Kim Chang-ho (Attorney Kim Chang-ho et al., Counsel for the defendant-appellant)

Busan District Court Decision 200Na14488 delivered on August 2, 200

May 10, 1996

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

(1) In the first instance, the judgment of the court below that "the plaintiff confirmed that he was in the associate professor status of the Sung Pungn University operated by the defendant from April 1, 1995," and that "the plaintiff confirmed that he was in the associate professor status of the same university from October 1, 1995," and in the first instance, "the defendant would appoint the plaintiff as an associate professor of the same university as of April 1, 1995," and in the first instance, "the defendant would appoint the plaintiff as an associate professor of the same university as of October 1, 1995," and that "the defendant shall appoint the plaintiff as an associate professor of the same university as of October 1, 1995."

(2) The judgment that "the defendant shall pay to the plaintiff 30 million won with 25 percent interest per annum from the day following the day of service of the copy of the complaint of this case to the day of full payment."

1. Basic facts

The following facts are no dispute between the parties, or evidence Nos. 1, 11 (Notice), 2, 3 (Articles of Incorporation), 12 through 15, 18 (each thesis), 16, and 17-1, 2 (the marks and contents of each thesis), 24, 25, and 26 (written request for examination of each thesis), 29-9, 15-29, 15-2, 3, 2, 3, 6, 10, 15 (Notice of Examination of Persons Subject to Promotion), 4, 11, 5, 14, 5, 7, 16, 17, 10, 17, 27, 17, 30, 17, 17, 30, 17, and 17, 2, and 3, respectively.

(1) On March 1, 1991, the Plaintiff was appointed as a professor or assistant professor at a college of this college for a term of three years at the Sungsung University operated by the Defendant Corporation, and was reappointed on March 1, 1993.

(2) According to the articles of incorporation of the defendant foundation, the head of the above university shall appoint a teacher with the consent of the teachers' personnel committee (Article 43(3) and (5). The teachers' personnel committee shall deliberate on matters concerning the appointment and dismissal consent when the head of the school intends to appoint and dismiss a teacher (Article 52(1)1). If a person is dissatisfied with disciplinary action or other unfavorable disposition against his will, he may request reexamination to the Review Committee (Article 50(3). According to the above articles of incorporation and the Ministry of Education's "private personnel management guidelines for university faculty" established pursuant to the above articles of incorporation and the Ministry of Education, the appointment of a teacher shall take effect with the issuance of an objection to the appointment of a teacher (Article 5(1) and (2). According to the above articles of incorporation and the Ministry of Education's "private personnel management guidelines for university faculty", the appointment of a teacher shall take effect with the appointment of a teacher, and the person who has worked as an assistant professor for at least four years shall be an associate professor with research performance examination conducted by the President(2).

(3) On April 1, 1995, the Plaintiff, as a person eligible for promotion of associate professors, submitted the 1. thesis as shown in the attached Table No. 1. 2, which was published within the Plaintiff’s assistant professor term (from March 1, 1991 to February 27, 1995) as a research paper at the above university on October 21, 1994.

(4) As a result of the examination of the above thesis submitted by the Plaintiff as a member of the research performance examination committee of the above university around January 1, 1995, Lee Young-young and Lee Young-gu, a professor of the above university, Lee Young-young, a professor of the above university, was commissioned as a professor of the above university, and around January 27, 1995, the above Lee Young-young presented the thesis to the "Physical Society" of the above No. 1 (1) on the ground that it cannot be viewed as a study paper because it was not administered within the plaintiff's term of office as an assistant professor, the remaining thesis was not administered within the plaintiff's term of office as an associate professor, and therefore, it was judged that it is inappropriate as a research examination material for each promotion, and on the other, on the ground that the above title was not evaluated as being inappropriate on the ground that it cannot be evaluated on the paper by himself, and on the other paper, the remaining thesis was examined as a "pass" (hereinafter referred to as "the first).

(5) On February 14, 1995, the teachers’ personnel committee of the above university excluded the Plaintiff from the eligibility for promotion as of April 1, 1995, on the ground that the Plaintiff failed to meet the criteria for evaluation of promotion performance as a result of the above research conducted with respect to the Plaintiff. The above university notified the Plaintiff on the 15th day of the same month, and the Plaintiff filed a request for reexamination with the National University Review Committee around March 24, 1995, but was rejected on the ground that it was not a ground that it was not a ground for

(6) On May 18, 1995, the Plaintiff again submitted a thesis in the attached list to the above university as a person subject to promotion of associate professor on October 1, 1995. Among them, the paper was returned on the ground that the first examination was already submitted, and only the paper was adopted as a material subject to examination on the second day.

(7) Accordingly, around July 194, the above university Kim Yong-sik, the associate professor, and the non-party 1, who is the professor of the above university, was commissioned as a member of the research performance review committee around August 1994, and the plaintiff's second thesis was examined on the plaintiff's 2. of the same year, and the above Kim Yong-tae was assessed against all of the thesis, and the above Kim Yong-tae was judged to have failed to pass the examination of the above letter, and the above letter was assessed to have 1 and 3 "U.S.", and the average evaluation of each convenience did not reach the letter (hereinafter referred to as the "second examination").

(8) On September 19, 195, the teachers’ personnel committee of the above university excluded the Plaintiff from the eligibility for promotion on the ground that the Plaintiff failed to meet the criteria for evaluating the evaluation results of the above research performance with respect to the Plaintiff. The above university notified the Plaintiff at that time. The Plaintiff filed a request for reexamination with the Review Committee of the above University around the 28th of the same month, but was returned on the ground that the Plaintiff did not constitute a ground that it was not

2. Judgment on the plaintiff's assertion

A. Determination on the claim for confirmation of associate professor status

(1) First, although the Plaintiff met the promotion requirements stipulated in the articles of incorporation of Defendant corporation and the regulations on the personnel management of teachers and the Ministry of Education, the Plaintiff did not ask whether Defendant corporation consented to the teachers' personnel committee, and did not accept the Plaintiff's request for reexamination, thereby violating the articles of incorporation, the personnel management regulations of Defendant corporation, and the Ministry of Education's guidelines. The result of the first and second research of the above recognition violates the articles of incorporation, the rules on the personnel management of teaching staff, and the above guidelines of the Ministry of Education. In addition, the Plaintiff's evaluation of the first and second research papers included in the overseas well-known thesis and the thesis book of the above university is deemed inappropriate based on the date of publication, or it is not a research paper solely on the ground that the Plaintiff was published in the place of the physical research association, or the first examination of the above university was rejected from 10th to 15th of the above year without reasonable grounds.

(2) However, in light of the purport of Article 53-2(3) of the Private School Act, Article 11(3) of the Educational Officials Act, the articles of incorporation of the defendant corporation, and the regulations on the personnel management of teaching staff, the head of a university promotes a person who has been appointed as an associate professor in the previous associate professor as an associate professor, not a simple promotion order based on the appointment of assistant professor, but a new status-based relationship is created as the appointment of an associate professor by a person who is an associate professor. (See Supreme Court Decision 93Nu487 delivered on September 10, 1993). Since the appointment of an associate professor only through such promotion, there is no assertion or proof as to the appointment of the Plaintiff as an associate professor by the head of the above university, the Plaintiff cannot be viewed as the position of an associate professor in the above university solely on the ground of the above reasons asserted by the Plaintiff. Thus, the above argument by the Plaintiff is clear.

B. Determination on demanding the performance of promotion

(1) The Plaintiff asserts that, as long as the Plaintiff satisfies all the requirements for promotion prescribed in the above provisions, the Defendant corporation is obligated to appoint the Plaintiff as an associate professor of the said university, and seeks to appoint the Plaintiff as an associate professor of the said university on April 1, 1995 (preliminaryly October 1, 1995) (preliminaryly, 195).

(2) However, even if the status of a teacher of a private school is guaranteed by the law, and a teacher satisfies all the requirements for promotion, there is no legal basis to deem that the appointment period has expired to the appointment authority that the teacher is obligated to be promoted or reappointed (see Supreme Court Decision 86Meu2622, Jun. 9, 1987). In this case, the head of the above university can be promoted only to a person subject to promotion who passed the examination evaluation conducted by the Research Examination Committee in accordance with the articles of incorporation and personnel management regulations of the defendant foundation, with the consent of the teachers' personnel committee. The first and second examination results of the research examination conducted by the plaintiff by the Research Examination Committee of the plaintiff cannot be deemed to have passed the examination evaluation, even if they were unfair as alleged by the plaintiff, and since the plaintiff did not obtain consent to the promotion of the teachers' personnel committee, the plaintiff cannot be deemed to have satisfied all the requirements for promotion provided for in the above provisions. Thus, the plaintiff's preliminary claims for promotion cannot be accepted.

C. Determination on the claim of consolation money

(1) Lastly, the plaintiff asserts that the defendant has a duty to appoint the plaintiff who meets all the requirements for promotion as an associate professor of the above university, but refuses to perform his duty and thereby has caused severe mental distress to the plaintiff. Thus, the defendant is obligated to give up such mental pain to the plaintiff.

(2) However, as seen above, it cannot be deemed that the Defendant is obligated to appoint the Plaintiff as an associate professor of the above university, and thus, the Plaintiff’s above assertion based on the premise that the Defendant is obligated to appoint the Plaintiff as an associate professor of the above university is without merit.

3. Conclusion

Thus, the plaintiff's claims in this case premised on the status of associate professor at the above university or the duty to appoint the plaintiff to the defendant as associate professor at the above university are without merit, and all of them are dismissed. It is so decided as per Disposition by applying Article 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Cho Jong-hee (Presiding Judge)