학교 소송에 대한 교비지출의 횡령죄에 관한

• 영문명: The Study on Constituting Embezzlement in the Usage of the Private School Accounts for Lawsuits - Centered Around Precedents -
• 발행기관: 중앙대학교 법학연구원
• 저자명: 이재교(Lee, Jae Kyo)
• 간행물 정보: 『법학논문집』法學論文集 第43輯 第1號, 171~204쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.04.30

영문 초록

Although a lawsuit may arise directly related to the school, the school is a public institution, offering it no legal personality or party ability. All cases will be therefore proceeded with under the school foundation’s legal person, separating the actual and the legal party. In this case, it can be asked whether the legal costs (consultation fees, retainers, etc.) can be drawn from the school accounts legally. The Ministry of Education used to permit funds to be drawn from the school accounts regarding lawsuits related to the school’s duties despite the separation of the school accounts and the foundation accounts. However, a lower court ruling in 2012 June found that since the power of appointment/dismissal of faculties lay with the foundation, utilizing funds from the school accounts to fund cases regarding the legitimacy of such appointments/dismissals would amount to embezzlement. Ever since this case, lower courts have consistently found that using funds from the school accounts for cases regarding school faculty appointments/dismissals, actions for damages regarding decisions to not rehiring existing faculty members where the decision was made on illegal grounds, or cases regarding unpaid wages or severance pay for faculties would amount to embezzlement. Most recently, a ruling found that if funds were taken out from the school accounts to dispute a case regarding construction funds for a new schoolhouse, being built from the school account funds, if there was fault to be found regarding the dean, would amount to embezzlement. Funding lawsuits from the school accounts, as per guidance by the Ministry of Education, is seemingly being ruled as a serious crime of embezzlement. The first jurisprudence of embezzlement in such cases is that school accounts should only be used for instances directly related to education, and that a lawsuit is not directly related to education. However, as the scope of spending from the school accounts is defined in 󰡔the enforcement decree of the private school act󰡕and does not mention such restrictions, this logic is void. The second reasoning is that 󰡔the financial accounting rules of private institutions󰡕does not lay out grounds for funding lawsuits, and only mentions the school foundation in its expenditure budget criteria. However,󰡔the special rules for financial accounting rules of private school institutions,󰡕which takes precedence, lists lawsuit costs for both the school and the foundation, rendering this point also illogical. Furthermore, even if the wrongful behavior of the president while conducting his duties result in a lawsuit, if the duties are related to that of the schools’, the drawing of funds from the school accounts cannot constitute embezzlement. Although punishment or even action for damages can be made for the wrongful actions carried out during performance of the dean’s duties, this cannot in turn make lawful spending into embezzlement. Rulings in the lower court of embezzlement in such scenarios, resulting from misinterpretations of private school acts and subordinate statutes, gravely danger the stability of the law. Furthermore, looking at it from a criminal law decision making perspective, it seems illogical that a decision made by the Ministry of Education through numerous years of audit, inspection, and administrative guidance should one day be overturned and regarded as embezzlement. For these reasons, such decisions made in the lower courts should be overturned.

목차

Ⅰ. 문제의 제기

Ⅱ. 소송비 지출에 의한 교비횡령에 관한 하급심판결례

1. 1. 하급심판결례의 동향

2. 횡령죄 인정의 근거 정리

Ⅲ. 관계법령과 교육부의 행정

1. 사립학교법과 동시행령

2. 사립학교법시행령 제13조제2항에 대한 해석

3. 교육부의 행정

4. 소결

Ⅳ. 하급심판결의 당부

1. 소송비가 “교육에 직접 필요한 비용”이어야 하는가?

2. 󰡔사학기관재무․회계규칙󰡕에 의하면 교비에서 소송비 지출이 금지되는가?

3. 교직원임면은 학교법인의 권한(업무)이므로 이에 관한 소송비를 교비에서 지출할 수 없는가?

4. 분쟁의 원인제공자가 별도로 있을 경우 소송비를 교비에서 지출할 수 없는가?

5. 소결-학교 관련 소송의 비용 부담자

Ⅴ. 맺음말