학교법인의 정상화에 관한 종전이사의 이해관련성

Abstract

According to the Private Schools Act, the Private Schools Dispute Mediation Committee(referred to as “the PSDMC” hereinafter) has the power to appoint or displace the government- appointed temporary director and to appoint the regular director for the normalization of the school foundation with the temporary director. However, the Act has no regulation on who is qualified for a regular director or who has the authority to recommend the candidates. That is why there has been a hot debate whether the last regular director who had been legally appointed and retired before the appointment of temporary directors(referred to as “the ex-director” hereinafter), can be a regular director or recommend one. Some theorists insist that the ex-director should become a regular director or at least have the right to recommend two-thirds of total regular directors. Their arguments are based on a firm premise that the Sangji University case(2007Da19054) in which the Supreme Court recognized the legal interests of the ex-director has been still in force. To the contrary, others are maintaining that the ex-director, if the governmental approval for his/her directorship had been withdrawn, should be disqualified for a regular director in the process of the normalization of the school foundation. The purpose of this article is to compare these opposing arguments in a critical perspective, and to demonstrate that the ex-director could never have the legal interests in the process of the normalization of the school foundation. Moreover based on this discourse, I would suggest a good criterion of the deliberation by the PSDMC for the normalization of the school foundation, and would set the limits of its power based on the director’s duty of precaution as a good manager on the one hand, and on my own coherent theory that the identity of the school foundation is not maintained by directors, but by the articles of incorporation.