행정기본법 하에서의 학교법인 임원취임승인 거부사유 해석

Abstract

Executives of a school foundation that establishes and operates private schools takes office with the approval of the competent agency. The Supreme Court stated that “approval of the appointment of executives is a binding act, and a supplementary administrative act that supplements the act of appointing an executive of a school foundation and therefore the act completes the legal effect of the appointment of executives,” This precedent is revealing that refusing the approval of the appointment of an executive without a legal basis should not be allowed(Supreme Court Decision 92nu5461, Sept. 22, 1992). Later on, however, the Supreme Court states that not only the grounds for disqualification stipulated under Article 22 of the Private School Act can be applied as grounds for refusal of approval of appointment, but also the grounds for revocation of approval of appointment stipulated in Article 20-2 (1) of the Private School Act can be applied as grounds for refusing approval of appointment(Supreme Court Decision 2005du9651, Dec. 27, 2007). Furthermore, the Supreme Court ruled that even for reasons not specified in the law, approval may be refused “when there is a significant need for public interest, such as when the purpose of the school foundation cannot be achieved or there is apprehension that damage may occur” (Supreme Court Decision 2010do8871, Oct. 25, 2012). As a result, until recently, there has been cases in which the competent agency refused to approve the appointment of executives for reasons not specified in the law, and the main issue arising in related administrative litigation is whether such refusal can be seen as a refusal due to serious public interests. Nevertheless, in light of the precedents and the legal nature of the system for approving the appointment of executives, it is desirable to view that the approval of appointment of an executive should not be refused for reasons without legal grounds in accordance with the main purport of Supreme Court Decision 92Nu5461, Sep. 22, 1992. In addition, considering that the legalism of grounds for disqualification should be more emphasized due to the enforcement of Article 16 of the General Act On Public Administration, it is reasonable to limit the reason for refusing to approve the appointment of an executive officer of a private school to the grounds specified in Article 22 of the Private School Act. Moreover, if there is a realistic need to refuse approval of appointment for reasons not specified in Article 22 of the current Private School Act, this should be resolved legislatively through sufficient discussion at the National Assembly.