The case affirming the judgment of the court below holding that the ex officio dismissal of an associate professor under the amended school regulations which do not have effect without deliberation by the faculty council is unlawful in case where a school foundation established and operated by it to amend its school regulations and abolished its department and ex officio dismissed its associate professor.

Where an incorporated school foundation amends its school regulations and closes its department, and ex officio dismissal of associate professors under its jurisdiction after it closes its department, the case holding that it is unlawful for an incorporated school foundation to ex officio dismissal of associate professors under its jurisdiction in accordance with the amended school regulations on the ground that there is no evidence to deem that the school foundation’s school regulations amendment to the school regulations, which was to abolish the department, had undergone deliberation by the faculty council on the draft amendment of the school regulations, although it was requested by the principal of the school to consult with a faculty council comprised of at least full-time professors, for the amendment of the school regulations

Article 56 (1) of the Private School Act; Article 4 (1) 1 and (2) of the Enforcement Decree of the Higher Education Act

Plaintiff 1 and one other (Attorney Song-chan, Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

Dadong Private Teaching Institutes (Law Firm, Law Firm, etc., Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu15823 decided January 28, 2010

The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

The grounds of appeal are examined.

Article 56 (1) of the Private School Act provides, “No teacher of a private school shall be subject to any unfavorable measure, such as temporary retirement or dismissal against his/her will, except for a punishment, disciplinary action, or for any reason prescribed by this Act: Provided, That the same shall not apply where he/she is closed or in school personnel due to the opening or closing of a class or department.” Article 4 (1) 1 of the Enforcement Decree of the Higher Education Act provides, “the establishment of a major and the fixed number of students,” and “procedures for amendment of school regulations” must be stated in school regulations; and Article 4 (2) of the Enforcement Decree of the Higher Education Act provides, “Where the head of a school intends to enact or amend school regulations pursuant to Article 6 (1) of the Act, he/she shall undergo procedures of prior public announcement, deliberation, and promulgation of a draft establishment or amendment, as determined by school regulations.” Article 57 (1) of the School Regulations of the information of an information center operated by the Intervenor (hereinafter referred to as “participating”). Article 58 (2) of the Enforcement Decree provides that “the enactment and amendment of school regulations.”

Examining the above provisions in light of the purport, etc. of Article 56(1) of the Private School Act to guarantee high-level teachers’ status, the term “when a teacher or a staff member is closed due to the abolition of a class or department or the reduction of organization through lawful procedures for the amendment of the school regulations” under the proviso of Article 56(1) of the Private School Act refers to cases where the position or fixed number of the faculty member becomes lost due to the abolition of the establishment class or department or the reduction of organization through legitimate procedures for the amendment of the school regulations. Meanwhile, in order to amend the school regulations of the Dadong Information University, the principal of the school requests a faculty council comprised of full-time professors to provide advice and deliberation, as prescribed by the school regulations, and if such deliberation is completed, the amendment of the school regulations is null and void.

According to the reasoning of the judgment below, the court below held that it was unlawful to ex officio dismissal of the plaintiffs who were trade and associate professors by the participant pursuant to the school regulations abolished in the trade department of the Kudong Information University on June 21, 2006 since it had already been omitted from the details of the establishment of the department of the school regulations as of June 21, 2006 by the amendment of the above school regulations or by the amendment of the previous school regulations. However, since there is no evidence to deem that the amendment of the school regulations that had already been deliberated upon by the professor's meeting on the amendment of the school regulations that would abolish the trade department, the above amendment of the school regulations was null and void. The above determination by the court below is just in accordance with the legal principles as seen earlier, and there is no error

In addition, according to the reasoning of the judgment below, the court below determined that the procedural defect of the amendment of the school regulations as of July 10, 2007 by the amendment of the school regulations as of July 10, 2007 of the Kudong Information University was not cured. After recognizing the fact that the amendment of the school regulations as of July 10, 2007 did not contain trade and abolition, it cannot be deemed that the procedural defect of the amendment of the school regulations as of July 10, 2007 was cured. In light of the facts duly admitted by the court below, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles on the cure of defects.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)