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A Constitutional Study on the Private School Law- Especially of the ‘Sang-ji School Case’ of the Supreme of Korea -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2008, 40(), pp.143-179
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kyung-Keun Kang 1

1숭실대학교

Accredited

ABSTRACT

The Private School Law with other major legislations in the National Assembly, the so-called open school board system, with the aim of enhancing transparency in the management of private schools, stipulates that all private schools should fill a quarter of their board of directors with outside personnel recommended by parents and teachers. It would infringe upon the independence of private school foundations. At the center of the dispute is the open school board system, which requires all private schools to allow outsiders onto the board of trustees. The Supreme Court declared on May 17 in 2006 that such directors - who in this case were appointed by the Minister of Education in an emergency situation-are merely temporary managers not allowed to elect regular directors to the university's board. The ‘Sang-ji School Case’ presumes that the law runs counter to the spirit of the Constitution protecting the property rights of private foundations, by excessively restricting the autonomy of private schools, “they claimed in the petition. And such measures violate the private schools” rights to organize their boards of directors and operate their schools. The ruling was made by eight out of 13 justices on a plenary panel, which overturned a 1970 decision. In spite of the absence of a statutory provision regarding the issue either way, the majority opinion established the ruling by means of a holistic interpretation of the relevant provisions of the Private School Law. The case will be likely assessed as one of the best cases illustrating how to solve theoretical and interpretational issues in order to reach a conclusion judges deem appropriate. The case was brought by former directors of the university's board, who were ousted in 1993 by the Education Minister due to their involvement in illegal or other activities detrimental to the university, against the school as an incorporated entity for the reason that the school had elected new directors in 2003 by vote of the board, which was then solely composed of the government-appointed directors. The key issue was the temporary directors' authority to elect regular directors. The majority opinion regarded the temporary directors as “emergency managers” who were appointed to limited terms in an abnormal situation and who could not be appointed as “regular directors,” as stipulated by the Act. This finding went along with the profound understanding that the autonomy of the establishment and the founding principles of a school shall be protected as much as possible. On the other hand, the dissenting opinion didn`t find any difference in the Private School Law clear enough to distinguish the temporary directors from other temporary directors of incorporated entities (mostly appointed by courts) under the Civil Code, who have been granted the same full authority that regularly appointed directors have.

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