The case holding that there is no interest in seeking confirmation of invalidity on the ground that there is no removal from position.

On June 15, 1989, the president of a university demanded a teachers' disciplinary committee to make a resolution of disciplinary action against a professor and released position as a professor on the same day pursuant to Article 45 (2) 2 of the articles of association of the school foundation (Release from position of a person who has been requested such disciplinary action) on the same day. However, when the above disciplinary committee stated that it is difficult to make a resolution of disciplinary action after the lapse of the statute of limitations for disciplinary action, the above disciplinary decision is withdrawn on September 9 of the same year. If removal from position was made on June 15, 1989 by converting the school foundation from position to removal from position due to Article 45 (2) 1 of the articles of association of the school foundation (a person who lacks ability to perform duties or has extremely poor performance of duties), it is reasonable to deem that removal from position on June 15, 1989 does not exist any longer since the school foundation voluntarily withdraws from his position. Thus, a request for confirmation of removal from position made on June 15, 1989>

Article 228 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

[Defendant-Appellee] Korea National University of Korea (Attorney Kim Jong-chul, Counsel for defendant-appellee

Gwangju High Court Decision 92Na359 delivered on January 19, 1993

The part of the judgment of the court of first instance that dismissed an appeal against the defendant regarding removal from position of June 15, 1989 shall be reversed and the judgment of the court of first instance shall be revoked.

The plaintiff's lawsuit of nullification of removal from his position on June 15, 1989 is dismissed.

The defendant's remaining appeals are dismissed.

The total costs of litigation in the reversed part shall be borne by the plaintiff, and the costs of appeal in the dismissed part shall be borne by the defendant.

We examine the grounds of appeal.

1. According to the records, the president of the Korea Teachers' University established under the defendant-affiliated university demanded a disciplinary resolution against the plaintiff to the teachers' disciplinary committee on June 15, 1989 and, on the same day, released the position as an associate professor pursuant to Article 45 (2) 2 of the articles of incorporation of the defendant corporation (Release from position of a person whose disciplinary resolution was requested), but the above disciplinary committee stated that it is difficult to make a disciplinary resolution after the lapse of the statute of limitations for disciplinary action against the plaintiff, and that the above disciplinary request on September 9 of the same year was withdrawn, and that the removal from position on June 15, 1989 was changed to removal from position under Article 45 (2) 1 of the articles of incorporation of the defendant corporation (Release from position of a person whose performance of duties is insufficient or whose performance of duties is extremely poor). Accordingly, it is reasonable to view that the part of the plaintiff's claim in this case as of June 15, 1989 is unlawful because it does not have any interest in the plaintiff's request for nullification of removal from position.

Unlike this opinion, the judgment of the court below is justified in the judgment of the court of the first instance which accepted the part of the lawsuit seeking nullification of the above removal from position among the plaintiff's claims, and the defendant's appeal is dismissed. In so doing, the judgment of the court below is erroneous in the misapprehension of legal principles as to the requirements for filing a lawsuit

2. The judgment of the court below on the point that the theory of lawsuit points out (the plaintiff has a benefit to seek nullification of the removal from his position on September 11, 1989 and the plaintiff's ground for removal from his position on December 29 of the same year and the plaintiff's ground for removal from his position is not recognized) is justified in light of the evidence relation as stated in the judgment of the court below, and there is no error of law by violating the rules of evidence or by misapprehending the legal principles, without making a proper examination like the theory of lawsuit.

We cannot accept the judgment of the court below that there is an error in the misapprehension of legal principles as to Article 45 (6) of the articles of incorporation of the defendant corporation and the omission of judgment.

3. Therefore, the appeal on the part of the claim for nullification of removal from his position on June 15, 1989 is with merit, and this part of the judgment of the court below is reversed and it is decided to be self-contributed by the party members. The appeal on the part of the claim for nullification of the removal from position is dismissed on the ground stated above. The remaining appeal is dismissed as it is without merit, and the costs of appeal on the part of the reversal are assessed against the plaintiff and the costs of appeal are assessed

Justices Park Jong-ho (Presiding Justice)