[1] Whether a teacher of a private university who was refused to be reappointed prior to the enforcement of the amended Private School Act has the interest in filing a lawsuit to seek confirmation of the rejection of reappointment and the invalidation of notification as a civil lawsuit, regardless of the procedure for administrative remedy under the Special Act on the Relief of Persons Disqualified from Appointment as University Faculty Members (affirmative)

[2] Whether a decision to refuse to renew a contract with a fixed-term teacher of a private university based on Article 53-2 (3) of the former Private School Act becomes null and void solely on the ground that such decision did not go through prior procedures as stipulated in Article 53-2 (4) through (7) of the amended Private School Act (negative), and where such decision becomes null and void

[3] The case reversing the judgment of the court below which held that a decision to refuse to renew a contract to a fixed-term teacher of a private university prior to the enforcement of the Private School Act was null and void on the ground that the decision did not comply with a substantial part of the procedure under Article 53-2 of the Private School Act, although

[1] Article 250 of the Civil Procedure Act, Article 53-2 (3) and (4) of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005), Article 53-2 (3), (5), (7), and (8) of the Private School Act, Article 53-1 and (2) of the Addenda (amended by Act No. 730 of Jan. 27, 2005), Article 1, 2, 3, 7, and 8 of the Special Act for the Relief of Persons Disqualified for the Appointment of University Faculty Members / [2] Article 250 of the Civil Procedure Act, Article 53-2 (3), Article 53-2 (3), Article 53 (2) of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005), Article 53-2 (3), (4), Article 50 (2) of the Private School Act, Article 7 (2) of the former Private School Act

[1] [2] Supreme Court Decision 2007Da9009 decided Feb. 1, 2008 (Gong2008Sang, 306) / [1] Supreme Court Decision 2003Da52647 decided Mar. 9, 2006 (Gong2006Sang, 569)

Plaintiff (Attorney Han-sung et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Ynam Law Firm, Attorney Choi Ba-han, Counsel for defendant-appellant)

Daegu High Court Decision 2006Na4459 Decided June 22, 2007

The judgment of the court below is reversed, and the case is remanded to Daegu High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 53-2 (3) of the former Private School Act (amended by Act No. 426 of Apr. 7, 190, and amended by Act No. 5274 of Jan. 13, 197) provides that "the faculty of a college educational institution shall be appointed or dismissed for a fixed period as prescribed by the articles of association of the relevant school institution". The Constitutional Court, on February 27, 2003, issued a constitutional complaint against the Constitutional Court Decision 200Hun-Ba26, stating that "the legislative person shall be allowed to appoint or dismiss for a fixed period of time, but it shall not be deemed unconstitutional, the opportunity to reject reappointment of the faculty, and the procedure for objection to reappointment shall not be violated by the principles of law No. 316 of the former Private School Act."

B. Meanwhile, from July 23, 1975 to the date before the date of enforcement of the amended Private School Act, the Special Act on the Remedy for De-Appointment System of University Faculty Members (hereinafter “Special Act on Remedy for De-Appointment System”) was enacted on July 13, 2005 and enforced on October 14, 2005, as the Act No. 7583 on July 13, 2005, to the faculty members of national, public, and private universities who were reappointed under the fixed-term recruitment system for university faculty members from July 23, 1975 (Article 1); the Special Act on Remedy provides for the right and interest of university faculty members excluded from reappointment as a special law for the purpose of review on the protection of rights and interest of university faculty members excluded from reappointment (Article 8); the Commission is legitimate in conducting review or examination on the grounds of de-appointing from reappointment from the date of appointment or the date of expiration of university members (Article 2(1)7); and the Commission determines the validity of review or examination on the grounds of reappointment.

C. In light of the provisions of the Special Act on Remedies, it is deemed that a private university teacher who was appointed as a university faculty member and whose term of appointment has expired prior to the enforcement date of the amended Private School Act has the right to request a fair review on whether he/she is reappointed with reasonable standards (hereinafter “right to request a review on reappointment”) in accordance with the expectation that he/she will be reappointed if he/she satisfies the above criteria after undergoing a fair review on his/her ability and qualities as a university faculty member, barring any special circumstances. Thus, insofar as a person who has the right to appoint and dismiss a university teacher whose term of appointment has expired has an effect on the legal relationship of the university faculty member, and there is a dispute as to whether the decision to refuse the reappointment and the notification are valid between the person who has the right to appoint and dismiss the university faculty member and the person who has the right to request a review on his/her refusal of reappointment and the notification as a civil litigation (see Supreme Court Decision 2007Da9009, Feb. 1, 2008).

D. According to the reasoning of the judgment below, the defendant is an educational foundation that establishes and operates ○ University. On March 1, 2002, the plaintiff is appointed as a full-time lecturer belonging to the Department of International Commerce at ○○ University under the defendant, and on December 30, 2003, the plaintiff was notified by the defendant of the decision to refuse the renewal of the contract (hereinafter "decision to refuse the renewal of the contract in this case") on the ground that the plaintiff was "member of the Department of International Trade at ○○ University" (hereinafter "decision to refuse the renewal of the contract in this case"), and the plaintiff requested a retrial, but on February 10, 2004, the plaintiff was notified of the decision to refuse the renewal of the contract in this case after the Teachers' Personnel Committee on February 25, 2004

Therefore, the Plaintiff is a teacher of a private school who was appointed as a university faculty term appointment system and the term of appointment expires prior to the enforcement date of the amended Private School Act, and is not subject to the amended Private School Act, but has the right to file an application for re-election under the Special Act on Remedy. Therefore, the Plaintiff may dispute against the Defendant who decided to refuse to renew a contract with the Plaintiff through civil litigation.

Although the judgment of the court below is somewhat inappropriate in its reasoning, it is justified in the conclusion that rejected the defendant's argument as to the benefit of lawsuit, so it cannot be said that the judgment below erred by misapprehending the legal principles as to the benefit of lawsuit, which affected the conclusion of the judgment. The allegation in the ground of appeal No.

2. Regarding ground of appeal No. 2

Article 53-2 (3) of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005) (amended by Act No. 7352 of Jan. 27, 2005) does not apply retroactively to the ruling of refusal to renew a contract made based on Article 53-2 (3) of the former Private School Act (amended by Act No. 5004 of Aug. 31, 1999). The Remedial Special Act only provides for the criteria for review of re-examination and the procedure for remedy after the date of re-examination, and does not provide for the procedure related to re-election as in the amended Private School Act. Thus, it cannot be immediately deemed null and void solely on the ground that it did not undergo prior procedures prescribed in Article 53-2 (4) through (7) of the amended Private School Act (see, e.g., Supreme Court en banc Decision 2005Hun-Ma723, Oct. 30, 2008).

According to the reasoning of the judgment of the court below, the decision to refuse to renew the contract of this case was notified on December 30, 203. The notification (Evidence (Evidence (A No. 4) was stated as the ground for non-contract 2, in addition to Article 44(2) of the Rules on the Appointment of Full-Time Teachers (amended by February 26, 2002), and Article 52(2) of the Articles of Incorporation of ○○ Private Teaching Institutes provides that the plaintiff's 2 shall be excluded from the appointment of full-time faculty members by attending the 30th faculty meeting on the grounds of the fact that the plaintiff's refusal to renew the contract of this case was notified to the plaintiff, and that the 13th faculty's refusal to renew the contract of this case is difficult to hear the terms and conditions of the 10th faculty member's second faculty member's second faculty member's second faculty member's second faculty member's second faculty member's second faculty member's second faculty member's refusal to renew the contract of this case.

In light of these circumstances, the decision to refuse the re-contract of this case was made based on the substantive reasons for the "performance of obligation" of five items stated in the notification of confirmation on February 25, 2004, rather than the procedural reasons for the "decision to refuse the re-contract of this case" under Article 44 (2) of the Regulations on the Personnel Management of Teachers (amended by February 26, 2002), and it is reasonable to see that the plaintiff was notified of the specific contents through attendance at the meetings of the Council and the Personnel Committee for Teachers, etc. of the above notification, and that the plaintiff was given an opportunity to provide sufficient opportunity for explanation. Therefore, in relation to the decision to refuse the re-contract of this case which was made prior to the enforcement of the amended Private School Act,

Nevertheless, the court below denied the validity of the decision on refusal of re-contract of this case on the premise that the procedural defect should be deemed null and void unless considerable part of the procedure stipulated in Article 53-2 (4) through (8) of the amended Private School Act regarding the decision on refusal of contract of this case is observed. The court below denied the validity of the decision on refusal of contract of this case on the ground stated in the above reasoning. In so doing, the court below erred by misapprehending the legal principles on the application scope of the provisions on the procedures for reappointment under the amended Private School Act prior to the enforcement of the amended Private School Act, or the procedures for reappointment of university professors prior to the enforcement of the amended Private School Act

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)