertion on substantive illegality

(1) Status of a private school or school foundation

(A) The constitutional status

A private school is an educational institution established and operated by a private person, which is based on the constitutional right to receive education from citizens (Article 31(1)). An educational foundation that establishes and operates a private school is recognized as the subject of fundamental rights under the Constitution (see, e.g., Constitutional Court Order 90HunMa56, Jun. 3, 191); the right to education (see, e.g., Constitutional Court Order 90HunMa56, Jun. 3, 191); the right to education (Article 10); the right to personality or the right to pursue happiness (Article 15), the right to freedom of occupation (Article 15), the freedom of learning (Article 2(1)); the guarantee of property rights (Article 23); the autonomy, specialty, political neutrality, and autonomy of education (Article 31(4)); and the legal system (Article 31(6)).

Therefore, there is a limit that the state's supervision over private schools and school juristic persons should not be excessively restricted or excessively restricted to the basic rights of founders and school juristic persons (Article 37 (2) of the Constitution).

(B) Status under the Private School Act

Article 1 of the Private School Act provides that "The purpose of this Act is to promote the sound development of private schools by securing the independence and promoting the public nature in view of the special characteristics of private schools."

Therefore, an educational foundation that establishes and operates a private school shall also be guaranteed the corresponding independence and public nature. Considering the special nature of private schools aimed at realizing the ideology of liberal democracy education, which is to train citizens who are able to learn through various educations, the autonomy of the educational foundation should be respected to the maximum extent that does not undermine the public nature. The management of the private school foundation is an autonomous fundamental right.

(c)the separate legal personality of the school juristic person;

Property contributed by a founder of a school juristic person shall belong to the school juristic person simultaneously with the establishment of the school juristic person, and the school juristic person shall independently participate in legal transactions with an independent right and obligation from the founder. The purpose of making the founder and the school juristic person a separate juristic person is to preserve the integrity of the establishment purpose of the school juristic person.

(D) The nature of the board system of a school foundation

Since a school juristic person is an organization established for the purpose of establishing and operating a private school, it must be operated in compliance with the basic purpose of operating the private school of the founder, i.e., the purpose of establishing the school juristic person’s articles of incorporation (the purpose of establishment, the founding ideology, and the creative spirit). However, realizing the purpose of establishing the school juristic person is a director that constitutes a decision-making institution of the school juristic person and a decision-making institution of the school juristic person. Thus, it is the essence of the board of directors system to realize the purpose of establishing the school juristic person most well-being the purpose of establishing the school juristic person as the end of the directors appointed in accordance with the purpose of its establishment.

(e) State supervision and limits on school juristic persons;

In order to maintain the purpose of establishment of school juristic persons and achieve the public nature of school juristic persons, the State shall exercise the supervisory authority through the competent authorities. The former Private School Act provides for the state's supervisory authority, such as the statutory requirements for establishment (Articles 5 through 13), restrictions on qualifications for executive officers and school personnel (Articles 21 through 23, and 54-3), the cancellation of approval for taking office (Articles 20-2), temporary directors system (Articles 25 and 25-2), permission for disposal of basic property (Article 28), submission of materials necessary for supervision (Article 48), and dissolution of school juristic persons (Article 47).

However, as seen earlier, school juristic persons have independence and independent legal personality as the subject of rights and obligations under the private law. Thus, the state supervision over school juristic persons may exercise their supervisory rights to the extent necessary to ensure that school juristic persons can be operated in accordance with the articles of association and their intent prepared by the founder of the school juristic person, and further, it cannot infringe on the basic status of school juristic persons as the subject of independent rights and obligations of the school juristic persons.

(2) Provisional director system under the Private School Act

(A) Article 25 of the former Private School Act

Article 25 of the former Private School Act provides that "Where a school juristic person fails to fill the vacancy of a director, and the Minister of Education and Human Resources Development deems that the purpose of the school juristic person concerned is not achieved or is likely to cause damage, he/she shall appoint a provisional director at the request of an interested person or ex officio (paragraph (1)). Provisional directors shall make efforts so that the cause referred to in paragraph (1) may be resolved within the prompt time limit (paragraph (2). In such cases, temporary directors shall hold office until the cause referred to in paragraph (1) is removed. In such cases, where such cause continues for a long time, their terms of office shall not exceed two years, but they may be reappointed only once (paragraph (3)). Provisional directors shall not be appointed as officers referred to in Article 20 (paragraph (4))."

(B) The purpose of the provisional director system

According to the above provisions, temporary directors have the authority to contribute to the achievement of the purpose of school juristic persons through normal operation of the juristic person and to prevent the occurrence of damages, and have the authority to temporarily exercise such authority until the cause of appointment of temporary directors is resolved, and they are not only subject to certain restrictions in their terms of office and reappointment as temporary directors, but also subject to restrictions in which they cannot be appointed as regular directors. In other words, temporary directors are granted temporary authority to achieve the purpose of the juristic person and to take measures to prevent damage, and are clearly different from regular directors in their authority and status.

Therefore, the provisional director system under the Private School Act only aims at helping a school juristic person in crisis to normalize temporary directors as soon as possible so that it can achieve the previous purpose of establishment. It does not intend to deprive the management rights of the school juristic person from the former directors who caused crisis, or to change the governance structure of the school juristic person to "publicization and socialization of private school".

(C) Status and authority of temporary directors

As seen earlier, Article 25 of the former Private School Act provides for the grounds for appointment, duties, period of office, restrictions on appointment as regular directors, etc. under Article 20-2 of the same Act concerning cancellation of approval of taking office, and comparison with temporary directors under Article 63 of the Civil Act, temporary directors under the Private School Act shall be construed as having authority for temporary management of private schools in order to maintain the integrity of private schools, as well as for temporary crisis management officers appointed by the Minister of Education and Human Resources to achieve administrative purposes, unlike temporary directors under the Civil Act. Accordingly, the Supreme Court Order 2005Ma53 Decided April 16, 2005 shall be understood as on the premise that “The authority and duties of the temporary directors appointed by the Minister of Education and Human Resources Development and are the same as the so-called regular directors appointed by the board of directors and approved for appointment by the Minister of Education and Human Resources Development.”

On the contrary, if temporary directors grant unlimited authority different from regular directors, it would result in fundamental changes in human composition selected by founders as an independent corporate body by easily exceeding a third party from directors appointed by the founder due to a minor violation of the Enforcement Decree beyond the normalization of school management. This would result in a change in the purpose of establishment and deterioration of the founder, thereby infringing upon the basic rights and autonomy of the school foundation under the Constitution as an independent corporate body.

Therefore, temporary directors have an inherent limitation in their authority due to the temporary and temporary characteristics of their status. As such, it should be deemed that the school juristic person’s purpose of establishment is an alteration (e.g., alteration of the purpose of establishment of the foundation of the advancement and distribution of the spirit of the e.g., the development and distribution of the e., the spirit of the e.g., the development and distribution of the e., the spirit of the e.g., the development and distribution of the e., the purpose of establishment of the e.

(D) Method of termination of the provisional director system

1) Article 25 of the former Private School Act provides that temporary directors may be dispatched to school juristic persons by the Minister of Education and Human Resources Development under Article 25, and only the duties and terms of office of the said temporary directors, and did not provide any provision concerning the dismissal of the temporary directors and the method of normalization of the school juristic person in which the temporary directors are appointed (amended on December 29, 2005, provides for "the dismissal of the temporary directors" by newly establishing Article 25-2 and "the normalization of the school juristic person in which the temporary directors are appointed by newly establishing Article 25-3," and "the normalization of the school juristic person in which the temporary directors are appointed by newly establishing Article 25-3"). Therefore, in the event the reason for the appointment of the temporary directors is terminated, it is not clear how to appoint the regular director

However, in the meantime, in the form of administrative guidance, the competent authorities have a temporary director pass a resolution to appoint the directors immediately before the dispatch of the temporary director as the regular director, or, in the event that the problem occurred because of a large amount of liabilities of the school juristic person, a person who takes over the liabilities of the school juristic person under the understanding of the founder or the directors immediately before the appointment of the temporary director has been appointed as the regular director. Therefore, since the management right of the school juristic person is a director of the school juristic person, it is necessary to grant the right to organize the board of directors at least by consulting with the directors immediately before the appointment of the

2) Meanwhile, as seen earlier in the constitutional status of a private school and school foundation, if the State recommends the establishment of a private school because it is unable to cope with national education alone due to lack of finances of the State, and the founder establishes a school juristic person by contributing private property, the State is obliged to guarantee the freedom of private school between the founders and independent management of the school juristic person according to the purpose of the establishment of the school juristic person. Accordingly, the State is obliged to comply with good faith established with the establishment of the school juristic person. Accordingly, if a school juristic person is normalized by a temporary directors system, it would be possible for the previous directors to ensure the continuity of the purpose of establishment of the school juristic person, without any legal basis, to change the governance structure of the school juristic person and cause the “public and socialization of the private school” by appointing a regular director without excluding the previous directors, thereby infringing on the basic rights such as the right of management and personnel rights of the school juristic person, and the new establishment and contract entered into between the founder and the State at the time of contribution of private property, which infringe on property rights.

(3) Whether the resolution of the board of directors on December 18, 2003 of this case is valid

As seen earlier, on December 18, 2003, nine provisional directors, including non-party 22, etc., appointed nine directors including non-party 1, etc. as regular directors. The Minister of Education and Human Resources Development approved on December 24, 2003 that the above regular directors were directors of the board of directors. We examine the validity of the resolution of the board of directors of this case.

(A) A resolution outside the powers of temporary directors

Since a school juristic person is bound by a director who is a member of a decision-making body or a decision-making body and a decision-making body and realizes the purpose of its establishment in a sustainable manner, it is illegal that it arbitrarily appoints a person who has no relationship with the formation of the school juristic person without completely excluding the previous directors of the school juristic person (excluding where the previous directors of the school juristic person have donated, waived, given up the right to manage the school juristic person, etc.) and arbitrarily nominates a person who has no relationship with the formation of the school juristic person, and deprives the person of the right to manage the school.

The decision of the board of directors of the same temporary director can be seen differently in cases where the temporary directors appoint a regular director in consultation with the founder or the former director, and in cases where the temporary directors appoint a regular director in consultation with the founder or the former director. However, in the case of the former, the decision of the board of directors of the temporary director may be recognized as having the effect of maintaining the system of the previous school juristic person and securing democratic legitimacy and procedural legitimacy by reflecting their intention through consultation with the founders or the former directors. However, in the latter case, the latter would result in deprivation of the previous directors' right to manage the school or private property rights of the school juristic person unless the founders or the former directors take over.

Therefore, in this case where Plaintiff 1, the acquirer of Defendant Private Teaching Institutes, expressed his/her intention to return or waive the property of Defendant Private Teaching Institutes to the State or society in advance, or where there were no circumstances that Plaintiffs, the previous directors prior to the appointment of temporary directors, renounced the right to manage Defendant Private Teaching Institutes, it is unlawful to appoint nine persons, including Nonparty 1, who are non-party 22, and others, who are not entirely related to the formation of Defendant Private Teaching Institutes, as regular directors without completely excluding the Plaintiffs’ intention as previous directors, and deprive the Plaintiffs of the right to manage Defendant Private Teaching Institutes.

(B) Abuse of supervisory power;

Meanwhile, according to the overall purport of evidence No. 4-2 and the argument, the Minister of Education and Human Resources Development, the supervisory authority, in consultation with Nonparty 22, etc., who is the temporary director of the defendant's driving school, approved the application for the appointment of a regular director to appoint nine persons, including Nonparty 1, etc. as a regular director. This is not only equal because it is different from the termination method of the temporary director system that had been actually used only for the defendant's driving school, and thereby, it causes deprivation of the management right of the plaintiffs who are the previous directors, and furthermore, it is illegal as it deviates from and abused the supervisory authority's supervisory authority.

(C) Violation of the previous directors' right to apply for dismissal of temporary directors and right to trial

As acknowledged earlier, even though the Minister of Education and Human Resources Development has made various efforts to find management rights of Defendant private teaching institutes, including lawsuits in various forms, including administrative litigations, and appeals in relation thereto, for a long time, the Minister of Education and Human Resources Development, a supervisory authority, has maintained the provisional director system for a long time of ten years. However, it means that the appointment of nine provisional directors, such as Nonparty 22, as well as the above non-party 1, appointed nine regular directors and approved the appointment of the above regular directors by the Minister of Education and Human Resources Development has been resolved. As such, the Minister of Education and Human Resources Development should consult with the Plaintiffs, who are the former directors of Defendant private teaching institute, or at least the application for dismissal of provisional directors, has completed the provisional director system. Accordingly, if the Minister of Education and Human Resources Development recognizes that the resolution of the board of directors of this case, which appointed nine directors, including Non-party 22, etc., as a standing director, is valid, it would ultimately infringe the right to request dismissal of the Plaintiffs, which is an interested party, and if the Plaintiffs could not receive relief through judicial review.

(D) Conclusion

Therefore, the resolution of the board of directors on December 18, 2003 of the instant case cannot be exempted from being unlawful even if it is one mother.

4. Conclusion

Therefore, the resolution of the board of directors of this case shall be null and void, and as long as the defendant's driving school contests that the resolution of this case is valid, the plaintiffs shall have the interest to seek confirmation. Thus, the plaintiffs' claim of this case shall be accepted. Since the judgment of the court of first instance is unfair with different conclusions, it shall be revoked by accepting the plaintiffs' appeal and it shall be so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)