Effects of appointment or dismissal of teachers by school juristic persons or private school managers who fail to undergo the procedures referred to in Article 53-2 (1) 1 of the Private School Act (Invalidity)

Article 53-2 (1) 1 of the Private School Act provides that teachers of various levels of schools shall be appointed and dismissed by the relevant school juristic person or private school manager, but appointment and dismissal of teachers of a private school established and operated by school juristic person or private school manager of the relevant private school shall be subject to resolution by the board of directors on the recommendation of the head of the relevant school. Since the above provision aims to ensure the appropriateness of appointment and dismissal of teachers by allowing the head of the relevant school and the board of directors to participate in the appointment and dismissal of teachers of school juristic person or private school manager

Private School Act Article 53-2 (1) 1

Plaintiff (Law Firm Detain, Attorneys Ansan-gu et al., Counsel for the plaintiff-appellant)

Defendant School Foundation

Seoul High Court Decision 2004Na90693 decided July 8, 2005

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

1. The judgment of the court below

The court below, based on the selected evidence, found the facts as stated in its reasoning. After examining the interview of the plaintiff who provided the plaintiff to the (title omitted) university by the president and the defendant, the president and the non-party 1 and the plaintiff specified the contract term and salary in the presence of the president non-party 2 on January 17, 2003, appointed the plaintiff as the full-time professor of the missionary work department. The non-party 2 introduced the plaintiff from the original term of office to the new term of office, as well as the assignment of the plaintiff as the domestic term of office to the plaintiff. The non-party 1 assigned the professor's office to the plaintiff and the non-party 2 to the non-party 3 University from the beginning of February 2003 to the non-party 20, the defendant did not appoint the plaintiff to the non-party 2 as the president and the non-party 3 to the non-party 2, who did not appoint the plaintiff as the plaintiff on February 19, 2003.

2. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 53-2 (1) 1 of the Private School Act (hereinafter referred to as the "Act") provides that teachers of various levels of schools shall be appointed and dismissed by the relevant school juristic person or private school manager, but appointment and dismissal of teachers of a private school established and operated by a school juristic person or a private school manager of a private school shall be subject to resolution by the board of directors on the recommendation of the head of the relevant school. Since the above provision aims to ensure the appropriateness of appointment and dismissal of teachers by allowing them to participate in appointment and dismissal of teachers of a school juristic person or a private school manager, it is reasonable to deem that appointment and dismissal of teachers of a school juristic person or a private school manager without following the above procedure is null and void. Therefore, if the Plaintiff prepared a contract for appointment and dismissal with the president (title omitted), and if there was no appointment and appointment of the president of the board of directors on the recommendation of the president, it is difficult to deem that the Plaintiff is still appointed as a teacher of a university (title omitted) and even if it is deemed that a contract for appointment and dismissal between the defendant

Nevertheless, the court below determined that the appointment contract of this case was valid without examining whether the appointment procedure, such as a resolution of the board of directors, was legitimate. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on Article 53-2 (1) 1 of the Act, and it is obvious that such illegality affected the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)