Denial of Appeal to the School Foundation Case

[18-1(A) KCCR 58, 2005Hun-Ka7 and 2005 Hun-Ma1163

(consolidated), February 23, 2006]

Held, Article 10 Paragraph 3(hereinafter referred to as the "the Instant Provision") of the Special Act on the Improvement of Teachers' Status(hereinafter referred to as the "the Act"), which denies the school foundation the right to appeal to courts against the decision of the Examination Committee(hereinafter referred to as the "Committee") in the examination of disciplinary measures made by the school foundation, is unconstitutional.

Background of the Case

The Petitioner, a school foundation which founded and operates A University, found that B, a member of the faculty at the university, demeaned the honor and dignity of a professor, and decided not to renew his contract. Upon B's filing for an examination of appeal, according to Article 9 Paragraph 1 of the Act, asking the repeal of the refusal to renew his contract, the Committee repealed the decision of the university. The Petitioner filed for an administrative suit seeking to revoke the decision of the Committee, also arguing that the instant provision giving the right to appeal the decision of the Committee only to the teachers, is unconstitutional. The administrative court in turn referred the case to constitutional review of the statute.

Summary of the Decision

The Constitutional Court, with a unanimous decision of all Justices, ruled that the instant provision is unconstitutional. This decision overruled the previous decision on the same provision(10-2 KCCR 89, 95Hun-Ba19 et al., July 16, 1998), which held it constitutional. The summary of the decision is as follows:

The legislative purpose of the instant provision is to effectively secure the right of the state to superintend the school foundations, and to improve the treatment and guarantee the status of teachers, by allowing them to appeal to courts the decisions of the Committee in the examination of disciplinary measures, and such legislative purpose may be deemed legitimate. As the teachers are relieved of disadvantageous measures, finally and decidedly, when the committee accepts their appeal for examination, the provision has the appropriate means to achieve such legislative purpose. When a teacher chooses to file a civil action, arguing the validity of the disciplinary measures, the school foundation may contest the suit or participate in the suit as the defendant and seek remedy to any rights and interests that may have been violated. Also the school foundation may actively file for a civil suit, seeking to confirm the non-existence of the status of a teacher, upon the premise that the disciplinary measures are lawful.

But arguing the school foundations' rights by contesting the suit or participating in the suit as the defendant, may only be possible when the teacher involved waivers his or her right to an appeal for examination or the right to file for an administrative suit as stipulated in the Act, and chooses to seek civil action. So the school foundation cannot be said to have been afforded effective relief measures. And in a civil suit seeking to confirm the non-existence of the status of a teacher, the decision of the court may contradict or conflict with the decision of the examination of appeal or the administrative court, when the teachers separately seek such measures. Thus such method is an indirect means to seeking relief of violated rights. Also, there exits no particular obstacle in guaranteeing the status of a private school teacher or any void in the remedy of their rights, just by giving the school foundation the right to appeal to the court on the examination of the Committee. Thus, the instant provision infringes upon the right to trial of the school foundation, which is the party concerned and also the defendant in the examination process.

Additionally, the school foundation has a civil contract relationship with its employed teachers, and the decision of the examination of appeal binds the school foundation as well as the teacher. As such, the instant provision which denies the school foundation the right to appeal to courts on the decisions of the Committee, without any reasonable cause, is in violation of the principle of equality, in Article 11 of the Constitution. Also by making the decision of the Committee final, on the legality of the disciplinary measures directed to private school teachers, it violates

Article 101 Paragraph 1 of the Constitution, which mandates that judicial power on all legal disputes be vested in courts. Moreover, it also violates Article 107 Paragraph 2 of the Constitution, by depriving the power of final review of the Supreme Court on the legality of the decision of the Committee, which is an administrative action.