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

Teachers' Appeals Review Committee (Law Firm Chungcheong, Attorney Cho Jong-chul, Counsel for the plaintiff-appellant)

Dadong Private Teaching Institutes (Law Firm Law, Attorney Kim Jong-soo, Counsel for defendant-appellant)

December 17, 2009

Seoul Administrative Court Decision 2008Guhap40097 decided May 21, 2009

1. Revocation of a judgment of the first instance;

2. On September 8, 2008, the decision to revoke the revocation of the ex officio dismissal by the defendant against the plaintiffs shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant and his assistant intervenor.

The same shall apply to the order.

1. Details of the petition review and decision;

A. On February 25, 2006, the Defendant’s Intervenor dismissed the Plaintiffs who were trade and professors at the time of closing trade department at the Dadong Information University, which was established and managed by himself, as of the 28th of the same month. However, the ex officio dismissal disposition was based on the premise of the closure of trade department, or the amendment of the school regulations thereon was not made, and the student was in the remaining condition, and on the grounds that the consent of the committee on ex officio dismissal was not obtained, it was revoked by the teachers’ Appeal Committee of the Ministry of Education and Human Resources Development on May 22, 2006, and the Defendant’s Intervenor filed a lawsuit against it, but the judgment against the Defendant’s losing on March 14, 2008 became final and conclusive.

B. On March 28, 2008, the Defendant’s Intervenor sent the Plaintiffs to be reinstated as of April 1, 2008, and there was a problem with the affiliation and disposition of the Plaintiffs, as amended by the school regulations that have abolished trade department.

C. On April 8, 2008, the Committee for the Department of Information and Communications Technology decided to discuss the issue of the Plaintiffs’ affiliation and assignment at the Teachers’ Personnel Committee, and accordingly, the teachers’ personnel committee was held five times from April 11, 2008. The Plaintiffs appeared at the Teachers’ Personnel Committee meeting on May 9, 2008, and the Plaintiffs demanded marketing information to Plaintiff 1, and Plaintiff 2 to transfer to management department, respectively. The Teachers’ Personnel Committee demanded the reorganization of the curriculum of the relevant department at the time of transition assignment to the Plaintiff, but it is not desirable that the result of the reorganization of the curriculum would be inevitable, and it is difficult for the Plaintiffs to accept the request for transition assignment on the grounds that the learning right of the teachers might be infringed upon by the teachers’ right to study by the teachers’ personnel committee related to the major. However, the Plaintiffs proposed that “one year of demotion exclusively in charge of the contract term” based on the revised Regulations on the Personnel Management of Teachers as of May 1, 2008, but did not accept this.

D. On May 14, 2008, the teachers personnel committee of the information and training college consented to the dismissal of the plaintiffs on May 15, 2008. On the 16th of the same month, the head of the information and training school of the information and training college also consented to the dismissal of the plaintiffs. On the 16th of the same month, the defendant's defendant's defendant's defendant's defendant's dismissal was proposed on the ground that "the closure provided for in Article 56 (1) of the Private School Act and Article 46 (1) of the Articles of the Organization of the information and training Institute of the information and training school, and the defendant's defendant's board of directors decided to dismiss the plaintiffs on May 31, 2008 (hereinafter "ex officio dismissal of this case").

E. On June 23, 2008, the Plaintiffs filed a petition review with the Defendant seeking revocation of ex officio dismissal, but the Defendant rendered a decision to dismiss the petition (hereinafter “instant decision”).

[Ground of recognition] Facts without any dispute, Gap's 3 through 5, 17, 18, Eul's 7, 9, 14 through 27, and the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. The plaintiffs' assertion

The amendment of the school regulations that discontinue trade department is without deliberation by the faculty council, and it has no effect in violation of Article 4(2) of the Enforcement Decree of the Higher Education Act and Article 58(2) of the school regulations of the defendant's assistant intervenor (hereinafter "school regulations"), and the defendant's assistant intervenor did not take such measures despite the fact that the defendant's assistant intervenor could convert and place the plaintiffs into the management department and marketing information, so the decision of this case which dismissed the plaintiffs' petition review request even though ex officio dismissal is illegal or unjust.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Article 56 (1) of the Private School Act provides that "no teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will, unless he/she is sentenced to a punishment, disciplinary action, or on the grounds prescribed by this Act: Provided, That the same shall not apply where he/she is closed or in excess of his/her class or department due to the abolition or abolition of a class or department, and Article 4 (1) 1 of the Enforcement Decree of the Higher Education Act requires the establishment of a major and the fixed number of students to be entered in school regulations, and in light of the perspective of the status guarantee of teachers, the above provision is examined in light of the perspective of the status guarantee of teachers. The change of class or department prescribed in the proviso of Article 56 (1) of the Private School Act refers to a case where a teacher under his/her control closes the class

Therefore, I first examine whether the school regulations that discontinue trade with the trade department have been amended by legitimate procedures.

In view of the provisions of Article 6(1) and (3) of the Higher Education Act, Article 4(1) and (2) of the Enforcement Decree of the Higher Education Act, and Articles 57(1) and 58(2) of the school regulations under the above Acts and subordinate statutes, the amendment of the school regulations must necessarily undergo deliberation by a faculty meeting comprised of at least full-time faculty members, and shall be deemed null and void if such is decided.

[School Regulations]

The university referred to in Section 1 of Article 57 (Composition) shall consist of at least full-time faculty members: Provided, That other persons may be included, if necessary.

§ 58 (Convocation and Deliberation). Section 2. The faculty meeting shall deliberate upon the following matters in response to a request for advice by the principal:

1. Matters concerning the establishment and amendment of school regulations and regulations;

However, in light of the overall purport of the arguments in Gap evidence No. 26, since the provisions of Article 4 on the establishment department and the fixed number of admission of the defendant assistant intervenor as amended on June 21, 2006 are not trade trade, it seems that trade has been terminated by the above amendment of the school regulations or the previous school regulations, and there is no data to view that the amendment of the school regulations was deliberated by the professor Council at that time.

Therefore, since the amendment of the school regulations that abolish trade department is deemed to be null and void, the defendant's assistant intervenor's ex officio dismissal of this case, which is premised on the abolition of trade department according to the legitimate amendment of the school regulations, is illegal, and the decision of this case, which dismissed the plaintiffs' petition review request, cannot avoid illegality.

In regard to this, the defendant's assistant intervenor argues that Article 58 (2) of the school regulations provides that "the professor's meeting shall deliberate upon the advice of the principal," and therefore the deliberation of the professor's meeting is voluntary, and the result of the deliberation is not binding on the president, so it does not affect the validity of the amendment of the school regulations. However, as seen earlier, the deliberation of the professor's meeting cannot be deemed voluntary (i.e., the deliberation of the professor's meeting must be referred to the deliberation for the amendment of the school regulations) and the deliberation result does not vary without any provision that it has any binding force.

In other words, Defendant Intervenor asserts that since the amendment of the school regulations on June 12, 2007, at the time of the amendment of the school regulations on July 10, 2007, after deliberation by the faculty committee composed of teachers, employees, and students representatives on June 18, 2007, the amendment of the school regulations on July 2, 2007, the amendment of the school regulations on trade and abolition of trade shall be deemed valid. However, even based on the statement of evidence Nos. 7 and 8, the amendment of the school regulations on July 10, 2007 is not presented as agenda items, and the deliberation by other university organizations than the faculty council cannot be replaced or excluded, as argued by Defendant Intervenor’s assertion, the amendment of the school regulations does not require the deliberation of the faculty committee on the amendment of the school regulations on July 10, 207.

3. Conclusion

If so, the decision of this case is unlawful, and thus, the decision of the court of first instance is unfair with the conclusion different, and it is so revoked and it is so decided as per Disposition by the decision to revoke the decision of this case.

Judges Lee In-bok (Presiding Judge) Lee In-bok Kim