[1] In a case where objective facts exist that the grounds for revoking approval of taking office under Article 20-2 (1) of the Private School Act exist, whether the grounds for revoking approval of taking office exist (affirmative in principle)

[2] Whether the disposition of revoking taking office under Article 20-2 of the Private School Act constitutes an act of discretion (affirmative), and the method of determining whether such a disposition deviates from or abused the scope of discretion under the social norms

[1] Article 20-2 of the Private School Act / [2] Article 20-2 of the Private School Act

[1] [2] Supreme Court Decision 2015Du56540 Decided December 28, 2017 (Gong2018Sang, 432)

Plaintiff 1 and two others (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

The Gyeonggi-do Office of Education and Education (Attorney Park Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2014Nu72462 decided September 25, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the grounds for disposition taken to revoke approval of taking office

A. Article 20-2(1) of the Private School Act provides that “When a dispute between executives causes serious obstacles to operating a school (Article 20-2(2)) due to a dispute among the executives, the competent agency may revoke the approval of taking office of a school juristic person. In such a case, the competent agency may revoke the approval of taking office of the relevant executive if it requests a school juristic person to correct the dispute by citing the reasons therefor and grants the school juristic person an opportunity to resolve the dispute and normalize operating the school, and if it fails to comply with the request for correction, it may revoke the approval of taking office of the relevant executive

If the objective fact is found that the cause stipulated in Article 20-2(1) of the Private School Act has occurred, the reason for revocation of approval of taking office itself shall be deemed to exist unless there is any justifiable reason not to mislead the relevant officer about the failure to perform his/her duties related to the occurrence of such cause (see Supreme Court Decision 2015Du56540, Dec. 28, 2017, etc.).

B. The lower court determined that there was a reason to revoke the approval of taking office of this case, on the ground that a dispute between the directors in a position to deliberate and resolve on the major issues of the school foundation through the board of directors took place, and that there was a significant obstacle to the operation of the school.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the grounds for

2. As to the deviation and abuse of discretionary power

A. The disposition to revoke approval of taking office under Article 20-2 of the Private School Act constitutes an act of discretionary authority. Whether such disposition deviates from or abused the scope of discretionary authority under the generally accepted social norms should be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition by objectively examining the content of the act of violation as the ground for disposition, the public interest to be achieved by such disposition, and all the circumstances pertaining thereto (see, e.g., Supreme Court Decision 201

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① On June 23, 2011, the Private School Dispute Mediation Committee (hereinafter referred to as the “Mediation Committee”) deliberated on a plan to promote the normalization of ○○ Private Teaching Institutes, and decided on eight directors, including Plaintiff 1, Plaintiff 2, Nonparty 1, Nonparty 2, Nonparty 3, Defendant side, Nonparty 4, Nonparty 5, the side of the study, and Plaintiff 3, who is a member of the study society, on the recommendation of the ○○ Private Teaching Institutes.

② In principle, the above resolution is in accord with the principle of deliberation on the normalization of school juristic persons by the Mediation Committee that, in principle, a majority of the previous directors shall not be required to change the major framework of the governance structure of school juristic persons: Provided, That the foregoing does not apply to cases where the corruption, morality, school management ability, etc. is deemed to be significantly unacceptable in light of social norms or the legal sentiment of the general public.

③ Around August 2011, Nonparty 1, Nonparty 2, and Nonparty 3 renounced the appointment of the above director, the Mediation Committee deliberated and resolved on September 8, 201 as the former director’s side, Nonparty 6, Nonparty 7, and Nonparty 8, and notified the superintendent of education of Gyeonggi-do.

④ Meanwhile, the Plaintiffs were actively present at the board of directors to present their opinions.

C. Examining these facts in light of the relevant statutes and the legal principles as seen earlier, the Defendant under the jurisdiction of the Gyeonggi-do Office of Education should have selected and appointed Nonparty 6, Nonparty 7, and Nonparty 8 as a director of the ○○ Private School (Article 24-2(4) of the Private School Act) pursuant to the resolution of the Mediation Committee, barring any special circumstances (Article 24-2(4)). Nevertheless, the Defendant appointed only the Plaintiffs, Nonparty 4, and Nonparty 5 as a director of the ○○ Private School, and as a result, the Defendant was appointed as a director of the ○○ Private School even though the number of the board of directors of the ○ Private Institutes was eight, and the appointment of five (5) directors, who are the quorum, was the quorum, and accordingly, it was difficult to make any resolution unless all the directors present at the ○○ Private School and

In addition, the Plaintiffs appear to have made efforts to normalize the operation of the ○○ Private Teaching Institute and the board of directors. The Defendant’s resignation from Nonparty 4 director and Nonparty 5 director on the side of the members in the school cannot be held liable to the Plaintiffs solely for the failure to take the responsibility of the board of directors. Furthermore, when revoking the approval of taking the office of all of the directors of the school juristic person, once again returning to the temporary directors system, it should be used as a last resort.

Therefore, it cannot be deemed that the occurrence of an obstacle to school operation, such as a dispute between executives or a strike by the board of directors, is due to the plaintiffs. In full view of the above points, it can be deemed that the defendant was subject to comparison and balancing with regard to the public interest infringed, the degree of contribution by the plaintiffs to such public interest, and the disadvantages suffered by the individuals due to such disposition. Thus, the revocation of the approval of taking office of the plaintiffs of this case is acknowledged as deviation

D. Nevertheless, the lower court determined that there was no illegality of deviation from or abuse of discretion in the cancellation of the approval of taking office of the Plaintiffs on the ground of the following reasons: (a) the Defendant sought solutions such as inducing the Defendant to resolve the situation by itself; (b) however, such circumstance may be deemed necessary for the significant public interest to justify the cancellation of the approval of taking office of the Plaintiffs; and (c) so, the lower court erred by misapprehending the legal doctrine on deviation from or abuse of discretion, thereby adversely affecting

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)