2016 Gohap104394 Demanding rectification

A school juristic person exclusive driving school

The Minister of Education

March 2, 2017

April 20, 2017

1. The Defendant’s corrective order against the Plaintiff on August 31, 2016 regarding any change in the articles of incorporation shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a Private School Act that performs a travel business, a private teaching institute, and a education center (educational services) for the purpose of cultivating professionals necessary for national development of society by teaching and researching professional knowledge and theories about unemployment based on the basic ideology of skills and education of the Republic of Korea.

B. Upon the resolution of the board of directors on 2016, 4, and 27, the Plaintiff amended part of the articles of incorporation as stated below, and reported to the Defendant on the amended articles of incorporation. On May 27, 2016, the Plaintiff received corrective orders from the Defendant as stated below’s opinion on review.

A person shall be appointed.

C. Accordingly, on June 28, 2016, the Plaintiff, following a resolution by the board of directors, amended Article 26 in accordance with the Defendant’s corrective order, and amended the amendment as stated in Articles 50 and 72 as follows (hereinafter “instant amendment”). On August 31, 2016, the Plaintiff received a corrective order (hereinafter “instant disposition”).

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Determination on this safety defense

The defendant asserts that the disposition of this case can not be considered as a disposition, etc. subject to administrative litigation by simple administrative guidance.

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18,

(2) When an educational foundation amends its articles of incorporation pursuant to paragraph (1), it shall submit the documents determined and publicly notified by the Minister of Education to the Minister of Education within 14 days with the approval of the Minister of Education. (3) The Minister of Education who has received a report pursuant to paragraph (2) may order the relevant educational foundation to correct or modify the amended matters within 30 days. (4) The educational foundation ordered pursuant to paragraph (3) to correct or modify the amendment without delay, and report the amendment to the Minister of Education to the Minister of Education.

Therefore, even if the plaintiff can amend the articles of incorporation through the resolution of the board of directors, he/she is ordered to correct or amend it without delay and report it to the Minister of Education. Thus, the defendant's order of correction or modification constitutes an administrative disposition under the public law of an administrative agency which directly affects the plaintiff's legal status, which is subject to appeal litigation.

The defendant's main defense is not acceptable.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that although the amendment of this case did not violate the law, the defendant's disposition of this case is unlawful.

B. Determination

However, Article 3 (2) of the Special Act on the Improvement of Teachers' Status and the Protection of Educational Activities provides that "school foundations and private school managers under Article 2 of the Private School Act shall maintain the level of remuneration for school teachers established and operated by them at the level of national or public school teachers." In addition, Article 70-2 (1) of the Private School Act provides that "school foundations or managers of private schools shall have an administrative organization necessary to deal with their affairs and the affairs of the schools they establish and operate, but the number, appointment, remuneration, service, and guarantee of status shall be determined by the articles of association in the case of school foundations or managers of private schools who are private schools, and in the case of managers of private schools who are individuals, it shall be determined by the articles of association in the case of managers of private schools, and in the case of managers of private schools, it shall be prescribed by the rules in the case of managers of private schools."

Therefore, as seen in the instant amendment, the provision of the articles of incorporation that the chief director or the president delegated by him/her shall determine the remuneration for the teachers and staff of a private school shall not immediately violate the said Acts and subordinate statutes. However, as seen earlier, the Defendant’s change in order to issue an order for correction or modification of the Plaintiff’s modification of the articles of incorporation requires “violation of the Acts and subordinate statutes” (Article 45(3) of the Private School Act). Therefore, the instant disposition is unlawful as it does not recognize

4. Conclusion

The plaintiff's claim is justified and accepted.

The presiding judge and the associate judge;

Judges Yang Ho-young

Judges Park Jong-young