Where the main body of appointment is changed after a university faculty member appointed as a fixed-term appointment system was dismissed from office due to expiration of the term of appointment, the other party eligible to request re-election

In light of the contents and purport of the relevant statutes, such as Article 2 subparag. 2 and Article 9(2) of the Special Act on the Relief of Persons Deserting the Fixed-Term Appointment System for University Faculty Members, in cases where, even if a teacher appointed as a fixed-term appointment system was dismissed due to expiration of the term of appointment and the changed subject of appointment was an agreement to comprehensively succeed to all the property, rights, and obligations of the changed subject of appointment, the teacher may request a re-election against the person who comprehensively succeeds to the authority of the appointing authority before the change, and it does not change from a private school to a public school.

Article 2 Subparag. 2 and Article 9(2) of the Special Act on the Relief of Persons Disqualified for the Appointment of University Faculty Members; Article 4(1)3 of the Enforcement Decree of the Special Act on the Relief of Persons Disqualified for the Appointment of University Faculty Members

Plaintiff

Special Committee on the Examination of Teachers' Petitions (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Incheon director of a junior college (Attorney Kim Young-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu9978 decided October 10, 2007

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

In principle, Article 2 Subparag. 2 of the Special Act on Remedies for De-elections for University Faculty Members (hereinafter “Special Act on Remedies for University Faculty Members”) provides that, as a matter of principle, any teacher appointed under the fixed-term appointment system for university faculty members shall be re-appointed by the appointing authority or the appointing authority for university faculty members for reasons falling short of the standards for examination of reappointment. Article 9(2) provides that the effect of the decision on re-examination of reappointment shall be binding upon the person who comprehensively succeeds to the appointment when the appointment authority at the time of de-election is changed. In Article 4(1)3 of the Enforcement Decree of the Special Act on Remedies, Article 4(1)3 of the Act provides that “a person who intends to request re-examination of reappointment (referring to the person who has the appointment authority or the appointing authority at the time of the de-election; where the appointment authority or the appointing authority is changed, referring to the person who comprehensively succeeds to the appointment authority at the time of the re-election; and in light of the content and purport of the relevant Acts and subordinate statutes, any change of the person’s rights and obligations before the appointment authority is changed.

According to the reasoning of the judgment below, the plaintiff was appointed as a full-time lecturer ( February 1, 1992) by the Incheon junior college (hereinafter "Gu Incheon junior college"), which operated on March 1, 1992, and the plaintiff was dismissed on February 28, 1994 due to the expiration of the term of appointment and the change of the founder of the Gu Incheon junior college (hereinafter "in this case's dismissal"), and the former Incheon junior college was dismissed on March 1, 1994 from office on the ground that the founder of the Incheon junior college did not request the review of the status status of the intervenor who was dismissed from his office from his office on November 30, 2005 to the Mayor of Incheon Special Self-Governing Province (the Mayor of Incheon Special Metropolitan City at the time of appointment; hereinafter "Seoul Special Self-Governing Province"), and the plaintiff did not automatically request the review of the appointment of the intervenor who was dismissed from his office on August 16, 2006 to the expiration of the term of appointment.

However, even based on the facts determined by the court below, it may be deemed that the Incheon Incheon City Mayor comprehensively succeeded to the property, rights and obligations of the prior private teaching institute, such as the agreement to appoint all teachers of the prior private teaching institute as public educational officials unless there is any ground for disqualification for appointment as public educational officials. If there exists an agreement that the Incheon City Mayor shall comprehensively succeed to all the property, rights and obligations of the prior private teaching institute, the person with the authority to appoint at the time of expiration of the Plaintiff’s appointment period, and the appointment entity was changed to the Incheon City market after the Plaintiff was dismissed, the Plaintiff may file a petition for re-examination against the supplementary intervenor entrusted with the authority to appoint teachers by the Incheon City

Therefore, the court below should have deliberated on whether the Incheon City Mayor comprehensively succeeds to all the property and rights and obligations of the U.S. Institute, and judged whether the Plaintiff had the right to file a petition for re-examination of reappointment under the Special Act on Remedies against the Intervenor. However, the court below determined that the Plaintiff is not subject to re-examination under the Special Act on Remedies solely on the ground that the person who has the right to appoint and dismiss the Plaintiff at the time of expiration of the Plaintiff’s appointment period is a U.S. Institute. Thus, the court below erred by failing to exhaust all necessary deliberations on the subject of re-examination under the Special

Supreme Court Decision 96Nu4046 delivered on October 10, 1997 is not appropriate to be invoked in this case where the Special Act on Remedy applies.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)