[1] Whether the cancellation of the approval of taking office violates the principle of clarity under the Constitution, Article 20-2(1)1, 2, and (2) of the former Private School Act (negative)

[2] Whether a school foundation or founder of a private school can spend the construction cost of the construction contract for facilities and equipment from the accounts of school expenses (negative)

[3] The meaning of "interest legally protected", which is a requirement for a third party, who is not the direct counter-party to an administrative disposition, to seek revocation or nullification confirmation of an administrative disposition

[4] The legal nature of the act of approving taking office by the competent agency, and whether the person appointed as the officer has standing to sue against the application for taking office by the school juristic person (affirmative)

[5] Whether an application for approval of taking office for a person appointed as an officer of a school foundation on the grounds stipulated in Article 20-2 of the former Private School Act may be rejected (affirmative)

[1] Considering the legislative purport of Article 20-2 (1) 1, 2, and (2) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), the legislative purpose of the Private School Act (Article 1), and Article 19 of the Private School Act, which provide for the duties of an executive of a private school, systematically and comprehensively, the above provisions are not subdivided more specifically in the requirements of the competent agency to revoke the approval of taking office, the general public can sufficiently predict how the competent agency would revoke the approval of taking office based on the above provisions, and it cannot be deemed that the competent agency grants too wide discretion to the competent agency to the extent that it can arbitrarily apply the law without any criteria. Accordingly, Article 20-2 (1) 1, 2, and (2) of the Private School Act cannot be deemed to violate the constitutional principles of clarity.

[2] Article 13 (2) 2 of the Enforcement Decree of the Private School Act provides that "expenses for facilities and equipment directly necessary for school education" shall be included in the expenditure item of school expense accounts. In full view of Article 29 of the Private School Act and Article 13 of the Enforcement Decree thereof, Article 25 and Article 36 of the Financial and Accounting Rules of private school institutions, the accounts of school juristic persons shall be divided into the accounts of school accounts and corporate accounts, and the revenues, especially those of school accounts, shall be limited to the accounts of school accounts, such as transfer or lending of the revenues from the school accounts, which consist of admission fees, tuition fees, etc. collected from students, shall not be included in the accounts of other accounts. The budget of school accounts shall be executed by the head of the school after the consultation with the Advisory Committee on Budget and Settlement of Accounts of the relevant school, and the head of the school shall become the contracting officer and shall be disbursed according to the relevant contract. Thus, even if necessary facilities and equipment for school education, it shall not be included in the establishment expenses of the school juristic person or the establishment of Article 2 (3).

[3] A third party, who is not the direct counter party to an administrative disposition, is entitled to a decision of the propriety thereof by filing an administrative litigation seeking the cancellation or invalidity confirmation of the administrative disposition, where the interests protected by law are infringed by the administrative disposition. The legal interests referred to above refer to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and regulations, and in cases where general, indirect, and abstract interests of the general public are generated as a result of the protection of public interests, there are no legal interests protected by law.

[4] Article 20 (1) and (2) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005) provide that executives, such as the chief director, directors, and auditors, of a school juristic person, shall take office with the approval of the competent agency after appointment by the board of directors. Thus, the approval of taking office by the competent agency is a supplementary juristic act which enables the completion of the legal effect of the act of appointing executives of the school juristic person. Therefore, in case where the competent agency returns or refuses an application for taking office by the school juristic person, the person appointed by the school juristic person as the officer of the school juristic person shall not take office as the officer of the school juristic person. Such disadvantage is not indirect or de facto but a direct and specific legal disadvantage, so that the person appointed by the school juristic person may dispute the return of application for taking office by the competent

[5] In addition to cases where there are grounds for disqualifications under Article 22 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), the competent agency may refuse to apply for taking office even in cases where the appointed person is in the former position, such as improper execution of school expenses and non-performance of the request for correction thereof, and there are grounds under Article 20-2 of the same Act.

[1] Article 20-2 (1) 1, 2, and (2) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005), Articles 12 and 13 of the Constitution / [2] Article 13 (2) 2 of the Enforcement Decree of the Private School Act / [3] Article 35 of the Administrative Litigation Act / [4] Article 20 (1) and (2) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005) / [5] Articles 20-2 and 22 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005)

[2] Supreme Court Decision 2005Do3929 Decided September 28, 2005 (Gong2005Ha, 1731) / [3] Supreme Court en banc Decision 2006Du330 Decided March 16, 2006 (Gong2006Sang, 634)

Plaintiff 1 and eight others (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Minister of Education and Human Resources Development (Law Firm Korea, Attorneys Kim Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2004Nu19059 delivered on July 19, 2005

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

The grounds of appeal are examined.

1. As to the grounds of appeal on whether the principles of clarity under Article 20-2(1)1, 2, and 2 of the Private School Act are violated

The principle of clarity, which is derived from the principle of a rule of law inherent in the Constitution, means that the elements of the rule of law should be clearly defined in cases of statutes that restrict the freedom and rights of the people. Whether the rule of law is clear can be determined depending on whether the rule of law provides a fair notice of predictability so that it can understand the meaning of the law, whether the rule of law excludes arbitrary interpretation or enforcement of law, predictability and arbitrary exclusion of enforcement of law, and if so, whether the rule of law can be ensured. Furthermore, the meaning of the rule of law is concrete by the interpretation method that comprehensively takes into account not only the language, but also the legislative purpose, legislative intent, legislative history, and systematic structure of the rule of law (see, e.g., Constitutional Court Order 9Hun-Ba34, Jun. 28, 2001; Constitutional Court Order 2009Hun-Ba34, Apr. 26, 2005; Constitutional Court Order 2005Hun-Ga6, Apr. 26, 2005).

Article 20-2 (1) of the Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter the same) provides for the case where the competent agency may revoke the approval of the appointment of an officer, and subparagraph 1 of the same Article provides that "where the provisions of this Act or the Enforcement Decree thereof are violated," and subparagraph 2 provides that "where it makes it impossible to achieve the purpose of the establishment of the school juristic person concerned due to disputes, accounting fraud and significant unjust practices among executives, etc." In addition, Article 20-2 (2) provides that "the revocation of the approval of the appointment pursuant to the provisions of paragraph (1) shall be 15 days after the date on which the competent agency requested the correction thereof to the school juristic person concerned, the legislative purport of the above provisions, the legislative purpose of the Private School Act (Article 1), and Article 19 of the Private School Act, which provides for the duties of an officer of a private school, the competent agency can sufficiently impose the defendant the approval of the appointment of an officer to the extent that it is not subject to the above provisions.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the violation of the principle of clarity as alleged in the grounds of appeal.

2. As to the ground of appeal on unjust execution of the school expenses accounts of this case

Article 13(2)2 of the Enforcement Decree of the Private School Act provides that "expenses for facilities and equipment directly necessary for school education" shall be classified into expenses for school expenses accounts. In full view of the provisions of Article 29 of the Private School Act and Article 13 of the Enforcement Decree thereof, Articles 25 and 36 of the Financial and Accounting Rules, the accounts of school juristic persons shall be classified into school accounts and corporate accounts, and the revenues of school expenses particularly belonging to school accounts shall be classified into the accounts of school accounts, and the revenues of school accounts shall not be transferred or lent to other accounts as a result of the payment of entrance fees, tuition fees, etc. collected from students. The accounts of school accounts shall be executed after deliberation and resolution by the board of directors of the relevant school after the head of the relevant school is organized through consultation with the budget and settlement of accounts of the relevant school. Thus, even if necessary facilities and equipment are installed at the time of the establishment of a private school, the accounts of the school juristic persons shall be executed by the head of the relevant school and the expenses of the school juristic persons shall not be included in the expenses for the establishment of the school facilities and equipment.

원심판결 이유에 의하면 원심은, 소외 1 학교법인은 1992. 7. 30. 피고에게 4년제 대학에 준하는 각종 학교인 (이름 생략)예술학교의 설립인가신청을 하였고, 이에 피고는 1992. 12. 23. 이 사건 제1예술관의 완공 및 이 사건 제2예술관에 대한 소요경비 조달재산을 소외 1 학교법인 명의로 확보할 것 등을 조건으로 하여 위 학교의 설립을 인가한 사실, 소외 1 학교법인은 (이름 생략)예술학교 설립 인가 후인 1994. 2. 20.경 (이름 생략)예술학교 설립인가 신청시 제시한 이 사건 제2예술관의 규모를 확장하여 이 사건 제2예술관에 대한 추가건축공사계약을 체결한 것을 비롯하여 이 사건 개인연습실, 인문관, 연구동을 신축하기로 하는 내용의 계약을 체결하였으며, 이에 따라 위 건물들에 대한 건축공사가 진행되어 모두 완공된 사실(이하 위 각 공사를 ‘이 사건 각 건축공사’라 한다), 한편 소외 1 학교법인은 1996. 9. 11. 피고에게 (이름 생략)예술학교의 설립인가를 신청하였고, 같은 달 19. 설립인가 심사점검표를 제출하였는데 위 심사점검표 중 ‘교사 공사계약 점검표’란에 그 당시 도급계약을 체결한 후 착공하여 완성단계에 있거나 공사 진행 중이던 이 사건 인문관, 연구동의 건물은 기재하지 아니하고 이 사건 제1예술관, 제2예술관, 개인연습실 건물만을 기재하였고, 그 무렵까지 모두 합계 7,097,100,000원의 공사대금이 미지급된 상태이었음에도 불구하고 그 공사대금 전액을 이미 지급하여 미지급액이 없다는 취지의 기재를 한 사실, 피고는 1996. 10. 26. 소외 1 학교법인에게 이 사건 제1예술관, 제2예술관, 개인연습실 및 식당·휴게소, 정수장 등 총 연면적 14,618㎡의 시설과 교지를 대학설립 심사시까지 확보하여 보고할 것과 (이름 생략)예술학교 폐지인가신청서 및 정관변경인가신청서를 1996. 11. 20.까지 제출하도록 할 것 등을 조건으로 소외 1 학교법인의 정관 중 그가 설치·경영하는 학교를 (이름 생략)예술학교로 변경하는 정관변경을 인가하였고, 그 후 피고는 1996. 12. 11. (이름 생략)예술학교의 설립을 인가한 사실, 이 사건 각 건축공사의 총 공사대금은 12,028,800,000원인데 그 공사비는 소외 1 학교법인의 설립자 내지 소외 1 학교법인 법인회계에서 4,454,300,000원을 부담하였고, 나머지 7,574,500,000원은 (이름 생략)예술학교 및 (이름 생략)예술학교의 각 교비회계 내지 교비회계를 상환재원으로 하여 사학진흥재단으로부터 융자받은 금원 등으로 충당한 사실, 피고는 2003. 4. 7.부터 같은 달 19.까지 소외 1 학교법인 및 (이름 생략)예술학교에 대한 종합감사를 실시한 결과, 교비회계 집행 부당 등 총 30건의 위법·부당사항을 적발하였고, 이에 피고는 2003. 7. 15. 소외 1 학교법인에게 감사에서 적발된 위법·부당한 사항 등에 대한 시정을 요구하면서 시정 요구 기한까지 이를 이행하지 않을시 임원취임승인취소 등의 조치를 취할 것임을 계고한 바 있고, 그 후에도 피고는 소외 1 학교법인에게 종전 시정 요구 사항의 불완전 이행을 이유로 보완 등을 요구하면서 그 불이행시 사립학교법 제20조의2 에 기하여 임원취임승인 취소 등의 조치를 취할 것이라면서 그 이행을 촉구한 사실, 한편 소외 1 학교법인은 위와 같은 피고의 감사 및 그에 따른 시정요구 등의 와중에 2003. 10. 21. 이사회를 개최하여 같은 달 23. 임기가 만료될 예정인 이사장 겸 이사인 원고 1과 이사인 원고 3, 2의 재선임을 의결하였고, 같은 날 위 원고들로부터 각 취임승낙서를 받은 후 피고에게 취임 승인을 신청하였으나, 피고는 같은 달 28. 소외 1 학교법인에게 위 시정요구사항이 이행되고 있지 않음을 사유로 위 소외 1 학교법인 임원취임승인을 유보한다는 내용의 통지를 한 사실, 피고는 소외 1 학교법인이 교비회계에서 불법지출된 이 사건 각 건축공사대금 중 금 6,484,500,000원을 법인회계에서 교비회계로 세입조치하지 아니하였음은 물론, 시정에 응할 의사로 그 이행계획서를 제출하는 등의 노력도 하지 아니하자, 2004. 2. 4. 위 종합감사결과 교비회계 부당집행 등 사립학교법 위반사례가 지적되어 시정요구를 받았고 그 불이행시 임원취임승인취소가 계고되었음에도 위 시정요구사항을 불이행하였다는 사유로, 위에서 본 바와 같이 이사장 겸 이사 내지 이사로서 취임승인이 유보되었던 원고 1, 3, 2(이하 원고 1, 3, 2를 합쳐 ‘ 원고 1 등’이라 한다)의 각 임원취임승인신청을 반려하였으며, 소외 1 학교법인의 이사인 원고 5, 7, 6, 4와 감사인 원고 8, 9(이하 원고 5, 7, 6, 4, 8, 9를 합쳐 ‘ 원고 5 등’이라 한다)에 대하여 교비회계를 부당집행한 행위는 위 임원들의 직무 태만 내지 동조 하에 이루어진 명백한 사립학교법 위반이라는 사유를 들어 각 사립학교법 제20조의2 에 기하여 임원취임승인을 취소하였고, 사립학교법 제25조 의 규정에 기하여 소외 2, 3, 4, 5, 6, 7, 8을 소외 1 학교법인의 임시이사로 선임하는 처분을 한 사실(이하, 위 임원취임승인반려처분을 ‘이 사건 반려처분’이라 하고, 위 임원취임승인취소처분을 ‘이 사건 승인취소처분’이라 하며, 위 임시이사선임처분을 ‘이 사건 임시이사선임처분’이라 한다) 등을 인정한 다음, (이름 생략)예술학교의 설립인가 조건을 초과하는 이 사건 제2예술관 및 개인연습실의 건축비용과 (이름 생략)예술학교의 설립인가조건에 포함되지 않은 이 사건 인문관 및 연구동의 건축비용을 포함하여 소외 1 학교법인이 체결한 이 사건 각 건축공사계약에 기한 모든 건축비용의 지급의무는 소외 1 학교법인에 있다 할 것임에도 불구하고, 그 당시 이사 또는 감사의 직무에 있던 원고 5 등이 직무를 태만히 하여 교비회계와 법인회계가 엄격히 구분되는 현행 법령의 체계하에서 위 공사대금 중 미지급된 금 7,097,100,000원을 교비회계에서 지급하게 한 행위는 위법하다 할 것이므로, 위 위법한 행위로 인한 위 금원 중 소외 9와 소외 10이 변상한 금 590,000,000원을 공제한 금 6,484,500,000원을 교비회계에 세입조치하라는 피고의 시정명령은 적법하다고 판단하였다.

In light of the above legal principles and records, the judgment of the court below that the construction costs of the second art hall and the private practice room, the humanities and the research consent building costs of this case not included in the conditions for the establishment of the art school or the (name omitted) art school are costs not payable from the school expenses accounts is just and there is no error in the misapprehension of legal principles as to the interpretation of Article 29 of the Private School Act and Article 13 (2) 2 of the Enforcement Decree thereof as asserted in the grounds of appeal.

3. As to the grounds of appeal on whether the revocation of the approval of this case deviates from or abused discretion

A disposition to revoke approval of taking office under Article 20-2 of the Private School Act constitutes a punitive administrative disposition. Whether a punitive administrative disposition deviates from or abused the scope of discretion under the generally accepted social norms or not shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages that an individual would suffer due to such disposition by objectively examining the content of the act of violation and the public interest achieved by the relevant act of disposal and all the relevant circumstances (see Supreme Court Decisions 2001Du7138, Feb. 5, 2002; 2006Du19297, Jul. 19, 2007, etc.).

Examining the aforementioned facts in light of the aforementioned legal principles, the lower court’s imposition of part of the construction cost of each of the above construction work on corporate accounts is more severe than the extent of illegality, such as transfer to other accounts or lending, and the Plaintiff 4, 5, 6, and 7, as a director of the school foundation, shall deliberate and decide on the matters concerning the school foundation’s business and comply with the provisions of the Private School Act and the articles of incorporation in handling the matters delegated by the board of directors or the board of directors. However, the lower court neglected to deliberate and decide on the matters concerning the budget, settlement, and loans of the (name omitted) school foundation and (name omitted) school, and even if it appears that the above illegal acts were committed, the lower court’s imposition of the expenses for each of the above construction work on the school foundation’s account is unreasonable, and the lower court’s imposition of the expenses for the school foundation’s own property and accounting, operation, and affairs is unreasonable, and the lower court’s imposition of corrective or non-party 1’s corrective measures, other than the foregoing illegal acts.

4. As to the ground of appeal related to standing to sue on revocation of the disposition revoking the return of this case

Even if a third party is not the direct counter-party of an administrative disposition, if the legal interest protected by the administrative disposition is infringed by the law, the party shall be entitled to be judged by the propriety thereof by filing an administrative litigation seeking the revocation or nullification confirmation of the administrative disposition. The legal interest refers to the case where there are individual, direct, and specific interests protected by the relevant laws and regulations and the relevant laws and regulations, and if general, indirect, and abstract interests of the general public are generated as a result of the protection of public interest, there is no legal interest (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

Article 20(1) and (2) of the Private School Act provides that executives, such as the chief director, directors, and auditors of a school juristic person, shall take office with the approval of the competent agency after the appointment of the board of directors. Thus, the act of approving taking office by the competent agency shall be a supplementary juristic act which renders the legal effect of the act of appointing executives of the school juristic person. Therefore, if the competent agency returns or refuses an application for approving taking office by the school juristic person, the person appointed by the school juristic person as the officer of the school juristic person shall not take office as the officer of the school juristic person. Such disadvantages are not indirect or de facto but directly and specifically legal disadvantages, so the person appointed by the school juristic person shall be deemed to have standing to sue against the rejection of the application

Nevertheless, the court below held that all of the lawsuits of this case by plaintiffs 1 et al. are unlawful, unless plaintiff 1 et al. are standing to sue to seek revocation of the disposition of this case, and furthermore, unless plaintiff 1 et al. are not qualified to seek revocation of the disposition of this case, there is no legal interest to seek revocation of the disposition of this case. Thus, the court below erred in the misapprehension of legal principles as to the third party's standing to sue of administrative disposition.

However, in addition to the case where a person who was appointed as an officer of a school juristic person is disqualified as an officer under Article 22 of the Private School Act, the competent agency may refuse to apply for approval of taking office even in the case where there are reasons prescribed in Article 20-2 of the Private School Act, such as improper execution of school expenses and failure to comply with a request to take corrective action against him at the time when the person is in the former position as an officer. Thus, the rejection disposition in this case against the plaintiff 1, etc. is legitimate. As long as the rejection disposition in this case and the cancellation disposition in this case are legitimate, the provisional director appointment disposition in this case premised on each of the above dispositions is also legitimate. Thus, since the plaintiff 1, etc.'s request for revocation of the return disposition in this case and the provisional director appointment cancellation claim in this part of the judgment below that the plaintiff 1, etc.'s claim is unlawful is all without merit. Accordingly, the judgment of the court below which ruled that this part of the lawsuit by the plaintiff 1, etc.

5. Conclusion

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.

Justices Ahn Dai-hee (Presiding Justice)