[1] Legal relations pertaining to the reappointment of a private school teacher upon expiration of the term of appointment

[2] Whether Article 53-2 (3) and Article 53-3 of the former Private School Act, Article 11 (3) of the Public Educational Officials Act, and Article 31 (6) of the Constitution declaring the legal principle of this education system, goes against Article 31 (3) of the Constitution (negative)

[3] Whether the above agreement is effective on a person who had worked temporarily due to a provisional disposition even though the term of appointment expired before the contract for transfer and takeover between a private school and a local government (negative)

[1] As a matter of course, the status of university professors appointed for a fixed period of time is terminated as a matter of course due to the expiration of their term of appointment. Under the Education Act, university professors, etc. are required to have high-level professional knowledge, teaching ability, and personality, and when the term of appointment expires, the appointment authority should decide whether to re-appoint a person whose term of appointment expires, taking into account such various circumstances. Thus, whether to appoint a person whose term of appointment expires belongs to free discretion based on the appointment authority’s decision, and therefore, it cannot be deemed that university professors appointed for a fixed period of time

[2] Article 31(6) of the Constitution provides that "the basic matters concerning the educational system including school education and lifelong education, its operation, education finance, and the status of teachers shall be determined by the Act", thereby declaring the legal principle of education system including the status of teachers. However, it cannot be said that it violates Article 53-2(3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 53-3 of the same Act concerning the Personnel Committee for Teachers, or Article 11(3) of the Public Educational Officials Act providing that teachers working at universities may be appointed for a specified period under the conditions as prescribed by the Presidential Decree.

[3] The contract of appointment under the contract of transfer and takeover between private schools and local governments is merely applicable to the faculty members whose term of appointment remains on the date when the contract becomes effective, and even if the term of appointment expires prior to the date when the contract becomes effective, but it is accepted a provisional disposition of suspending the effect of refusal of reappointment in a public university temporarily, with respect to the faculty members who are dissatisfied with the validity of refusal of reappointment in a public university due to the absence of reappointment, the contract of appointment is applied, and the right and duty relationship between the private school and the former school juristic person is not succeeded to the local government that has taken over the private school.

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) / [2] Articles 53-2 (3) and 53-3 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 11 (3) of the Public Educational Officials Act, Article 31 (6) of the Constitution / [3] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 105 of the Civil Act, Article 714 (2) of the Civil Procedure Act

[1] Supreme Court Decision 93Da61789 delivered on July 29, 1994 (Gong1994Ha, 2234), Supreme Court Decision 94Da12852 delivered on October 14, 1994 (Gong1994Ha, 2976), Supreme Court Decision 93Da55425 delivered on January 20, 1995 (Gong1995Sang, 882), Supreme Court Decision 96Da7076 delivered on June 27, 1997 / [2/3] Supreme Court Decision 96Nu3654 delivered on April 25, 199 (Gong197Sang, 1634) / [2] Supreme Court Decision 93Nu19439 delivered on July 27, 1993 (Gong29493Da197494 delivered on September 194, 194)

Plaintiff (Attorney Lee Young-hoon et al., Counsel for the plaintiff-appellant)

A school foundation prior to the filing of a petition

Seoul Special Metropolitan City (Law Firm Dong-dong, Attorneys Lee Jin-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 94Na41371 delivered on December 19, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first ground for appeal

The term of appointment for university faculty members shall naturally terminate the status quo as a university faculty member upon expiration of the term of appointment. It is necessary to request university professors, etc. under the Education Act to have high level of professional knowledge, abilities, and personality, and if the term of appointment expires, the appointing authority may determine whether to re-appointing a faculty member after taking into account such various circumstances. Thus, whether to appoint a faculty member whose term of appointment expires belongs to free discretion based on the determination of the appointing authority (see Supreme Court Decisions 93Nu2315 delivered on July 27, 1993, 94Da12852 delivered on October 14, 1994, 93Da5425 delivered on January 20, 195, and 93Da5425 delivered on January 20, 1995). This legal principle does not change the term of appointment for a university faculty member under the latter part of Article 53-2 (3) of the Private School Act, which provides that the term of appointment shall not expire before the expiration of the term of appointment.

In addition, Article 31 (6) of the Constitution of the Republic of Korea provides that "the basic matters concerning the educational system including school education and lifelong education, its operation, education finance and the status of teachers shall be determined by the Act", which declares the legal principle of the educational system including the status of teachers, but it cannot be said that it violates Article 53-2 (3) of the Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 53-3 of the Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 11 (3) of the Public Educational Officials Act (amended by Act No. 5274 of Jan. 13, 199), and Article 11

In the same purport, the court below is justified in holding that Article 53-2 (3) and Article 53-3 of the Private School Act violates Article 31 (6) of the above Constitution, and there is no ground to acknowledge that there is no provision that grants the duty of reappointment when the term of appointment of professors expires by setting the defendant's articles of incorporation or the guidelines for the management of reappointment of teaching staff of ○○ University under the above Constitution, and there is no other ground to recognize that there is a legal right that requires the plaintiff to be reappointed according to fair procedures. In addition, it is not recognized that the defendant's personnel committee of ○○ University under the defendant's jurisdiction refused to re-appoint the plaintiff on February 19, 193 without any error in the rules of evidence concerning the defendant's internal decision-making, and it is not recognized that such refusal is only one of the defendant's refusal to re-appoint the plaintiff, and that the defendant's request for refusal to renew the appointment of teaching staff of the plaintiff on the same day constitutes grounds for appeal by the defendant's refusal to renew the appointment of the plaintiff.

2. On the second ground for appeal

According to the facts established by the court below, the plaintiff is a professor who had not been reappointed on February 28, 1993, prior to the agreement on the transfer and takeover of schools of various levels under the "Agreement on the transfer and takeover of schools for the publicization of a private teaching institute which is a school foundation" between the defendant and the intervenor. However, the application for provisional disposition such as the suspension of the effect of the appointment of professor was accepted by the court and it has a temporary teacher status until the judgment of the court of first instance in the civil principal case was rendered. According to the records, the above agreement of the 00 Metropolitan City only applies to the teacher whose employment period remains at the private ○○ University on the date of the validity of the above agreement, and as in this case, it is reasonable to view that the contract does not apply to the teacher whose appointment period has already expired before the date of the validity of the above agreement, but whose appointment period has not been renewed, and whose appointment has not been decided temporarily in a public university due to the provisional disposition of the suspension of the appointment (see Supreme Court Decision 2007Nu1565, Apr. 1975. 197).

The court below is just in holding that the defendant appointed the plaintiff as temporary teacher on November 15, 1993 in accordance with the above provisional disposition order, but the plaintiff was a professor who had worked at ○○ University prior to February 28, 1994, the effective date of the above provisional disposition agreement, and thus was not reappointed and thus the relation between the plaintiff and the defendant as to the right and duty of the above faculty appointment between the plaintiff and the defendant was succeeded to the succeeding intervenor pursuant to the above agreement, and the above agreement between the defendant and the succeeding intervenor does not recognize that all of the rights and duty relations between the plaintiff and the defendant with respect to the above teaching faculty appointment were comprehensively succeeded to the succeeding intervenor. In addition, there is no error of law by misunderstanding the legal principles as to the validity of the above provisional disposition of transfer and takeover agreement and the validity of provisional disposition to determine temporary status between the defendant and the succeeding intervenor.

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

Justices Park Jong-ho (Presiding Justice)