○ University President (Law Firm Min & Yang, Attorneys Jeong Jong-soo et al., Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

Defendant joining the Defendant (Attorney Park Jong-soo, Counsel for defendant-appellant)

March 30, 2017

1. On June 1, 2016, the Defendant’s decision as to the claim for revocation of the disposition revoking concurrent office and concurrent office (2016-214) between the Plaintiff and the Intervenor joining the Defendant is revoked.

2. The supplementary part of the costs of lawsuit is borne by the Intervenor, and the remainder is borne by the Defendant.

The same shall apply to the order.

1. Details of decision on the petition examination;

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) was appointed as a full-time lecturer at ○ University’s University on March 3, 1994, and was promoted to the professor who guaranteed retirement age on March 2005. From 1995, he served as a full-time professor upon receiving an order to hold concurrent office and hold concurrent office in the regular department of ○○ University Hospital from 1995.

B. Around February 2015, the director of the ○ University Medical Center appointed an intervenor as a person subject to the termination of the concurrent office and office without a full-time full-time faculty member in the last half of 2014, and notified the intervenor thereof, and decided to postpone the appointment of the intervenor for six months in order to supplement the rules on the concurrent office and office without a teacher.

C. The rules on the implementation of concurrent office and concurrent office were enacted on March 1, 2014, and the provisions relating to this case are as follows:

The purpose of Article 1 (Purpose) of the Table included in the main text is to prescribe matters concerning the concurrent office of clinical Medical Personnel in accordance with the Regulations on the Personnel Management of Teaching Staff of ○○ University. Article 4 (Reasons for Termination of Concurrent Office) (1) The reason for cancellation of concurrent office is limited to cases where the actual results of medical examination and treatment are remarkably low, thereby significantly affecting the management of a hospital. (2) The number of teaching staff of a medical department falling under the conditions of paragraph (1) of the same Article shall be less than 1/2 of the average monthly sales for three years of full-time faculty of each hospital and less than 1/2 of the average monthly sales for three years of full-time faculty, and less than 1/3 of the average monthly sales for three years of full-time faculty members. (1) In principle, the results of medical examination and treatment shall be calculated separately by the △ Hospital and △△ Hospital. (2) The results of medical examination and treatment shall be based on the net sales, but the amount excluding the estimated value and material costs of each hospital.

D. The rules on the enforcement of concurrent office and concurrent office were amended on February 5, 2015, and the provisions related to this case are as follows (hereinafter the amended rules on the enforcement of concurrent office and concurrent office as of February 5, 2015).

본문내 포함된 표 제1조(목적) 이 세칙은 ○○대학교(이하 “본교”라 한다) 교원인사규정 제59조에 따라 의료원에 겸임 겸무를 명받은 전임교원(이하“교원”이라 한다)의 의무와 겸임·겸무의 해지기준 및 절차 등에 관한 세부사항을 정함을 목적으로 한다. 제2조(겸임·겸무교원의 의무) 본교 의료원에 겸임·겸무를 명받은 교원은 의료원장이 정하는 진료 및 임상교육에 관한 업무를 성실히 수행하여야 한다. 제3조(부서의 구분) ① 진료지원부서는 병리과, 진단검사의학과, 방사선종양학과, 핵의학과, 응급의학과, 영상의학과, 마취통증의학과로 한다. ② 진료부서는 제1항의 부서를 제외한 모든 부서로 한다. 제4조(진료실적 평가 기준) ① 진료실적은 □□병원과 △△병원을 분리하여 평가하며, 그 세부 기준은 〈별표 제1호〉에 따른다. ② 전반기 진료실적은 매년 1월 1일부터 6월 30일까지의 실적으로 하며, 후반기 진료실적은 매년 7월 1일부터 12월 31일까지를 기준으로 산출한다. 제5조(겸임·겸무 해지 심사대상) ① 겸임·겸무 해지 심사대상은 진료부서 교원의 경우 다음 각 호의 하나에 해당하는 자로 하고, 진료지원부서 교원의 경우 제2호 또는 제3호에 해당하는 자로 한다. 1. 제4조에 따른 최근 3년간 진료실적 평균 취득점수가 50점에 미달하거나, 소속병원 진료과(분과로 분리된 경우에는 진료분과로 한다) 전체 교원 평균 취득점수의 50%에 미달하는 자 2. 병원의 명예와 경영에 심대한 악영향을 끼친 자 3. 병원 진료에 심대한 지장을 초래한 자 중에 문서상 경고를 3회 이상 받은 자 ② 제1항에도 불구하고 다음 각 호의 하나에 해당하는 경우에는 겸임·겸무 해지 심사대상에서 제외한다. 1. 평가기간의 순매출 월평균이 소속병원 교원 1인당 순매출 월평균의 50% 이상인 자 2. 신규로 임용된 지 3년 이내인 자 3. 장기연수(6개월 이상)에서 복귀한 지 3년 이내인 자 제6조(겸임·겸무 해지 심사) ① 겸임·겸무 해지 심사는 전반기와 후반기로 나누어 연2회로 한다. ② 의료원 각 병원의 장은 겸임·겸무 교원이 겸임·겸무 해지 심사대상에 해당하는 경우 의료원장에게 겸임·겸무 해지를 위한 심사를 전반기와 후반기로 나누어 연 2회 요청할 수 있다. ③ 의료원장은 병원장으로부터 겸임·겸무 해지 심사를 요청받은 경우 의료원 교원인사위원회(이하 “의료원인사위원회”라 한다)의 심의를 거쳐야 한다. ④ 의료원인사위원회에서는 각 병원과 각 부서의 특성을 반영하되, 겸임·겸무 해지 심사 대상자의 진료실적과 병원에의 명예, 경영에 미치는 부정적 영향 등을 실증에 의하여 심의하여야한다. 제7조(소명 기회 부여) ① 의료원장은 대상자에게 의료원인사위원회로부터 겸임·겸무 해지 대상자 심의 결과를 제출받은 날로부터 15일 이내에 이의신청을 할 수 있도록 안내한다. ② 의료원장은 이의신청이 있는 경우 의료원인사위원회의 재심의를 거쳐 그 결과를 겸임·겸무 해지 대상자에게 서면 통보한다. ③ 의료원인사위원회에서는 재심의를 위해 해당자로부터 구체적인 실적자료 등의 제출을 요구할 수 있으며 이를 포함하여 심의한 후 그 결과를 의료원장에게 제출한다. 제8조(해지 절차) ① 의료원장은 필요한 경우 의료원인사위원회의 심의를 거쳐 겸임·겸무 해지 대상자에게 6개월 이내의 기간을 두어 실적향상의 기회를 부여할 수 있다. ② 의료원장은 이의신청의 절차까지 마친 후 겸임·겸무 해지 대상을 확정하되, 제1항에 따라 실적향상의 기회를 부여한 경우에는 그 기간이 종료되는 때에 의료원인사위원회에서 실적향상 정도를 포함하여 심의한 후 겸임·겸무 해지 대상 여부를 확정한다. ③ 의료원장은 겸임·겸무 해지 대상자가 확정된 즉시 총장에게 겸임·겸무 해지자의 상대적 실적, 의료원인사위원회 회의록 등을 제출하여 겸임·겸무 해지를 요청하여야 한다. ④ 총장은 겸임·겸무 해지 요청이 있는 경우 겸임·겸무 해지일자, 해지사유, 해지 이후의 처우 등을 포함하여 해당교원에게 통보 한다. 부 칙 제1조 (시행일) 이 개정 규정은 2015년 2월 5일부터 시행한다. 제2조 (경과조치) ① 이 규정에도 불구하고 제5조 제1호의 “최근 3년간”을 2014년 12월 31일까지는 “최근 1년간”으로 적용하되 이전 2년간의 실적을 참조할 수 있으며, 2015년 12월 31일까지는 “최근 2년간”으로 적용하되 이전 1년간의 실적을 참조할 수 있다. ② 이 규정 시행 전에 겸임·겸무가 해지된 자에 대하여 해지 이전의 실적에 따라 이 규정에 의하여 재심의 한 후 겸임·겸무 해지 여부를 정한다. 〈별표 제1호〉 진료실적 평가기준 구분 지표 반영률 세부사항 점수반영방법 진료실적 순매출 50% 평가 당해 연도 월평균 순매출 최고 순매출을 50점 만점으로 상대평가 1)상위 20%미만 50점 2)20%부터 40%미만 40점 3)40%부터 60%미만 30점 4)60%부터 80%미만 20점 5)80%부터 100%까지 10점 순매출 증가율 15% 평가 당해 연도 월평균 순매출과 평가년 이전 3개년 월평균 순매출 비교한 증가율 최고 순매출 증가율을 15점 만점으로 상대평가 1)상위 30%미만 15점 2)30%부터 80%미만 10점 3)80%부터 100%미만 5점 환자수 20% 평가 당해 연도 월평균 외래 연인원과 입원 재원환자수 각 해당 최고 환자 연인원과 입원 재원환자수를 20점(각각 10점)만점으로 상대평가 1)상위 30%미만 10점 2)30%부터 80%미만 7점 3)80%부터 100%미만 4점 타병원 비교 15% 평가 당해 연도 월평균 총매출과 타병원 진료과 1인 평균 총매출 비교한 매출차액 각 해당 최고 매출차액을 15점 만점으로 상대평가 1)상위 30%미만 15점 2)30%부터 80%미만 10점 3)80%부터 100%미만 5점 소계 100% 1) 순매출액이란 총매출액에서 약값 및 재료비를 제외한 금액 2) 타병원 비교 - □□: ◇대(☆☆), ▽대(◎◎), ◁◁대 - △△: ▷▷▷▷대, ♤♤♤♤♤, ♡♡♡♡ 3) 타병원 비교 기준: 평가 당해 연도 이전 연도

E. On August 10, 2015, the Director of the Medical Center of ○○ University, following deliberation by the Committee for the Personnel of the Medical Personnel of the Medical Personnel Committee, selected the Intervenor as a person subject to the cancellation of the concurrent office and office without a full-time full-time faculty member for the overall period of 2015, and notified the Intervenor on August 13, 2015. In order to induce the improvement of the Intervenor, he/she decided to re- suspend the Intervenor’s concurrent office and office for six months

F. On January 11, 2016, the head of the ○○ University Hospital requested an examination to revoke the Plaintiff’s concurrent office and office with respect to the Intervenor. On January 11, 2016, the head of the ○ University Medical Center, following deliberation by the Medical Personnel Examination Committee of the Medical Personnel Committee, appointed the Intervenor to raise an objection on the ground that “The average acquisition points of the examination period under Article 5(1)1 of the Enforcement Rule of the instant case and Article 2 of the Addenda fall short of 50% of the average acquisition points of the relevant hospital and the total faculty members fall short of 50% of the relevant hospital and the total number of faculty members.” The problems of non-Ethical patient treatment, the significant influence on the education of major, and the fact that such concurrent office and office did not interfere with the examination and treatment of the hospital, and the Plaintiff did not dismiss the Intervenor’s objection after deliberation by the Examination Committee of the Medical Personnel Committee of the 2016.216.216.

G. The director of the ○○ University Medical Center requested the Plaintiff to terminate the Plaintiff’s concurrent and concurrent office with respect to the Intervenor, and on February 25, 2016, the Plaintiff notified the Intervenor that he/she will terminate his/her concurrent and concurrent office as of February 29, 2016 (hereinafter “instant termination”). The grounds for the instant termination are as follows.

1. Table 1. The results of the examination and treatment for the last one year (from January 1, 2015 to December 31, 2015) under Article 5(1)1 of the Enforcement Rule of the instant case are less than 32 points and less than 39.2 points, which are 50% of the average acquisition points of the medical departments, and the total number of teachers, are less than 39.2 points. Furthermore, even if the results of the examination and treatment for the last two years (from January 1, 2014 to December 31, 2015) were less than 32.8 points, it is confirmed that the results of the examination and treatment for the first two years (from January 1, 2014 to December 31, 2015) were less than 50 points and less than 38.5 points, which are 50% of the average acquisition points of the medical departments and 20% of the total number of teachers, i.e., the examination and treatment results of the overall 2015 years after the examination and treatment.

H. On March 22, 2016, the Intervenor filed a petition review with the Defendant seeking revocation of the termination of the instant case. On June 1, 2016, the Defendant rendered a decision to revoke the termination of the instant case on the grounds that “Article 5(1)1 and 2 of the Enforcement Rule of the instant case restricts teachers’ status unreasonably, and that the termination of the instant case was not carried out based on reasonable standards and means, and the disadvantage of the Intervenor is significant. Accordingly, the legitimacy of the termination of the instant case is difficult to recognize (hereinafter “instant decision”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 through 13, 27 through 30, Eul evidence 3 (including each number), the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. The Plaintiff’s assertion 1) The termination of the instant case does not constitute the subject of the petition review, in full view of the following: (a) the Intervenor’s status as the professor of the university affiliated with the university while maintaining the education and instruction of students and academic research as is; and (b) the Plaintiff loses his status as a clinical doctor of the university affiliated with the university; and (c) the termination of the instant case is irrelevant to the guarantee of the status of the teaching staff; and (d) even if the educational activities and clinical research activities of the hospital were practically impossible due to the termination of the instant case and the payment of medical allowances was disadvantageous to the hospital’

2) The Enforcement Rule of the instant case is legitimate for the purpose of enacting and amending the Enforcement Rule to enhance the competitiveness of the ○ University and its faculty members, to change the proper management status of the ○ University’s medical personnel. The first element corresponding to the above purpose is the sales structure that creates profits through medical personnel, and it is difficult to find an objective evaluation index in addition to sales. Considering the above, Article 5(1)1 of the Enforcement Rule of the instant case’s implementation Rule and its comparison with other hospitals is added to the points to improve the problems prior to the amendment. The decision of the ○ University’s implementation Rule should have been made to review the cancellation of the concurrent office and concurrent office without consideration of other factors, and the decision of the ○ University’s implementation of the instant case’s implementation of the Enforcement Rule should have been made to improve the status of the ○ University’s non-execution of the instant case’s implementation of the Enforcement Rule by giving the Intervenor an opportunity to cancel the concurrent office and non-execution of the instant case’s implementation of the Enforcement Rule by taking into account the other factors.

B. Determination

1) Whether the termination of the instant case is subject to examination of a petition

A) Article 9(1) of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities (hereinafter “Special Act”) provides that “A disciplinary action against a teacher and any other unfavorable measure against his/her will” shall be taken in relation to the subject of review of an appeal.” Thus, to be subject to review of an appeal, the termination of the appeal in this case must be subject to “judicial action” or “any other unfavorable measure against his/her will.”

B) First, as to whether the termination of the instant case is “the status of a teacher”, Article 4(1) of the Regulations on the Establishment and Operation of Universities and Colleges (attached Table 2), and Article 4(2)3 proviso provides that a university having a department of medical science, oriental medicine and dentistry shall directly possess an affiliated hospital among its affiliated facilities or entrust it to a hospital meeting such standards. One of the main purposes is for practical training of students who major in medical science, oriental medicine and dentistry, and Article 5(2) of the Enforcement Decree of the Private School Act and Article 24-3(1) of the Enforcement Decree of the same Act provides that a professor of a private university shall obtain permission from the head of the university as necessary for the clinical education of students in order to hold a concurrent office from an affiliated hospital other than an affiliated university hospital, and that a professor of a private university and an affiliated university and an affiliated university and an affiliated university shall be deemed to have violated the legal interest of a professor of a private university and an affiliated university and an affiliated university with an affiliated university as an affiliated university’s own clinical research.

C) Next, we examine whether the termination of the instant case constitutes “Disciplinary action” or “any other unfavorable measure against the will.”

Article 6 (1) of the Special Act on Teachers provides that "no teacher shall be retired temporarily from office, demoted, or dismissed against his/her will without any reason prescribed by a sentence, disciplinary action, or other Acts." Article 56 (1) of the Private School Act provides that "No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will, unless he/she is sentenced to a punishment, disciplinary action, or any reason prescribed by this Act." Article 21 (1) of the Public Educational Officials Act, which applies mutatis mutandis to the service of private school teachers pursuant to Article 55 (1) of the Private School Act, shall guarantee the status of the teacher by law, and Article 21 (1) of the Public Educational Officials Act, which applies mutatis mutandis to the restructuring, revision, abolition, or change in the prescribed number of staff members, shall be assigned to another position or take personnel measures to change his/her workplace within one year after he/she is appointed to the position." Article 7 (3) of the Decree on the Appointment of Education shall provide that "the appointment authority or appointment authority shall properly impose his/her ability in accordance with the difficulty and responsibility of public educational officials."

In light of the contents and purport of the relevant Acts and subordinate statutes, ① If the legal interest of the relevant faculty member is limited by such disposition, it shall be deemed that such disposition is an unfavorable measure against the relevant faculty member, and thus, an appeal may be raised through an examination of an appeal. In light of the working environment or working conditions of the relevant faculty member who may be infringed by a personnel change, etc., and continuity of duties and stability in daily life, etc., it constitutes a direct and specific legal interest protected by the aforementioned relevant Acts and subordinate statutes, and loss of the status of clinical faculty member against his/her will to a private university that concurrently holds the position of a university hospital constitutes a restriction on legal interest as seen above. ② Since there is no right of examination and treatment, there is no need for difference between the clinical faculty member and the relevant faculty member in terms of research methods and evaluation of personnel affairs. ③ Article 7 of the Enforcement Decree of the Act on the Establishment of National University Hospital, Article 14 of the Enforcement Decree of the Private School Act provides for the removal of the status of the relevant faculty member from the relevant university hospital through the articles of association and its affiliated with the president.

D) Therefore, the termination of the instant case is subject to a petition review. Therefore, the Plaintiff’s assertion on this part is without merit.

2) Whether the enforcement rules of the instant case are lawful, and whether the grounds for termination of the instant case are recognized

A) Article 5(1)1 of the Enforcement Rule of the instant case

Article 5 (1) 1 of the Enforcement Rule of this case and Article 2 (1) of the Addenda of the Enforcement Rule of this case are unlawful as it unfairly limits the status of a teacher by violating the principle of proportionality in full view of the following circumstances. Therefore, this part of the grounds for termination based on such unlawful provisions cannot be recognized as grounds for termination of concurrent office or concurrent office with respect to the intervenor. Thus, the plaintiff's allegation in this part is

(1) Article 5(1)1 of the Enforcement Rule of the instant case includes four categories of evaluation indexes, including net sales, net sales increase, patient number, and sales compared to other hospitals. It is only consistent with the purpose of changing the proper management status of a hospital solely as an index directly or indirectly related to the sales of the hospital. However, the duties of a professor of an affiliated hospital affiliated with a private university as a professor of the university as a professor of the university as a professor of the university are not limited to performing the role of increasing the number of patients and their sales as doctors engaged in profit-making activities of the hospital. Rather, the purpose of Article 4(1)3 proviso of the Regulations on the Establishment and Operation of the University as seen earlier, Article 4(2)3 proviso of the Private School Act, Article 55(2) of the Private School Act, and Article 55(2) of the same Act, which provides that the main duties of the university as well as the education of students, the purpose of education of students, and the outcomes of the clinical research, which are the result of the clinical research of the patient.

(2) Article 2(1) of the Addenda provides that even if the enforcement rule of this case was enacted and implemented for the first time, the results of medical treatment from January 1, 2014 to February 28, 2014, are subject to direct evaluation; where the results of medical treatment are subject to evaluation in 2014, the results of medical treatment from January 1, 2013 to December 31, 2013; and where the results of medical treatment are subject to evaluation in 2015, the results of medical treatment from January 1 to December 31, 2013 to December 31, 2013 are subject to evaluation, respectively. This provision provides that the results of medical treatment before the enactment of the enforcement rule of this case are assessed retroactively, so that clinical professors, who were subject to evaluation, may be subject to an unfavorable disposition on the grounds that they could not have predicted concurrent or non-existence, and that the average average average sales of the previous year and the net average average sales of the previous year are significantly infringed.

B) Article 5(1)2 of the Enforcement Rule of the instant case

Article 5 (1) 2 of the Enforcement Rule of the instant case provides that the education function and diagnosis function of a university hospital affiliated with the university may be seriously infringed or infringed due to a person who has caused a significant adverse impact on the honor and management of the university hospital affiliated with the university, and further, that purpose is to prevent the situation in which the existence of the university hospital affiliated with the university itself is in danger, and its existence is justifiable, and that the aforementioned purpose is to ensure prior prevention and follow-up measures can be possible by prescribing a person who has an adverse effect on the honor and management of the university hospital affiliated with the university, and that the above purpose is appropriate as a means to achieve the above purpose, and the detailed detailed criteria and methods for assessing persons falling under the above provision are not otherwise stipulated in the Enforcement Rule of the instant case. However, since the examination is conducted on the basis of specific and specific facts after the enforcement of the above provision, it is more likely that the manager's supervision and the person's interest or interest in the faculty of the university affiliated with the university, and that it does not violate the regulations of the university affiliated with the university hospital affiliated with the foregoing.

3) Sub-decisions

Article 5 (1) 1 of the Enforcement Rule of the instant case and Article 2 (1) of the Addenda of the Enforcement Rule of the instant case are illegal. However, Article 5 (1) 2 of the Enforcement Rule of the instant case is lawful. Nevertheless, under the erroneous premise that Article 5 (1) 2 of the Enforcement Rule of the instant case is illegal, the Defendant made the instant decision without making any judgment as to the validity of the grounds for termination corresponding thereto, on the erroneous premise that Article 5 (1) 2 of the Enforcement Rule of the instant case is illegal. Thus, the instant decision should be revoked illegally.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judge Yu Jin-dong (Presiding Judge)