[1] In a case where an officer of a school juristic person is appointed after the cancellation of the approval of taking office for the officer of the school juristic person, whether the school juristic person can participate in the action for cancellation of taking office for the defendant who is the competent agency (affirmative)

[2] The purport of Article 20-2 (2) of the Private School Act regarding the cancellation of the approval of taking office of a school foundation, and in the case where a school foundation's corrective measure is insufficient for the school foundation to take a second corrective measure but the competent agency made a second corrective measure, whether the approval of taking office of the school foundation can be cancelled only on the ground of the disregarding corrective measures following the second corrective measure and disregarding the second corrective measure (negative)

[3] Whether a court may render a ruling on circumstances where it can render a ruling on circumstances ex officio (affirmative), and the standard for determining whether a “unconformity with public welfare,” which is the requirement for rendering a ruling on circumstances, is “nonconformity with public welfare”

[1] The Minister of Education, which is a competent agency, revoked the appointment approval of the director and the chief director of the school foundation for the director and the chief director of the school foundation, and then the latter director and the chief director are appointed by the resolution of the school foundation. If the former director and the chief director were to restore their status as the director and the chief director of the school foundation, the school foundation is ultimately a relationship of change between the members and the representative of the board of directors regardless of their intent. This constitutes a legal interest in which the legal status of the school foundation is determined

[2] Article 20-2 (2) of the Private School Act provides that the revocation of the appointment approval of an officer of a school foundation shall be limited to cases where the competent agency fails to comply with a request of the school foundation for correction on the ground of Article 20-2 (1) of the same Act. This means that even if the competent agency finds a ground for revocation of the appointment approval of an officer in consideration of autonomy in private school, it does not immediately revoke the appointment approval of an officer, but it gives the school foundation an opportunity to correct the appointment approval within a certain period and only if the school foundation fails to comply with such a request, it shall revoke the appointment approval. In light of the purport of the above provision, in light of the purport of the above provision, if a request for correction with the guidance period of the competent agency was made by the school foundation to take corrective measures, but the competent agency may immediately revoke the appointment approval, or further request again for correction with a fixed period without complying with the request of the competent agency (if such a request is made again within 15 days or more, the competent agency shall make a new corrective measures within the period, and shall not revoke the appointment approval of appointment approval.

[3] In a case where an administrative disposition is unlawful, in principle, cancellation or modification of the illegal disposition is a matter of principle, and in an exceptional case where the cancellation or modification of the illegal disposition is considerably inappropriate for public welfare, it may be decided ex officio on the basis of various circumstances shown in the record even in the absence of a party’s obvious assertion. However, whether it is considerably inappropriate for public welfare, which is the requirement, should be determined by comparing and comparing the necessity for cancellation or modification of the illegal administrative disposition and the situation against public welfare that may arise due to such cancellation or modification.

[1] Articles 14, 15, 20, and 20-2 of the Private School Act; Article 65 of the Civil Procedure Act; Article 8(2) of the Administrative Litigation Act / [2] Articles 20, 20-2(1)3, and 20-2(2) of the Private School Act / [3] Articles 19, 26, and 28 of the Administrative Litigation Act

[1] Supreme Court Decision 79Nu74 delivered on August 28, 1979 (Gong1979, 12197), Supreme Court Decision 96Da51714 delivered on December 26, 1997 (Gong1998Sang, 393), Supreme Court Decision 9Da12796 delivered on July 9, 199 (Gong1999Ha, 1604), Supreme Court Decision 99Da26924 delivered on September 8, 200 (Gong200Ha, 2070), 90Nu9032 delivered on February 14, 199 (Gong1992, 1040), Supreme Court Decision 9Du93949 delivered on September 28, 1993 (Gong9499, 1949)

Plaintiff (Attorney above-Appellee et al., Counsel for the plaintiff-appellant)

Defendant-Supplementary Intervenor (Law Firm Tae & Yang, Attorneys Park Im-soo et al., Counsel for the defendant-Supplementary intervenor-appellee)

C. H.C. (Law Firm Future, Attorneys Park Hong-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Gu53849 delivered on August 12, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant supplementary intervenor, and the remainder are assessed against the defendant.

1. As to the legitimacy of the application filed by the defendant assistant school foundation (hereinafter referred to as the "participating school foundation") to participate in the action

According to the records, after the defendant issued the disposition of this case on October 10, 197, which revoked the approval of the appointment of the director and the chief director of the school juristic person against the plaintiff as of October 10, 1997, it can be known that the non-party 2 was appointed as the succeeding director and the chief director through the resolution of the intervenor's board of directors. Thus, when the plaintiff restores the former director and the chief director's status in the lawsuit of this case, the intervenor as the school juristic person, regardless of his intention, has a relation of change of the member and the representative of the board of directors of the juristic person regardless of his intention. This constitutes a relation of which the legal status is determined by the result of the lawsuit of this case, and constitutes a legal interest as the requirement for participation (see, e.g., Supreme Court Decisions 79Nu74, Aug. 28, 197; 96Da51714, Dec

In addition, there is no ground to deem that the Intervenor’s application for intervention did not meet the procedural requirements, on the ground that the Intervenor’s school foundation did not undergo a resolution of the board of directors regarding the application for intervention in the instant case.

Therefore, the Intervenor’s motion for participation in the instant case is lawful, and the Plaintiff’s assertion disputing this cannot be accepted.

2. Details of the instant disposition

The circumstances leading up to the instant disposition recognized by the court below based on evidence are generally as follows.

(3) With respect to the rules within 197, which occurred from the university established and operated by the Intervenor 1, the Defendant: (a) conducted an audit on the overall operational status of the Intervenor 1 and the above university from June 9, 197 to 19; (b) on July 14, 1997, the Plaintiff pointed out that, as the chief executive officer of the above university, the Plaintiff would interfere with the academic affairs of the 197 university; and (c) on the ground that it was insufficient to take necessary corrective measures for the 19th anniversary of the appointment of the 197 university, the Defendant issued a comprehensive corrective measures for the 19th executive officer’s resignation on August 1 and August 7, 197; and (d) on the ground that the 19th executive officer’s revocation of appointment by the 197th executive officer’s revocation of appointment by the 197th executive officer’s request for correction; and (e) on the ground that the 19th executive officer’s revocation of appointment by the 19th executive officer’s request for correction.

3. Judgment on the grounds of appeal (the grounds of appeal by the defendant's attorney and the defendant's assistant intervenor's attorney are also examined)

(a) First point (with respect to non-compliance with the limitation period of partial grounds for disposition);

The lower court determined that the instant disposition was erroneous on the ground that (i) the Plaintiff did not normalize the school operation (including the normalization of classes) under the responsibility of the president and (ii) the Defendant’s comprehensive correction measures required and the measures to secure them were the grounds for the relevant disposition; and (ii) the Defendant’s correction measures regarding the normalization of school operation were first made on October 2, 1997; and (iii) the instant disposition taken on October 10, 1997, which included the grounds for its inclusion in the instant disposition taken on October 10, 1997, was not in compliance with the extension period of 15 days as stipulated in Article 20-2(2) of the Act.

However, Article 20-2 (1) 3 of the Act merely provides that "When the school administration infringes upon the principal's authority concerning the school administration" due to the cancellation of the approval for taking office of an executive officer of the school foundation, the reason such as 1's failure to implement school normalization is not specified as a separate ground for the cancellation of the approval for taking office. According to the records, the purport of the defendant's first request for correction three times after the defendant's first request for correction on July 14, 1997 was to correct it due to the violation of the above provision of the law. In addition, the correction order of October 2, 1997, which is the basis of the disposition of the disposition of this case, includes the contents of normalization of school classes in relation to the requirements in school as at the time of taking office. However, in this case, the requirements are deemed as incidental to the request for correction by deeming that the cause of the disposition of this case occurred about the school administration of the plaintiff, and it is clear that it does not interfere with the school administration affairs of the president."

Thus, the disposition of this case shall be deemed to be a ground for the infringement of the principal's authority over school administration as stipulated in Article 20-2 (1) 3 of the Act, and it shall not be deemed that the plaintiff's failure to normalize school classes is a ground for independent disposition.

Unlike this, the court below erred by misapprehending the contents of the disposition of this case on the premise that the failure to implement school curriculum normalization was an independent disposition of this case, and thus, it did not comply with the guidance period. However, the court below erred by misapprehending the contents of the disposition of this case on the other hand, on the other hand, considering that the above error of the court below was not the reason for the disposition of this case from the beginning to the point of view that it was the reason for the disposition of this case, and it was unrelated to the legitimacy of the disposition of this case, and therefore, it did not affect the conclusion of the judgment.

As a result, the grounds of appeal related to this point return to the absence of reasons.

B. Second point (as to the violation of the rules of evidence as to the grounds for the disposition of this case)

(1) The judgment of the court below

Furthermore, as to the failure to comply with the Defendant’s request for correction, the lower court deemed that the Plaintiff expressed a public view that he would not revoke the approval of taking office on the ground that the Plaintiff performed corrective measures on September 20, 1997 only on the ground that the Plaintiff did not comply with the Plaintiff’s request for correction. Thus, if the Defendant issued the instant disposition on the ground that the Plaintiff performed corrective measures on September 20, 1997, the instant disposition does not constitute an unlawful act contrary to the principle of protection of trust. Accordingly, the lower court held that the Plaintiff’s request for correction was not unlawful on the ground that it did not actively respond to the Plaintiff’s request for correction by October 8, 1997, based on evidence and fact-finding that the Plaintiff did not comply with the Plaintiff’s request for correction, and that the Plaintiff did not comply with the former president’s request for correction by not later than September 11, 1997. However, the lower court determined that the Plaintiff’s request for correction was unreasonable by examining the Plaintiff’s previous president’s request for correction and its authority.

(2) The judgment of this Court

Article 20-2 of the Act provides that when an executive of a school foundation infringes on the authority of the head of a school in regard to administration of school affairs, the competent agency may cancel his/her approval of taking office. Paragraph (2) provides that the revocation of his/her approval of taking office shall be limited to cases where the competent agency fails to comply with such request even after 15 days have elapsed from the date on which the school foundation made a request for correction, taking into account the autonomy of private school, the competent agency shall not immediately cancel its approval of taking office, but shall give the school foundation an opportunity to correct his/her taking office within a certain period of time and revoke its approval of taking office only if the school foundation fails to comply with such a request. Accordingly, in light of the purport of the above provision, the competent agency shall consider whether a request for correction with the guidance period of the school foundation was issued, but the competent agency may immediately cancel its taking office, or if the content of the request is insufficient, the competent agency shall not consider the Plaintiff’s new approval of taking office within the period of 19 days prior to the determination of its new approval of taking office.

Furthermore, in light of the records, the court below's finding of facts as above and the comprehensive correction plan as of October 8, 1997, the court below's determination that the plaintiff failed to comply with the defendant's request to correct unjust interference with the president's authority concerning the administration of school affairs is just and acceptable, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as pointed out in the grounds of appeal.

C. Third point (with regard to misapprehension of legal principles as to the limitation of discretionary power)

The court below held that the disposition of this case was unlawful in light of the overall circumstances of the ruling even if the grounds for the disposition of this case are recognized in the constructive judgment. However, since the disposition of this case is not recognized as the grounds for the disposition of this case, so long as the court below's determination that it is illegal, it does not affect the conclusion of the judgment, it does not accept the grounds for appeal on this point without omission of the judgment.

D. Point 4 (Judgment of the court and misapprehension of the legal principle on the principle of good faith)

In a case where an administrative disposition is unlawful, in principle, cancellation or modification of the illegal disposition is a matter of principle, and where it is considerably inappropriate for public welfare, the court may render a judgment that does not allow cancellation or modification of the illegal disposition. In a case where there is no clear assertion from the parties, the court may ex officio determine the judgment based on various circumstances recorded in the records even in the absence of a party’s assertion. However, whether it is considerably inappropriate for public welfare, which is the requirement thereof, should be determined by comparing and comparing the necessity for cancellation or modification of the illegal administrative disposition and the situation against public welfare that may arise due to such cancellation or modification (see, e.g., Supreme Court Decisions 93Nu9132, Sept. 28, 1993; 95Nu4902, 4919, Nov. 11, 1997).

Examining the record on the premise of such legal principles, solely on the ground that the instant disposition issued against the Plaintiff was revoked for a considerable period of time after the revocation of the appointment approval of the president and the director, and that the appointment of the latter director and the appointment of the director are expected to cause confusion when the Plaintiff recovers the former president and the director positions, while the remaining term of office of the Plaintiff is merely two years, it cannot be readily concluded that the revocation of the disposition of this case is significantly contrary to public welfare or contrary to the principle of good faith, and that there is no evidence to prove otherwise. Therefore, the revocation of the disposition of this case on the ground of its illegality cannot be deemed to have affected the conclusion of the judgment by misapprehending

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)