(판례분석) 사립학교법상 임시이사의 정이사 선임권 / 임재홍

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[국문주제어]

학교법인, 사립학교법, 임시이사

Appointment power of directors by Government-nominated directors

― Critical comment on Judgment 2004Na30776 of the Seoul High Court ―

Lim, Chae-Hong

Professor, Yeungnam University

The Seoul High Court nullified director appointments made by such a temporary board of directors, which had been dispatched to a private college in the case of Sang-Ji University.

In Korea, if a board of directors of a private school fails to fill a vacancy in the directorate, and, therefore, is deemed incapable of running the school properly, the Ministry of Education can dispatch government-nominated directors to form a temporary board of directors and run the school(Private Schools Act, Article 25, Act No. 7354, January 27, 2005).

In our society, the conflict around private schools has been triggered by two different perspectives: private school as a contributor’s private property on one hand and as a material means for public education on the other. The Seoul High Court’s judgment gave up its objective and neutral standing by recklessly accepting the contributor’s stakes.

The Seoul High Court infinitely expanded the spheres of the private schools’ basic rights, such as the right to educate, the right to pursue happiness, the right of equality, freedom of occupations, academic freedom, and the right of private property. This expansion of the school foundation’s basic rights leads to a ban on deprivation of the foundation’s property right through article 37(2) of the Constitution, which deals with the ban on infringement of essential aspect.

In order to deduce this prohibition of infringement on a right of private property, the court conducted excessive theoretical demonstrations on the nature of the trustee system. In other words, “the essence of the trustee system is that the purpose of founding a school, guaranteed by a director who is appointed by the founder, as well as the successive director, who is appointed by the former director, should be permanently maintained.”

Ironically, this point of view concludes that business interruption caused by the unlawful admission practice by the former board does not become an impediment to fulfilling the founding principles of the school, but an appointment of a director by an extraordinary board of directors does.

It is very unlawful deduction if the court assumed a specific person(i. e. a contributor or a director in chief who is a contributor) to be the subject of the right to manage and his right to manage to be deprived.

The High Court seems to have decided that an appointment of a director by an extraordinary board of directors was null because the authority or status of an extraordinary director is limited compared to the full director. Consequently, an appointment of a director by the extraordinary board of directors was a resolution beyond their authority.

But this reasoning is adequately applied only if the school foundation and the school are treated as private property. And there is no need for the curtailed interpretation that an extraordinary director’s authority is limited compared to a full director in terms of ownership of property.

[Key Words]

school foundation, Private Schools Act, Government-nominated director