1. A person who intends to obtain permission for the establishment of a school juristic person

Teachers' Appeals Review Committee (Law Firm, Attorneys Park Gam-young, Counsel for defendant-appellant)

Defendant Intervenor 1 and two others (Law Firm Han-chul, Attorneys Kim Yong-ho et al., Counsel for the defendant-appellant)

March 15, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

On June 7, 2010, the Defendant’s decision as to the claim for nullification of a new appointment revocation disposition between the Plaintiff and the Intervenor 2 (Supreme Court and the Intervenor 2) and the Defendant’s Intervenor 2 (the Defendant’s Intervenor 2), and each decision as to the claim for nullification of a new appointment revocation disposition between the Defendant 1 and the Defendant 1, is revoked.

1. Details of the disposition;

A. The Plaintiff is a school foundation that was established on July 16, 1997 and operates ○ University.

B. On September 1, 2008, the Intervenor joining the Defendant (hereinafter “ Intervenor”) was appointed as a full-time lecturer at ○○ University Social Welfare Department, and the Intervenor 2 was appointed as a full-time lecturer, respectively.

C. On March 9, 2010, the Plaintiff issued a notice to revoke the appointment of the Intervenor on the ground that the Plaintiff’s provision of the Plaintiff’s articles of incorporation and the provision on the personnel management of ○ University faculty members shall be appointed by the president upon the recommendation of the principal of the school. However, the Intervenor was appointed through the resolution of the board of directors without the recommendation of Nonparty 1 (Non-Party to the Judgment of the Supreme Court) who was the president of ○ University at the time of appointment, and each new appointment for the Intervenor is invalid due to any significant procedural defect (hereinafter “instant cancellation disposition”).

D. On March 19, 2010, the intervenors filed a petition review with the Defendant on the revocation of appointment. On June 7, 2010, the Defendant rendered a decision to confirm the invalidation of the revocation of appointment (hereinafter “each of the instant decisions”) on the following grounds.

According to the fourth meeting minutes of the board of directors, “The board of directors appears to have passed a resolution on new appointment for intervenors at the time of receipt of the proposal from the president of ○ University at the time of the resolution of the board of directors, and even if there was no proposal for appointment from the president of ○ University, as alleged by the Plaintiff, insofar as the chief director, who was the appointing authority, appointed the intervenors following a resolution of the board of directors, such procedural defect cannot be deemed as serious as having been deemed null and void, and rather, such procedural defect is merely a defect made by the Plaintiff and thus cannot be held liable to the intervenors.”

[Ground of recognition] Facts without dispute, Gap evidence 1-1 and 2, the purport of the whole pleadings

2. Whether each of the decisions in this case is legitimate

A. The plaintiff's assertion

According to Article 35(3) of the Plaintiff’s Articles of Incorporation and Article 11 of the Regulations on the Personnel Management of Teaching Staff, ○ University’s faculty members shall be appointed by the president upon the recommendation of the principal of the school. However, Nonparty 1, the president of ○ University, who was under criminal detention, did not request the board of directors to appoint an intervenor, and Nonparty 2, the president of ○ University, who was submitted to the fourth meeting of the board of directors in the year 2008, submitted a new appointment resolution by the Intervenor, is merely an arbitrary proposal for the appointment of a faculty member in the name of Nonparty 2

Therefore, the intervenors are only appointed by the resolution of the board of directors without Nonparty 1’s proposal at the time of appointment. As such, each new appointment for the Intervenor is null and void due to a serious procedural defect, and solely on the ground that such defect was made on the part of the Plaintiff, it cannot be converted into a legitimate act or the defect cannot be cured. Accordingly, each of the instant orders issued by the Defendant on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On August 29, 2008, the Plaintiff’s board of directors held the fourth meeting in the year 2008 with six of the seven total directors (non-party 3 and non-party 4, 5, 6, 7, and 8 of the president and directors) and resolved on the agenda for appointment of ○ University teachers including one full-time lecturer from the intervenors and one other.

2) At the fourth meeting of the board of directors in 2008, the deliberations on the agenda, such as teacher dismissal, are as follows:

○ Deliberation on agenda items for the full-time teachers of ○ University

The Speaker declares the opening of the meeting by ascertaining that six of all the seven directors have attended.

After the head of ○○ University received a written request for the exemption from teachers (hereinafter referred to as the “written request”) from the Head of ○○ University, the Chairperson explains the appointment of a full-time lecturer, appointment of a full-time lecturer, appointment of a full-time lecturer to two full-time instructors, and dismissal of a member.

The six members present shall examine the above agenda by 30 minutes, and then pass a resolution on the agenda with the consent of all the members.

○ Deliberation on agenda items for annual appointment of the president of ○ University

After the chairperson reports that the term of office of the president of ○ University non-party 1 expires on August 31, 2008, he/she shall pass a resolution on the reappointment agenda of non-party 1 president with the consent of all six attending directors.

3) On September 1, 2008, the Plaintiff entered into a contract with the Intervenor to appoint the Intervenor 2 as a full-time lecturer with the practical music division and the Intervenor 1 as a full-time lecturer with the social welfare division by setting the contract period from September 1, 2008 to August 31, 2009.

4) Since then, pursuant to Article 54(1) of the Private School Act and Article 23(1)2 of the Enforcement Decree of the same Act, the Plaintiff reported new appointment to the Korean University Education Council, which is the competent agency, along with a copy of the instant proposal.

5) Meanwhile, at the time, Nonparty 1, the president of ○ University, was detained in criminal cases from June 18, 2008 to December 1, 2008. At the time, Nonparty 3, the president of ○ University, and Nonparty 2, the president of ○ University, and the president of ○ University, are children of Nonparty 1.

6) The Intervenor continued to work as a full-time lecturer on September 1, 2009 and served as a full-time lecturer at ○ University from September 1, 2008, and continued to work as a full-time lecturer from September 1, 2009 to March 1, 2010 without any particular circumstance, and was paid directly by Nonparty 1’s head.

7) However, on March 9, 2010, the Plaintiff issued a disposition revoking the appointment of the instant case on the ground that Nonparty 1 was appointed without Nonparty 1’s proposal at the time of the said new appointment.

8) On the other hand, Nonparty 2 retired on January 14, 2010.

[Ground of recognition] Facts without dispute, Gap 3, 4 evidence, Eul 1, 6, 8, 11, 15 evidence, Eul 4 and 5 evidence, Eul 1 through 4, Eul 10-1 through 4, and the purport of the whole pleadings

D. Determination

Article 53-2 (1) 1 of the Private School Act provides that teachers of a school shall be appointed and dismissed by the relevant school juristic person or private school manager, but appointment and dismissal of teachers of a private school established and operated by school juristic person or private school manager of a private school shall be subject to a resolution by the board of directors on the recommendation of the head of the relevant school. Since the above provision aims to ensure the appropriateness of appointment and dismissal of teachers by allowing the head of the school and the board of directors to participate in the appointment and dismissal of teachers of the school juristic person or private school manager, it is reasonable to deem that the appointment and dismissal of teachers of school juristic person or private school manager without such procedure is null and void (see Supreme Court Decision 2005Da4

According to the above facts, at the time of the above new appointment of the Intervenor, the Plaintiff’s board of directors reported to the board of directors that the proposal of this case was received in the name of the president of ○○ University, and passed a resolution on the new appointment of the Intervenor, and the Plaintiff reported to the competent agency along with a copy of the proposal of this case. Accordingly, there is no evidence to prove that the proposal of this case was voluntarily prepared by Nonparty 2 against the will of the president of ○○ University at the time of appointment of the Intervenor, and the Intervenor did not raise any objection against the appointment of the Intervenor during the period of one year and six months after the appointment of the Intervenor. In full view of all the circumstances, it is reasonable to deem that the Intervenor was appointed by the president upon the recommendation of the board of directors according to the recommendation of Nonparty 1 at the time of appointment of the Intervenor.

Therefore, the Plaintiff’s revocation of appointment for the Intervenor based on the premise that ○ University president’s proposal was not made, was unlawful since the Plaintiff’s revocation of appointment for the Intervenor was a serious defect without any grounds for revocation. Accordingly, each of the instant decisions by the Defendant on the ground of the foregoing defect is lawful.

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.

[Attachment Form 5]

Judges Cho Il-young (Presiding Judge) Kim Jong-san Kim Tae