[1] The legal nature of the measure of approving the change of a founder in a private university

[2] In a case where a private university has changed to a public university, whether the status of the teachers of the private university has terminated automatically (affirmative), and whether the appointment as a teacher of the public university belongs to the discretionary act of the appointing authority (affirmative)

[3] Whether the provisions on the guarantee of status of a teacher under the Private School Act and the Special Act on the Improvement of Teachers' Status apply to a case where a founder is changed from a private university to a public university (negative)

[4] The case holding that the right to apply for appointment as a public educational official in cooking is recognized for the previous teachers according to the agreement of the head of the local government who became a new founder due to the change of the founder in the private university and an order to supplement the status guarantee of the supervisory office

[5] Whether the above [4] A teacher whose term of employment has expired prior to the appointment agreement and supplemental instruction is recognized as having the right to apply for the appointment under the cooking (negative)

[6] Whether the recommendation for appointment of the professor of the local government for the professor of the public university under the former Public Educational Officials Act is "administrative disposition" subject to administrative litigation (negative), and whether the proposal for appointment is appropriate for confirming illegality of omission (negative)

[1] The disposition of approving the change of a founder in a public university by the Minister of Education as stipulated in Article 85(3) and (1) of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997) is not only a disposition of authorization in the sense of completing the legal effect by supplementing the change of founders between the parties concerned, but also includes the abolition of the private university and the establishment of a new public university.

[2] Unlike teachers of private universities, the status of teachers of private universities is naturally terminated due to the change of founders unless there is an act of establishing a new status relationship by the special employment under Article 11(3) of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996) or a new status relationship by the special employment under Article 12(1)5. In such a case, the issue of whether a person having authority to appoint teachers of the previous private university is to appoint teachers of the public university is the discretionary act according to the determination of the appointing authority, and the above legal principle is likewise the same even if the homogeneity between the private university and the public university and the school and the private university are recognized.

[3] Article 56 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) and Article 6 of the Special Act on the Improvement of Teachers' Status are applicable only to the case of change of founders from private universities to public universities.

[4] The case holding that, in case where the market which became the executive body of the local government which became the founder of the new university due to the change of the founder in the private university agreed that the head of the local government which became the executive body of the previous private university shall be appointed as all public educational officials unless he is disqualified for appointment as a public educational official, and the Minister of Education, which is the supervisory office of the educational administration, appointed the market as the person in charge of dealing with the opening of school affairs, and the Minister of Education orders the school juristic person to supplement the problems of the status guarantee of teachers in relation to the change of founder, in light of the market and the status and duties of the Minister of Education in the course of the change of founder in the university, teachers belonging to the previous private university have the right to request the person in charge of the appointment

[5] In the case of paragraph (4) above, only the employment agreement of the market and the supplemental order of the Minister of Education are applicable to the faculty members with remaining employment period at private universities on the effective date of the agreement, and the lawsuit for confirmation of illegality of revocation of refusal or omission is unlawful even if the representative is not entitled to apply to the above agreement and the supplementary order of the Minister of Education, even if he/she did not have the right to apply for the appointment of a public educational official to the appointment authority even if he/she did not have the right to apply for the appointment of a public educational official, and the lawsuit for confirmation of illegality of revocation of refusal or omission is unlawful, even if he/she refused the appointment or failed to appoint a public educational official, as long as he/she did not have the right to apply for the appointment.

[6] Even if the Mayor, who is not a person authorized to recommend the appointment of a professor under Article 25 (1) of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996), has actually participated in the process of the proposal for appointment, such proposal for appointment is unlawful since it is merely a process of making an internal decision on the appointment of a professor, and it does not directly result in any change in the existing state of rights, such as the establishment, duty, change, deprivation, or confirmation of the scope thereof, and thus, it cannot be deemed an administrative disposition subject to administrative litigation. Thus, a lawsuit seeking for confirmation of illegality of omission for which no recommendation for appointment has been made is unlawful.

[1] Article 85 of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997) / [2] Article 56-2 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 85 of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997), Articles 11 (3) and 12 (1) 5 of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996) / [3] Article 56 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 6 of the Special Act on the Improvement of Teachers / [4] Article 16 (1) of the Public Educational Officials Act, Article 25 (1) of the former Public Educational Officials Act (amended by Act No. / [25] Article 16 (3) of the former Public Educational Officials Act

[1] [1] [2] [3/4] Supreme Court Decision 96Nu3654 delivered on April 25, 1997 (Gong1997Sang, 1634)

Gangwon-won (Attorney Lee Young-young et al., Counsel for the defendant-appellant)

The Minister of Education and two others (Attorneys Lee Jin-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 94Gu29296 delivered on May 1, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined as follows. (The grounds of appeal are to the extent of supplement)

1. On the first and second grounds for appeal

The approval of the change of the founder of a public university by the Minister of Education under Article 85 (3) and (1) of the Education Act (amended by Act No. 5272 of Jan. 13, 1997) is not only a disposition of approval in the sense of completing the legal effect by supplementing the change of the founder between the parties, but also includes the abolition of the private university and the establishment of a new public university.

In addition, unlike teachers of private universities, the status of teachers of public universities is naturally terminated due to the change of founders unless there is an act of establishing new employment under Article 11(3) of the Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996; hereinafter the same) or new status relationship by special employment under Article 12(1)5. In such cases, the issue of whether the person who has the authority to appoint teachers of the previous private university is to appoint teachers of the previous public university is subject to discretionary action based on the decision of the person having the authority to appoint the teachers of the public university, and the issue of whether the person having the authority to appoint teachers of the previous private university is to appoint the teachers of the public university again is ultimately subject to the determination of the person having the authority to appoint the teachers of the public university. This legal doctrine is the same even if there is a homogeneity between the private university and the public university and the schools, and the requirements for the appointment.

In addition, Article 56 (1) of the Private School Act (amended by Act No. 5274 of Jan. 13, 1997) and Article 6 of the Special Act on the Improvement of Teachers' Status apply only to the cases where a founder is changed from a private university to a public university as in this case.

In the same purport, the court below is just in holding that even if the founder of the Incheon University changes the private teaching institute into Incheon Metropolitan City as a public foundation, the appointing authority did not have an obligation to specially employ the plaintiff as a professor of the private university as a public educational official, and there is no error in the misapprehension of legal principles pointing out the arguments

2. On the third and fourth grounds for appeal

A. As duly determined by the court below, the Mayor, which is the executive body of the Incheon Metropolitan City, a new university founder, agreed that the status of the teachers of the previous private university shall be appointed as all public educational officials unless there is any ground for disqualification from being appointed as public educational officials, and the Minister of Education, which is the supervisory office of the educational administration, appointed the Incheon Metropolitan City Mayor as the person in charge of dealing with the opening of school affairs, and the Minister of Education, in case where the Minister of Education orders the person in charge of the establishment change to supplement the status guarantee of teachers, in light of the market and the status and duties of the Minister of Education in the process of changing the founder of the university, it is reasonable to view that the teachers of the previous private university have the right to request the person in charge of the appointment to appoint

Nevertheless, the decision of the court below is erroneous in the decision that the plaintiff is not entitled to dispute as a lawsuit against the refusal to implement the teaching appointment procedure or non-performance on the premise that the plaintiff did not have the right to apply for appointment as a public educational official.

B. However, according to the facts established by the court below, on February 28, 1993, prior to the above appointment agreement of the defendant Incheon Metropolitan City Mayor, the plaintiff is a professor who had not been reappointed after the expiration of the term of appointment under the Private School Act. However, the plaintiff has been granted a provisional teacher's status until the judgment of the court of first instance is pronounced in the civil merits case since the application for the provisional disposition such as the suspension of the suspension of the appointment of professor was accepted by the court. According to the records, the above appointment agreement of the defendant Mayor of Incheon Metropolitan City and the above supplementary order issued by the defendant Minister of Education are merely applicable to the teacher who remains the term of appointment at the private university on the effective date of the above agreement, and as in this case, it is reasonable to view that with respect to the teacher who is dissatisfied with the validity of the refusal of appointment due to the expiration of the term of appointment prior to the expiration of the term of appointment, the provisional disposition of the rejection of appointment is cited in the provisional disposition of the suspension of appointment, and therefore, the plaintiff has no right to apply for appointment authority even if there is no right to apply for revocation or omission.

C. Therefore, the court below erred in the judgment below, but the conclusion that dismissed the lawsuit of this case against the defendant Education is just, and there is no error in the misapprehension of legal principles pointing out arguments.

3. On the fifth ground for appeal

Even if the head of defendant Incheon Metropolitan City, who is not an appointment-recommendation authority for professors under Article 25 (1) of the Public Educational Officials Act, actually participated in the process of recommending the appointment of professors, such recommendation is not based on law, and it is merely a process of making an internal decision on the appointment of professors, and it does not directly cause any change in the status of existing rights, such as the establishment, change, deprivation, or confirmation of the scope thereof, and thus, it cannot be deemed an administrative disposition subject to administrative litigation. Therefore, the court below held that the plaintiff's lawsuit seeking confirmation of illegality of omission against the director of defendant Incheon Metropolitan City who did not recommend the appointment of the director of defendant Incheon Metropolitan City is unlawful, and there is no error of law

4. On the sixth ground for appeal

In light of the records and the relevant statutes, the court below did not err by violating the rules of evidence, omitting judgment, failing to exhaust all necessary deliberations, etc., which points out the grounds for the judgment of the Committee for Review of Disciplinary Action against Defendant Teachers for the same reasons.

5. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)