(영문) 대전지방법원 2016.10.27. 선고 2016구합100798 판결

In February 12, 2016, the cancellation of the approval of taking office of the school foundation B that the Defendant rendered to the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. B is an educational foundation that establishes and operates C University, D High School, E High School, etc., and the Plaintiff is a director of B.

(b) The terms of office for the directors B shall be as follows:

A person shall be appointed.

C. Even after the expiration of the term of H and I, a successor director was not appointed. On September 1, 2015, the Defendant sent to B a letter demanding the appointment of executive officers with the following purport.

According to Article 24 of the Private School Act, the vacancy shall be filled within two months after the occurrence of the vacancy among the directors, so that the vacancy shall be filled as soon as possible during September.* As a result of external legal advice from the Ministry of Education, the scope of participation of the expiration director of the right to take emergency measures of the board of directors shall be minimized within the quorum of the

D. On October 26, 2015, the Defendant issued to B a request for correction, such as the appointment of a vacancy director and appointment of a director, and notified B of cancellation of approval of taking office (hereinafter referred to as “request for correction of this case”).

In addition, the board of directors in 2015 did not deal with important matters, such as appointment of teaching staff members of the school to which they belong, and preliminary and settlement of accounts, due to disputes between executive officers, and thus serious obstacles to the operation of the school are caused. ○○, as follows, requests for correction have been made by November 16, 2015, and will take measures, such as cancellation of approval of taking office pursuant to Article 20-2(2) of the Private School Act if the term is not fulfilled. 1. To appoint two chief executive officers and two staff members until November 16, 2015; 2. The appointment of school teachers by November 2014, 2014, the settlement of accounts of accounts of schools to which they belong, and the supplementary revised budget by November 16, 2015 (the appointment of teachers by November 16, 2015) and the head of the school to which they belong by November 16, 2015.

E. B requested the Defendant to extend the due date for the corrective measures, and on November 23, 2015, the Defendant notified the Defendant to the effect that “after fulfilling the corrective measures until December 10, 2015,” the Defendant reported the result.”

(f) B held the board of directors as follows:

1) On October 29, 2015, the fourth board of directors in 2015 (hereinafter referred to as “fourth board of directors”): M (Acting on behalf of the president), the Plaintiff, J. K, L, and I.

2) On November 27, 2015, the sixth Board of Directors for the Year 2015 (hereinafter referred to as “six Board of Directors”): Plaintiff, J, K, H, and G attendance.

3) On December 7, 2015, 2015, the 7th Board of Directors (hereinafter referred to as the 7th Board of Directors): Plaintiff, J, K, H, and G attendance.

G. On December 10, 2015, B reported to the Defendant on the implementation of the corrective measures as follows:

A person shall be appointed.

H. As a result of reviewing the performance report submitted by B on December 16, 2015, the Defendant notified that the sixth and the seventh board of directors (hereinafter collectively referred to as the “Board of Directors”) attended and passed a resolution by the expiration director (H and G), who is not qualified, during the process of emergency treatment agenda, and then that notification would be supplemented by December 31, 2015.

I. However, B did not supplement the Defendant’s corrective measures.

(j) Accordingly, the Defendant issued a disposition to revoke approval of taking office on February 12, 2016 (hereinafter “instant disposition”) on the ground that “the Plaintiff, who is a director, was an executive” and “B, failed to comply with the Ministry of Education’s request for correction [the appointment of chief director and a vacancy, the handling of the accounts of school foundations and affiliated schools, the appointment of teachers (CU, the president of CU, and the president of DU), and caused serious obstacles to the operation of affiliated schools” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 9, 10 evidence, Eul evidence 1 through 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff implemented all corrective measures against the Defendant at the meeting of the board of directors of this case. The Plaintiff’s attendance at H and G whose term of office expires at the meeting of the board of directors of this case and exercising voting rights is due to the right to take emergency measures. Accordingly, the Plaintiff’s corrective measures was implemented, and the Plaintiff did not cause serious obstacles to operating the school due to a dispute among executives. In addition, the failure to appoint the head of the school to which he belongs is not in violation of the Private School Act,

Therefore, since the instant disposition does not exist, the instant disposition is unlawful.

(ii) the deviation and abuse of discretionary power;

Even if the grounds for the instant disposition exist, the instant disposition was unlawful as it deviates from and abused discretionary power for the following reasons.

A) Violation of the principle of proportionality

Around February 2014, the Defendant reserved approval of F and G’s application for re-election of directors without any justifiable reason. If the Defendant officially approved it, the decision-making of B board of directors would have been normally possible even after the expiration of the term of H and I. Thus, the Defendant’s fundamental responsibility, despite the lack of the director of B board of directors, was unreasonable to cancel the approval of taking office for the Plaintiff. There were many urgent and important issues, such as appointment of the principal, appointment of the faculty, settlement of accounts for the year 2014, supplementary revised budget, etc. In light of the fact that there were many urgent and important issues such as appointment of the principal, appointment of the staff, and the revised supplementary budget for the year 2015, cancellation of the appointment of an officer is a disposition that damages the Plaintiff’s reputation and deprives the school juristic person of the right to manage or operate the school juristic person, and thus, the instant disposition violates the principle of proportionality.

B) Violation of the principle of trust protection

On April 29, 2014, the defendant notified all the officers whose term has expired to B of the attendance of the board of directors and the handling of agenda items, etc., and notified all the officers whose term has expired of the notice of convening the board of directors. The instant disposition is against the principle of trust protection as it infringes on the interests of the trusted plaintiff without any reason attributable to the defendant's public opinion

(b) relevant laws, regulations and regulations;

It is as shown in the attached Form.

C. Determination

1) Whether the instant disposition grounds exist

A) Article 20-2 (1) of the Private School Act provides that if an officer violates the provisions of the Private School Act or fails to comply with an order issued thereunder, or causes a serious obstacle to the operation of the relevant school due to a dispute between executives, the competent agency may cancel the approval of his taking office; Article 20-2 (2) provides that "Where an officer fails to comply with the approval of taking office under paragraph (1) after 15 days from the date on which the competent agency requested correction of the cause thereof to the school juristic person concerned; Article 20-2 (1) provides that "if a vacancy occurs among the directors, the competent agency shall fill the vacancy within two months."

Article 31 (1) of the Private School Act provides that "school juristic persons shall report and publicly announce the budget prior to the commencement of each fiscal year under the conditions as prescribed by the Presidential Decree, and the settlement of accounts at the end of each fiscal year to the competent authorities," and Article 14 (1) of the Enforcement Decree of the Private School Act provides that "where the school juristic persons report and publicly announce the budget and settlement of accounts to the competent authorities under the provisions of Article 31 (1) of the Act, they shall report and notify the budget and settlement of accounts at least five days before the commencement of each fiscal

On the other hand, Article 18 of the B articles of incorporation provides that "eight directors shall be appointed to a corporation," Article 20 (1) provides that "director and auditor shall be appointed by the board of directors and shall take office with approval from the competent authorities," Article 28 provides that "the board of directors shall hold a meeting with attendance of a majority of the registered directors (Paragraph (1) and pass a resolution with the consent of a majority of the fixed number of directors (Paragraph

B) First of all, according to the facts and the purport of the entire argument as seen earlier, the Plaintiff did not fill the vacancy within two months from the time when the vacancy occurred among the directors in violation of Article 24 of the Private School Act, and in violation of Article 31(1) of the Private School Act, the Plaintiff did not report the settlement of accounts for the year 2014 by the school foundation and its affiliated school within the given period.

C) Furthermore, the aforementioned facts and the evidence as seen earlier and the evidence as indicated in Gap evidence Nos. 7, 8, 11, Eul evidence Nos. 6 through 10, and the following circumstances acknowledged based on the overall purport of the pleadings, namely, ① a dispute over the operation of Eul and C University has occurred between Q and R, which is the founder of Eul, ② a dispute over the aforesaid dispute and the requirement within C University was not appointed as a new teacher due to the above situation. Over that period, four of the eight directors of B, including the plaintiff, expiration of the term of office after June 19, 2015, were not the first ended due to the expiration of the term of office of the director F, G, H, and I, the appointment of the president and the vacancy between the directors of B and B, the settlement of accounts of the year 2014 and the grade 2015 of the school to which he belongs, and ④ a dispute over the operation of the pertinent university, which may not be deemed as serious obstacles to the appointment of the president and the president of the relevant school.

D) The Defendant issued the instant corrective order to 10, 26, and B on October 2015, and after the extension of the due date on one occasion upon B’s request, the fact that B issued the instant disposition on the ground that B did not comply with the request, is as seen earlier.

As to this, the plaintiff asserted that the defendant's corrective measures were all implemented through the resolution of the board of directors of this case, but the plaintiff's above assertion cannot be accepted for the following reasons.

(1) Even if the term of office of all or some of the directors of a school foundation expires, in cases where the selection and appointment is invalidated and it is deemed inappropriate for the former director to perform the duties of the school foundation, barring any special circumstance to deem that it is inappropriate for the former director to perform the duties of the school foundation, the right to manage emergency affairs of the former director shall be acknowledged until the former director is appointed (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

However, the right to perform such duties as a director whose term of office expires or resigned is limited to cases where there is an urgent reason to suspend the corporation's normal activities, so if the term of office is not yet expired or other directors who have not resigned are able to engage in the activities of a normal corporation, it is not necessary to have the director who has expired or resigned from office continue to perform his/her duties as a director, and in such a case, he/she shall naturally retire from office (see, e.g., Supreme Court Decision 95Da40038, Dec. 23, 1996).

② According to the B’s articles of incorporation, the board of directors shall be held with the attendance of the majority of the registered directors, and shall be subject to a resolution with the consent of a majority of the fixed number of directors. Thus, in the case of F, G, and H with the expiration of the term of office, it constitutes a case where the normal school juristic person’s activities may be performed by other five directors whose term of office has yet to expire, and therefore, the said three directors shall naturally retire from B due to the expiration of the term of office. On the other hand, in the case of I whose term of office expires after the expiration of the term of office, four directors remaining after the expiration of the term of office fall under the case where the normal school juristic person’s activities cannot be performed by themselves, thereby recognizing Article 691 of the Civil Code

In regard to this, the Plaintiff asserted that, in such a case, five directors (four directors whose term of office has not expired and four directors whose term of office has not expired) cannot make a decision, and therefore, the normal school juristic person cannot be engaged in the activities of the school juristic person, and therefore, the right of emergency treatment should be acknowledged for all of the other directors whose term of office has expired. However, the right of emergency treatment of the director whose term of office has expired should be exceptionally acknowledged only under inevitable circumstances. However, just because there is such concern as the Plaintiff’s assertion, it cannot be deemed that the right of emergency treatment is acknowledged for all other directors whose term of office has expired.

(3) Therefore, four directors (Plaintiff, J, K, and L) whose term of office has not expired at the time of the instant board of directors and the right to take urgent measures is recognized. However, the instant board of directors attended and passed a resolution by the Plaintiff, J, K, H, and G. Since H and G do not have the authority as a director of the instant board of directors, the instant board of directors would eventually pass a resolution by the attendance of only three directors (Plaintiff, J, K, and K) who fall short of the quorum.

④ Therefore, it cannot be deemed that the Defendant’s corrective request was implemented on the ground that the resolution of the board of directors of the instant case was made.

E) Therefore, this part of the Plaintiff’s assertion is without merit, since there exist grounds for the instant disposition.

2) Whether the discretion is deviates or abused or not

A) Whether the cancellation disposition of taking office under Article 20-2 of the Private School Act deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual by objectively examining the content of the act of violation as a ground for the disposition, the public interest to be achieved by the relevant act of disposal, and the relevant circumstances (see, e.g., Supreme Court Decision 2011Du6431, Sept. 4, 2014).

In light of the following circumstances recognized by the overall purport of the evidence and arguments, namely, ① the appointment of the president and directors (operation of the board of directors), the settlement of accounts, and the appointment of teachers, etc.; ② the normal composition and operation of the board of directors are inevitably requested for the normalization of the operation of B; ③ However, after the Defendant received the instant corrective order, the board of directors is not lawfully normal; ③ there seems to be no other way to achieve B’s normalization; ⑤ the Defendant requested warning measures against B on October 6, 2014 pursuant to “B and C University’s fact-finding survey results” in light of the fact that the Defendant requested F and C University’s warning measures against B, it is difficult to deem that it was unreasonable to withhold the Plaintiff’s reappointment; ② the Defendant’s refusal of reappointment and G director’s appointment is unreasonable; ② the Plaintiff’s revocation of the instant corrective measures, which considerably resulted in the Plaintiff’s abuse of discretion, and thus, it cannot be deemed that the Plaintiff’s revocation of appointment and appointment of executive officers.

B) Meanwhile, in order to apply the principle of the protection of trust to an act of an administrative agency in an administrative legal relationship, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion that is justifiable and trusted shall not be attributable to the individual; third, the individual should have trusted and trusted the opinion statement; third, the administrative agency should have conducted any act in violation of the above opinion statement; fourth, the administrative agency's disposition contrary to the above opinion statement should cause an infringement on the individual's interest in trust. If a certain administrative disposition satisfies these requirements, it is against the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2008).

In full view of the purport of the argument in Gap evidence No. 7, the defendant filed a civil petition against three directors subject to the application for approval for taking office of the return corporation around April 29, 2014, and is currently under fact-finding, it is acknowledged that according to the result of the investigation on civil petition status, the defendant would be expected to process the approval for taking office of the return corporation. In accordance with Article 691 of the Civil Code, the right to conduct the previous duties may be recognized until the former director is appointed until the latter director is appointed. At present, the board of directors of the return corporation is difficult to operate the corporation (university) due to the lack of the quorum (four persons), so it is difficult to inform that the attendance of the board of directors, agenda items, etc. of the terminated officer will be possible, and the notice of notice of the board of directors shall be given to the director (including three persons whose term of office has expired) so that it can be known.

However, as seen earlier, in light of the fact that the Defendant sent a public notice demanding the appointment of executive officers on September 1, 2015 to B prior to the instant request for correction and disposition, and that as a result of external legal advice from the educational department, the scope of participation of the director at the expiration of the board of directors’ emergency treatment rights is to be minimized within the scope of the quorum of the board of directors under the Private School Act, it cannot be deemed that the Defendant expressed a public opinion to the effect that all the directors whose expiration of the term of office such as H and G have the right of emergency treatment. Thus, the instant disposition cannot be deemed to violate the principle of trust protection

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.