[1] In a case where the issue of a lawsuit on the merits is whether the act of refusing the reappointment of a teacher of a private university is unlawful, whether the application to recommend unconstitutionality under Article 53-2 (2) of the Private School Act, which allows the appointment and dismissal of a university faculty member to be delegated to the president or dean of the pertinent school juristic person

[2] Whether Article 53-2 (3) of the former Private School Act violates Articles 22 (1), 31 (6), and 37 (2) of the Constitution (negative)

[3] Whether Article 53-2 (3) of the former Private School Act violates Article 75 of the Constitution (negative)

[4] Whether Article 53-2 (3) of the former Private School Act violates Article 11 of the Constitution (negative)

[5] Whether Article 53-2 (3) of the former Private School Act violates Article 32 (3) of the Constitution (negative)

[1] In order to propose a certain law as unconstitutional, the court must be the premise of a trial on the issue of whether the law in question is in violation of the Constitution. Thus, although a lawsuit on the merits is judged null and void ex officio as to a professor of a private university, the court sought wages and retirement benefits from the retirement age or compensation for damages equivalent thereto from the premise that the act of not re-appointed as a teacher of a private university was not illegal after the expiration of the term of appointment. In this case, it cannot be said that the order of a trial is different or that the legal meaning on the contents and validity of a trial is changed depending on the unconstitutionality of Article 53-2 (2) of the Private School Act, which provides that the right to appoint and dismiss a university faculty member may be delegated to the president and the principal of the relevant school juristic person. Rather, if the same provision is unconstitutional, the first appointment of a professor of the university faculty member becomes null and void, and thus the claim itself of the university faculty member itself becomes unconstitutional, and thus, the application for

[2] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) permits a person who has the right to appoint and dismiss a teacher to review and decide whether to appoint a teacher again upon expiration of the term of appointment. Such a fixed-term appointment system is limited to allowing a college educational institution to appoint and dismiss a teacher for a fixed period of time, and it does not regulate research on the study of the faculty, activities and methods, but does not restrict autonomy in the personnel affairs of the person who has the right to appoint and dismiss the teacher. Thus, the legitimacy of the legislative purpose is recognized. The issue of whether to adopt a fixed-term appointment system and retirement age guarantee system is ultimately a matter of legislative policy and ultimately, it seems that the legislative discretion is considerably unreasonable or it goes beyond its limits. Thus, the above provision does not violate Article 22 (1) of the Constitution providing for freedom of study, Article 31 (6) of the Constitution providing for the legal status of a teacher, and Article 37 (2) of the Constitution.

[3] The principle of prohibition of comprehensive delegation under Article 75 of the Constitution is essentially based on the separation of powers and the principle of the rule of law, and it means that the legislators are prohibited from comprehensively delegating legislative power without specifying the specific scope to the administration. Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) provides that not only the relationship between the school juristic person that belongs to the private law but also the relationship between the school juristic person that belongs to the private law and the teachers, but also the principle that the fixed-term appointment, which can be regarded as the basic matters concerning the status of teachers, is clearly provided in the articles of association of the school juristic person, and it does not constitute a violation of Article 75 of

[4] The basic difference between the status relationship of the faculty of a private university and a public university is as a judicial relation, and the university professors, etc. under the Education Act require high-level professional knowledge, teaching ability, and personality to be equipped with, and the appointment authority should decide whether to be reappointed in consideration of such various circumstances. Thus, Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) provides that the term of appointment, etc. of a private university may be determined in the articles of association by respecting the autonomy of founders shall not violate Article 11 of the Constitution of the Republic of Korea, which provides that the right to equality shall not be violated.

[5] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of January 13, 1997) cannot be deemed to violate Article 32 (3) of the Constitution, which prescribes the statutory principle of working conditions, in light of the fact that the content of labor provided by teachers is education, and the beneficiary with the focus of labor is the student entitled to receive the education under the Constitution, and the right to receive the education should be respected.

[1] Article 41 (1) of the Constitutional Court Act, Article 53-2 (2) of the Private School Act / [2] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Articles 22 (1), 31 (6), and 37 (2) of the Constitution / [3] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 75 of the Constitution / [4] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 11 of the Constitution / [5] Article 32 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 35 (2) of the Constitution

[2] [4] Constitutional Court Order 96Hun-Ba33, 66, 68, 97Hun-Ba2, 34, 80, 98Hun-Ba39 (Hun-Ba29, 620)/ [2] Supreme Court Decision 93Nu2315 delivered on July 27, 1993 (Gong193Ha, 2436), Supreme Court Decision 94Da12852 delivered on October 14, 1994 (Gong194Ha, 2976) (Gong197Ha, 2315)

Applicant

Article 53-2 (2) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) shall be dismissed, and a request for proposal of unconstitutionality under paragraph (3) of the same Article shall be dismissed.

The reasons for requesting an unconstitutionality review are examined.

1. With respect to Article 53-2 (2) of the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; hereinafter the same), in order to propose that certain Acts be unconstitutional, the court shall be the premise of a trial as to which the pertinent Acts are in violation of the Constitution (Article 41(1) of the Constitutional Court Act). The decision of the Supreme Court of Korea case No. 99Da41398, which is the principal lawsuit of this case, is made on March 9, 1983, the applicant is appointed as a professor of the Paju University, which is a school foundation, for ten years from February 28, 1993, and the ex officio dismissal was made on October 31, 1984, but the above ex officio dismissal was invalidated after the expiration of the term of appointment, and thus, an applicant is entitled to wages and retirement benefits or compensation for damages up to the retirement age, and if the application is not reappointed as a professor of a private university, it would be unconstitutional.

Therefore, whether Article 53-2(2) of the Private School Act is unconstitutional or not cannot be the premise of a trial, and this part of the request for proposal is illegal.

2. As to Article 53-2 (3) of the former Private School Act

This part of the motion for proposal cannot be deemed to violate the provisions of the Constitution that the applicant gets against (see, e.g., Supreme Court Order 96Kao57, Jul. 26, 1996; Order 96Da24, Apr. 25, 1997; Constitutional Court Order 96Hun-Ba33, 66, 68, 97Hun-Ba2, 34, 80, 98Hun-Ba39, Jul. 16, 1998).

(1) Article 53-2(3) of the former Private School Act (hereinafter “instant provision”) provides that the person who has the right to appoint and dismiss a teacher upon expiration of the term of appointment shall be permitted to examine eligibility as a teacher and decide whether to appoint a teacher again. Such a fixed-term appointment system is limited to allowing a teacher of a college educational institution to appoint and dismiss a teacher within a fixed period of time, and does not regulate research on the study, activities, and methods, but does not restrict the autonomy of the person who has the right to appoint and dismiss the teacher. Thus, the legitimacy of legislative purpose is recognized. The issue of whether to adopt a fixed-term appointment system and retirement age guarantee system is ultimately a matter of legislative policy, and ultimately, it seems that the legislative discretion is considerably unreasonable or arbitraryly unreasonable, and thus, the instant provision does not violate Article 22(1) of the Constitution that provides for the freedom of study, Article 31(6) of the Constitution that provides for prohibition of essential infringement on the rights of a teacher, and Article 37(2) of the Constitution that provides for prohibition of essential infringement on the right.

In addition, the principle of the prohibition of comprehensive delegation under Article 75 of the Constitution is essentially based on the separation of powers and the principle of the rule of law, and it means that the legislators are prohibited from comprehensively delegating legislative power without specifying the specific scope to the administration. As long as the provision of this case expressly provides not only the relationship between the school juristic person that belongs to the private law but also the principle that fixed-term appointment can be made, which can be regarded as the basic matters concerning the status of teachers, it cannot be deemed that it violates Article 75 of the Constitution on the ground that it delegates the articles of association of the school juristic person with regard to detailed matters.

(2) In addition, the status relationship of the faculty of a private university is basically different from the faculty of a public corporation and a public university, and under the Education Act, professors, etc. shall have high level of professional knowledge, teaching ability, personality, etc., and the appointment authority shall be able to determine their reappointment upon the expiration of the term of appointment, taking into account such various circumstances. Therefore, the provision of the instant provision that respects the autonomy of founders in the case of a private university does not violate Article 11 of the Constitution that provides for the term of appointment, etc. in the articles of association of a school foundation.

(3) Finally, in light of the fact that the content of labor provided by teachers is education, the beneficiary centered on labor is a student who has the right to receive education under the Constitution, and the right to receive education should be respected, the labor relationship of teachers does not apply as it is to the labor relationship of teachers. Therefore, the instant provision does not violate Article 32(3) of the Constitution stipulating the principle of statutory working conditions.

3. Therefore, the part concerning Article 53-2 (2) of the Private School Act among the applicant's motion for proposal of the unconstitutionality of the case shall be dismissed. The part concerning Article 53-2 (3) of the Private School Act shall be dismissed. It is so decided as per Disposition

Justices Cho Cho-Un (Presiding Justice)