Representative C

2. The defendant, as the plaintiff,

(a) The amount of 174, 770, 150 won and the amount of 12% per annum from the corresponding date to August 20, 2019 as stated in the column of "amount of damages for delay" in the separate sheet of "amount of 174, 770, 150 won and the corresponding sheet of wage calculation" shall be the amount of 5% per annum from the corresponding date to the date of full payment, respectively, and 12% per annum from the following day to the date of full payment;

(b) 9, 281, 560 won and 12% interest per annum on August 21, 2019 to the date of full payment;

(c) 6, 379, and 410 won each month from August 1, 2019 to the time the reinstatement to the plaintiff is completed;

(1) the amount of money;

(d) 10,00,000 won and 12% interest per annum from May 8, 2017 to October 25, 2019; and 10% interest per annum from the date of complete payment to the date of full payment.

(D) each payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 5% is borne by the Plaintiff, 95% is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

A. The Defendant is a school foundation that establishes and operates a D University. The Plaintiff was appointed as a full-time lecturer at D University on March 1, 2007, and the Plaintiff was promoted as an associate professor on April 1, 2009 and April 1, 2013.

B. On October 14, 2014, the Defendant dismissed the Plaintiff on the ground that “unfaithd class operation, teaching supplies, use of experiment expenses, student list accusation, etc.” (hereinafter “former dismissal disposition”). On October 29, 2014, the Plaintiff filed a petition for review of appeal seeking revocation of the above dismissal disposition with the Appeal Commission for Teachers. The Appeal Commission for Teachers rejected the said dismissal disposition on the ground that “on January 7, 2015, only a part of the grounds for the disciplinary action was recognized as justifiable grounds, and the disciplinary action was too excessive and excessively excessive, and thereby deviating from and abusing the discretion of disciplinary action.” While the Plaintiff and the Defendant filed a lawsuit seeking the above dismissal, the court of first instance dismissed the Plaintiff and the Defendant’s respective appeals against each of the above 6th appeals, the lower court dismissed the Defendant’s respective appeals against each of the Plaintiff and the Defendant’s respective 16th appeals.

C. On February 21, 2017, the president of the Duniversity proposed a disciplinary action against the Plaintiff, and the Defendant’s board of directors held on the same day resolved that the teachers’ disciplinary committee should be organized to deliberate and decide on the disciplinary case against the Plaintiff.

D. On March 31, 2017, the Defendant requested the teachers’ disciplinary committee to decide on a disciplinary action against the Plaintiff, and notified the Plaintiff on the same day.

E. On May 2, 2017, the teachers’ disciplinary committee held on May 2, 2017 (hereinafter “the teachers’ disciplinary committee of this case”) decided to dismiss the Plaintiff on the ground of the same disciplinary cause (hereinafter “the instant disciplinary committee’s disciplinary cause”) such as the previous one, and the Defendant notified the Plaintiff of this decision on the 8th of the same month (hereinafter “instant dismissal”).

A person shall be appointed.

A person shall be appointed.

F. On June 1, 2017, the Plaintiff filed a petition for review with the Appeal Committee for Teachers seeking the revocation of the instant dismissal disposition. On August 23, 2017, the Appeal Committee for Teachers rendered a decision to revoke the instant dismissal disposition on the ground that the Defendant’s board of directors did not make a decision on a disciplinary action against the Plaintiff and violated Article 53-2(1)1 of the Private School Act because it did not include one external member, and the instant disciplinary committee violated Article 62(4)1 of the same Act because it did not include one external member, and the grounds for disciplinary action against the instant case Nos. 1 through 5 are not recognized as justifiable grounds for disciplinary action (hereinafter “instant decision”).

G. On December 5, 2017, the Defendant brought an action against the teachers’ appeals review committee to seek the revocation of the instant decision, and the court of first instance rendered a final decision to dismiss the Defendant’s claim on the ground that the instant dismissal disposition did not constitute a procedural defect in violation of Article 62(4)1 of the Private School Act, since the instant dismissal disposition did not include one external member in the instant teachers’ disciplinary committee on November 2, 2018, and all of the grounds for final appeal Nos. 1 through 5 cannot be deemed a justifiable ground for final appeal. Therefore, the instant decision is lawful. Although the Defendant filed an appeal, the appellate court rendered a final decision to dismiss the Defendant’s appeal on July 5, 2019, and the Defendant appealed the said judgment and is currently pending in the final appeal.

(h) Contents of the laws and regulations relating to this case are as follows:

A person shall be appointed.

Each entry, the purport of the whole pleadings

2. Summary of the parties' arguments;

A. The plaintiff 1:

1) The instant dismissal disposition is null and void as ① procedural defect in violation of Article 53-2(1)1 of the Private School Act, which did not undergo a resolution by the board of directors on a request for disciplinary resolution against the Plaintiff, ② procedural defect in violation of Article 62(4)1 of the Private School Act, which did not include one external member in the instant teachers’ disciplinary committee, and ③ substantial defect in which no justifiable grounds exist.

2) Since the Defendant issued the instant dismissal disposition, the Defendant did not pay the Plaintiff wages at all except for the payment of part of the wages for May 2017 until the date of the instant dismissal. Since the instant dismissal disposition is null and void, the Defendant is obligated to pay the Plaintiff the amount unpaid from May 2017 to July 2019, the aggregate of the unpaid wages for the period from June 2017 and the wages for the period from June 2019 to July 17, 2019, the amount of KRW 9,281,560, the aggregate of the children education allowances for the same period, and delay damages therefor, and the amount of future wages, consolation money, KRW 20 million, and delay damages for the aforementioned period calculated at the rate of KRW 6,379,410 from August 2019 to reinstatement.

(b) Defendant;

1) It was true that the Defendant did not include an external member in the formation of the instant teachers’ disciplinary committee; however, at the time, it was still past when Article 62(4)1 of the Private School Act, which allowed the teachers’ disciplinary committee to include at least one external member, was enforced; the Defendant’s articles of incorporation did not have any ground provision that allows the external member to be included in the teachers’ disciplinary committee; even if the external member participated in the instant teachers’ disciplinary committee, there is no possibility that the result of the removal of the Plaintiff’s external member would change. In light of the above, the procedural defect of the unexplosible box should be deemed to have been cured.

2) The plaintiff invited a full-time teacher in charge of the NAE and beauty fashion's major to invite a false civil petition to a national newspaper as if the plaintiff invited a full-time teacher in charge of the plaintiff's major's major. The plaintiff filed an application for provisional disposition such as preservation of teacher's status and prohibition of new appointment as the defendant had made a false petition with the same purport, and submitted a false application to the EIS Assembly. The plaintiff's act constitutes a legitimate ground for disciplinary action by publicly announcing false facts to the outside.

3. Determination as to the claim to nullify the invalidity of the dismissal of this case

(a) the existence of a defect in disciplinary proceedings;

1) Whether Article 53-2(1)1 of the Private School Act is violated

However, Article 53-2 (1) 1 of the Private School Act provides that "the appointment of a teacher of a private school established and operated by a school foundation shall undergo a resolution by the board of directors on the recommendation of the head of the relevant school." The defendant's board of directors made a resolution on February 21, 2017 by the defendant's board of directors to form a teachers' disciplinary committee for deliberation and resolution on a disciplinary case against the plaintiff is as seen above. The defendant's board of directors appears to have undergone a serious examination on the existence of grounds for disciplinary action against the plaintiff and the necessity of disciplinary action against the plaintiff. Thus, it is reasonable to view that the above resolution constitutes "resolution by the board of directors" under Article 53-2 (1) 1 of the Private School Act in itself. Accordingly, the procedural defect in the dismissal disposition in violation of Article 53-2 (1) 1 of the Private School Act can not be viewed as procedural defect.

2) Whether Article 62 (4) 1 of the Private School Act is violated

Article 62 (4) 1 of the Private School Act provides that "at least one external member shall be organized," and the above provision is a compulsory provision prepared to enhance the fairness and expertise of deliberation and resolution by the Committee for the Committee for the Committee for the Teachers of Private Schools. However, there is no dispute between the parties, and there is procedural defect in violation of Article 62 (4) 1 of the Private School Act regarding the composition of the Committee for the Teachers' Disciplinary Measures. The Defendant asserted that the instant teachers' disciplinary committee was organized at the time a long period has not passed since the date of the enforcement of the above provision, or that procedural defect was cured on the grounds that the Defendant failed to reflect the contents of the above provision in the Defendant's articles of incorporation. However, such circumstance alone does not necessarily mean that procedural defect in violation of Article 62 (4) 1 of the Private School Act is cured.

B. Whether to recognize the grounds for disciplinary action

1) As to the Grounds for Disciplinary Action Nos. 1 and 5 of this case

The evidence presented by the Defendant alone is insufficient to recognize that Plaintiff 1 filed a civil petition on July 22, 2014 to the effect that Plaintiff 2 had an interest in the beginning of teachers of the beauty Design Department at D University, as the grounds for disciplinary action Nos. 1 and 5 in the instant case, and there is no other evidence to acknowledge otherwise. Therefore, the grounds for disciplinary action No. 1 and 5 in the instant case cannot be deemed justifiable grounds for disciplinary action.

2) As to the Grounds for Disciplinary Action Nos. 2, 3, and 4 of the instant case

According to the above evidence, around 2015, the Defendant published a second semester of 2015 to invite a full-time teacher in charge of beauty and beauty learning at D University Art University (hereinafter “D University Art University”)’s Art University (hereinafter “D University Art University”)’s Art University (hereinafter “D University”) and asked the Plaintiff on May 26, 2015 whether to invite a full-time teacher replacing him/her to the president of D University. However, the Plaintiff did not receive any answer, and the Plaintiff’s previous dismissal disposition was decided by the National Assembly Review Committee of Korea on June 22, 2015.

Although a disposition of suspension from office was changed and an administrative litigation was in progress, the Defendant posted a public notice inviting full-time faculty members of the same major as the Plaintiff, and currently is undergoing the examination of the professor invitation. This is unfair in violation of Article 9 of the Special Act on the Improvement of Teachers' Status and the Protection of Educational Activities. Accordingly, the Plaintiff’s request for postponement of teaching invitation until the relevant administrative litigation is finalized. As to this, the Plaintiff sent the president of D University with content-certified mail, but the Plaintiff filed a civil petition with the purport that he/she did not answer, and the Plaintiff filed an application for provisional disposition prohibiting new appointment of the former faculty member replacing the Defendant on July 6, 2015, and the Plaintiff’s request for provisional disposition prohibiting new appointment of the former faculty member replacing him/her on behalf of the Defendant, and the Plaintiff and F1) on September 12, 2016, the Plaintiff’s request for dismissal and suspension of the Plaintiff’s work from office, including the Plaintiff’s voluntary removal of the Plaintiff’s order of suspension from office and the Defendant’s abuse.

In addition to the purport of the entire oral argument, the following circumstances that can be recognized in the above facts are difficult to find: (i) within the beauty design register of D University; (ii) it is difficult to find that the full-time faculty of D University’s major is strictly distinguishable from the former faculty member of D University’s major; and (iii) there is no evidence to deem that there was a situation requiring additional recruitment in the beauty design register other than the previous dismissal disposition against the Plaintiff at the time of the public announcement of 2015, 2015, 3) it appears that the Plaintiff as a member of D University’s art University’s public announcement of invitation of the former faculty member of the same faculty without being reinstated, and (iv) it is difficult to see that the Plaintiff filed a civil petition with the National Examination on June 22, 2015; and (v) it is difficult to see that the Plaintiff’s application for a provisional disposition against his or her status was issued to the court instead of the Plaintiff’s general meeting.

C. Sub-determination

Therefore, the dismissal disposition of this case not only includes procedural defects violating Article 64 (4) 1 of the Private School Act, but also includes substantive defects that cannot be deemed justifiable grounds for disciplinary action. Thus, it is determined that the dismissal disposition of this case is null and void since there are substantive defects that are not all deemed justifiable grounds for disciplinary action. In addition, as long as the defendant contests the validity of the dismissal disposition of this case, it is recognized that the plaintiff as a plaintiff has the benefit to seek confirmation of invalidation to eliminate risks

4. Determination as to claims for payment of unpaid wages

A. Existence of right to claim wages

When an employer’s unfair dismissal disposition is invalidated or cancelled, the status of the employee who intends to be damaged during the period is continued, and the failure to provide labor between them is attributable to the employer. Therefore, an employee may claim payment of the entire amount of wages that he/she may receive when he/she continues to work pursuant to Article 538(1) of the Civil Act (see Supreme Court Decision 2011Da20034, Feb. 9, 2012, etc.).

As seen earlier, as long as the dismissal disposition of this case is null and void, notwithstanding the dismissal disposition of this case, the plaintiff and the defendant still continue to have a valid relationship pursuant to the appointment contract. Even if the plaintiff was unable to actually provide labor due to the dismissal disposition of this case, this is due to the defendant's reasons attributable, and thus, the defendant is liable to pay wages that the plaintiff would have received if he had normally worked for the plaintiff.

B. Scope of claim for wage payment

1) According to the statements in Gap evidence Nos. 36, 39, and 41, the following facts are recognized.

A) Of the provisions on the remuneration of teaching staff of D University, the part relating to the instant case is as follows:

A person shall be appointed.

B) The details of wages from December 2016 to April 2017 that the Defendant paid to the Plaintiff are as follows. The Plaintiff received KRW 2,314,080 from the Defendant as the monthly salary in May 2017.

C) From June 2017, the Defendant did not pay benefits to the Plaintiff at all until then.

A person shall be appointed.

D) The Plaintiff received respectively the Defendant’s payment of KRW 1.5 million for filial leave expenses, KRW 1.5 million for filial leave expenses around January 2017, and KRW 700,000 for filial leave expenses around May 2017.

E) The Plaintiff disbursed KRW 4,199,430 in total as educational expenses in 2017 for children H, who attended the Military Military High School, and disbursed KRW 5,082,130 in total as educational expenses for the first half of 2019 for children J, who attended a high school.

2) In addition to the purport of the argument in the above facts, the defendant is obligated to pay to the plaintiff 174, 770, 150 won a total amount of unpaid deposits from May 2017 to July 2019 as well as the amount of delay damages in late payment" column of the attached Table of Wage Calculation, which is the day following the defendant's monthly wage payment date (25 days), to the plaintiff, 5% per annum under the Civil Act until August 20, 2019, the delivery date of duplicate of the written application for change of purpose of claim and cause of claim, and 12% per annum under the Civil Act until the day of full payment, 9, 281, 560 won per annum from May 201 to July 2019, and 19, 2000 won per annum from the day following the day of full payment to the day of full payment, and 20% per annum from the day of changing the purport of the claim to the plaintiff 18th day following the date of appeal.

5. Determination as to the claim of consolation money

A. An employer’s continuing to provide labor without any justifiable reason against an employee’s will constitutes an infringement of the employee’s personal legal interests and thus, an employer is obligated to compensate for the emotional distress suffered by the employee. A university professor’s lectures about his/her major field of study and further develops his/her academic research through such lectures constitutes an essential part of the realization of personal rights. Thus, barring special circumstances, such as where a school foundation, which is an employer of a university professor, interferes with the exercise of his/her right to command duties, etc., the act of allowing a university professor, who is an employer of the university, to not be allowed to be demoted by failing to assign subjects and hours under the intention to exclude him/her from his/her main course of work, constitutes infringement of the teacher’s personal legal interests and the school foundation is obligated to compensate for the emotional distress suffered by a university professor (see Supreme Court Decision 2010Da8880, May 9, 2012, etc.).

B. In light of the above legal principles, the judgment dismissing the Defendant’s claim on December 1, 2016 against the Defendant’s complaint filed by the Defendant against the decision of the Appeal Committee for Teachers that changed the previous dismissal disposition against the Plaintiff to the 3-month disciplinary action, and the fact that the Defendant followed the instant dismissal disposition against the Plaintiff again on February 21, 2017, in which the 3-month period has not elapsed since then, as seen earlier, once the instant disciplinary action was taken, there were procedural defects in the composition of the teachers’ disciplinary committee, as well as the 1-year disciplinary action, and the 5-year disciplinary action against the Plaintiff cannot be deemed as grounds for disciplinary action from the date following the date of the instant dismissal disposition to the date of 0-day disciplinary action, which is 0% of the Plaintiff’s duty to pay damages for delay to the Plaintiff by 0-day day after the date of the instant dismissal disposition, which is 0% of the Plaintiff’s personal legal interests as well as 0-day damages for delay.

6. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is not reasonable. It is so decided as per Disposition.

Judges Shin Dong-han

Judges Park Jong-young

Wage Calculation List

A person shall be appointed.