사립학교법상 임시이사제도의 법적 성격

Abstract

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(Temporary) directors to form a temporary board of directors and run the school(Private Schools Act, Article 25). But Private Schools Act had no article on the normalization of the private school foundation. So the appointment of directors by Government-nominated directors(Temporary Board) had been a serious legal issue. The Supreme Court of Korea 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(2006Da19504, May 17, 2007, about the Sang-Ji University), because the authority or status of an Temporary Board 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. The court also ruled that the director just before the appointment of the first extraordinary director had the authority to appoint his successor. 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." But this reasoning is adequately applied only if the school foundation and the school are treated as private property. It is a 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. The Private Schools Act provides that the act of a contribution should be the act of a donation. The judgements of The Court have the consequences as follows: The 2005 Private Schools Act was expected to improve transparency in school management and prevent abuse of power by school owners. But The National Assembly passed the re-reform bill of the Private Schools Act at 3 July 2007, despite strong opposition from The Left which attempted to block the legislation. But the 2007 Act do not apply the last successive director any legal status, because the Committee which appointed by the recommendation by the Parliament, President and the supreme court decided the normalization of the private school foundation. The man who nurtures sound citizens and realizes the ideology of hongikingan(meaning “broadly benefiting all-mankind”) should become the director of the school foundation.