[1] Whether the decision of the person who has the authority to appoint university professors whose employment period expires under the Public Educational Officials Act excluded from reappointment and whether the notification constitutes an administrative disposition subject to administrative litigation (negative)

[2] Whether the reappointment of a university faculty member whose term of appointment expires is discretionary (affirmative) and whether Article 11(3) of the Public Educational Officials Act and Article 5-2(2) of the Decree on the Appointment of Educational Officials are unconstitutional (negative)

[1] According to Article 11 (3) of the Public Educational Officials Act and Article 5-2 (2) of the Decree on the Appointment of Educational Officials, an assistant professor working for a university shall be appointed for a fixed period of not more than four years, and there are no relevant provisions regarding the procedure and requirements for reappointment with respect to the appointment authority to whom the term of appointment expires. Thus, a university faculty member appointed for a fixed period of time shall terminate his status as a university faculty member upon the expiration of the term of appointment, and shall not be deemed to have the right to expect reappointment upon the expiration of the term of appointment. Thus, if a university faculty member appointed for a fixed period of time concludes a contract for reappointment without undergoing special procedures, such as refusal of reappointment, if the term of appointment expires, the appointment authority shall not be reappointed in accordance with the deliberation and resolution of the personnel committee, even if the appointment authority notified it, it shall not be sufficient to confirm and inform that the term of appointment is terminated automatically, nor shall it be subject to administrative litigation.

[2] Where university professors, etc. under the Education Act require high level of specialized knowledge, teaching ability, and personality, and when the term of appointment expires, the appointment authority should decide whether to appoint a person whose term of appointment expires, taking account of such various circumstances into consideration, belongs to discretionary action based on the decision of the appointment authority. Thus, the determination of whether to appoint a person whose term of appointment expires belongs to the discretionary action based on the decision of the appointment authority. Thus, the provisions of the Public Educational Officials Act, etc. concerning the appointment of university professors, etc. do not necessarily violate Article 22 of the Constitution providing for academic freedom, or are discriminated against against ordinary public officials, etc.,

[1] Article 11(3) of the Public Educational Officials Act, Article 5-2(2) of the Decree on the Appointment of Educational Officials, Article 2 of the Administrative Litigation Act / [2] Articles 11(1) and 22(1) of the Constitution of the Republic of Korea, Article 11(3) of the Public Educational Officials Act, Article 5-2(2) of the Decree on the Appointment of Educational Officials, Article 27

[1] [2] Supreme Court Decision 88Nu9640 delivered on June 27, 1989 (Gong1989, 1186), Supreme Court Decision 93Nu2315 delivered on July 27, 1993 (Gong1993Ha, 2436), Supreme Court Decision 94Da12852 delivered on October 14, 1994 (Gong1994Ha, 2976), Supreme Court Decision 93Da5425 delivered on January 20, 1995 (Gong195Sang, 882)

[Judgment of the court below]

The President of the Chungcheong National University (Attorney Kim Jong-sik, Counsel for the defendant-appellant)

Daejeon High Court Decision 95Gu366 delivered on February 2, 1996

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

The Plaintiff’s attorney’s ground of appeal is examined.

1. According to Article 11(3) of the Public Educational Officials Act and Article 5-2(2) of the Decree on the Appointment of Educational Officials, an assistant professor working for a university or college is required to be appointed for a fixed period of not more than four years (Article 11(3) of the Public Educational Officials Act prior to the amendment by Act No. 4373 of March 8, 191 provides that an assistant professor working for a university or college shall be appointed for a fixed period of not less than two years and three years). There is no provision stipulating that an appointment authority should be reappointed a person whose term of appointment expires, or any provision regarding the procedure and requirements for reappointment is not provided for in the above Act, and the status relationship as a university faculty member shall be terminated as a matter of course due to the expiration of the term of appointment, and it shall not be deemed that the university faculty member has the right to expect reappointment upon expiration of the term of appointment. Thus, even if the university faculty member appointed for a fixed period of not more than 5 years has concluded the contract, it shall not be found that it constitutes an administrative disposition 296.

2. Where university professors, etc. under the Education Act require high level of specialized knowledge, teaching ability, and personality, and when the term of appointment expires, the appointing authority should decide whether to re-appoint a person whose term of appointment expires, taking into account such various circumstances, belongs to discretionary action based on the judgment of the appointing authority (see, e.g., Supreme Court Decisions 88Nu9640, Jun. 27, 1989; 93Nu2315, Jul. 27, 1993; 94Da12852, Oct. 14, 1994; 94Da12852, Oct. 14, 1994). Thus, the above provisions of the Public Educational Officials Act, etc. concerning the appointment of university professors, etc. under the Education Act, are in violation of Article 22 of the Constitution providing for academic freedom, or are discriminated against the right of equality, such as being discriminated against the ordinary public officials, etc.

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

Justices Shin Sung-sung (Presiding Justice)