[1] Whether a school juristic person’s director or auditor whose term of office expires has the right to take emergency measures to continue his/her previous duties until the appointment of a senior director or auditor is made (affirmative in principle), and whether the right to appoint a senior director after the above emergency measures is included (affirmative)

[2] In a case where the term of office of an officer expires after the disposition of approval of taking office of a school juristic person, the term of office of an officer expires, and the period of disqualification for an officer under Article 22 subparagraph 2 of the former Private School Act expires, or where a new temporary director is appointed due to replacement after filing a revocation lawsuit against the above disposition, whether there is a benefit of action to seek cancellation of the above disposition of approval of taking office, and revocation

[3] Legislative intent of Article 20-2(2) of the former Private School Act concerning the procedure for requesting correction when revoking approval of taking office of a school foundation, and whether a request for correction is unlawful as long as a short-term determination is made (negative in principle)

[4] Whether the result of response to correction by the "in a case where a person fails to comply with a request for correction" under Article 20-2 (2) of the former Private School Act includes cases where it is insufficient to deem that a person complies with a request for correction by the competent agency was performed (affirmative)

[5] The case holding that the cancellation disposition of taking office can not be deemed as a deviation or abuse of discretionary power, considering the following: (a) the degree of illegality of the act of improper withdrawal of the school juristic person's school expenses accounting fund through the corporate accounting; (b) the degree of processing the officer's request for correction; and (c) the fact that the school

[1] Even if the term of office of all or some of the directors or auditors of the school juristic person has expired, it shall be deemed that the right to conduct the previous duties of the former directors or auditors is recognized by analogy of Article 691 of the Civil Code, unless there are special circumstances where it is acknowledged that it is inappropriate for the former directors or auditors whose term of office has expired to conduct the activities of the school juristic person, in the event that the appointment resolution is invalid and other directors or auditors whose term of office has not expired are not yet expired to appoint the former directors or auditors, and in the case of the school juristic person, the right to appoint the former directors like the incorporated juristic person under the Civil Code shall be the board of directors, so if the latter directors or auditors cannot appoint the latter directors without the participation of the directors whose term of office has expired, they shall also have the right to appoint the latter directors after the expiration of the term of office.

[2] (A) Even if the term of office of the school juristic person whose approval of taking office was revoked expires and the period of disqualification for the officer under Article 22 subparagraph 2 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), it is found that the disposition of cancellation of taking office was unlawful, and if the status of the temporary director is denied and his authority is lost due to his dismissal, the regular director shall have the right to take emergency measures concerning the performance of his duties by analogy of Article 691 of the Civil Act until the appointment of the new director, and may appoint the new director based on this provision. The same applies to the auditor.

(B) At the time of filing a lawsuit, when an administrative disposition subject to cancellation becomes invalid due to the lapse of the period, etc., there is a legal interest to seek cancellation of the administrative disposition in terms of ensuring the legality of the administration and ensuring the judicial control thereon, expanding the citizen's right, etc., in cases where it is necessary to confirm the illegality of the preceding disposition, where the preceding disposition and the subsequent disposition are carried out continuously through a series of procedures, and the subsequent disposition are based on the premise that the illegality of the preceding disposition are legitimate, and where it is necessary to confirm the illegality of the preceding disposition that has already been disputed, there is still a legal interest to seek cancellation of the disposition.

(C) Where a new temporary director is replaced with a new temporary director due to the expiration of the term of office in a lawsuit seeking revocation of a provisional director's appointment and appointment, if there is no legal interest to seek revocation on the ground that the effect of the preceding temporary director's appointment and appointment ceases to exist, the previous temporary director's appointment and appointment will be withdrawn in a pending lawsuit and then the subsequent temporary director's appointment and appointment and appointment may be contested in a separate lawsuit. In such a case, if the court affirms the legal interest to seek revocation of the preceding provisional director's appointment and appointment and clearly confirms the existence of illegality or defect in the judgment and confirms it clearly, it can prevent the risk of infringement, and if the subsequent provisional director's appointment and appointment and appointment and appointment and appointment are conducted under the premise of res judicata, it can be easily ruled out the validity of the subsequent provisional director's appointment and appointment and appointment and appointment and thus it can be easily ruled out as a remedy for the rights of the people.

(D) Therefore, there is a legal interest in seeking revocation of the appointment approval of the school juristic person whose appointment approval is revoked, and in addition, there is still a legal interest in seeking revocation of the appointment approval of the preceding temporary director even if the preceding temporary director has been replaced with the latter temporary director while the lawsuit seeking revocation of the appointment approval of the preceding temporary director is pending.

[3] Article 20-2 (2) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005) provides that even if the competent agency finds the ground for revocation of the appointment approval in consideration of private school autonomy, it does not immediately revoke the appointment approval of an officer, but rather provides a certain period of time and provides an opportunity to correct the appointment approval and revoke the appointment approval only if the school foundation fails to comply with the request. Therefore, the request for correction cannot be deemed unlawful solely on the ground that the period granted by the competent agency upon the request for correction is too unreasonable or unreasonable, and it cannot be interpreted that the request for correction is based only on the premise that the request for correction can be made, or that the request for correction cannot be made in cases where the request for correction is groundless due to impossibility of correction.

[4] The phrase “in a case where a person fails to comply with a request for correction” under Article 20-2 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), includes not only a case where a person refuses a request for correction from the beginning of the competent agency, but also a case where the result of responding to a request for correction from the competent agency is insufficient to deem that the school juristic person in receipt of a request for correction has performed the request for correction from the competent agency. Whether the school juristic person has performed the best reasonable measures as a response to the request for correction is likely to objectively determine it, and in principle, the mere fact that the school juristic person has made the best efforts to correct without any correction at all, does not comply with the purport of the language and text, so such circumstance can only be considered in determining whether a person

[5] The case holding that the above disposition of cancellation shall not be deemed as a deviation from or abuse of discretion, considering the following: (a) in a lawsuit against cancellation of the approval of taking office of a school foundation, the illegality that the school expenses accounting fund was illegally transferred to the corporate accounting account, and the degree of processing of the executive officers' request for correction, and the school foundation made efforts to correct it, although it was found that most of the requests for correction were not fulfilled, and therefore, the above disposition of cancellation cannot be

[1] Articles 20, 20-2, and 22 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Articles 57, 58, and 691 of the Civil Act / [2] Articles 20, 20-2, and 22 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Articles 57, 58, and 691 of the Civil Act; Article 12 of the Administrative Litigation Act / [3] Article 20-2 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 20-2 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005); Article 20-2 of the former Private School Act (amended by Act No. 7802 of Dec. 29, /2002)

[1] Supreme Court Decision 63Da15 delivered on April 25, 1963 (No. 11-1, 269), Supreme Court Decision 66Da1347 delivered on February 21, 1967 (No. 15-1, 117), Supreme Court Decision 81Da614 delivered on March 9, 1982 (No. 1982, 428), Supreme Court Decision 83Du938 delivered on September 27, 196 (No. 1983, 1584), Supreme Court Decision 95Da40915 delivered on January 26, 196 (No. 1996Sang and 754 delivered on February 29, 193) / [2] Supreme Court Decision 200Nu64979 delivered on September 29, 194)

Plaintiff 1 and four others (Attorney Jin-sik et al., Counsel for the plaintiff-appellant)

The Minister of Education and Human Resources Development (Attorney Deat-Law)

School Foundation (Law Firm Han-chul, Attorneys Hun-Ba et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Nu5177 delivered on November 14, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. The decision shall be made ex officio;

A. According to the reasoning of the judgment below and the records, on December 24, 2004, the defendant revoked approval of taking office to the directors and auditors of the defendant supplementary intervenor Gyeonggi Private Institutes (hereinafter referred to as the "participating corporation") and the plaintiffs (hereinafter referred to as the "disposition of this case"). The above six provisional directors were replaced with new temporary directors before the closing date of the argument of the court below (refer to each certified transcript of register filed on the 642 pages and 1107 pages of the record). The plaintiffs were all subject to their terms of office before the closing date of argument of the court below or before the final appeal of this case or during the period of the final appeal of this case, and the plaintiffs were all subject to the termination date of the argument of the court below or during the period of the final appeal of this case, and were subject to the grounds for disqualification under Article 22 subparagraph 2 of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005; hereinafter the same shall apply).

However, in a lawsuit seeking the cancellation of the approval of taking office of a school juristic person, the Supreme Court held that if the term of office of a director expires and the period of disqualification of an officer under Article 22 subparagraph 2 of the former Private School Act expires, the lawsuit seeking the cancellation of the approval of taking office is unlawful as there is no legal interest, and that there is no legal interest (see Supreme Court Decisions 94Nu8914, Mar. 10, 1995; 96Nu9171, Apr. 25, 1997; 96Nu10614, Jun. 11, 199; 2002Du566, Mar. 14, 2003; 200Du10568, Mar. 14, 2003; 200Du2778, Mar. 27, 2003).

In light of the purport of the above precedents, in this case where the term of office and the disqualified period of officers of the plaintiffs as directors and auditors are terminated, and the provisional directors are replaced newly, all of the plaintiffs' claims for cancellation of taking office and cancellation of the initial temporary directors' appointment disposition against them should be denied legal interest. Accordingly, the Supreme Court has to dismiss the plaintiffs' claims by destroying and selling all of the plaintiffs' claims, and it is not doubtful whether such conclusion is justifiable or not, and then, it is examined ex officio as to whether there is a benefit of lawsuit as to each of the claims of this case and the propriety of the previous Supreme Court precedents related thereto.

B. Article 12 of the Administrative Litigation Act provides that an action for revocation may be brought by a person having a legal interest in seeking the revocation of a disposition, etc., and the same shall also apply to a person having a legal interest in recovering from the revocation of a disposition, etc. even after the effect of the disposition, etc. is extinguished due to the lapse of the period, the execution

(1) Even if the term of office of a director or an auditor of a school juristic person has expired, if there is no appointment of a successor director or auditor, or if another director or auditor has been appointed after expiration of the term of office of the school juristic person, the former director or auditor whose term of office has expired and whose term of office has not expired is not sufficient to allow the former director or auditor to carry out the activities of the school juristic person, barring special circumstances where it is acknowledged that it is inappropriate to allow the former director or auditor to carry out the activities of the school juristic person, Article 691 of the Civil Act can be acknowledged by analogy of Article 691 of the Civil Act (see, e.g., Supreme Court Decisions 81Da614, Mar. 9, 1982; 95Da40915, Jan. 26, 1996); and in the case of the school juristic person, the right to appoint a director can belong to the board of directors as well as the incorporated juristic person under the Civil Act, and thus, it shall be 163 16.15 after expiration of the term of the above directors.

In light of the above legal principles, even if the term of office originally determined for the regular directors of the school juristic person whose appointment approval was revoked has expired and the period of disqualification for executives has expired, if the cancellation disposition of the appointment approval of the temporary director under the former Private School Act is found unlawful, and if the status of the temporary directors appointed by the above disposition is lost due to the denial of authority due to the fact that the status of the temporary directors appointed by the above disposition was in accordance with the same litigation procedure or separate litigation procedure as the above cancellation request, etc., the school juristic person as the subsequent director is in a situation where the normal activity cannot be discontinued because the absence of the director by the time of the appointment of the new director, and eventually, the director has the right to take emergency measures concerning the performance of duties by analogical application of Article 691 of the Civil Act until the appointment of the new director. Accordingly, the above legal principles of the right to take emergency measures are equally applied to the auditor.

(2) In addition, even if the cancellation of the previous disposition is deemed impossible due to the lapse of the period of the previous disposition, i.e., the lapse of the period of the previous disposition, the effective period of the administrative disposition itself, and the lapse of a specific period, etc., when the previous disposition is deemed to have all the benefits of the protection of rights at the time of the filing of the lawsuit, where there is a need to clarify the illegality of the previous disposition in order to seek the cancellation of the previous disposition in terms of securing the legitimacy of the administrative disposition and securing the legal interest of the citizen in terms of the expansion of judicial control, etc., since the previous disposition and the subsequent disposition are continuously conducted in a series of procedures in order to achieve the same administrative purpose or generate the same legal effect (see Supreme Court Decisions 92Nu4567, Feb. 6, 1993; 93Nu8542, Jan. 25, 1994, etc.).

If a lawsuit seeking revocation of a provisional director's appointment is instituted lawfully and then the new provisional director is replaced with a new provisional director due to the expiration of the term of office during the lawsuit (hereinafter referred to as "pre-trial director"), and if it is deemed that there is no legal interest to seek revocation of a provisional director's appointment on the ground that the previous provisional director's appointment has ceased to exist, the lawsuit can only be withdrawn as the first regular director and then the subsequent provisional director's appointment disposition can be brought against a separate lawsuit. In addition, if the provisional director is replaced and appointed again by a new provisional director while the lawsuit is pending, the lawsuit may lose the benefit of lawsuit and bring a new separate lawsuit. Thus, in such a case, the court affirmed the legal interest seeking revocation of a provisional director's appointment disposition, and clearly ascertains the existence of such illegality or defects by judgment, and thus, it can be easily denied the above specific risk of infringement, and it can be easily ruled out that the first provisional director's appointment disposition can not be disputed by the res judicata effect of a new provisional director's appointment disposition after the first action to prevent res judicata effect.

(3) Therefore, it is reasonable to view that there is a legal interest in seeking revocation of the appointment approval of the school foundation whose appointment approval was revoked, and that there is still a legal interest in seeking revocation of the appointment approval of the preceding temporary director even if the preceding temporary director was replaced with the latter temporary director while the lawsuit seeking revocation of the appointment approval of the preceding temporary director is pending.

(4) The previous Supreme Court Decisions, i.e., Supreme Court Decisions 94Nu8914 delivered on March 10, 1995; 96Nu9171 delivered on April 25, 1997; 96Nu10614 delivered on June 11, 199; 2002Du566 delivered on March 14, 2003; 2002Du10568 delivered on March 14, 2003; 2003Du5877 delivered on October 24, 2003; and 201Du2874 delivered on November 26, 2002, are inconsistent with this Opinion.

C. As to the instant case, even though the term of office expires and the exclusion period of officers expires, the Plaintiffs are legally interested in obtaining the status to be entitled to urgent treatment pursuant to Article 691 of the Civil Act by analogical application of Article 691 of the Civil Act due to the revocation of the instant revocation disposition. Moreover, even if the temporary directors were replaced in the lawsuit of this case seeking the revocation of the initial provisional director appointment disposition, legal interest is still recognized to seek the revocation of the initial provisional director appointment disposition. Thus, the instant revocation disposition and the initial provisional director appointment disposition can be claimed for the revocation thereof.

Therefore, since the lawsuit of this case is lawful, the lawsuit of this case is dismissed and the lawsuit is not dismissed, and the grounds of appeal are examined.

2. The grounds of appeal are examined.

A. As to the ground of appeal to the effect that the Defendant’s request for correction is unreasonable

Article 20-2 (1) of the former Private School Act provides that when an executive of a school juristic person violates the provisions of the same Act or the Enforcement Decree of the same Act, if the school juristic person commits a certain act, such as a case where the school juristic person is unable to achieve the purpose of its establishment due to disputes, accounting fraud, significant unjust enrichment, etc. among its executives, the competent agency may revoke its approval of taking office. Paragraph (2) of the same Article provides that “The revocation of the approval of taking office under the provisions of paragraph (1) shall be limited to the case where the competent agency fails to comply with such request even after 15 days have elapsed from the date on which the school juristic person requested correction for the reason.” The request for correction under the above Paragraph (2) of the same Article does not immediately revoke the approval of taking office by giving a certain period of time, giving a school juristic person an opportunity to correct it, and the approval of taking office is revoked only when the school juristic person fails to comply with such request, unless the period granted by the competent agency for correction is unreasonable or unreasonable, and the approval of taking office cannot be deemed unlawful.

Examining the reasoning of the judgment below in light of the above legal principles, the court below pointed out the following facts: the President of Gyeonggi University, an intervenor-affiliated corporation, was bound by charges of receiving money and valuables on April 27, 2004, and the defendant conducted a comprehensive audit of the intervenor corporation and Gyeonggi University on September 15, 2004; the defendant did not request the intervenor corporation to take corrective measures against the intervenor corporation on September 15, 2004; the improper transfer of its office organization from school expenses accounts to the corporate accounts; the use of funds for the purpose other than the purpose of research expenses; the improper execution of the non-party 2's school expenses; the payment of attorney fees for the criminal case against the non-party 2; the return of funds illegally transferred from school expenses accounts to the corporate accounts; the recovery of useful and embezzled school expenses; the sale of the mountain hotel hotel managed by the intervenor corporation; the defendant's request for corrective corrective measures to the 20th of 10th of 10th of 200, and the defendant did not request correction of the above corrective measures.

B. As to the ground of appeal on the purport that the corrective request was properly implemented

The ultimate purpose of revoking the approval of taking office under Article 20-2 of the former Private School Act is to promote the sound development of private schools (see Article 1 of the same Act). In order to realize this purpose, it is necessary to correct the unlawful and unjust state created by the executive. Therefore, the reason for setting the period of mooring the demand for correction under Article 20-2 (2) of the same Act is to induce the actual correction of illegal and unfair state.

In addition, it is difficult to objectively determine whether the school foundation which received a request for correction has made the best reasonable measures to respond to the request for correction, and to view that “the school foundation has complied with the request for correction” as being the best efforts to correct without any correction is inconsistent with the language and text. Thus, such circumstance can only be considered in determining whether the cancellation of the approval for taking office has been abused or not.

Therefore, the phrase “cases where a request for correction is not complied with” under Article 20-2(2) of the former Private School Act includes not only cases where a request for correction is rejected by the competent agency, but also cases where it is insufficient to deem that the result of the request for correction by the competent agency was performed (see, e.g., Supreme Court Decisions 9Du9674, Jan. 19, 2001; 2001Du7138, Feb. 5, 2002).

According to the reasoning of the judgment below, the court below pointed out that (1) although the intervenor corporation performed some corrective requirements, such as (2) consistent with the articles of incorporation and returning the vehicle purchased through the accounts for school expenses among the matters requested by the defendant for correction, it did not return only KRW 975,00,000 among the employees' remuneration, expenses, etc. unduly paid out from the accounts for school expenses, and did not return the remainder of KRW 3,936,00,000,000. If the intervenor corporation failed to comply with the defendant's corrective request, it constitutes "where the intervenor corporation fails to comply with the defendant's corrective request" under Article 20-2 (2) of the former Private School Act. (2) On the other hand, the court below determined that the intervenor corporation did not return the above corrective request to the defendant on October 18, 2004, on the ground that the intervenor corporation did not return the funds illegally transferred through the accounts for school expenses.

Each judgment of the court below is just in accordance with the aforementioned legal principles, and its judgment is not erroneous in the misapprehension of the rules of evidence and the misapprehension of the legal principles as to non-compliance with the request for correction, as alleged in the grounds of appeal. This part of

C. As to the ground of appeal on the ground of appeal that there was an error of deviation and abuse of discretionary power in the cancellation disposition of approval

A disposition to revoke approval of taking office under Article 20-2 of the former Private School Act constitutes a punitive administrative disposition. Whether a punitive administrative disposition deviates from or abused the scope of discretion under the 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 offense as the ground for disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decisions 88Nu3079, Apr. 25, 1989; 2001Du7138, Feb. 5, 2002).

Examining the facts duly established by the court below in light of the legal principles as seen earlier, the court below is just in holding that the disposition of this case cannot be deemed as a deviation or abuse of its discretion on the ground that it is necessary for public interest purposes such as efficient correction of the plaintiffs' illegal act and guidance to the general school juristic person for the general public, and there is no violation of the rules of evidence or misapprehension of the legal principles as to deviation or abuse of discretionary power, etc. as to this point of view. The grounds for appeal on this point are not acceptable.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Lee Yong-chul (Presiding Justice)