[1] Whether a ground for exclusion is applicable to the case of "election of the chief director" as stipulated in the articles of incorporation of the school juristic person, where the appointment or dismissal of an officer is about himself/herself (negative)

[2] A school juristic person's director or auditor whose term of office expires is recognized to have the right to conduct emergency measures to continue his/her previous duties until the appointment of a senior director or auditor, and the scope of such right

[3] The case holding that, although the board of directors of the school foundation passed a resolution to appoint an acting director as the chief director as the chief director at the unanimous meeting of the board of directors of the school foundation, four of the directors who had participated in the resolution had already expired, and there is no right to perform duties concerning appointment of the chief director, such as the suspension of execution after a request for suspension of the execution was made under Article 20-2 of the Private School Act after the expiration of the term of office, and the above resolution of the board of directors did not meet

[1] In general, election by mutual vote refers to a "election in which a specific person is elected from among those persons." Since the nature of election by mutual vote gives all candidates an opportunity to participate in the resolution, it does not go against the essence of election, even though it does not go against the nature of election. Thus, even if the articles of incorporation of a school juristic person provides that "if an appointment or dismissal of an executive is about his/her own matters, the relevant chief director or director does not take part in the resolution, it shall not apply to the "election by chief director" in the above method.

[2] Even if the term of office of a director or an auditor of the school juristic person expires, in cases where a director or auditor of the school juristic person, or another director or auditor whose term of office has not expired, is unable to perform activities of the school juristic person, barring special circumstances where it is acknowledged that it is inappropriate to allow the director or auditor whose term of office has expired to perform activities of the school juristic person, it is recognized that the former director or auditor to continue to perform his/her duties until the appointment of the former director or auditor is made. However, even if it is necessary to recognize the authority to perform duties until the appointment of the latter director or auditor after the expiration of the term of office, the authority of the director whose term of office has expired may be individually and specifically considered to determine whether it is necessary to perform duties to solve imminent circumstances, and the fact that the successor has not yet been elected can not be comprehensively granted.

[3] The case holding that where the board of directors of a school foundation passed a resolution to appoint an acting chief director as the chief director at the unanimous meeting of the board of directors of the school foundation, four directors who already participated in the resolution and for whom the term of office has expired, and there is no right to perform duties concerning the appointment of the chief director, such as the suspension of the execution of the approval for appointment of the chief director under Article 20-2 of the Private School Act after the expiration of the term of office, and the suspension of the execution thereof is dismissed, and the above resolution of the board of directors did not satisfy the majority of

[1] Articles 14(2), 16(1)4, and 20(1) of the Private School Act / [2] Articles 16(1), 19, and 20 of the Private School Act; Article 691 of the Civil Act / [3] Articles 14(1) and (2), 16(1)4, 18, 19(2), 20, and 20-2 of the Private School Act; Article 691 of the Civil Act

[1] Supreme Court Decision 2004Da10909 decided Jun. 15, 2006 (Gong2006Ha, 1311) / [2] Supreme Court Decision 96Da37206 decided Dec. 10, 1996 (Gong197Sang, 323), Supreme Court Decision 2002Da74817 decided Jul. 8, 2003 (Gong2003Ha, 1690), Supreme Court en banc Decision 2006Du19297 decided Jul. 19, 2007 (Gong2007Ha, 1291)

Applicant (Attorney Park Sang-ok et al., Counsel for the plaintiff-appellant)

Respondent (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the defendant-appellant)

1. The respondent shall not perform his/her duties as the president of the school foundation's teaching institute until the principal lawsuit seeking confirmation of invalidity of the resolution of the board of directors made on November 29, 2009 becomes final and conclusive, and the respondent shall not perform his/her duties as the president of the school foundation

2. One person who is acting for the president of the Seowon Institute during the period of the suspension of performance of duties as the representative of the said Institute shall be appointed from among the applicants (on October 5, 1956, omitted);

3. Litigation costs shall be borne by the respondent.

In accordance with paragraph (1) of the order, one of the applicants, non-applicant 1, 2, and 3 shall be appointed as an acting person under paragraph (2) of the order.

1. Facts of recognition;

According to the overall purport of the record and examination of this case, the following facts are substantiated.

A. Status of the parties

(1) On July 22, 1954, a school foundation established on or around July 22, 1954 (hereinafter referred to as the “Seowon Institute”) operates six schools, such as the Seowon University, Cheongju University, Cheongju, High School, Chungcheong Women, Middle and High School, Cheongju Commercial High School, etc.

(2) The applicant is a professor of the business management department of the Cheongju University who is appointed by the Minister of Education, Science and Technology as a temporary director of the Cheongju University as follows. (1)

(b) Taking over of the minutes related to the teaching institute and the private teaching institute other than the applicant 4;

(1) Since around 1992, in the course of promoting a project to relocate a private teaching institute, the Seowon Institute’s operation of the corporation and the university was completed by embezzlement and escape of approximately KRW 2.8 billion, including the profits from the assets for profit and the tuition fees, by 5 of the former president, around 199, while pursuing a large amount of debts. Since March 3, 1999, it was operated as a temporary director system.

(2) On January 26, 2002, the Western Institute decided to enter a new corporate manager in order to normalize the management of the private teaching institute. On July 30, 2002, the non-applicant 4 submitted a letter of intent to participate in the management of the private teaching institute to the Seowon Institute and was selected as one subject to priority at the board of directors of the Seowon Institute on May 9, 2003, and entered into an agreement with the Seowon Institute on December 8, 2003 after several consultations with the board of directors of the Seowon Institute on December 2003. The contents of the agreement are as follows: (i) to repay the debt related to the Seowon Institute (which may use the Seowonwon's land), and (ii) to secure the repayment of the debt, deposit the cash amount of KRW 2.62 billion with the person designated by the Seowon Institute, and ② to deposit the cash amount of KRW 470 million with the person designated by the Minister of Education and Human Resources Development in order to raise funds necessary for the operation of Seo.

(3) On December 8, 2003, the non-applicant 4 submitted seven (7) a deposit passbook created as if the non-applicant 6 was deposited in seven (7) accounts after concluding the above agreement.

(4) On December 8, 2003, the election directors of the Seowon Institute have resigned all on December 8, 2003, and the board of directors of the Seowon Institute passed a resolution to appoint nine persons, including Nonparty 4 and persons designated by Nonparty 4, as directors of the Seowon Institute.

(c) Appointment, etc. of directors other than applicants 4;

(1) On December 20, 2003, the applicant non-applicant 4 was approved as a director of the Seowon Institute by the Ministry of Education and Human Resources Development, and thereafter he was appointed to the president of the Seowon Institute on January 6, 2004.

(2) The director of the Seowon Institute in 2008 held the office of Nonparty 4, 7, 8, 9, Respondent, 10, 11, and 12-8. However, the term of office on December 19, 2008 expired for Nonparty 4, 7, 8, 9 (hereinafter “Plaintiff 4, etc.”)

(d) Cancellation of approval of taking office and decision to suspend execution;

(1) The Ministry of Education, Science and Technology, from October 10, 2008 to December 26, 2008, conducted a comprehensive audit with respect to the Seocho University, demanded correction, notified the cancellation of the approval of taking office, and held hearings. On September 21, 2009, the Ministry of Education, Science and Technology issued a disposition to revoke the approval of taking office for all directors (hereinafter “instant disposition”). In the instant disposition, the director whose taking office approval was revoked in the instant disposition is four including the non-applicant 4 and the non-applicant, whose term of office has not yet expired, and the non-applicant 10,11 and 12 (hereinafter “the non-applicant, etc.”) total nine persons, and the non-applicant 13 had already resigned from the private teaching institute on June 22, 2007, and the non-applicant 400 million won and the non-applicant 750 million won were the largest director’s ability to apply for taking office. As such, the non-applicant 13 had already withdrawn 4000 million won and 500 million won.

(2) On September 24, 2009, all directors of the Seoul Administrative Court 2009Guhap40469, filed a lawsuit against the Minister of Education, Science and Technology for the cancellation of the approval of taking office of a school foundation (2009Guhap2959), excluding 13 already resigned from among the directors subject to the instant disposition of cancellation, and filed an application for suspension of execution as to the instant disposition of cancellation with the Seoul Administrative Court 2009Ga2959. On November 12, 2009, the above court suspended the validity of the instant disposition of cancellation with respect to 4 persons such as the respondent, etc. until the judgment of the case "Revocation of the approval of taking office of the school foundation" was rendered, and decided to dismiss the said application for suspension of execution with respect to 4 persons such as the applicant and 4 persons, etc.

E. Resolution of appointment of chief director against the respondent

(1) The respondent was acting on behalf of the president in accordance with the provisions of the articles of incorporation, and convened the 9th board of directors in November 29, 2009 (hereinafter “the board of directors of this case”). The board of directors of this case held a resolution to appoint the respondent as the chief director of the Seowon Institute (hereinafter “resolution of the board of directors of this case”). The board of directors of this case held not only four persons including the respondent whose application for the suspension of execution was accepted, but also four persons including the respondent, etc. whose application for the suspension of execution was dismissed, including the respondent 4, the above application for the suspension of execution,

(2) On the other hand, the articles of incorporation of the Western Institute provides for the following:

(1) When the chief director is involved in an accident, the duties of the chief director shall be performed by proxy in the order of the standing director and the director appointed by the chief director (Article 28 (1)). When the chief director is vacant, the duties of the chief director who is designated by the board of directors shall be performed by the chief director (Article 28 (2)). The directors designated as the chief director and the acting chief director pursuant to the provisions of paragraphs (1)

(2) The Seowon Private Teaching Institutes shall have eight directors and two auditors (Article 22 (1)).

(3) The board of directors shall not hold meetings without the attendance of the majority of the registered directors (Article 32 (1)). The board of directors shall adopt resolutions with the consent of a majority of the fixed number of directors (Article 32 (2)), except as otherwise provided for in the

(4) The chairperson shall be elected from among directors to take office (Article 26 (1)).

(f) Appointment of provisional directors by the Minister of Education, Science and Technology;

(1) On December 9, 2009, the Minister of Education, Science and Technology appointed applicants, applicants, non-applicant 1, 2, and 3 (hereinafter “applicants, etc.”) as temporary directors of the Western Institute pursuant to Article 25 of the Private School Act.

(2) Therefore, the Seowon Institute has four directors, such as the respondent, and four temporary directors, such as the applicant for temporary directors.

(g) A criminal judgment against an applicant and four others;

In relation to the implementation of the agreement under Paragraph (2) above, the non-applicant 4 submitted seven deposit passbooks created as if the amount actually deposited is not only two billion won, and submitted 5.52 billion won in cash to non-applicant 6 of the Seowon Institute, and made a resolution to appoint nine directors of the Seowon Institute as directors of the Seowon Institute, such as the executive directors of the Seowon Institute, the board of directors of the Seowon Institute, and the person designated by them, etc. ① through deceptive means, the duties of the executive directors of the Seowon Institute to appoint the directors of the Seowon Institute and the duties of the non-applicant 6, who appointed the directors of the Seowon Institute, interfere with the Minister of Education and Human Resources Development to apply for approval of the appointment of directors. ② The Ministry of Education and Human Resources Development, through fraudulent means, interfered with the performance of official duties, fraudulent acts, occupational embezzlement, and the violation of the Private School Act, and embezzled the school expenses of the Seowon Institute to the court of appeal for suspension of execution.

(h) Current state of the Western Institute;

At present, disputes are continuing between those who support the non-applicant 4 and those who oppose the non-applicant 4 on the operation of the Seocho Private Teaching Institutes.

2. Determination on the right to be preserved

A. Whether the resolution of the board of directors of this case is null and void

(1) The articles of incorporation of the Seowon Private Teaching Institute provide that “The board of directors shall not be convened unless the majority of the registered directors are present. The board of directors shall adopt a resolution with the consent of a majority of the fixed number of directors (Article 32).” This shall be governed by the general provisions on the quorum and the quorum of the board of directors, which shall be the general provisions on the quorum and quorum of the board of directors,

The board of directors of this case, including the respondent and four non-party 4, appointed the respondent as the chief director of the Seowon Institute. The resolution of the board of directors of this case was passed by the board of directors of this case where four members including the respondent and four non-party 4 were appointed the respondent as the chief director of the Seowon Institute. The application for suspension of execution with respect to the cancellation of directors of this case was accepted, as well as four members including the respondent, and four members including the non-party 4, who were dismissed the application for suspension of execution with respect to the cancellation of the disposition of this case. The non-party 4, etc. of this case can not perform all duties as directors due to the cancellation of the disposition of this case. The resolution of the board of directors of this case at least five directors, who are the majority of the total number of directors, shall attend the meeting of the board of directors of this case, and the resolution of the board of directors of this case is merely four directors, and the resolution of this case was not satisfied unless there are any special circumstances.

(2) The applicant asserts that, since the board of directors of the instant case passed a resolution to appoint the respondent as the chief director, the respondent who is the relevant director also has no voting rights in the resolution of the board of directors

Article 26(1) of the Articles of Incorporation provides that “The chief director shall be elected and appointed by mutual vote,” and Article 33 subparag. 1 of the Articles of Incorporation provides that “the appointment and dismissal of an executive officer and the head of a school shall not participate in the resolution.”

However, in general, election refers to a "election in which a specific person is elected from among his/her people." Since the nature of the election gives all candidates an opportunity to participate in the resolution by giving them an opportunity to participate in the resolution, it does not go against the essence of election, even though the school juristic person's articles of incorporation provide that "if an appointment or dismissal of an officer is about his/her own matters, the relevant chief director or director shall not participate in the resolution," such exclusion ground does not apply to "election of the chief director" in the above method (see Supreme Court Decision 2004Da10909, Jun. 15, 2006).

Therefore, the claimant's assertion that the respondent does not have voting rights in the resolution of the board of directors of the case where the respondent appoints him.

B. Determination of the respondent's assertion

(1) Respondent's assertion

(A) On December 19, 2008, four non-applicants and four others who participated in the resolution of the board of directors of the instant case had expired the term of office as a director of the Seowon Institute. However, four non-applicants and four others have continued to perform their duties as a director of the Seowon Institute based on the right of emergency disposition from December 20, 2008 to the time when the resolution of the board of directors of the instant case was adopted.

(B) The participation of four persons, including the applicant and four others, in the resolution of the board of directors of the instant case is based on the authority to take emergency measures as above. On the ground that the instant disposition was made prior to the resolution of the board of directors of the instant case, four persons, including the applicant and four, shall not lose the right to take emergency measures. In addition, there is no special circumstance to deem that it is inappropriate to allow four persons, including the applicant and the applicant and the non-applicant

(C) Therefore, it is lawful for 4 others such as the applicant and 4 to exercise the voting rights in the resolution of the board of directors of this case based on the Emergency Treatment Right.

(2) Whether the right to perform the duty of appointing a chief executive officer can be acknowledged by analogy Article 691 of the Civil Act for four persons, such as the applicant for the expiration of the term of office.

(A) The right of directors to perform their duties and the scope of their authority

Unless there are special circumstances where it is acknowledged that it is inappropriate to allow the director or auditor whose term of office has expired to perform the duties of the school juristic person, in the event that the director or auditor of the school juristic person, or all or some of the auditors of the school juristic person, failed to appoint the successor director or the successor auditor and the other director or auditor whose term of office has not expired, to perform the duties of the school juristic person, it is recognized that the right to take emergency measures to continue to perform the previous duties until the successor director or auditor is appointed (see Supreme Court en banc Decision 2006Du19297, Jul. 19, 207, etc.).

However, even if there is a need to recognize the authority to conduct affairs until the appointment of directors after the expiration of the term of office until the appointment of directors, the authority of the directors at the expiration of the term of office may be individually and specifically recognized as necessary to resolve imminent circumstances, and the fact that the successor was not yet elected after the expiration of the term does not necessarily necessarily be comprehensively granted (see Supreme Court Decisions 96Da37206, Dec. 10, 1996; 2002Da74817, Jul. 8, 2003, etc.).

(B) In the instant case:

1) On December 19, 2008, the term of office of four (4) persons, including the applicant and the non-applicant 4, expired and did not thereafter appoint directors. However, the board of directors of the Seowon Institute did not open without the attendance of the majority of the registered directors (Article 32(1) of the Articles of Incorporation). Barring any special provision, Article 32(2) of the Articles of Incorporation provides that the board of directors of the Seowon Institute shall make a resolution with the consent of a majority of the registered directors (Article 32(2)). Unless the Minister of Education, Science and Technology appoints the applicant, etc. as temporary directors of the Seowon Institute, the number of persons qualified as directors of the Seowon Institute was only four (4) until the appointment of the applicant, etc. as temporary directors of the Seowon Institute, which does

Therefore, barring special circumstances where it is acknowledged that it is inappropriate for the applicant, non-applicant 4 and non-applicant 4 to perform the duties of director of the Seowon Institute, there is room to view that the Minister of Education, Science and Technology needs to continue to perform the previous duties before the appointment of four persons, such as the applicant, as a temporary director of the Seowon Institute.

2) However, four (4) including the applicant and four (4) directors whose term of office has expired cannot act on behalf of the directors of the Seowon Institute, and four (4) including the applicant and four (4) whose term of office has expired are supplementary recognition to avoid the situation in which the Seowon Institute will cease its activities as a normal school juristic person.

However, it cannot be deemed that there was an urgent reason to elect a new chief director at the time of the resolution of the board of directors. The articles of incorporation of the Seowon Institute provides for “the acting chief director” in the event of an accident or a vacancy with the chief director. At the time of the resolution of the board of directors of this case, the respondent was performing duties as the acting chief director until the time of the resolution of the board of directors of this case. In a case where it is necessary to appoint a new chief director in the situation where a certain part of the directors, who are members of the board of directors, is unable to make any resolution due to the vacancy of the board of directors, and it is necessary to appoint a new chief director in the event that there is no supplementary provision as to the exercise of the power of representation when a representative is vacant in the articles of incorporation, and it may be deemed necessary to appoint a chief director in the event that there is an urgent reason to

Meanwhile, Article 28(3) of the Articles of the Western Institute of Education provides that “the director designated as the acting chief director shall without delay take the procedure for election of the chief director” (Evidence 6). However, 4 other than the applicant 4 had already expired the term of office of the director, and the Minister of Education, Science and Technology’s audit result was revoked, and the application for suspension of execution was also dismissed. In particular, Nonparty 4 was convicted of the first instance court due to the crime of interference with business, etc. surrounding the implementation of the above agreement. Considering this point, the same day as the appointment of the new chief director of the Western Institute of Education cannot be deemed as an appropriate duty to perform duties, such as Nonparty 4, etc. who was unable to perform duties as the chief director.

Therefore, it cannot be deemed that four directors, other than the applicant for the expiration of the term of office, have the right to newly appoint the president of the Seowon Institute.

3) The respondent asserts that since the disposition of revocation in this case is revoked in violation of Article 20-2(2) of the Private School Act and Article 36 of the Administrative Procedures Act, the respondent asserts that four persons, including the applicant and the non-applicant 4, are entitled to have the right to appoint the president of the Seowon Institute.

However, aside from whether the revocation of the disposition of this case was revoked, the right to appoint the president of the Seowon Institute to four persons, including the applicant and the non-applicant 4, is not recognized. Thus, the respondent's above assertion is without merit.

(3) Sub-determination

Ultimately, four directors, other than the applicant, who were directors of the Seowon Institute, have no authority to perform duties concerning the appointment of the president as directors whose term of office expires, and the instant resolution by the board of directors has no effect since they failed to meet the quorum prescribed by the articles of incorporation. Therefore, until the principal lawsuit seeking nullification of the resolution by the board of directors held on November 29, 2009 between the applicant and the Seowon Institute, the applicant may claim against the respondent that the respondent should not perform his duties as the president of the Seowon Institute. Thus, the instant application for provisional disposition has the right to be preserved.

3. Necessity of preservation; and

The provisional disposition which determines a temporary position is an urgent and provisional disposition which is allowed by the person having the right to a provisional disposition until it becomes final and conclusive by the lawsuit on the merits, to prevent the present significant damages or imminent spread thereof, and the issue of whether such provisional disposition is necessary shall be determined jointly with the court’s discretion, taking into account not only the interests of both parties depending on whether to accept the application in question or not, the future failure in the lawsuit on the merits, and all other circumstances (see Supreme Court Order 97Ma1473, Oct. 14, 1997, etc.). In particular, in the case of the provisional disposition of suspension of the performance of duties against the chief director of a school juristic person and the appointment of an acting director, the original operation of the school juristic person or the interests, expectations, etc. of the school juristic person and its members have with respect to the school juristic person as well as the interests, expectations, etc. of both parties.

However, considering the circumstances that the respondent led to the resolution of the board of directors of this case, the respondent is expanding disputes, such as dismissal from office by taking advantage of the position of the president of the Western Institute, and the behavior of the respondent in the past, if the respondent does not suspend the respondent's duties in advance until the main decision on the claim for nullification of the resolution of the board of directors of this case becomes final and conclusive, the respondent is likely to abuse the president's authority, and there is a possibility that the respondent may cause trouble in the normal operation of the Western Institute and may cause damage which is difficult to repair to the president or its members. Accordingly, the need to temporarily suspend the performance of duties as the president of the Seowon Institute is recognized.

4. Appointment of an acting director;

During the period of suspension of the performance of duties by the respondent, it is reasonable to appoint 1 other than the certified public accountant (O. 5, 1956) from among the temporary directors of the Seowon Institute as an acting director.

The applicant appointed one of the applicants, non-applicant 1, 2, and 3 as an acting representative and applied for the change of one of them. Among them, the applicant was first and second and the non-applicant 1 was set in the order of priority. In this regard, the respondent opposed to the appointment of the applicant as an acting representative on the ground that the applicant served as the adviser of the modern department store group that the applicant intended to take over the Seowon Institute as an acting representative, and the respondent, non-applicant 10 or non-applicant 11 is requested to appoint the applicant as the acting representative.

The applicant may be deemed to have been able to assist in the operation of the Seowon Institute as a professor of the Cheongju University. However, since the respondent objects to the appointment of the applicant as an acting representative and has considerable reasons, it is appropriate to appoint a person other than the applicant as an acting representative for the resolution of the instant dispute. On the other hand, since the respondent, other than the respondent, and the respondent, requested the appointment as an acting representative, and Nonparty 10 and Nonparty 11 participated in the resolution of the board of directors as seen earlier, it is inappropriate to appoint the applicant as an acting representative. Thus, from among those who requested the appointment as an acting representative by the applicant and the respondent, it is deemed that Nonparty 1, who requested the appointment as an acting representative, can perform the duties of the acting representative properly.

5. Conclusion

Therefore, the application for provisional disposition of this case shall be accepted for the reasons and it shall be decided as per the Disposition.

Judges Jeon Jong-tae (Presiding Judge)