[Judgment of the court below]

Ministry of Education and Human Resources Development (Attorney Kim Jong-young, Counsel for defendant-appellant)

Intervenor (Attorney Kim Jong-young, Counsel for defendant-appellant)

August 23, 2006

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The decision made by the Defendant on December 28, 2005 between the Plaintiff and the Defendant’s Intervenor (hereinafter referred to as the “Supplementary Intervenor”) regarding the claim for revocation of revocation of the refusal of reappointment shall be revoked.

1. Circumstances for decision on the request for reexamination;

A. On March 1, 2001, the Plaintiff was appointed as ○○ University’s performance, art, entertainment, and assistant professor with the term of contract from March 1, 2001 to February 28, 2002, setting the two-year period from March 1, 2001.

B. On December 26, 2002, when the expiration of the term of appointment for the plaintiff on December 26, 2002, at the teachers' personnel committee where 13 of the registered members were present among 14 of the registered members, the supplementary intervenor examined whether to re-contract with the plaintiff, taking into account the following factors: evaluation of teaching service, evaluation results of lectures, opinion of major professors, etc. The achievement evaluation score satisfied the standard values, but falls short of the standard values in the research sector; evaluation score of lectures was less than 88% higher than the average of three-years in the year 1 to 2001; evaluation score of lectures was less than the average of 1 semester in the year 2001 to 1 semester 202; all major professors do not want to re-contract with the plaintiff; and the assistant instructors and the principal of students filed a petition with the president for the joint signature of the plaintiff; on December 27, 2002, the results of deliberation by the teachers' personnel committee was rejected on March 1, 2003.

C. The plaintiff filed a lawsuit against the supplementary intervenor seeking confirmation of status as professor with the Seoul District Court on April 25, 2003, but the plaintiff's claim was dismissed on August 28, 2003 (No. 2003Gahap31379). The plaintiff appealed to the Seoul High Court on February 16, 2005 (No. 2003Na63205) but the appeal filed with the Supreme Court was dismissed on July 6, 2006 (No. 2005Da16041).

D. Upon the enactment of the “Special Act on the Relief of Persons Disqualified for the Appointment System of University Faculty Members,” the Plaintiff filed a request for reexamination of reappointment on October 14, 2005 on the following grounds: (a) on October 14, 2005, the research scores should be calculated including research achievements in 2002, and (b) on a arbitrary basis according to the subjective evaluation criteria and purpose of the Intervenor’s Intervenor, the result of his lectures against the Plaintiff was low; (c) on the grounds of refusing the reappointment of the Plaintiff; and (d) without undergoing the verification procedure on the factual basis stated in the written application for ammunition, it is unreasonable to mislead the Plaintiff into fact and reject the reappointment. On December 28, 2005, the Defendant rejected the Plaintiff’s request for reexamination of reappointment on the ground that the Plaintiff did not meet the minimum research achievements, which are the basic requirements for the re-contract; and (d) on the ground that the Plaintiff’s evaluation of the research business performance for all four semesters, as alleged by the Plaintiff, the Intervenor’s dismissal of sexual harassment against the Plaintiff’s in the instant case is inappropriate.

[Reasons for Recognition] Gap evidence 1, Gap 7-10 evidence, Eul 3 evidence, Eul 4-6 evidence, and the purport of the whole pleadings

2. Whether the dismissal ruling of this case is legitimate

A. The plaintiff's assertion

(1) Legal principles

Article 53-2 (4) through (7) of the current Private School Act, amended by Act No. 7352 on January 27, 2005, pursuant to the Constitutional Court's ruling of inconsistency with the Constitution (No. 2002HunBa14 and 32) rendered on December 18, 2003, should be applied to the Plaintiff. However, the Defendant's decision of dismissal of the instant case without applying the current Private School Act is erroneous in the misapprehension of legal principles.

(2) Although the grounds on which the Intervenor’s refusal to re-appoint the Plaintiff are unjustifiable as indicated in the following, the Defendant erred by deeming the Intervenor to be justifiable to refuse re-appointing the Plaintiff, and thus, the instant dismissal decision should be revoked.

(A) Research evaluation;

When examining the re-employment of the Plaintiff, the subject of the examination shall be based on the entire research business for two years from March 1, 2001 to February 28, 2002, and 140 points out of 202 as well as 140 points out of 1 semester. On December 2002, 200, ○○ University published each year at ○○ University’s University’s research paper (title: title e.g., “Art. Research paper”) was submitted to ○○ University’s “Art. Research paper”. Since the research performance exceeds 70 points, the supplementary intervenor’s research performance exceeds 200 points out of 70 points, but the supplementary intervenor’s minimum research performance falls short of the research performance for three years from 200 to 1 semester, excluding the second semester of 2002. It is clearly contrary to the Intervenor’s articles of incorporation, the regulation on the evaluation of teaching staff, the former promotion and re-election.

(B) The result of lectures evaluation

Although the 3 semester average assessment results of lectures against the plaintiff were evaluated as being lower than the upper 88% (class 57 out of 61), the discriminatory criteria for lectures, such as the type of subjects, the major field of study, the number of students by professors, and the number of students by lectures, are not taken into account at all, and there is no choice but to be a lot of subjective elements, so it is lack of objective validity to take them as assessment materials in the examination of reappointment by using only the upper percentage rate by professors by art and athletic skill, which cannot be used as objective assessment materials, as lecture materials.

(C) Opinion of the professors of the same department

The opinions of the faculty members of the East Fee are not materials that can be used for the examination of reappointment prescribed in the Regulations on Promotion and Reappointment, but only reference materials are used in the ○○ University itself when examining the re-contract of the faculty members on a contract basis. All of the arguments that the faculty members opposed to reappointment are based on the determination based on subjective criteria, such as distortion of fact, exaggeration, sunshine, or extremely, and thus, should be deemed the grounds for refusal of reappointment without confirming the relevant facts.

(D) Anthrax

At night, without examining the facts about Nonparty 1’s written application for coal, it was accepted as the truth and used as a reason for refusal of reappointment. In order to intentionally see the Plaintiff, it was found that the written application for coal under the joint signature between the teaching assistants and the teaching staff was made by the public invitation of the teaching staff of the teaching department and the teaching staff of the teaching department, and that it was unjustly made by the teaching staff of the teaching department and the teaching staff of the teaching department, and it was erroneous to accept it as the truth without investigating the facts

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Judgment as to the misapprehension of legal principle

(A) We examine the laws applied at the time of refusal of reappointment to the plaintiff. According to Article 1 of the Addenda to the Private School Act (Act No. 6004 of Aug. 31, 1999, the amended Act, in principle, shall enter into force on the date of its promulgation: Provided, That the amended provisions of Article 53-2 (3) shall enter into force on January 1, 2002, and Article 53-2 (2) of the Addenda shall, notwithstanding the amended provisions of Article 53-2 (3) of the former Act, be in accordance with the previous provisions until the expiration of the term of appointment. Thus, when a contract for appointment between the plaintiff and its assistant participant was concluded on March 1, 201 and the term of appointment expires on February 28, 200, the former Private School Act shall be amended by Act No. 53-2 (3) of the current Private School Act and Article 53-3 (4) of the former Private School Act (amended by Act No. 604 of Aug. 31, 19999, 2099). 27).

(B) The Constitutional Court rendered a ruling of inconsistency with the Constitution as to the main sentence of Article 53-2(3) of the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; Act No. 6004, Aug. 31, 1999) by ruling 202HunBa14 and 32 on December 18, 2003. The above ruling of inconsistency with the Constitution as to the above ruling of inconsistency with the Constitution as to Article 53-2(3) of the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; Act No. 6004, Aug. 31, 1999; Act No. 6004; Act No. 5550, Apr. 25, 2003; and the above ruling of inconsistency with the Constitution as to the above legal status of professor No. 975, Mar. 19, 2007.

(C) However, the administrative litigation of this case pertains to the legitimacy of the decision on review of reappointment as prescribed by the Special Act on the Relief of Persons Disqualified from Appointment as University Faculty Members (hereinafter “Special Act”), and the Special Act is not a special law for review of reappointment of university faculty members entitled to request reasonable and fair review in accordance with the procedures as prescribed by the current Private School Act, but a special law for the protection of the rights and interests of university faculty members unfairly excluded from reappointment and remedying the right and interests of university faculty members, by providing the opportunity for review of reappointment to the university faculty members not reappointed due to reasons such as expiration of the term of appointment and lack of the standard of review of reappointment under Article 7 of the Special Act before the current Private School Act enters into force.

Therefore, since Article 53-2 (4) through (7) of the current Private School Act cannot be applied to the Defendant’s reexamination of reappointment upon the Plaintiff’s request by the special law, the Plaintiff’s assertion that the Defendant’s rejection of the instant decision is unlawful instead of applying Article 53-2 (4) through (7) of the current Private School Act.

(2) Determination on whether research performance standards are met

(A) Relevant provisions relating to research performance standards

Article 52(2) of the Intervenor’s Articles of Incorporation provides that “When the personnel committee approves to appoint a teacher whose term of appointment expires under Article 43(2), the following shall be taken into account during the former term of appointment” (Article 43(2)); Subparag. 1 provides that “Research Performance and Professional Field of Education” (Article 2); “The student’s professor’s ability and performance in research and guidance for life” (Article 2 of the Education-Related Acts and subordinate statutes; and “the maintenance of dignity as other teaching staff and teachers” (Article 2 of the former Promotion and Re-Appointment Regulations) provides that “The full-time teaching faculty shall comply with the following matters regardless of promotion and re-election” (Article 2-1 of the annual evaluation of teaching staff); and the Ministry of Education and Human Resources Development (Article 2-2 of the Evaluation of Teaching Personnel) provides that “At least 10 teaching staff members shall be appointed until 20 months prior to the date of enactment and re-issuance; and (3) provides that “At least 10 months from the 10th of the 10th of the following month of the Research and Re-Employment Regulations.” (2).

[Reasons for Recognition] Facts without dispute, Gap 2, 3, 16, 17 evidence, and the purport of the whole pleadings

(B) Research performance of the Plaintiff

① From May 2002, an assistant intervenor assessed at least 150 points of research performance (50 points per semester), excluding the last semester, for three university faculty members appointed on a fixed-term basis for two-year basis in accordance with the employment guidelines for university faculty members from the time of the examination for the reappointment of a faculty member for the last half-year period. As a result of the sum of the Plaintiff’s research performance of three semesters, the total points were 140 points (1 semester 30 points in the year of 2001, 2001, 110 points in the year of 201, and 1 semester in the year of 2002).

② An assistant intervenor did not follow the procedure, such as making prior notification to the Plaintiff and other university faculty members, or maintaining internal regulations, by changing the content of the evaluation of minimum research performance points for only three remaining semesters except the last semester pursuant to the above “Guidelines for the Appointment of University Faculty Members” to evaluate the minimum research performance points.

③ On December 26, 2002, the Education Personnel Committee deliberated on 19 persons including the Plaintiff’s “cases of the consent to the proposal of the teachers’ re-contract during the overall 2003 year.” Of 19 persons to be deliberated on 16 persons including the Plaintiff, the subjects of the research on 3 only semesters during the 1st semester through 2002 year. Nonparty 4 of the Sports Department, Nonparty 5 of the computer design major full-time lecturer, and Nonparty 6 of the dance full-time full-time lecturer were subject to research on 4 semesters during the 2001 year through 202 semester.

④ Unlike the 16 members including the Plaintiff, Nonparty 4, 5, and 6 agreed to reflect the research performance of the first semester and the second semester in the course of the examination for reappointment, which was a university faculty member whose term expires on February 28, 2002, but was conditional reappointed for one year in the course of the examination for reappointment.

⑤ On December 30, 2002, the Plaintiff posted a thesis “○ University” to the Arts Research Center published by ○ University’s Arts University. In the event of an academic thesis on a school academic journal, the Plaintiff’s research scores are 70 points.

[Reasons for Recognition] Unsatisfy, entry of evidence Nos. 1 to 3, the purport of the whole pleadings

(C) Determination

In full view of the relevant provisions regarding research findings, it is recognized that the Intervenor neglected to take necessary prior measures, such as making improvements to internal regulations and giving written notice to the relevant university faculty members, at the time of examining the reappointment of the Plaintiff pursuant to the “Guidelines for the Appointment of University Faculty Members in Office” and changing the scope of at least research performance for three semesters excluding the last four semesters, who had been employed in office.

However, in light of the developments leading up to the evaluation of only three semesters except the last semesters, the supplementary intervenor was not intended to voluntarily resign from the reappointment of the faculty members, but was derived from the examination process of reappointment before the last semester was submitted to notify the relevant university faculty members of whether he/she was reappointed or not pursuant to the "Guidelines for the Appointment of University Faculty in the Ministry of Education and Human Resources Development" before the expiration of the term of appointment. The supplementary intervenor’s evaluation for the remainder of the semester excluding the last semester was conducted on May 2002, 200, not the Plaintiff’s first, but on May 2002. Thus, the Plaintiff was able to predict to a certain extent. Of the 19 members subject to the examination of the re-employment of the faculty members in the last 203 year, the supplementary intervenor’s evaluation for at least 16 members, including the Plaintiff, among the total 19 members subject to the examination of the re-employment of the faculty members in the first 2003 year, which included only the last 3rd year and 20 years prior to the second 20 year.

(3) Whether evaluation of the results of lectures has been conducted as an evaluation factor

(A) Facts of recognition

For the purpose of the lecture evaluation of the university faculty, the supplementary intervenor created a lecture by making a total of 22 items (5 items of the student self-evaluation and 5 items of the lecture environment, and 17 items related to the lecture) from the total number of 22 items (5 items of the lecture), and collected them to the students, and made an average percentage and average score for each teacher. The Plaintiff’s lecture evaluation results include 85% of the upper 1 semester (41, 3.57 out of 48), higher 201, higher 98% (51, average 51, average 3.43 out of 52), higher 201 semester, higher 98% (average 51, average 52 points out of 52), higher 1 semester, higher 80% (average 49, average 93.95 out of 61 points out of 61, and average 17 items related to the lecture). The Plaintiff’s lecture evaluation results are without any dispute between the parties concerned or can be acknowledged as a whole.

(B) Determination

According to the above facts of recognition, the evaluation of lectures against the plaintiff may involve a certain degree of subjective elements as a student who listens to lessons, and there may be differences depending on the type of subjects, the major field of study, the number of students by professor, and the number of students by lecture. However, Article 52 (2) 2 of the Articles of Incorporation of the supplementary intervenor provides that "students' abilities and performance in relation to research and life guidance" shall be stated as the criteria for examination of matters concerning the student education provided in Article 7 of the Special Act, and the evaluation of lectures shall be one of the important materials when examining matters concerning the student education. In light of the fact that the evaluation of lectures from many universities other than the ○○ University operated by the supplementary intervenor, the evaluation of lectures from the supplementary intervenor to the student who listens to lessons in the form of a literacy, it is unreasonable to accept the plaintiff's assertion that the evaluation results of lectures against the plaintiff lack objective validity.

(4) Whether the written opinion of professors of the same department is reasonable as an evaluation factor

(A) Facts of recognition

The supplementary intervenor collected the opinions of the members of the department through the major director or the head of the department to which the faculty members subject to re-contract belong and examined the results of re-election. In the case of the broadcast entertainment department to which the plaintiff belongs, four professors including the plaintiff, and three professors of the Dong Fee submitted the opinion that all of the professors do not want to re-contracts of the plaintiff, the supplementary intervenor may be acknowledged according to the respective statements in Gap evidence 15 and Eul evidence 3.

(B) Determination

The Intervenor’s articles of incorporation, the rules on promotion and reappointment of associate professors, and the regulations on the faculty evaluation of professors do not expressly stipulate that the opinions of associate professors are one element of comprehensive evaluation at the time of the examination of reappointment, and the opinions of associate professors may be affected by friendly relations, and the subjective intent of associate professors may also be reflected. Therefore, if the opinions of associate professors are the only element of the examination of reappointment, there may be room to deem that the opinions of associate professors were justifiable and objective reasons for the examination of reappointment. However, in the case of the Plaintiff, other than other evaluation elements of reappointment, the Plaintiff’s opinions of associate professors are limited to one evaluation element, and there is no evidence to support that the opinions of associate professors were distorted, distorted, and falsified, and there is no evidence to support that the Plaintiff’s opinions were made according to an extremely subjective judgment based on false reasons. Therefore, it is unreasonable that the Plaintiff’s opinions of associate professors were made as one of the comprehensive evaluation factor in the examination of reappointment, or

(5) Whether the application was reasonable as an assessment factor

(A) Facts of recognition

① Under the joint signature between the assistant instructors and the staff, the president submitted a written application to the Plaintiff, and the content of the application is private telephone, and the students’ suggestion that students are very displeasible by engaging in unnecessary learnings during class hours, and the assistant instructors are in the atmosphere of the department that frequently interfered with a specific professor during class hours.

② At night, Nonparty 1 submitted an application to the Plaintiff to the president of the night school and Nonparty 1’s president. The content of the application was always sleeped, closed, and talked with students, such as talking about the body of students, and talking about the body of the students. At the continuous telephone demand, there were many students.

③ 피고는 2005. 12. 28. 심사회의실에서 원고 청구의 재임용 재심사 사건의 실체 파악과 탄원서 내용 확인을 위해 보조참가인이 운영하는 ○○대학교의 전 학생처장 소외 7 교수, 방송연예학과 전 학과장 소외 2 교수, 전 조교 소외 3을 출석시켜 비공개로 신문을 하였다. 소외 7 교수는 조교들과 직원이 연명으로 제출한 탄원서와 관련하여 조교를 만나 확인한 결과 대부분 사실로 확인되었고, 조교들이 원고와의 저녁 식사자리에 나가면 조교 1명의 허벅지나 어깨에 손을 얹고... 그럴 때는 그 수치심이 말도 못하게 심하다고 말하면서 눈물을 글썽였다고 진술하였다. 소외 2 교수는 그 당시 학과장으로 있으면서 학생들과 상담하는 과정에서 학생들로부터 원고가 학생들의 몸을 만진다거나, 자취방으로 놀러오라고 한다거나, 실제로 강남의 까페에서 학생들을 만나는 것을 목격한 학생도 있었다는 말을 들었다고 진술하였다. 조교 중 1명은 원고가 무릎 위 허벅지를 만져 조교를 그만두려고까지 했었다고 말하는 것을 들었으며, 컨닝을 하다가 조교에게 답안지를 뺏긴 학생에게 원고가 B학점을 준 적이 있고, 텔레비전에 출연하는 학생이 출석을 한 번도 안하고, 중간고사, 기말고사를 보지도 않았으며, 레포트를 제출하지도 않았는데, A학점을 준 사실이 있기 때문에 원고의 재임용에 찬성할 수 없었고, 원고의 재임용 탈락 원인 중 가장 큰 것은 학생지도에 문제가 많은 것이라고 진술하였다. 전 조교 소외 3은 학생들이 학과 사무실에 와서 원고에 대한 불쾌감을 말하고, 원고의 행동이 도가 지나쳐 조교들이 스트레스를 받았으며, 학과 사무실에서 일하는 데 방해를 받아 탄원서를 쓰게 되었고, 조교들 중 1명에 대하여 원고가 허벅지를 만지는 스킨쉽을 하였으며, 학생들의 가장 큰 불만은 스킨쉽이라고 진술하였다.

④ According to the result of this court’s video tape verification, the non-party 1 made a statement to the effect that he denies the fact that he submitted a written application, but the non-party 1 made the statement that he was prepared when he was inspected by an investigative agency.

[Reasons for Recognition] Gap evidence No. 14, Eul evidence No. 2, Eul evidence No. 7-6, and the purport of the whole pleadings

(B) Determination

The Plaintiff asserted that: (a) Nonparty 1 submitted an application under his name to the president of ○ University, Nonparty 3, 8, 9, and 10 submitted an application to the president of ○ University without investigating whether the details of Nonparty 1’s application were true; and (b) Nonparty 2, who had the president of ○ University and the president of Professor University, confirmed the contents of the application through consultation with students; (c) Defendant 2, 3, and 7 appeared to have been present at the time, and that the application for jointly signed by the assistant instructors and the faculty members was unjustly conducted by the teaching assistants and professors to intentionally see the Plaintiff; and (d) Nonparty 3, 8, 9, and 10 submitted an application to the president of ○ University without investigating whether the facts were distorted or false; and (e) Nonparty 2, who had the president of Professor at that time, and Nonparty 2, who had the president and the head of Professor at that time, had no objective opportunity for the Plaintiff to give testimony in light of the objective reasons and other relevant Acts and subordinate statutes prescribed in the Plaintiff’s testimony.

3. Conclusion

Therefore, the Plaintiff’s assertion of legal principles is not acceptable, and it is acceptable that the supplementary intervenor did not meet the minimum research performance standard, and even if the supplementary intervenor satisfies the minimum research performance standard if the supplementary intervenor’s entire four semesters were evaluated as the Plaintiff’s research performance, considering the evaluation results of lectures, the opinion of the associate professor, and the written applications, it is reasonable and objective that the supplementary intervenor would not be reappointed to the Plaintiff. Therefore, the dismissal decision of this case made by the Defendant to the same purport is legitimate, and the Plaintiff’s claim seeking its revocation is rejected as it is without merit

Judges Park Jong-chul (Presiding Judge)