A Brake on the Government’s Excessive Intervention

Korea’s high court ruled yesterday that the decision of provisional directors designated by the Education Ministry to name official board of directors of Sangji University that had been in turmoil due to internal disputes was invalid. The court’s ruling puts the brakes on the government’s excessive supervision and intervention into private schools.

Despite the cause of rectifying the wrongs of private universities that are in trouble due to corruption, the ruling implies that the government is not allowed to intervene too much to the point where it changes the purpose and the identity of the foundations it is attempting to reform.

The Process of the Case and the Ruling-

Sangji University had been run by its interim board of directors for over a decade since 1993 because its department of Traditional Herbal Medicine was eliminated, an instructor did not get tenure, and the chairman of the board of directors was imprisoned. But the unstable condition of the university evolved into a legal dispute in December 2003 when the interim directors voted to appoint official directors, thinking that the school had been normalized.

Former directors, including former chief director Kim Moon-gi, who resigned all together, filed a lawsuit claiming that the decision by the board of directors was invalid.

The point of the issue was whether former chief director Kim had the right to file a lawsuit against the board of directors over the decision and whether the interim directors have the right to name directors.

The trial court dismissed the case, claiming, “Even if there is a flaw in the decision of the board of directors, as the decision was made after the resignation of former directors and the expiration of their terms, they have no legal recourse.”

However, the appellate court sided with former chief director Kim, explaining, “The one-sided decision made by the interim directors to appoint official directors is expropriation without compensation, causes changes in the governance of the school foundation, and is turning a private institution into a public one.”

Korea’s highest court confirmed the original decision, saying, “The government’s supervision of the school foundation should be exercised within its limits as long as the school founder’s intentions can be respected.”

It added, “It is natural that a corrupt board of directors should be held responsible for their civil and criminal liabilities and be given administrative restrictions. However, if the effort to correct the wrongs goes too far and changes the identity of the school foundation, it can be unconstitutional.”

The Supreme Court avoided comment on Article 25 Clause 3 of the revised Private School Law, which talks about how to normalize a school foundation that has appointed temporary directors, explaining that the Constitutional Court will make the final decision on the case.

How Will it Proceed?-

Despite the Supreme Court’s ruling, former directors such as former chief director Kim Moon-gi cannot return to the board nor have the right to appoint directors.

As the ruling deprived the official directors of rights as designated by provisional directors in 2003, Sangji University will operate without a board of directors for a while.

The Ministry of Education and Human Resources Development can send temporary directors based on the opinion of former chief director Kim under Article 25 Clause 3 of the Private School Law. However, the Supreme Court’s ruling may sow seeds of conflict since the gap between the views of the two parties does not seem to be closing.

Moreover, the measures taken by the Education Ministry can be meaningless since the Constitutional Court is deliberating whether the law is constitutional. The National Assembly is discussing the revision of the law.

The highest Court did not decide whether the clause of the law is unconstitutional, clarifying, “By the time the school needs to nominate interim directors again, the ministry should follow general principles after considering all the effective clauses of Private School Law and Civil Law under the normalized conditions of the school.”

The ruling enabled former head director Kim and others to express their opinion when the government names temporary directors. But the clause is not legally binding so that the government is not required to reflect their opinion.

woogija@donga.com