(영문) 서울행정법원 2015.9.17. 선고 2015구합57949 판결

1. On March 10, 2015, the Defendant’s disposition of rejection of approval for the appointment of a director against a school juristic person B as to March 10, 2015 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. When the former director C’s term of office has expired as of January 9, 2015, Nonparty B (hereinafter “Nonindicted School Foundation”) held a board of directors on November 25, 2014 to re-appoint C as a director and applied for approval of re-election on December 11, 2014 to the Defendant.

B. In addition, on January 6, 2015, the non-party educational foundation held a board of directors and re-appointed the Plaintiff, D, and E as a subsequent director of the former 8 director (Plaintiff, D, E, E, F, G, H, I, and J) whose term of office has already expired, and appointed a new director, and applied for the approval of the appointment of the director to the Defendant on January 14, 2015.

C. On March 10, 2015, the Defendant approved the appointment of five new directors (K, L, M, N, andO) from among the above applicants. However, the Defendant’s application for approval of four previous directors (Plaintiffs, D, E, and C) including the Plaintiff was rejected (hereinafter “instant disposition”). The reasons are as follows (hereinafter “previous disposition”).

- Grounds for consideration

P is being appointed as president of Qu University ( August 14, 2014) and may cause confusion in the school (hereinafter referred to as "grounds 1 for Disposition") in the situation where there are deepening the dissemination of public opinion by the president of the PP and the opposition by members in the school.

The Ministry of Education did not make positive efforts to normalize universities by claiming that it is an act of deprived of autonomy in private school operations against the request for the normalization plan of the Ministry of Education (2014.10, 13.). The parties to a resolution passed by the board of directors on the above matters, which have not been submitted a detailed normalization plan, such as a P individual property contribution plan, until now (hereinafter referred to as "disposition 2").

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The defendant's assertion

On November 4, 2014, a non-party school foundation held a board of directors to amend the articles of incorporation from R and seven non-party executives at the beginning of establishment as stated in the articles of incorporation to P and seven persons, and submitted a plan for school normalization (the result of gathering opinions from members in the school on the P's specific plan for contribution and development plan) that the Defendant requested to submit to October 21, 2014. This constitutes a ground for cancellation of approval of taking office as provided in Article 20-2 of the Private School Act, which constitutes a ground for cancellation of approval of taking office by asking the former director including the Plaintiff, there is no illegality that the Defendant’s rejection of the appointment by asking the responsibility to the former director including the Plaintiff (in the case of new directors, the appointment by the previous director was made by the reason for cancellation of approval, but the Defendant was not held liable in consideration of the fact that the Defendant was elected after the Defendant’s request for correction was implemented).

2) The plaintiff's assertion

First, it is unclear where the grounds for the disposition alleged by the defendant fall under any of the subparagraphs of Article 20-2(1) of the Private School Act, and there is no fact that the plaintiff attended the board of directors where the relevant agenda was resolved.Second, the fact that there are many opposing opinions in appointing P as president is nothing more than the defendant's trend, and even if appointing P as president, it does not cause a serious obstacle to operating the school. Third, the issue of the amendment of illegal articles is not a matter that the defendant used as the grounds for the original disposition, the amendment of the articles of incorporation of the school foundation is not a matter that the school foundation is merely a matter that the defendant had taken as the grounds for the original disposition, and the non-party school foundation has already accepted the defendant's request for correction at the board of directors present at the meeting of the plaintiff.Fourth, the request for the formulation of a plan for normal schoolization under the premise that the individual (P) contribution was made to the non-party school foundation is beyond the legitimate scope of the request for correction.Fifth, even if the defendant's assertion

B. Relevant statutes

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

C. Determination

1) Whether there are grounds for the previous disposition

A) Relevant legal principles

The approval of taking office of an officer of a school foundation under Article 20 (2) of the Private School Act is a supplementary administrative act that serves the legal effect by supplementing the appointment of an officer of a school foundation. The purport of the above provision is to exclude the appointment of an officer who is subject to the grounds for restrictions such as the grounds for disqualification of an officer under Article 22 of the Private School Act. Thus, the competent agency must approve the application for taking office, and shall not refuse such approval for other reasons (see, e.g., Supreme Court Decision 92Nu5461, Sept. 22, 1992): Provided, That the competent agency bears the burden of proving that the appointed officer can refuse the application for taking office even if the reasons under Article 20-2 of the Private School Act exist, such as improper execution of school expenses and nonperformance thereof, at the time of the appointment of an officer (see, e.g., Supreme Court Decision 200-2, Dec. 27, 2007).

(B) 1 - The appointment of the president of P

On the other hand, the defendant asserts that this part of the grounds for disposition has spreaded the dissenting opinion on the return of the P former Director, and that there has been deepening the opposition of the members in the school, and that in such a situation, the appointment of P as president has caused confusion in the school. In fact, there is no proof of the dissenting opinion as above, and that there is a fact that there has been a serious obstacle to the operation of the school. Moreover, the fact that the former director appointed P as the president does not constitute a reason for revoking the approval of the appointment of executive officers.

Therefore, this part of the grounds for disposition cannot be recognized as grounds for disposition that support the legality of the instant disposition.

C) 2 - A plan for school normalization

On the other hand, the defendant does not present the basis for the Private School Act or the Higher Education Act to request the non-party school juristic person to establish a plan for school normalization which is based on the premise that the person related to the school contributes the death of the person related to the school. If the person related to the school does not accept the above request, it cannot be said that the board of directors or the officers have the authority to enforce the above request. Therefore, no legal basis exists to deem that the defendant can cancel the approval for the appointment of the officer. Therefore, this part of the disposition cannot be recognized as legitimate.

2) In an appeal litigation seeking the revocation of an amendment of the articles of incorporation, a disposition agency may add or alter other grounds only to the extent that the basic factual relations between the grounds for the original disposition and the grounds for the original disposition are recognized to be identical. The existence of the basic factual relations here is determined based on whether the grounds for disposition are identical in the basic social factual relations in light of the basic facts, which are the basis before legally assessed the grounds for disposition. Thus, if there is no such identity, the additional or modified grounds did not specify the grounds when the initial disposition was made, and even if the parties were to know that they had already existed at the time of the initial disposition, it cannot be said that they are identical to the original grounds for disposition (see, e.g., Supreme Court Decision 2009Du19021, Nov. 24, 2011).

On the other hand, the issue of amendment of the articles of incorporation of the non-party educational foundation, which the Defendant only cited as one of the grounds for disposition after the filing of the lawsuit in this case, was the case where the Defendant did not completely mention at the time of the disposition in this case, and the basic facts do not coincide with the above grounds for disposition 1, 2, and thus, it is not allowed to add the grounds

Therefore, this part of the defendant's assertion is without merit.

(iii)Indivates

Ultimately, the instant disposition cannot be recognized as a legitimate ground for disposition, and thus, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.