(영문) 서울행정법원 2017.6.9. 선고 2017구합51129 판결

B. On January 23, 2015, the Plaintiff held a board of directors to appoint four directors, including C, as directors. On February 6, 2015, the Plaintiff applied for approval of taking office to the Defendant on February 6, 2015. However, on February 17, 2015, the Defendant notified that C was deferred until the relevant criminal trial is finalized.

C. C was indicted for committing an act of forging private document forgery, uttering of falsified document, false entry of authentic document in the authentic copy of authentic document, and the exercise of authentic document in the original copy of authentic document in collusion with D, and was sentenced to a suspended sentence for six months from the first instance court (Seoul District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Office) on April 18, 2014. On January 30, 2015, C was sentenced to a fine of one million won from the appellate court ( Daegu District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Office 2014No1409). The judgment became final and conclusive around that time.

D. On March 9, 2015, the Plaintiff requested the Defendant to approve the appointment of C on the ground of the final and conclusive judgment of the criminal trial against C. However, on January 19, 2016, the Defendant rejected the approval of the appointment of C on the ground that “C does not have any ground for disqualification under Article 22 of the Private School Act, but there is a reason that it is substantially inappropriate to expect a school foundation to perform its duty of care as an executive officer” (hereinafter “instant disposition”).

① The crime of forging a private document, or the crime of false entry in the authentic copy of a notarial deed, which was found guilty as a defendant, is an offense for which the public credibility in the document is protected by the law, and the court has also sentenced the statutory upper limit of fine. ② The crime in collusion with the president of the current president who is his spouse, and the possibility of such illegality and social criticism.

C The public interest, which is the public interest of education obtained by returning the approval for taking office of the director rather than the private interest, which is the autonomy of the private school to be achieved by the approval as the director of the school foundation.Third, it is not appropriate under the social norms to approve the parties who have caused property disputes between the descendants after the establishment of the school and who have received a final judgment of conviction as the director of the school foundation.

【Fact-finding without dispute over the ground for recognition, entry of Gap evidence Nos. 1 through 3 (including each number in the case of additional number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination,

Article 1 of the Private School Act provides that the purpose is to promote the sound development of private schools by securing their independence and promoting their public nature in light of their special characteristics, thereby declaring the characteristics, independence, and public nature of private schools.

In order to secure the public nature of private schools, the Private School Act provides for the matters concerning the officers of the school juristic person. Article 20 provides that the executives of the school juristic person shall be appointed at the board of directors under the articles of incorporation and shall be appointed with the approval of the competent agency, and Article 20-2 provides that the competent agency may cancel the approval of the officers in case where the executives have committed certain acts, such as violating the provisions of relevant Acts such as the Private School Act, or causing a serious trouble to the operation of the school. In addition, Article 21 provides that the restrictions on the composition of the board of directors, such as kinship, the qualifications of directors and auditors, and the restrictions on the appointment of officers, and Article 22 provides that the grounds for

Taking office of the competent agency for officers of school juristic persons referred to in Article 20 (2) of the Private School Act.

Approval is a supplementary administrative act that completes the legal effect by supplementing the appointment of an executive officer of a school juristic person (see, e.g., Supreme Court Decision 92Nu5461, Sept. 22, 1992). As seen earlier, the competent agency should approve an application for taking office of a school juristic person unless there exist any grounds for restrictions under Article 22 of the Private School Act, including grounds for disqualification of executive officers under Article 22 of the Private School Act. Even if there is no need for significant public interest, such approval may not be refused for reasons other than those for

However, the fact that C does not have the grounds for disqualification under Article 22 of the Private School Act is recognized by the defendant, and it is clear that the grounds for the disposition of this case cited by the defendant do not constitute grounds for disqualification of taking office as stipulated in

Meanwhile, the defendant bears the burden of proving that there is a need for significant public interest to refuse to follow the procedure. In full view of the following circumstances, it cannot be said that the circumstance alleged by the defendant alone proves that C requires significant public interest to refuse to grant approval of taking office.

Therefore, the instant disposition was made without any legal basis without a need for significant public interest, and is unlawful.

1) The directors of a school foundation constitute a board of directors, and the board of directors has the right to appoint and dismiss the head of a private school and teachers as the highest decision-making body of the school foundation. As such, the right to appoint and dismiss directors is the core part of the autonomy and autonomy of the school foundation. A school foundation performs public interest roles in that it establishes and operates a private school established for the purpose of education and has high public nature, and a school foundation performs transparency and efficiency in operating the school foundation directly affects the public nature of the private school and its education (see, e.g., Constitutional Court en banc Decision 2007Hun-Ma1189, 1190, Nov. 28, 2013), even if it may impose certain restrictions on the right to autonomously organize of the school foundation (see, e.g., Constitutional Court en banc Decision 2007Hun-Ma189, 119

2) Where an executive has committed an unlawful or unreasonable act contrary to the relevant laws and regulations, such as the Private School Act after his/her appointment, the competent agency may ex post control the officer’s appointment through the supervisory authority under the Private School Act. In other words, the competent agency may revoke the approval of his/her appointment if a certain reason arises with respect to the officer to whom he/she assumed office (Article 20-2), and where an investigation or audit for cancellation of the approval of his/her appointment is conducted or there is a concern that serious damage to the operation of the school is likely to occur to the school, the agency may suspend the performance of duties of the officer even before the approval of his/her appointment is revoked (Article 20-3). (Article 25) If the vacancy of the director is difficult to operate normally due to the vacancy of the school juristic person, the authority to appoint a temporary director is also held when it is recognized that the appointment of a temporary director has been resolved (Article 25-3). Accordingly, the foregoing restriction should be limited to cases where the approval of the appointment of an officer who

3) Although the content of the C’s crime identified in the relevant criminal trial is not good and may not be subject to criticism, in light of the fact that it is not related to the Plaintiff, and there is no other evidence to prove that C committed an unlawful or unjustifiable act in connection with the Plaintiff’s operation, it cannot be readily concluded that C’s appointment of directors cannot be promptly expected to perform the duty of care as a director solely on the same facts, regardless of whether it is appropriate. Accordingly, such abstract concerns alone are difficult to deem that there is a need for important public interest to refuse to apply for approval of taking office for which there is no statutory limitation.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.