부당적립 및 시설미비에 관한 사립대학 학교법인과 총장의 손해배상책임

The Ministry of Education of Korea has revised the Private School Act since 2011 to regulate reserve and carry-over funds. Also in 2018, the Supreme Court of Korea ruled that if the educational foundation unreasonably accumulated and operated reserves and carry-overs in violation of the Korean Private School Act, causing mental pain to students due to facility shortages at the institution, the foundation and the president should bear the compensation for damages. The educational foundation and the student sign the enrollment contract, and under the contract, the foundation is liable for non-performance of obligation if it does not discharge the contract, and liable for tort caused by the misconduct of the chairperson under Article 35 of the Korean Civil Act. Since the chairperson of the foundation is not a party to the enrollment contract, he/she is not liable for non-performance of obligations on the student, but if the tort liability of the foundation is established, the chairperson also bears the liability for damages under Article 35 of the Korean Civil Act. Likewise, since the university president is not a party to the enrollment contract, he/she is not liable for non-performance of obligations, but may liable for damages due to tort under Article 750 of the Korean Civil Act. However when handling the reserves, it is within the discretion of managerial judgement of the educational foundation, recognition of illegality should proceed with prudence. Although when the illegality is recognized, only the foundation and the chairperson should bear the liability for damages under Article 35 of the Korean Civil Act. The application of Article 750 of the Korean Civil Act to the university president with regard to reserve fund and such must be reexamined.