[2] Whether a private school teacher may file a claim to revoke the decision of the Teachers Disciplinary Review Committee on grounds of illegality regarding disciplinary action against a teacher who did not claim in the procedures for teacher disciplinary action (affirmative)

[2] In light of the fact that the review decision of the Teachers Disciplinary Disciplinary Review Committee has a function similar to that of the decision as an administrative appeal against an administrative disposition, if, in the case of a private school teacher, the illegal cause which was not asserted in the review procedure cannot be disputed in the administrative litigation, in the case of a national or public school teacher, it brings about a significant disadvantage in comparison with the fact that the ground for illegality of the original disciplinary action which was not asserted in the administrative litigation against the original disciplinary action can be disputed in the administrative litigation against the original disciplinary action. This is extremely contrary to the legislative purport that the Special Act on the Improvement of Teachers' Status allows a private school teacher to request a review to the Educational Disciplinary Review Committee established in the Ministry of Education like a national or public school teacher, so even in the case of a private school teacher, the revocation of the decision of the Teachers Disciplinary Review Committee may be claimed

2. The costs of lawsuit shall be borne by the defendant.

The following facts do not conflict between the parties, or there is no counter-proof in light of the whole purport of the pleadings in the descriptions of Gap evidence 1-1, 2, 2, 2-3, 4-1, 2, 5-1, 2, 6-1, 6, and 1-1.

A. Nonparty 1’s educational foundation (hereinafter “Non-Party 1”) is an educational foundation that establishes and operates (name omitted), (name omitted), junior college, and (name omitted), and the Plaintiff has served as an assistant professor on April 1, 1995 after being appointed as the above (name omitted), junior college, early childhood education, and full-time lecturer from September 1, 1991.

B. However, the non-party educational foundation violated the duty of good faith as a teacher, such as ① the Plaintiff’s voluntary participation in the entire faculty conference held on April 6, 1996 and the entire faculty conference held on the 10th of the same month. ② On the Plaintiff’s application for permission of overseas travel from July 1, 1996 to July 26, 196, the non-party educational foundation violated the duty to obey the said permission of overseas travel by voluntarily reducing the number of school personnel (from July 22, 1996 to July 26, 1996) on the ground that (i) the Plaintiff’s application for permission of overseas travel from July 1, 1996 to July 26, 196, and (ii) the Plaintiff violated the duty to comply with the disciplinary action of the non-party educational foundation (hereinafter “the Plaintiff’s disciplinary committee”) according to the resolution of the relevant disciplinary committee, on September 17, 1996.

C. Accordingly, the Plaintiff asserted that the instant disciplinary action was unfair and filed a petition for a retrial seeking the revocation of the said disciplinary action against the Defendant. The Defendant rendered a decision to change the Plaintiff’s disposition of suspension from office for three months on December 2, 1996 and the Plaintiff’s disposition of suspension from office for three months on September 30, 196 against the Plaintiff of Nonparty Educational Foundation to the effect that, despite the fact that the Plaintiff was not present without permission and the Plaintiff’s failure to comply with the order to refuse overseas travel and to participate in the training of the teachers and staff, it is difficult to deem that the Plaintiff’s failure to participate in the two times of the total number of faculty meetings was a severe disciplinary ground. In light of the fact that the Plaintiff’s overseas travel purpose was not a tourism, the Plaintiff’s error did not reach the degree of the disposition of suspension from office for three months on the ground that the disposition of suspension from office for the Plaintiff of Nonparty Educational Foundation was changed to the disposition of reduction of three months

2. Whether the decision on retrial of this case is legitimate

A. The parties' assertion

피고는 이 사건 재심결정은 적절한 사실인정 및 관계 법령에 따라 적법하게 이루어진 것이라고 주장함에 대하여, 원고는, ① 사립학교법 제62조 제2항 에 의하면 교원징계위원회는 5인 이상 9인 이하의 위원으로 구성하되 그 위원은 당해 학교의 교원 또는 학교법인의 이사 중에서 임명하고 다만, 학교법인의 경우 당해 학교법인의 이사인 위원의 수가 위원의 2분의 1을 초과할 수 없다고 규정하며 이 경우 당해 학교의 교원은 징계대상자가 소속되어 있는 학교의 교원만을 의미하고, 같은 학교법인이 운영하는 다른 학교의 교원은 포함되지 않는다 할 것인바, 이 사건 징계위원회는 그 위원 5인 중 원고가 소속되어 있는 당해 학교의 교원은 1인뿐이고 나머지 2인은 (이름 생략)대학교 교수, 1인은 (이름 생략)고등학교 교사, 나머지 1인은 소외 학교법인 이사로서, 이 사건 징계위원회의 위원 중 과반수에 달하는 3인이 원고가 소속되지 아니한 학교의 교원으로 구성되어 있어 처음부터 그 징계위원회의 구성이 위법하고, ② 사립학교법 제66조 제2항 에 의하면 임명권자는 7일 이내에 징계의결 내용에 따른 징계처분을 하여야 하고, 이 경우 그 사유를 기재한 결정서를 당해 교원에게 교부하여야 한다고 규정하고 있는바, 원고는 위 징계의결일로부터 13일 이상이 경과하여 위 결정서를 통지받았으므로 이는 위 법조항을 위반한 위법이 있으며, ③ 소외 학교법인은 원고에 대하여 중징계에 해당하는 정직처분을 함에 있어서 그 정직이 시작된다는 날의 바로 전날인 1996. 9. 30.에야 징계사유를 기재한 결정서를 원고에게 교부함으로써, 원고에 대하여 재심청구나 소송 등 이의제기를 위한 자료 수집, 강의 계획 조정, 학생들에 대한 연락 등 사전에 정직처분에 대비할 수 있는 여유를 주지 않은 기습적인 징계처분을 단행하였는바, 이는 신의칙에 반하고, ④ 이 사건 징계의결요구서에, 성실의무 위반의 내용으로 "평소 교수회의 등에 불참횟수가 많아"라고만 추상적으로 명시하여 원고가 불참하였다는 교수회의의 구체적 일시를 특정하지 않아 원고가 적절한 방어방법을 강구할 기회를 주지 않았는바, 이는 징계 해당자의 진술권을 보장한 사립학교법 제65조 의 규정을 위반한 위법이 있으며, ⑤ 교원지위향상을위한특별법 제9조 에 의하면 교원이 징계처분 등에 대하여 불복이 있을 때에는 처분을 안 날로부터 30일 이내에 재심위원회에 재심을 청구할 수 있도록 규정되어 있음에도 소외 학교법인은 원고에게 10일 이내에 재심청구를 할 수 있다는 취지로 기재된 징계처분사유설명서를 교부함으로써 징계절차상의 설명의무에 위반한 위법이 있고, ⑥ 원고가 불참하였다는 1996. 4. 6.자 및 같은 달 10.자 각 전체교수회는 순수한 교육목적의 회의가 아니고 소외 학교법인의 실질적인 경영자인 소외 2의 국회의원 선거운동을 위한 모임으로서 원고는 교수로서의 양심을 지켜 정치운동 금지의 복무규정에 따라 위 회의에 참석하지 않은 것이므로 이는 성실의무 위반 또는 사립학교법 제61조 에 정한 교원의 징계사유 중 어느 것에도 해당되지 아니하며, 해외어학연수의 경우에 관하여는, 원고가 학장으로부터 학교연수에 지장이 없는 범위 내에서 날짜를 조정하여 해외연수를 가라는 지시를 받았는데 그 뒤 여행사에 문의한 결과 날짜를 앞당겨 귀국할 수 있도록 조치를 취해 준다는 말을 듣고서 학장을 만나 허락을 구하려 하였으나 학장이 해외여행 중이어서 그 허락을 받지 못하였고, 이에 여행사에 어학연수계획 취소를 요청하였으나 취소가 불가능하다는 통보를 받고 모처럼의 해외어학연수기회가 아깝고 연수비용으로 이미 지급한 금 330만 원을 포기하기가 너무 아까워서 부득이 해외어학연수를 떠나게 된 사정 등 원고가 되도록 학교측의 의사에 따르려고 상당히 노력한 점에 비추어 보면 원고에게 복종의무위반으로 징계책임을 물을 수 없다고 할 것이므로, 원고에게 징계혐의사실을 인정한 이 사건 징계처분은 사실을 오인한 위법이 있으며, ⑦ 가사, 원고에게 위와 같은 징계사유가 인정된다 하더라도 그 비위정도가 비교적 경미한 것임에 비추어 볼 때 그에 대한 감봉 3개월의 징계처분은 원고가 1991. 9. 1. 전임강사로 임용된 이래 소외 학교법인에서 6년 이상 교수로서 활동해 온 원고의 신분을 사실상 박탈하는 것과 같고 나아가 재임용탈락은 물론 타학교에의 취업마저도 사실상 불가능하게 만든다는 점, 이 사건 징계처분이 원고가 소외 학교법인의 경영자인 소외 2의 선거운동에 비협조적이었다는 점을 트집잡아 보복적으로 이루어진 것으로 보이는 점 등에 비추어 보면, 위 징계처분은 그 위반의 정도에 비하여 원고에게 미치는 불이익이 너무나 가혹하여 재량권의 범위를 일탈하거나 남용한 위법이 있고 따라서 이 사건 징계처분에는 징계절차의 위법, 징계사유에 관한 사실오인, 또는 징계양정의 위법이 있었으므로 피고는 이 사건 징계처분에 대한 재심결정을 함에 있어서는 마땅히 이를 취소하여야 함에도 불구하고 이를 간과한 채 감봉 3월의 처분으로 변경함에 그친 위법이 있다고 주장한다.

B. Relevant statutes

Article 61 (1) of the Private School Act provides that if a teacher of a private school falls under any of the following subparagraphs, the person who is authorized to appoint and dismiss the relevant teacher shall make a request for disciplinary action according to the result of such disciplinary action, and if the teacher violates this Act and other Acts and subordinate statutes concerning education, the time the teacher violates his/her duties or neglects his/her duties in violation of such Acts and subordinate statutes, the type of disciplinary action under subparagraph 3 shall be removed, suspension from office, reduction of salary, and reprimand. Article 62 (1) of the Enforcement Decree of the Private School Act provides that the person who is authorized to appoint and dismiss the relevant school shall prepare a disciplinary case, and the person who is authorized to appoint and dismiss the relevant school shall, if so, issue a written request for disciplinary action to the head of the relevant school pursuant to Article 6 of the Enforcement Decree. Paragraph (2) of the same Article provides that the person who is authorized to appoint and dismiss the relevant school shall prepare a written request for disciplinary action, and the person who is authorized to appoint and dismiss the relevant school foundation or the relevant private school juristic person shall do so.

In addition, Article 7 (1) of the Special Act on the Improvement of Teachers' Status provides that a Review Committee shall be established in the Ministry of Education to review disciplinary action against school teachers of various levels and other unfavorable measures against their will. Article 9 (1) provides that where a teacher is dissatisfied with a disciplinary action or other unfavorable measures against his/her will, he/she may request a Review Committee to review within 30 days from the date he/she becomes aware of such disciplinary action or other measures, and Article 10 (1) provides that the Review Committee shall make a decision thereon within 60 days from the date of receipt of the request for review. Paragraph (2) of the same Article provides that the decision of the Review Committee shall bind the person entitled to disposition, and Paragraph (3) of the same Article provides that a teacher may file a lawsuit pursuant to the Administrative Litigation Act within 60 days from the date of receipt of the decision of the Review Committee, and Paragraph (4) provides that matters necessary for the review procedure, such as a request for review, review, decision, etc. shall be prescribed by Presidential Decree. Article 11 (2) of the Review Committee provides that a witness may request for review or other relevant facts.

Meanwhile, Article 55 of the Private School Act provides that the provisions concerning the service of teachers of private schools shall apply mutatis mutandis to the service of teachers of national and public schools, and the Public Educational Officials Act provides for special cases concerning the qualifications, status guarantee, etc. to be applied to public educational officials in light of the unique characteristics of the duties and responsibilities of public educational officials, Article 56 of the State Public Officials Act provides that all public officials shall observe Acts and subordinate statutes and perform their duties in good faith, and Article 57 of the same Act provides that public officials shall obey orders of their superior officers in performing their duties.

(c) Markets:

(1) recognised facts

The following facts may be acknowledged in light of the aforementioned evidence Nos. 1-1, 2, 3-1, 4-2, 5-1, 2, 5-2, 6-1, 10, 12-1 through 3, 13-1, 2, 16, 2-5, and 9-1, 10, 12-1 through 3, 13-1, 13-2, 16, 2-5, and 5, and there is no counter-proof otherwise.

(A) Around April 4, 1996, the Plaintiff was notified of the attendance at the overall faculty conference on the promotion of educational reform and self-helping efforts to be held at the Women’s Education Center on the 6th of the same month, but the meeting was considered to be related to the election campaign of Nonparty 2, who is the founder of the non-party educational foundation, and was not present at the meeting. After that meeting, 55 of the total faculty members at the above scheduled date and time, 59 of the members at the junior college (name omitted), excluding the Plaintiff, among the total faculty members at the above scheduled date and place, 59 of the members at the junior college (name omitted), and discussed on the promotion of educational reform and self-help efforts plan of the faculty members at the junior college following changes in the educational environment.

② Around April 8, 1996 and around 17:00 of the same month, the Plaintiff was notified of the attendance of the entire faculty conference on the acceptance map to be held at the Women’s Education Center, but the meeting was also considered to be a meeting related to the above election campaign. After that, 53 of the total faculty members at the above scheduled date and time, excluding the Plaintiff and 6 of the 59 professors at (name omitted), 59 professors at the above scheduled place, and discussed the strengthening of teaching and research activities related to the workplace life of graduates.

③ Around May 30, 1996, the Plaintiff entered into an overseas language training agreement between the events of Nonparty 1 and July 26, 1996, and paid 300,000 won as down payment. Thereafter, around June 17, 1996, the Plaintiff notified the entire faculty meeting of the fact that the Plaintiff would have been expected to have been in attendance at a faculty member training course at the Gaan Agricultural and Fishing Schools from July 22, 1996 to June 26, 1996, and the Plaintiff failed to return home to the Republic of Korea on June 21 of the same year, but at the same time, the Plaintiff failed to obtain an early notification of his departure from the Republic of Korea on July 24, 1996, but failed to obtain an early notification of his departure from the Republic of Korea, the Plaintiff failed to return home to the Republic of Korea as soon as possible and failed to obtain an early notification of his departure from the Republic of Korea. However, the Plaintiff failed to return to the Republic of Korea.

(B) As seen earlier, the chief executive officer of the non-party educational foundation demanded a disciplinary resolution against the instant disciplinary committee based on the grounds that it constitutes a ground for disciplinary action against the Plaintiff on September 3, 1996. Accordingly, the above non-party educational foundation held the second disciplinary committee on October 17, 199 and notified the non-party educational foundation president of the disciplinary resolution on March 25, 196. The chief executive officer of the non-party educational foundation, on the 30th of the same month, notified the Plaintiff of the disciplinary resolution on the 30th of the same month, and on the 10th of the same month, issued a statement stating the purport that the Plaintiff may file a request for a review with the Teachers Disciplinary Review Committee within 10 days from the date of receipt of the written disciplinary resolution, and at the same time, notified the Plaintiff of a personnel order to suspend from office for three months from October 1, 196 to December 31, 196.

(C) Accordingly, on October 14, 1996, the Plaintiff filed a petition for review seeking revocation of the above disposition against the Defendant on the ground that the Plaintiff did not give the opportunity for the applicant to sufficiently prepare for and present at the Teachers’ Disciplinary Committee because the Plaintiff did not specify the date of the Plaintiff’s request for disciplinary decision, and that there was a defect in the disciplinary procedure, such as disclosing the process of the disciplinary decision and notifying the details of the decision after 15 days or passed, and the Defendant made a decision for review of this case that changed the disposition of the reduction of salary for three months as seen in the above 1.C. as seen in the above 1.C. as a result of the review.

(2) First, we examine the allegation that the composition of the instant disciplinary committee is unlawful.

(A) An unlawful organization of the teachers' disciplinary committee of the non-party educational foundation

In full view of the above evidence Nos. 3, 3 and 5, and evidence Nos. 15 and the purport of oral argument, the disciplinary committee of this case is composed of (name omitted), (name omitted), (name omitted), (name) university professor Kim Young-soo, (name omitted), and (name omitted) university teachers of high school, (name omitted) 59 professors of (name omitted) university and junior college who belong to the plaintiff at the time of the decision of the disciplinary committee of this case, and (name omitted) 59 professors of (name omitted) university and junior college belonging to the plaintiff at the time of the decision of the disciplinary committee of this case. Meanwhile, Article 62(2) of the Private School Act provides that only the "director of the school foundation who may become disciplinary committee of the school," and that the number of directors of the school foundation shall not exceed 1/2 of the total number of teachers of the school, who are the school foundation, shall be prohibited from participating in the disciplinary procedure of the school, and that the school foundation which is an employer of the school shall not be included in the disciplinary committee.

However, according to the above facts, the disciplinary committee of this case is only one professor of the school to which the plaintiff belongs (name omitted), junior college professor, and three persons who reach the remaining majority are teachers of other schools not belonging to the plaintiff. Thus, the composition of the disciplinary committee of this case has violated Article 62 (2) of the Private School Act, and the disciplinary action of this case is ultimately erroneous.

(B) The scope of review of the review decision

The defendant's assertion that there is a defect in the composition of the disciplinary committee of this case is not included in the request for reexamination of this case made by the plaintiff to the defendant, and the provisional review committee of Article 12 of the Regulations on the Review of Disciplinary Action against Teachers and other facts which caused the request for reexamination shall not examine the facts other than the facts which are the cause of the request for reexamination. The ruling agency of this case under Article 36 (1) of the Administrative Appeals Act shall not make a decision on the matters other than the disposition or omission which is the object of the request for trial. Although the Administrative Appeals Act adopts the principle of ex officio deliberation, it adopts the principle of ex officio deliberation, but the principle of non-acceptance is adopted at the same time as the principle of ex officio deliberation, Article 26 of the Administrative Appeals Act adopted the rules on the review of disciplinary action against teachers, etc., even though the defendant did not confirm the fact that the composition of the disciplinary committee of this case was illegal, it cannot be the defendant's reason for the retrial. Accordingly, even if the plaintiff did not claim it in the request for review.

Therefore, as seen in Section 2-C(1)(c) of the above 2-C, it is recognized that the plaintiff did not assert that the composition of the disciplinary committee of this case was unlawful when the plaintiff dissatisfied with the disciplinary action of this case and filed a request for a retrial to the defendant.

However, even if a private school teacher is appointed and dismissed by a school juristic person or an operator of a private school, and the relationship between a private school teacher and a school juristic person cannot be seen as the power relationship in the public law, it is stipulated in the Private School Act, etc. that a private school is an educational institution in charge of the daily interest of national public education, and is subject to guidance, supervision, support, and regulation of the State or a local government in the establishment, operation, appointment, dismissal, etc. of the private school teacher under the Education Act and the Private School Act, and is treated as equivalent to a national or public school teacher in the qualification, service, appointment, and guarantee of status, etc. of the private school teacher. In addition, it appears to the purport that the Special Act on the Improvement of Teachers' Status enacted for the purpose of improving the status of the teacher and promoting educational development of the teacher can request a review to the Teachers Disciplinary Review Committee established in the Ministry of Education identical with that of the national or public school teacher, and the decision of the Review Committee provides that only the teacher who requested a review may institute an administrative litigation, is similar to "an administrative appeal" (see Supreme Court Decision 2. 194.

In addition, in light of the fact that the decision of review by the Teachers Disciplinary Review Committee has a function similar to the "decision" as an administrative appeal against the administrative disposition, if a teacher of a private school is dissatisfied with his/her disciplinary action, he/she may first request a review to the Teachers Disciplinary Review Committee to correct the violation of the disciplinary action, and if he/she is dissatisfied with the decision of review, he/she may file an administrative litigation against the decision of review. In this case, in the administrative litigation against the decision of review, the administrative litigation is not required to simply dispute only the unique violation of the decision of review itself, but also the illegality of the original disciplinary action, which was the object of the decision of review, should be resolved that the right of review can be unduly infringed, regardless of whether the decision of

In the case of a teacher of a private school, only the unique illegality of the review decision itself can be disputed in the administrative litigation on the review decision of the Review Committee, and if any illegality reason not asserted in the review procedure is discarded in the administrative litigation, the review decision of the Review Committee for the teacher of a private school can no longer be contested in the administrative litigation, which results in blocking the opportunity for correction of illegality by blocking the opportunity for correction of illegality. In the case of a teacher of a national or public school, the administrative litigation on the original disciplinary action (private school can be contested by filing a civil lawsuit, such as a lawsuit for invalidation of dismissal, etc. against the original disciplinary action) can be argued in the original disciplinary action [it can be argued that the illegality that was not asserted in the request for review (see Supreme Court Decision 90Nu4938, Nov. 27, 1990). This result seriously unfavorable to the teacher of a private school, which is established in the Review Committee for the purpose of improving the status and treatment of the teacher of a private school and enhancing the status of the teacher of an education committee.

Furthermore, Article 12 of the Regulations on Review of Disciplinary Action against Teachers, etc., which the defendant listed on the ground that the Review Committee shall not review any facts other than those which caused a disciplinary action or other request for review. In reviewing the legitimacy of disciplinary action, the provisions established in order not to apply the same to teachers to the purport that it shall not be applied disadvantageously to the applicant, including the grounds newly cited in the review process, in addition to the facts which are the grounds for disciplinary action. Further, Article 36(1) of the Administrative Appeals Act provides that a ruling authority shall not decide any matters other than a disposition or omission which the applicant is the object of a request for a trial, which are the object of a request for a trial, shall be construed as a provision that the ruling authority shall not review any matters other than a disposition or omission which the applicant for a request for a trial and shall not make a decision disadvantageous to the applicant for an administrative appeal. Accordingly, each of the above provisions shall not be a ground for supporting the defendant's argument that the grounds that were not asserted in the procedure for review of teachers cannot be asserted in the administrative litigation.

Therefore, the plaintiff can seek the cancellation of the decision of the review of this case on the ground that the composition of the disciplinary committee of this case is illegal, so the first defendant's above assertion is without merit.

(3) Thus, the disciplinary action of this case is revoked because it was conducted based on the resolution of the teachers' disciplinary committee of the non-party school juristic person which is unlawful, and the defendant should have examined this point prior to the judgment on the plaintiff's request for a retrial. However, without examining it, it is difficult to avoid the violation of the decision of this case without any need to further examine the remaining points of the plaintiff's request for a retrial.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the decision of retrial of this case is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

Judge Hong Il-il (Presiding Judge)