2017Nu4543 Revocation of the approval of taking office

A

The superintendent of education of Seoul Metropolitan Government

Seoul Administrative Court Decision 2016Guhap69246 decided March 23, 2017

September 29, 2017

November 10, 2017

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

On July 12, 2016, the Defendant revoked the cancellation of the approval of taking office against the Plaintiff.

Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court to be stated in this case is the same as the reasoning of the judgment of the court of first instance, except for adding the judgment of this court as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. The further determination of this Court

A. Summary of grounds for appeal

The witness G of the first instance court is a party affiliated to the Plaintiff and was infringed upon the Plaintiff’s principal’s authority, and thus, it is difficult to believe that the Plaintiff did not infringe on the Plaintiff’s own authority. On the other hand, according to the Plaintiff’s statement and witness O’s testimony, the Plaintiff’s exercise of the principal’s authority has been substantially followed by the Plaintiff’s intent as a result of the Plaintiff’s involvement in the operation of school affairs. In addition, there exist grounds for the instant disposition that the Plaintiff infringed on the principal’s authority. In addition, in light of the importance of public interest, such as the protection of the independence of private schools to achieve the instant disposition and the guarantee of democratic operation methods, the instant disposition cannot be deemed to have excessively exceeded and abused its discretionary authority. Accordingly, the instant disposition

B. Determination

The above assertion made by the Defendant in this court is not significantly different from the Defendant’s assertion in the first instance trial. In full view of the various circumstances cited earlier as well as the following circumstances acknowledged by this court in addition to the purport of the entire pleadings in addition to the testimony of the party witness O, it is recognized that the first instance court, which received the Plaintiff’s request, rejected the Defendant’s assertion and the judgment of the court of first instance, is justifiable.

1) According to the Private School Act, the president of a private school may appoint the head of a private school (Article 53), but he/she shall not concurrently hold the office of the head of a private school established and operated by the relevant school foundation (Article 23(1)), and shall not infringe the authority of the principal concerning school administration (Article 20-2(1)3). In light of the above provisions, school administration falls under the inherent authority of the principal. However, inasmuch as a private school can realize the special ideology of establishment of the founder or conduct education in conformity with its own educational policy, the president may appoint a principal who consented to the establishment ideology of the school foundation and its educational policy and aims at it (Article 53 of the first instance court witness G is appointed from C High School to work for about twenty five years from March 1, 198 and served as the principal of the relevant school on December 1, 2013 and has been in close relationship with the said school foundation).

2) In relation to the Plaintiff’s principal’s infringement of personnel rights on the appointment and dismissal of teachers holding positions during a semester, there is no official letter of convening the teachers’ personnel committee, and there was no internal approval on some appointment and dismissal of the principal thereafter, and the procedures and documents related thereto, such as the appointment and dismissal of the teachers holding positions, which the president is the final approving authority, were not fully equipped. However, the first instance court witness G testified that there was sufficient consultation between the Plaintiff and the said witness, who was the principal, on the issuance ledger in which the appointment and dismissal of the teachers holding positions was recorded. The above issuance ledger was used as it used for the form continuously used from the time when the president was appointed and dismissed the teachers holding positions, and in other private schools, Chigh School teachers were also a atmosphere to evade the appointment and dismissal of the teachers holding positions in a semester, and there is no particular incentive to appoint and dismiss the teachers holding positions even when they violated the principal’s personnel rights. In light of the above, it is difficult to deem that the Plaintiff infringed on the principal’s personnel rights or imposed a punishment on the principal merely

3) In relation to the Plaintiff’s violation of the Plaintiff’s right to guide and supervise school personnel, the right to access to school affairs, and the right to education, the fact that the Plaintiff received a report or presented opinions on certain school affairs administration is recognized. However, as can be seen by the testimony of the witness G of the first instance trial, this appears to have been based on a close cooperative relationship between the Plaintiff and the principal, and there is no circumstance to deem that the Plaintiff had a school administration interference against the principal’s explicit and implied intent, or that the principal had an exercise of his/her authority merely because it was excluded from the school administration.

4) In light of the statement of Chigh School Teachers (B-6, B-8, 11, and 12), the Defendant asserts that the Plaintiff’s right infringement may be recognized against the principal of the Plaintiff. However, according to B-6 and 7, it is recognized that there was a conflict in the school due to the opposition of teachers on the issue of early school attendance and the issue of holding “Epicing” among high school teachers and teachers, but there is no evidence to deem that the issue of holding the above early school curriculum or the issue of holding the Epic is against the principal’s will and was against the Plaintiff’s unilateral decision. Rather, according to the cited above, the Plaintiff and the principal were deemed to have agreed in advance regarding the above issue. Moreover, the Plaintiff’s 11 and B-12 are related to the fact that the Plaintiff was appointed as the principal of C-high School on September 1, 2015. Accordingly, even according to each evidence, it is difficult to recognize that the Plaintiff infringed the principal’s right.

5) It is normatively reasonable that the Private School Act does not intervene in the school administration belonging to the principal’s authority according to the purport of separating school administration from school administration. However, as seen above, insofar as it appears that the Plaintiff and the principal of the school (the witness G of the first instance court) have a cooperative relationship closely seeking opinions on the issues pertaining to the grounds for each disposition of this case, in light of the strict interpretation of the indivative administrative disposition, it is difficult to recognize the Plaintiff’s violation of authority solely on the ground that the Plaintiff partly involved in the school administration.

Even if part of the Plaintiff’s violation of authority against the principal’s school principal is recognized, considering the fact that the Plaintiff’s involvement in school administration does not seem to be attributable to the illegal motive or purpose, such as pursuing unfair monetary benefits by using private schools as a means of the private school, and the content of such involvement itself was within the scope of normal school administration, it should be deemed that the instant disposition was in violation of the discretionary authority, since it is too large to infringe on the private interest compared to the public interest to be achieved.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted as it is reasonable. The judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Justices Kim Yong-seok

Judges Singing on Board

For the purpose of judges