[1] The meaning of "in a case where the members present at the disciplinary committee fall short of 2/3 of the registered members" due to the evasion under Article 24-6 (3) of the Enforcement Decree of the Private School Act

[2] A quorum for a challenge resolution under Article 24-6 (2) of the Enforcement Decree of the Private School Act (=a majority of the members present and a majority of members present)

[3] In a case where there are applications for challenge against multiple disciplinary committee members, whether each disciplinary committee member who has received an application for challenge under the latter part of Article 24-6(2) of the Enforcement Decree of the Private School Act can participate in the resolution for challenge against other committee members (affirmative with qualification

[4] The validity of the resolution on challenge where a member who is not entitled to participate in the resolution on challenge has participated in the resolution on challenge, but the resolution on challenge has been satisfied, excluding a disqualified member (negative)

[1] Article 24-6 (3) of the Enforcement Decree of the Private School Act provides that if a request for challenge is made with the contents of Article 24-6 (1) and (2) of the Enforcement Decree of the Private School Act, "if the number of members present falls short of 2/3 of the incumbent members, a temporary member shall be appointed so that the number of members present falls short of 2/3 of the incumbent members if the member present falls short of 2/3 of the incumbent members present as a result of the decision on challenge, a temporary member shall be appointed so that the number of members present falls short of 2/3 of the incumbent members if the number of members present falls short of 2/3 of the incumbent members due to the request for challenge under paragraph (1) of the same Article, it shall not be deemed that a temporary member should be appointed so that the number of members present falls short of 2/3 of the incumbent members.

[2] Under the Enforcement Decree of the Private School Act, there is no provision as to the quorum of the challenge resolution under Article 66 (3) of the Private School Act, and Article 66 (3) of the Private School Act provides that "A resolution under paragraph (1) shall be made with the attendance of not less than 2/3 of the incumbent members and with the concurrent vote of a majority of the incumbent members." Thus, a resolution of disciplinary action under Article 66 (3) of the same Act refers only to a disciplinary action itself as a result of a disciplinary case's deliberation. Thus, a resolution of challenge can not be applied to a quorum under Article 66 (3) of the same Act, but can be made with the attendance

[3] The purpose of the challenge system against a disciplinary commissioner under Article 24-6 of the Enforcement Decree of the Private School Act is to maintain neutrality, objectivity, and fairness in the process of disciplinary proceedings and proceedings by excluding disciplinary members who are likely to compromise the fairness of disciplinary resolution. The right to challenge a person subject to disciplinary action also is the only right to oppose the biased composition of the disciplinary committee. Thus, in interpreting the latter part of Article 24-6 (2) of the Enforcement Decree of the Private School Act, the purpose and purpose of the system should be sufficiently considered. Generally, the challenge system should be sufficiently taken into account in interpreting the latter part of Article 24-6 (2) of the Enforcement Decree of the same Act. Since the challenge system is against the individual of the disciplinary committee, each disciplinary commissioner subject to the challenge cannot participate only in the challenge resolution against him/her, and it is possible to participate in the challenge resolution for other persons, but it conforms to the purport and purpose of the above system.

[4] A challenge resolution made by a member who is not entitled to participate in the challenge resolution shall be null and void, and the same shall also apply to the case where a quorum is satisfied even though the member is not an unqualified member

[1] Article 24-6 (3) of the Enforcement Decree of the Private School Act / [2] Article 24-6 (2) of the Enforcement Decree of the Private School Act, Article 66 (3) of the Private School Act / [3] Article 24-6 (2) of the Enforcement Decree of the Private School Act / [4] Article

[4] Supreme Court Decision 94Da53716 delivered on June 28, 1996 (Gong1996Ha, 2328)

Plaintiff (Attorney Yoon Young-chul et al., Counsel for plaintiff-appellant)

A Institute of Gender Equality (Attorney Park Jae-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na26557 delivered on July 9, 1998

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

We examine the grounds of appeal.

1. Article 24-6 (1) of the Enforcement Decree of the Private School Act (hereinafter referred to as the "Enforcement Decree"), which applies mutatis mutandis to the disciplinary action against the members in general service by the defendant school juristic person or its articles of incorporation, provides that "any person subject to disciplinary action may, if there are reasonable grounds to recognize that the members of the teachers' disciplinary committee are likely to make an unfair resolution, apply for challenge by explaining in writing such fact." Paragraph (2) of the same Article provides that "the person in receipt of an application for challenge pursuant to paragraph (1) shall not participate in such a resolution." Paragraph (3) of the same Article provides that "if the members of the teachers' disciplinary committee fall short of 2/3 of the incumbent members due to the exclusion pursuant to Article 63 of the Act or paragraph (1) of the same Article, the number of members present falls short of 6/3 of the incumbent members' disciplinary action, the chairperson of the teachers' disciplinary committee shall not request temporary appointment of the members with the authority to appoint those members so that the number of members present falls short of 2/3 of the quorum."

Meanwhile, the purpose of a challenge system against a disciplinary commissioner under the Enforcement Decree is to maintain neutrality, objectivity, and fairness in the process of disciplinary proceedings and a resolution to the maximum extent possible by excluding a disciplinary commissioner who is likely to compromise the fairness of a disciplinary resolution. The right to challenge a person subject to disciplinary action also is the only right to oppose a biased composition of a disciplinary committee. Therefore, in interpreting the latter part of Article 24-6(2) of the Enforcement Decree, the purpose and purpose of the system should be fully considered. Generally, since a challenge is against an individual disciplinary commissioner, and a challenge resolution is made individually against a request for challenge, each disciplinary commissioner subject to a challenge cannot participate only in a challenge resolution against him/her pursuant to the latter part of Article 24-6(2) of the Enforcement Decree, and may participate in a challenge resolution against another person. However, it conforms to the above purpose of the system, interpreting that a person subject to disciplinary action cannot participate not only in a challenge resolution against him/her but also in a challenge resolution if a ground for challenge is attributable to a common reason for such challenge resolution. This applies to the Supreme Court Decision 96196Da64.

2. According to the reasoning of the judgment below, the court below rejected the plaintiff's application for challenge against the above non-party 2 and the non-party 32 who participated in the above disciplinary resolution on August 7, 1996 and dismissed the application for challenge against the non-party 32 by participating in the above disciplinary committee's dismissal on September 12, 1996, with the consent of the non-party 2 and the non-party 3 who participated in the above disciplinary committee's dismissal of the non-party 4 with the consent of all registered members excluding the above non-party 5 who participated in the resolution of challenge against the non-party 2 and the non-party 4 who participated in the above disciplinary committee's dismissal on August 7, 1996, and with the consent of all members excluding the above non-party 2 and the non-party 3 from acting on behalf of the general secretary of the defendant educational foundation.

However, according to the statement of evidence No. 6-1 (Written application for challenge) employed by the court below, since the grounds for challenge against the above non-party 2 and non-party 3 are the persons who participated in the audit committee as the grounds for the disciplinary action of this case and prepared audit report demanding the disciplinary action against the plaintiff, the above non-party 2 and non-party 3 shall not participate not only in the challenge resolution against them, but also in the other person. In light of the above legal principles, the challenge resolution of the non-party 2 and the non-party 3 shall not participate in the challenge resolution of the others, and the challenge resolution of the non-party 2 and the non-party 3 shall be null and void, and the same shall apply to the non-party 1 who participated in the challenge resolution of the court below, even if the quorum is met even though the non-party 2 and the non-party 3 are excluded from the above two persons who are not entitled to participate in the disciplinary action. Therefore, the removal resolution of this case is null and void due to the violation of the disciplinary procedure.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)