임기가 만료된 학교법인 임시이사의 선임취소를 구하는 소의 이익

Article 12 of the 「Administrative Litigation Act」 is understood to stipulate the standing to sue in the first sentence and the benefit of lawsuit in the second sentence, despite the title of ‘Standing to Sue.’ Although the precedent basically understands the first and second sentences of Article 12 of the 「Administrative Litigation Act」 in a uniform manner, it has gradually expanded the scope of recognition of the benefit of lawsuit. The Subject Judgment(Supreme Court en banc Decision 2006Du19297 Decided July 19, 2007) suggests that even when the effect of an administrative disposition has lapsed, it is necessary to recognize the benefit of lawsuit in order to secure the legality of the administration, the judicial control of the administration, and the expansion of the relief of the public’s right, such as ‘when there is a risk that an illegal administrative decision may be repeated for the same reason as the administrative disposition between the same litigants, and it is necessary to confirm the unlawfulness of the administrative disposition or clarify any unclear legal issues, etc.’ Based on this, it can be observed that the precedent, unlike in the past, understands the function of revocation suit from an objective litigation perspective. The purpose of the Subject Judgment was further expanded and reinforced by the Comparative Judgment. The Comparative Judgment(Supreme Court Decision 2020Du30450 Decided December 24, 2020) clarified that the purpose of expanding the scope of recognition of the benefit of lawsuit is not bound by the circumstances presented in the Subject Judgment, but lies in the necessity to confirm the illegality of an administrative disposition or clarify an unclear legal issue. Through this, it can be evaluated that the awareness of the objective litigation function of revocation suit has been further enhanced. As an institutional device for the normal operation of school foundation, the appointment system of provisional directors under the 「Private School Act」 and the right of measure for urgency of former directors in analogy to Article 691 of the 「Civil Act」 can be cited. Among these, although the appointment system of provisional directors is an important institutional device to enhance the public nature of private schools, but if an unfair provisional director system is established and maintained, it is necessary to correct it to establish the autonomy of private schools. Through the Subject Judgment, directors of a school foundation, whose appointments were revoked, were recognized to have the benefit of lawsuit, allowing them to seek cancellation of the revocation of their appointments and the appointment of a provisional director based on the right of measure for urgency. This recognition applies regardless of whether their term of office had expired before or after filing the lawsuit seeking cancellation of the revocation of their appointment and the subsequent appointment of a provisional director. By expanding the benefit of lawsuit in this way, it becomes possible to broaden the rights and remedies available to school foundation directors and seek practical resolution of disputes. It can be evaluated that a balance can be struck between enhancing the publicness of private schools through the appointment system of provisional directors and bolstering the autonomy of private schools through the right of measure for urgency of existing directors.