The Legal Character of Social Welfare Corporations And The Necessity of The Outside Director System

사회복지법인의 법적 성격과 외부이사제의 필요성 - 학설과 판례 분석을 중심으로 -

  • Received : 2015.09.09
  • Accepted : 2015.11.15
  • Published : 2015.11.30

Abstract

This article is aiming at finding the character of social welfare corporations and at finding whether the outside director system is constitutional or not. These two issues are closely interrelated with each other. After examining critically existing studies and precedents that have seen the character of social welfare corporations as public sector or private sector, the present study suggests the dualism that divides social welfare corporations into facility corporations and support corporations and that finds the character of facility corporations and support corporations respectively. According to the dualism, even if outside director system for the facility corporations restricts the right to manage the corporations the system is seen as being constitutional because the corporations are more likely to be public sector so that the principle of private autonomy would not be applied to them. While outside director system for the support corporations is seen as being unconstitutional because the corporations are more likely to be private sector so that the principle of private autonomy would be applied to them. So, this article suggests the amendment of Social Welfare Service Act through which the different character of the facility corporations and support corporations can be respected and the diversity of social welfare corporations and social welfare services can be realized.