[1] Whether this provision is a mandatory provision under Article 53-2 (3) of the Private School Act concerning the term of office of teachers (affirmative) and the validity of an agreement to reduce the term of office of an assistant professor, contrary to what is stipulated in the articles of association upon delegation of the provision

[2] Whether a private university teacher whose term of appointment has expired has the right to request a fair review of whether he/she is reappointed (affirmative) and the case where a decision to refuse the reappointment made by the appointment authority against the teacher who applied for reappointment is invalidated

[3] In a case where a private university ex officio dismissal of a teacher on the ground that the teacher becomes a closed position or a teacher in the course of closing a class or department, whether the dismissal should be determined according to the result of a review conducted in accordance with the criteria for dismissal by analogy under Article 70(3) of the State Public Officials Act and Article 62(3) of the Local Public Officials Act (affirmative in principle), and the case where an ex officio dismissal can be conducted without following

[4] Where a ground for dismissal under the Private School Act occurred to a teacher of a private university appointed under the fixed-term appointment system for university faculty members, but the contract of appointment is terminated in the form of refusing to dismiss the dismissal without being dismissed, whether he/she refuses to re-election by an unjust method under the social norms (negative

[1] The first sentence of Article 53-2(3)1 of the Private School Act concerning the term of office of a teacher is a mandatory provision to be observed for the freedom of study and the guarantee of the status of a teacher. Therefore, as otherwise stipulated in the articles of association following the delegation of the said provision, the agreement to reduce the term of an assistant professor

[2] According to the relevant provisions of the Private School Act, in a case where a teacher of a private university is appointed pursuant to the fixed-term appointment system for university faculty members and the term of appointment expires, he/she is entitled to receive a fair examination in accordance with reasonable standards as to his/her ability and qualities as a teacher, barring special circumstances, to expect the reappointment and demand a fair examination in accordance with reasonable standards as to whether he/she is reappointed. In a case where the appointing authority refuses the reappointment of a teacher who has filed an application for reappointment, barring special circumstances, he/she shall be held to have the right to demand a fair examination based on the objective grounds for refusal of reappointment, i.e., the objective grounds for refusal of reappointment, even if he/she does not meet the standards for review of reappointment, or even if there are any grounds for refusal of reappointment, to the extent that it is permissible in

[3] In light of Article 31(6) of the Constitution, Article 56(1) of the Private School Act, Articles 43(2), 53(3), and 57(3) of the Public Educational Officials Act, Article 6(1) of the former Special Act on the Improvement of Teachers’ Status (Amended by Act No. 13936, Feb. 3, 2016); Article 70(1)3 and (3) of the State Public Officials Act; Article 62(1)1(b) and (3) of the Local Public Officials Act; etc., where a private university removes classes and departments and subsequently removes from office on the ground that the private school removed from office and removed from office, and accordingly removed from office or removed from office on the ground that there is no possibility that a person subject to disciplinary action should be dismissed from office or dismissed from office under the aforementioned Article 70(3) of the Local Public Officials Act, the State Public Officials Act’ capability to take disciplinary action may be immediately determined based on the standards for dismissal or removal from office.

[4] Where a ground for dismissal under the Private School Act occurs to a teacher of a private university appointed pursuant to the fixed-term appointment system for university faculty members, the appointment contract was terminated in the form of refusing reappointment by not immediately dismissal and putting the expiration of the term of appointment at the expiration of the term of appointment, unless such disposition is deemed disadvantageous to a teacher, it shall not be deemed that there is no ground for refusing reappointment at the expiration of the term of appointment or that a school juristic person refuses reappointment in an unfair manner under the social norms by abusing

[1] Article 53-2 (3) of the Private School Act / [2] Article 53-2 (3) of the Private School Act, Article 27 of the Administrative Litigation Act / [3] Article 31 (6) of the Constitution, Article 56 (1) of the Private School Act, Articles 43 (2), 53 (3), and 57 (3) of the Public Educational Officials Act, Article 6 (1) of the former Special Act on the Improvement of Teachers' Status (Amended by Act No. 13936, Feb. 3, 2016); Article 70 (1) 3 and (3) of the State Public Officials Act; Article 62 (1) 1 (b) and (3) of the Local Public Officials Act / [4] Articles 53-2 and 58 of the Private School Act; Article 27 of the Administrative Litigation Act

[2] Supreme Court Decision 2003Da52647 Decided March 9, 2006 (Gong2006Sang, 569), Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728) / [3] Supreme Court Decision 2011Du2217 Decided July 14, 201 (Gong201Ha, 1637) / [4] Supreme Court Decision 2009Da65249 Decided September 8, 2011

Plaintiff (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

School Foundation Papun Private Teaching Institutes (Law Firm Geon, Attorneys Hong U.S., et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu43253 decided September 8, 2016

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. Judgment on ground of appeal No. 1

Article 53-2(3)1 of the Private School Act provides, “A college educational institution’s faculty member may be appointed on such terms as period of service, salary, conditions of service, performance, performance agreement, etc. as prescribed by the articles of incorporation.” Article 43(2) of the former Articles of incorporation (amended by Act No. 1139, Jan. 16, 2013) of the Intervenor’s Intervenor (hereinafter “ Intervenor”) stipulates that the term of an assistant professor shall be four years. The provision on the term of office of a faculty member is a mandatory provision that must be observed for the freedom of study and the guarantee of the status of a faculty member. Accordingly, the agreement to reduce the term of an assistant professor is null and void, as prescribed by the articles of incorporation

The lower court determined that the Plaintiff’s final term of appointment was implicitly renewed on March 1, 2011 and expired on February 28, 2015, on the ground that the part regarding which the Plaintiff’s term of office was set at one year or two years between the Plaintiff and the Intervenor violated the aforementioned mandatory provisions, and thus, is null and void. The Plaintiff’s term of office was guaranteed at the time of appointment as an assistant professor on March 1, 1999, and the Plaintiff continued to hold office without undergoing a review for reappointment, and the Plaintiff’s term of employment was implicitly renewed every four years.

Although the reasoning of the lower judgment is inadequate, the lower court’s conclusion is justifiable in accordance with the foregoing legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on appointment and dismissal of private school teachers and guarantee of their status, thereby adversely affecting

2. Determination on grounds of appeal Nos. 2, 3, and 4

A. According to the relevant provisions of the Private School Act, in a case where a teacher of a private university is appointed pursuant to the fixed-term appointment system for university faculty members and the term of appointment expires, he/she is entitled to receive a fair examination based on reasonable standards as to his/her ability and qualities as a teacher, barring any special circumstances, to expect the reappointment and demand a fair examination on whether he/she is reappointed. In a case where the appointing authority refuses the reappointment of a teacher who has filed an application for reappointment, barring special circumstances, he/she is deemed to have failed to conduct a fair examination on the basis of reasonable standards as a result of deviation from and abuse of discretion to the extent that it is permissible in the examination on the eligibility of reappointment to verify his/her ability and qualities as a teacher, and thus, to deny the validity of the private law itself is null and void (see, e.g., Supreme Court Decisions 203Da52647, Mar. 9, 2006; 207Da42433, Jul. 29, 2010).

Meanwhile, in light of Article 31(6) of the Constitution of the Republic of Korea, Article 56(1) of the Private School Act, Articles 43(2), 53(3), and 57(3) of the Educational Officials Act, Article 6(1) of the Special Act on the Improvement of Teachers’ Status, Article 70(1)3 and (3) of the State Public Officials Act, Article 62(1)1(b) and (3) of the Local Public Officials Act, where a private university’s dismissal of a teacher on the ground that the teacher’s class or department is abolished and his/her position or department is abolished and accordingly the teacher’s dismissal is likely to be avoided or to minimize the subject of dismissal due to another school juristic person’s transfer or placement with another private school or another department of the relevant school, etc., the Supreme Court’s determination on dismissal or dismissal of a teacher by analogy of Article 70(3) of the State Public Officials Act and Article 62(3) of the Local Public Officials Act should be made immediately based on the standards for dismissal or change in office standards.

Even if an appointment contract was terminated in the form of refusal to re-appoint a teacher of a private university, who is appointed by the fixed-term appointment system for university faculty members, without immediately filing an action for dismissal and with the expiration of the term of appointment, it shall not be deemed that such disposition did not constitute grounds for refusal to re-appoint at the expiration of the term of appointment, or that an educational foundation refuses re-appointing in an unfair manner under the social norms by abusing or abusing discretion, unless such disposition is deemed disadvantageous to the teacher (see Supreme Court Decision 2009Da65249, Sept. 8, 201).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) On March 1, 1997, the Plaintiff, as a major in electronic engineering, was newly appointed as a full-time lecturer and appointed as an assistant professor on March 1, 1999. However, after the abolition of the former department in 2004, the Plaintiff was working as an assistant professor in the department of information and communications, digital image content, and U-care, and U-care department from March 1, 2010, and was paid as an assistant professor without being assigned to the position after the abolition of the hotel tourist foreign service department in 201, and was paid as an assistant professor without any research and lectures at the ○ University, and operated an individual business.

(2) The Intervenor, without undergoing an examination of reappointment at the end of the term of office of a teacher, has extended the term of office by simply preparing a new appointment contract or implied renewal, and began to conduct a faculty member evaluation for review of reappointment since February 1, 2012 by enacting the faculty member evaluation regulations.

(3) On March 3, 2014 and March 24, 2014, the Intervenor notified that he will review the reappointment in accordance with the Teachers’ Service Evaluation Regulations. The Intervenor’s provision on the Intervenor’s position evaluation of teachers provides that the Intervenor’s performance evaluation shall be conducted on an annual basis on the basis of the evaluation period of “from November 1 to October 31 of the preceding year” and the faculty’s achievements shall be classified into 55 points in educational activities, 40 points in volunteer activities, 60 points in research activities, and 45 points in student guidance.

(4) On October 31, 2014, the Intervenor notified the Plaintiff that the Plaintiff’s term of appointment begins on March 1, 201 and expires on February 28, 2015, and provided guidance to submit an application for reappointment by November 15, 2014 in the event the Plaintiff wishes to be reappointed.

(5) In accordance with the Regulations on the Evaluation of Teachers' Status, the president of ○ University, for one year from November 1, 2013 to October 31, 2014, conducted a faculty evaluation of the Plaintiff based on the Plaintiff’s results of teaching staff as of November 31, 2013. The Intervenor’s rules on the appointment of faculty members stipulate that the minimum standards for reappointment should be at least 80 points out of 200 as a result of the Intervenor’s recruitment of faculty members. However, the Plaintiff did not evaluate his achievements as to the items of educational activities and volunteer activities, taking into account the special circumstances that the Plaintiff did not have any assignment at ○ University and did not perform lectures, and the research activities items are evaluated as at least 60 points out of the full score as stipulated in the Regulations on the Evaluation of Teachers’ Status, and the student guidance items are determined as at least 20 points out of the total number of teaching staff assignment counseling points x 20 points out of the 20th class of school events.

(6) On December 9, 2014, the president of ○○ University notified the Plaintiff of the fact that he/she was less than 8 points out of total 80 points (8 points out of total 60 points of research activities and 0 points out of total 20 points of school events) and less than 32 points, which are the minimum standards for reappointment. The Intervenor notified the Plaintiff of the decision to refuse reappointment on December 31, 2013 according to the result of the said evaluation.

C. In the review of re-employment of the Plaintiff, the Intervenor did not consider the result of the full-time teachers evaluation for the four-year employment period (from March 1, 201 to February 28, 2015) in consideration of the result of the full-time teachers evaluation for the most recent one year (from November 1, 2013 to October 31, 201), and the fact that the Intervenor did not give prior notice of the criteria for the examination for re-employment and that it was notified only at the ○○ University’s entire faculty meeting held at the time when three-fourths of the employment period expire (from March 3, 2014, and March 24, 2014).

However, the Intervenor’s decision to refuse re-employment to the Plaintiff is acceptable in light of the following special circumstances. After the abolition of the ○ University’s electronic department in 2004, the Plaintiff was assigned to the adjacent department several times, but after the abolition of the hotel tourism-type department in 201, it can be deemed that the Plaintiff caused ex officio dismissal to the Plaintiff, as it was impossible to assign the transition to the Plaintiff due to the lack of the adjacent department related to the electronic engineering, which was originally majored by the Plaintiff at ○○ University. After that, the Plaintiff was paid a assistant professor who was not assigned to the position at ○ University, and did not receive research and lectures on the part of the Plaintiff. Since 2013, the ○ University started to conduct

Considering these circumstances comprehensively, it is difficult to view that it is reasonable in light of social norms to deny the validity of the private law itself as a result of deviation from and abuse of discretionary power to the extent permitted in the examination of reappointment in order to examine eligibility by verifying the intervenor’s ability and qualities as a teacher of the decision to refuse reappointment, without any grounds for falling short of the criteria for examination of reappointment, or the intervenor’s decision to refuse reappointment.

D. Ultimately, although the reasoning of the lower judgment is partly inappropriate, the lower court’s conclusion that the instant decision of reappointment is not null and void is acceptable. It is so decided as per Disposition by the assent of all participating Justices, as alleged in the grounds of appeal, that the lower court did not err by misapprehending the rules of evidence or by misapprehending the legal doctrine on deviation from and abuse of discretionary power in examination of reappointment

3. Conclusion

The Plaintiff’s appeal is dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-young (Presiding Justice)