[교수재임용탈락처분취소][공1989.8.15.(854),1186]
(a) Whether the proposal for appointment or withdrawal of a professor or a dean under the Public Educational Officials Act is an administrative disposition (negative);
(b) Whether the reappointment of a professor, etc. whose term of appointment expires is discretionary (affirmative);
A. In accordance with Article 25(1) of the Public Educational Officials Act, an appointment recommendation or withdrawal by the president or principal for an appointment procedure is merely an internal decision-making process among administrative agencies, and itself does not directly result in any change in the existing state of rights, such as the establishment, obligation change, deprivation, or confirmation of the scope thereof. Therefore, it cannot be deemed an administrative disposition subject to administrative litigation.
B. Since there was no duty to appoint a person whose term of appointment has expired, or there was no basis provision on the procedure and requirements for reappointment, the status relationship as a university faculty member is terminated naturally due to the expiration of the term of appointment as prescribed in Article 11 (3) 1 and 2 of the Public Educational Officials Act, and the status relationship as a university faculty member is terminated naturally, and whether it is reappointed belongs to discretionary action based on the decision of the appointing authority. Under the Education Act, university professors, etc. are required to have high professional knowledge, ability and personality, and there is a need for the appointing authority to decide whether to appoint a university professor upon expiration of the term of appointment in consideration of such various circumstances. Thus, the provisions of the Public Educational Officials Act regarding the appointment of university professors cannot be said to violate Article 22 of the Constitution
(a) Article 25(1) of the Public Educational Officials Act, Article 2 of the Administrative Litigation Act, Article 11(3) of the Public Educational Officials Act, Article 22 of the Constitution;
Plaintiff
Busan National University President and one other
Daegu High Court Decision 87Gu198 delivered on July 15, 1988
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
With respect to No. 1:
According to Article 25 (1) of the Public Educational Officials Act, professors and associate professors shall be appointed by the President through the President on the recommendation of the president and the dean, and assistant professors shall be appointed by the President on the recommendation of the president and the dean. In accordance with this provision, the appointment recommendation or withdrawal of appointment appointment for the appointment procedure by the president and the dean is only one of the internal decision-making processes between administrative agencies, and it does not directly cause any change in the existing status of rights, obligations of the people, or the scope thereof. Thus, it cannot be said that administrative disposition subject to administrative litigation is an administrative disposition.
From the same view of the court below, the decision of the court below is just in holding that the withdrawal of the plaintiff cannot be deemed an administrative disposition, which is the object of administrative litigation, even though the president of the defendant Busan National University recommended the appointment of the plaintiff as an assistant professor, who is the appointing authority. The ground for appeal is groundless.
With respect to the second ground:
According to Article 11 (3) 1 and 2 of the Public Educational Officials Act, professors and associate professors shall be appointed for a fixed term of six to ten years, and two to three years for assistant professors and full-time instructors, and there are no relevant provisions regarding the procedure and requirements for re-employment of a person whose term of appointment has expired in the above Acts. Thus, it is interpreted that the status relationship as university faculty is terminated as a matter of course due to the expiration of the above term of appointment under the current Public Educational Officials Act, and therefore, whether the appointment authority is to re-appoint a person whose term of appointment has expired belongs belongs to discretionary action based on the decision of the appointment authority.
The judgment below to the same purport is just and there is no error in the misapprehension of legal principles as pointed out.
In addition, university professors, etc. under the Education Act require high-level specialized knowledge, teaching ability, and personality, and when the term of appointment expires, the appointment authority should be able to decide whether to be reappointed by taking into account such various circumstances. Therefore, the above provisions on the appointment of university professors, etc. do not necessarily violate Article 22 of the Constitution providing academic freedom. The argument is groundless.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)