The meaning of "definite dignity" under Article 61 (1) 3 of the Private School Act and the standard for determining whether such act constitutes "definite injury"

Private School Act Article 61 (1) 3

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant-appellee)

Plaintiff (Law Firm LLC, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

○ ○ Private Teaching Institutes

Seoul High Court Decision 2012Nu36066 decided June 19, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that: (a) the Plaintiff, the president of ○ University Music University, operated by the Intervenor joining the Defendant (hereinafter “ Intervenor”), was aware that Nonparty 1 and three other persons, were not in support for the recruitment of part-time lecturers and was employed as part-time lecturers, thereby violating the enforcement rules regarding the recruitment of part-time lecturers at the music university; (b) thereby allowing them to be employed as part-time lecturers; and (c) proposing them to directly contact part-time lecturers to be employed as part-time lecturers and obtaining their consent, etc., constitutes grounds for disciplinary action, on the ground that it violates his/her duties as a dean.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the fairness of employment and the final person in charge of employing part-time instructors, as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. Article 61(1)3 of the Private School Act provides that a private school teacher’s act of impairing his/her dignity, regardless of whether he/she is on or off duty, shall be one of the disciplinary reasons for the private school teacher. Here, dignity refers to a person who does not have a color because he/she performs his/her duties as an educator for citizens. Whether a certain act constitutes injury to dignity should be determined by sound social norms depending on specific circumstances (see Supreme Court Decision 98Du16613, Jun. 9, 200).

B. The reasoning of the lower judgment reveals the following facts.

(1) On June 18, 2009, the music university of ○○ University publicly announced the recruitment of faculty members of the music university and conducted the procedure. However, upon the occurrence of a problem as to fairness in the recruitment procedure by the music university faculty council, etc., the above procedure was suspended on August 2009. In addition, the music university newly prepared the recruitment proposal of former faculty members on November 2009. According to this, the two full-time faculty members of the department recommended three of the full-time faculty members of the department to be in charge of the faculty division at the university headquarters.

(2) According to the changed recruitment method, the Plaintiff and Nonparty 2 selected three of each applicant, and recommended them. On December 29, 2009, the personnel committee of the Music College excluded Nonparty 3, one of the applicants recommended by the Plaintiff, from the subject of the second examination on the ground that he was aged (1954 students). On February 10, 2010, Nonparty 4, recommended by Nonparty 2, was finally appointed as a malicious and full-time teacher.

(3) On August 20, 2010, Nonparty 3, who was the first result of the first examination before the initial recruitment procedure was suspended, filed an application with the Seoul Northern District Court for provisional disposition suspending the appointment of a full-time teacher with the Seoul Northern District Court, claiming that the intervenor’s new appointment of Nonparty 4 as a full-time teacher was unlawful.

While the examination procedure is in progress in the above provisional disposition application case, the plaintiff prepared a statement containing the following contents on November 3, 2010 and placed it on the part of Nonparty 3, and the attorney of Nonparty 3 submitted it to the court as reference material on the following day.

① The public bonds of the former faculty in charge of △△ University were signed by Nonparty 5 professors of △△ University, Nonparty 6 professors of △△ University, Nonparty 7 professors of △△ University, Plaintiff of ○○ University and Nonparty 2, and Nonparty 3, Nonparty 3, and Nonindicted 2 as a result of the examination of documents by the Plaintiff of △△ University, and Nonparty 85, and signed the results of the examination by the principal of △△ University and the senior professor and the senior professor on July 24, 2009.

② The public bonds of the full-time teachers in charge of sexual intercourse were grading Nonparty 8, Nonparty 9, Nonparty 10, Nonparty 11, and Nonparty 12 of ○○ University, and Nonparty 1, Nonparty 2, Nonparty 13, Nonparty 14, and Nonparty 15 were at least 85, and the principal of the relevant department and the head of the relevant department signed the results of the examination.

③ In the course of the recruitment process at the university headquarters, Nonparty 16 and Nonparty 4 were recommended by Nonparty 16, and Nonparty 2 was finally employed as full-time professor, on December 2009, when Nonparty 2 recommended Nonparty 3, who was Nonparty 1, 2, and 3, to recommend three full-time faculty members in charge of the employment process. Although the Plaintiff recommended Nonparty 3, 1, 2, and 3, the document screening, the Plaintiff did not contact Nonparty 3, who was an unson English or Nonparty 3. In addition, Nonparty 2 recommended Nonparty 2 as a full-time professor.

④ In the examination of sexual music and documents, Nonparty 13 did not contact Nonparty 13 with the second degree of participation in the Oralion, and only the other persons was recommended by only the second degree of persons, Nonparty 14, who was the president Nonparty 12, was elected as a full-time professor.

(4) On the other hand, around January 201, Nonparty 3 filed a lawsuit seeking confirmation of the appointment of former teachers with the Seoul Northern District Court as the main case of the above provisional disposition application. On February 10, 2012, the appellate court rendered a judgment that Nonparty 3 did not conduct an objective and fair examination on the ground that Nonparty 3 was simply old, thereby infringing on the Plaintiff’s personal rights and thus constitutes tort. Accordingly, the appellate court rendered a judgment ordering the Intervenor to pay 30 million won as consolation money to Nonparty 3. The above judgment became final and conclusive as it is. On May 4, 2012, the provisional disposition application case was concluded by Nonparty 3 to withdraw the above provisional disposition application.

(5) Article 12 of the Enforcement Rule of the Regulations on the Appointment of Full-time Teachers at Music Universities provides that “A faculty member who directly or indirectly participated in the duties of employing teachers shall keep confidential information on all matters he/she acquired in the course of performing his/her duties, and the president may request disciplinary action against a person who has the authority to appoint and dismiss after obtaining consent from the personnel committee for teachers or employees.”

The intervenor, who submitted the above written statement to the court, violated Article 12 of the Enforcement Rule, and thereby violated the duty to maintain the dignity of teachers, was subject to disciplinary action for two months of salary reduction. The defendant was reduced to one month of salary reduction.

C. The following circumstances revealed by the facts and records, i.e., (i) the Plaintiff’s statement appears to be consistent with objective facts due to the fact that the Plaintiff mainly pertains to irregularities that occurred in the course of employing full-time faculty members of the university; (ii) the Plaintiff did not appear to have submitted a written statement to the court on the intent of slandering the Intervenor, ○ University, other teachers, etc., or impairing their reputation or credibility on the ground of personal complaints, etc.; and (iii) the Plaintiff appears to have expressed his knowledge in the course of employing full-time faculty members as it appears that he had an intention to examine the reasons for being excluded from the secondary examination or whether the employment process of full-time faculty members was illegal, based on objective facts, and (iv) the Plaintiff appears to have prepared a written statement at Nonparty 3’s request. In a specific litigation case, the Plaintiff’s submission of the written statement in cooperation with the court’s duties to discover substantive truth in the specific litigation case, which is not directly related to the Plaintiff’s act without any decentralization, or by submitting it to the court’s trust or side effect.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the Plaintiff’s submission of a written statement to the court constitutes legitimate grounds for disciplinary action. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to maintain dignity of private school teachers, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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

Justices Kim So-young (Presiding Justice)