(영문) 서울행정법원 2019.12.19. 선고 2019구합63324 판결

1) A school juristic person J (hereinafter referred to as the “J”) is a school juristic person that establishes and operates L University, M University, six special schools, two kindergartens, etc. established by the Dong K on January 18, 1964.

2) On April 1993, L University established a dispute between N (0 points south of the network K) and P (O and N) by its members in relation to the appointment of the president.

3) After conducting a comprehensive audit with J on February 22, 1994, the Defendant revoked the approval of the appointment of a director with respect to all directors of J ( Q, R, S, T,0, U, and N1) and appointed a temporary director. The Defendant has continuously replaced the temporary director whose expiration date has expired to a new temporary director.

(b) The first normalization process by J;

1) On July 14, 201, the participating administrative agency decided to appoint the Plaintiffs, V (former recommendation of the previous directors), W, P (former recommendation of the members thereof), X (Defendant recommendation) as regular directors, and Y as temporary directors. Accordingly, the Defendant appointed the above regular directors (term: from November 1, 201 to October 31, 201) and temporary directors (term: from November 1, 201 to October 31, 201) on October 28, 201.

2) On October 31, 2012, the term of office of the Y selected and appointed as a temporary director, following deliberation by the participating administrative agency, and on November 8, 2012, the Defendant appointed the Z as a temporary director [ Q, U and N filed an appeal against the Defendant seeking revocation of a temporary director appointment of the Z and appointment of the Z on May 3, 2013, the Defendant was sentenced to a favorable judgment (Seoul Administrative Court 2012Guhap43246), and the Defendant’s appeal against it was dismissed on January 23, 2014 (Seoul High Court 2013Nu15912), and the above judgment became final and conclusive on February 12, 2014];

3) The director X died on January 12, 2012, 30.

1) On March 14, 2014, the Defendant revoked the approval of taking office of Plaintiffs, V, W, and P on the ground that the disputes between “executive officers” resulted in a significant cause in the operation of the school, the appointment of vacant executive officers (open directors and auditors), the absence of appointment of four schools established and operated (LL University, M University, AA School, and AB School), and the absence of appointment of the head of the school at the expiration of the term temporary directors, and the absence of recommendation, establishment, and management of a candidate for temporary directors at the end of the term.

2) Although the Plaintiffs and V filed an appeal against the Defendant seeking the revocation of the approval of taking office against the Defendant, the Seoul Administrative Court rendered a decision to dismiss the Plaintiffs and V’ claims on November 20, 2014 (2014Guhap54691). The Plaintiffs and V appealed and filed an appeal against them. On October 16, 2015, the Seoul High Court revoked the first instance judgment and rendered a decision to revoke the said disposition against the Plaintiffs and V on the ground that “the revocation of taking office did not meet the requirements for the revocation of the approval of taking office as provided by Article 20-2 of the Private School Act, and even if some of the grounds for revocation are recognized, it is illegal after the deviation and abuse of the discretionary power,” and the judgment to revoke the said disposition against the Plaintiffs and V was revoked (2014du72691), and on October 26, 2015, the appellate court became final and conclusive on October 16, 2015 (201).

(d) Measures for appointing and dismissing temporary directors and action for cancellation thereof;

1) On July 31, 2015, the Defendant appointed AC, AD, AE, AF, AG, AH, and AI as a temporary director of the J. On January 29, 2016, the Defendant rendered a disposition of reappointment against the above temporary directors. The Plaintiffs and V filed an appeal against the Defendant seeking revocation of the instant disposition on January 29, 2016, and subsequently recovered the status of directors of the Plaintiffs and V as of July 10, 2015 (No. 2015ia1284) and the instant decision was rendered in favor of the Defendant on the ground that the Defendant’s appointment of seven persons other than the temporary directors to satisfy the quorum of the board of directors would violate the validity of suspending the execution (Seoul Administrative Court Decision 2016Gu53647, May 37, 2016), and both the Defendant’s appeal were dismissed (Seoul High Court Decision 2016Du164767, Jun. 16, 2016).

2) On January 26, 2017, the Defendant: (a) appointed AH, AJ, AE, AI, AK on February 1, 2017; and (b) AL and AM on February 1, 2017. The Plaintiffs and V filed an appeal suit against the Defendant on January 26, 2017 and February 1, 2017 (Seoul Administrative Court Decision 2017Guhap60925). On September 29, 2017, the said court rendered an appeal to dismiss the Plaintiffs and V’ claims on September 17, 2017; (b) on March 27, 2018, the Seoul High Court revoked the lower court’s decision on March 27, 2018, and (c) revoked the lower court’s decision on March 21, 2015 and the lower court’s decision on March 27, 2018, and (d) revoked the Plaintiffs’ temporary directors’ decision on February 218, 215, and V.

3) On February 14, 2018, the Defendant was appointed as a temporary director of J under Article 25 of the Private School Act on the ground that the term of office of the Plaintiffs expired, and that the Plaintiffs cannot select and appoint a new director only by themselves, pursuant to Article 25 of the Private School Act. The Plaintiffs filed an appeal appeal against the Defendant seeking revocation of the provisional director appointment disposition as of February 14, 2018, and the Plaintiffs and V whose approval of taking office was revoked was restored to the status of the J director as of September 7, 2018. Since V died, the Defendant was sentenced to a favorable judgment on the ground that the Defendant may appoint a temporary director only for two of the four fixed number of directors (Seoul Administrative Court Decision 2018Guhap5791), and the above judgment was finalized on September 28, 2018 by the Defendant’s appeal as of September 28, 2018.

(e) The second normalization process by J;

1) On February 2, 2019, the Defendant dismissed the above 7 temporary directors and appointed NN and Q as a new temporary director in accordance with the purport of the Seoul Administrative Court Decision 2018Guhap55791.

2) The Defendant dismissed C, D, E, F, G, H, and I from temporary directors on April 24, 2019, and appointed C, D, E, F, H, and I as regular directors (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 5, 9 through 14, Eul evidence Nos. 1, Eul Nos. 1 and 2 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) Although the matters concerning the promotion of temporary directors' dismissal or normalization are deliberated by the participating administrative agency, the defendant, without undergoing deliberation by the participating administrative agency, issued the instant disposition under the premise of temporary directors' dismissal and normalization (section 1) on April 24, 2019, without undergoing deliberation by the participating administrative agency (section 1).

2) Q and U already completed the term of office of a regular director before the commencement of the provisional director system against Q and U, and continued to perform his duties as a director on March 5, 1993, and on February 22, 1994, the approval of taking office was revoked. As such, Article 691 of the Civil Act applies mutatis mutandis to the case where: (a) the Plaintiffs and V, who recovered from the status of a regular director in accordance with the Seoul High Court Decision 2014Nu72691, Seoul High Court Decision 2015Da1284, etc. (Seoul High Court Decision 2014, Seoul High Court Decision 2015Da1284, etc.), were appointed as a regular director on October 29, 2015 by holding an emergency board of directors together with Q and U, and appointing the Plaintiffs, AU, AV, AV, and A as a regular director (section 2). Therefore, the Defendant does not have the authority to appoint a regular

3) Even if Q and U are not recognized as an emergency treatment right, the Plaintiffs are entitled to exercise the right of emergency treatment as a former director and appoint regular directors together with two temporary directors. The J is no longer subject to normalization. Thus, the Defendant is not entitled to appoint regular directors (section 3).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the First Claim

Considering the overall purport of the arguments in the evidence No. 14, evidence No. 14, evidence No. 14, evidence No. 1, evidence No. 1, and evidence No. 16, the participating administrative agency deliberated on 14 candidates including four persons recommended by the Council of University Universities and Colleges, one person recommended by the Council of University Universities and Colleges, one person recommended by the Council of University Universities and Colleges, four persons recommended by the Council of the Council, two persons recommended by the competent authorities, two persons recommended by the Council of the Council of Open Directors, four persons recommended by the Council, four persons recommended by the Council of Recommendation of Open Directors, and four persons recommended by the P, and the fact that the Defendant deliberated on 14 regular directors including NA on Apr. 24, 2019, and Qel from temporary directors, and the purport and purpose of dismissal of temporary directors, CF 1, the details and purpose of appointment of temporary directors, and other relevant facts under Article 25-3(1) of the Private School Act.

D. Determination as to Section 2

1) Relevant legal principles

On the other hand, if the retirement of the existing regular director becomes final and conclusive, and a temporary director is appointed lawfully in accordance with the procedures under the Private School Act, the authority as a director in relation to the ordinary affairs shall belong to the temporary director regardless of the reason for appointment. Thus, there is no room to recognize the authority to handle the general affairs in order to continue to perform the previous duties in accordance with Article 691 of the Civil Act by analogy, and even if the temporary director is terminated later, the authority to deal with such urgent affairs shall not be newly granted to the director who has retired in the past at that time. It cannot be said that the authority to appoint the former director in general administrative affairs is separated only from the authority to appoint the latter director in general, and it cannot be said that there is a kind of right to deal with the latter or a new one with such authority. Therefore, in the case of a school juristic person, it cannot be said that there is a right to deal with the last regular director who has been appointed lawfully before the temporary director in accordance with the Private School Act is appointed, and there is an urgent right by analogy Article 691 of the Civil Act (see en banc Decision

2) Specific determination

According to the evidence evidence No. 16, the fact that Q and UJ was reappointed after being appointed as a regular director of Q and UJ, and on February 22, 1994, the fact that the defendant revoked the approval for taking office of all the directors of Q and UJ including Q and U and appointed a provisional director, and that the defendant continued to replace the temporary director whose term of office has expired from that time to July 201 with a new temporary director. In light of the above legal principles, inasmuch as the retirement of Q and U becomes final and the temporary director is legally appointed under the Private School Act (this dispute does not exist between the parties as to the legitimacy and validity of the above provisional director appointment disposition), since the right as a director of the ordinary business belongs to the temporary director, there is no room for recognizing the right to handle general affairs by analogy Article 691 of the Civil Act, and even if the temporary director later retires from his office, it cannot be accepted as a premise that the plaintiffs newly retired from his office at that time.

In addition, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 2, 6, and 8 as a whole, the notice of convening an emergency board at the time of the emergency board of directors held on October 29, 2015 was not given to the directors seven days prior to the holding of the board of directors stipulated in Article 17(3) of the Private School Act, N may recognize the fact that N did not participate in the emergency board of directors, and there are no special circumstances to deem that N did not interfere with N’s right to attend and the appropriate exercise of voting rights, the above emergency board of directors’ resolution is null and void (see, e.g., Supreme Court Decision 2014Da4451, Nov. 27, 2015). Accordingly, the second part of the plaintiffs’ second part that five persons, including the plaintiffs, were legally appointed as a director in the above emergency board of directors

E. Determination on the third ground for appeal

1) Whether a temporary director has the authority to appoint a director after the date

Article 25 (1) of the Private School Act provides that provisional directors shall be appointed through the deliberation of the Private School Dispute Mediation Committee at the request of an interested party or ex officio from the time when the approval of temporary directors is cancelled pursuant to Article 20-2 for the directors in excess of the quorum of the board of directors under Article 18 (1) (Article 25 (1)) due to the lack of the competent agency to fill the vacancy of the directors by the school juristic person (Article 18 (1)). In addition, where a school juristic person is unable to perform its functions due to the cancellation of the approval of taking office for the directors in excess of the quorum of the board of directors under Article 18 (1), it shall be interpreted as a provision in order to prevent the violation of the right of education by normalizing the school juristic person within the time limit to the temporary directors, and the provisional directors shall be appointed without delay under Article 25 (2) (Article 25 (3)).

In light of the basic rights of school juristic persons, the legislative purpose of the Private School Act, and Article 25 of the same Act, as special provisions for Article 63 of the Civil Act, have separate provisions for the reasons for appointment of temporary directors, duties, term of office, and restrictions on the appointment of regular directors, etc., provisional directors appointed by the Minister of Education under Article 25(1) of the Private School Act shall be temporarily interpreted as a crisis manager in charge of management in cases where the purpose of the school juristic person is not achieved or damage is likely to occur due to the vacancy of directors, and as a temporary director under the Civil Act, he/she has the same authority as regular directors, unlike temporary directors under the Civil Act. Therefore, it is reasonable to view that there is no authority to appoint regular directors (see, e.g., Supreme Court en banc Decision 2006Da19054, May 17, 2007). The previous Private School Act does not have any provision for the method of normalization of school juristic persons when the reasons for appointment of temporary directors is terminated, and the Plaintiffs have no authority to appoint them under Article 25-3 of the Private School Act.

2) Whether J is subject to normalization

The Defendant’s revocation of approval of taking office for all the above five of the above five directors on March 14, 2014 in the situation where the number of directors in JJ remains five (the Plaintiffs, V, W, and P). On October 16, 2015, the Seoul High Court revoked the above cancellation of approval of taking office for the Plaintiffs and V on December 28, 2017. The lower court’s judgment became final and conclusive on December 28, 2017, the Plaintiffs’ regular directors’ term of office expires on October 10, 31, 2015. The Defendant appointed the Plaintiff as a temporary director on February 2, 2019, and Q Q Q Q as a temporary director after the cancellation of the approval of taking office for the Plaintiffs and V on February 2, 2019. In so doing, the Defendant’s dismissal of the Plaintiffs, including the Plaintiffs’ temporary director under the Private School Act, did not have any authority to appoint the Plaintiffs’ temporary directors under the Private School Act after consultation with Q Q 2, and Q Q 3.

3. Conclusion

Therefore, the plaintiffs' claims of this case are without merit, and they are dismissed. It is so decided as per Disposition.