사립대학의 경영분규에 대한 국가 개입권의 한계 - 사립학교법상의 임시이사가 선임된 학교법인의 정상화 방안을 중심으로 -

The purpose of this writing is to cast light on the legal rights of trustees and founders of incorporated educational private institutions involved in complications in the normalization process of those troubled institutions. Article 31 (4) of the Korean Constitution provides that independence, professionalism, and political impartiality of education and the autonomy of institutions of higher learning shall be guaranteed under the conditions as prescribed by act. Concerning infringement of the autonomy of institutions of higher education, one of the most important problem is the abuse of education administration. Discussing the autonomy of private institution of higher learning, we must keep two points of view in mind. One is a standpoint of applying to campus disputes of private institutions the principle of private autonomy of which center the freedom of contract is. The other is a perspective that how we should understand the establishment of private institutions, which provides the key to the solution of campus strives. Campus troubles are symptoms that arise when the separation of powers is applied in the university. Separation of powers within the university is important not merely because it allows the university to achieve its goals and to be consistent with its mission. Rather, in a sense, separation of powers is the mission of the university, providing time and space for the free inquiry of new ideas. Many modern universities have extraordinarily complicated and muddled systems of internal governance. However a system of internal governance based upon a separation of powers avoids ad hoc administration and the frequent legalistic wrangling that accompanies it. In Korea, the measures prescribed in the article 20-2(revocation of approval of officer's taking office) and article 25(appointment of temporary director) of private school act are mostly used for government intervention. If those measures are combined with a mean stipulated in the article 25-3 of private school act(normalization of school juristic person for which temporary directors are selected and appointed), it may be possible for the nation to socialize the private institutions, which is unconstitutional. The result of Dartmouth College signaled the beginning of the contemporary regime of charitable regulation in American law. Despite the academic infighting, the substantive importance of the case was the constitutionality of state legislative amendments to corporate charters. The U.S. Supreme Court held that the New Hampshire legislative amendments are unconstitutional in violation of the Contract Clause of the U.S. Constitution. The result of Dartmouth College signaled the beginning of the contemporary regime of charitable regulation in American law. The Dartmouth Court has great implications for us.