209Guhap7424 Disposition of revocation of suspension from office

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Appeals Review Committee for Teachers

April 17, 2009

May 1, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s decision of suspension from office on January 19, 2009 against the Plaintiff is revoked.

1. Details of the disposition;

A. On March 1, 1900, the Plaintiff was newly appointed as the assistant professor of ○○ University on April 1, 200 and served as professor on April 1, 200, and was subject to a disposition of suspension from office for three months as the president of ○○ University on September 1, 2008, on the ground that the Plaintiff sent text messages that explicitly arouses the above lectures to female students who listen to the above lectures, and gave them a sense of psychological burden and displeasure.

B. Accordingly, on September 29, 2008, the Plaintiff filed a petition review seeking revocation of the above suspension from office for the first three-month period pursuant to Article 9(1) of the Special Act on the Improvement of Teachers' Status. On January 19, 2009, the Defendant rendered a decision to review the appeal that changed the above suspension from office for the three-month period from office to one month from suspension from office for the reason that some of the grounds for disciplinary action is not recognized, and that the above suspension from office is considered in light of the circumstances (hereinafter "decision in this case").

【Unsatched Facts, Gap evidence 1, 2, Gap evidence 7-2, Gap evidence 8-1, and Gap evidence 12, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff merely urged students to participate in classes in accordance with educational reasons and objectives, and did not engage in sexual harassment or improper behavior with private appraisal. Thus, the Defendant’s decision of this case based on the premise that there is a ground for disciplinary action is unlawful. Even if the Defendant’s decision on the ground for fact finding and disciplinary action is correct, the Defendant’s decision on the disposition of one-month suspension from office against the Plaintiff is too unreasonable to make the Defendant’s decision on the ground of fact finding and disciplinary action, and thus, the instant decision should be revoked.

B. Determination

Article 19 of the Administrative Litigation Act provides that "an action for cancellation shall be subject to a disposition, etc.: Provided, That in the case of a lawsuit for cancellation of adjudication, it shall be limited to cases where the adjudication itself is based on an inherent error in the adjudication itself, and the special law for improvement of teachers' status provides that "a member of the Board of Education, Science and Technology shall have a member of the Board of Appeal for Teachers (Article 7 (1)), a member of the Board of Education, and a member of the Board of Appeal for Teachers may, if he/she is dissatisfied with a disciplinary action or other unfavorable disposition against his/her will, request the Committee on Appeal for Teachers within 30 days from the date he/she becomes aware of such disposition (Article 9 (1)), and a member may file a lawsuit in accordance with the Administrative Litigation Act, as provided for in the Administrative Litigation Act, within 90 days from the date on which he/she is notified of such decision (Article 10 (3)).

According to the above provisions, an appeal litigation shall be subject to the pertinent disposition in principle, and an appeal litigation against a ruling dismissing a request for administrative appeal cannot be asserted on the ground of the defect of the original disposition. It shall be limited to cases where there is an error in the inherent subject, procedure, form, or content of the ruling itself, that is, an illegality in the authority or structure of the ruling authority that is not in the original disposition nor only in the ruling, and an illegality in the procedure or form of the ruling, and even in cases where a part of the request for administrative review is accepted or revised, it shall not be subject to a judgment unless there is an inherent defect in the ruling itself, and it shall be interpreted that the remaining original disposition after partial revocation by the ruling or revised original disposition is subject to a lawsuit as a matter of principle (see, e.g., Supreme Court Decisions 93Nu1784, Feb. 8, 1994; 93Nu5673, Aug. 24, 1993; and therefore, it shall not be subject to an appeal litigation against a teacher’s disciplinary action against the above new disposition.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hong-do.

Judges Park Jae-young

Judge Lee Yong-soo