[1] The legal nature of the act of appointing university professors, and whether the head of a university's personnel committee's refusal to appoint or recommend a professor on the ground that the consent to appoint university professors was rejected by the university personnel committee has exceeded and abused discretionary power (negative with qualification)

[2] The case holding that a disposition rejecting the appointment of professor by the president of a national university who respected the resolution of the National University Personnel Committee shall not deviate from or abuse the discretion or violate the principle of protecting trust

[1] Whether to appoint a university professor falls under the discretion of free evaluation by taking into account high level of professional knowledge, abilities, personality, etc. required for university professors under the Education Act. In particular, Article 25 of the Public Educational Officials Act provides that the head of a university shall obtain the consent of the university personnel committee in appointing or recommending a university professor. The head of a university intends to restrain those who have the appointment authority or appointment-recommendation authority and secure excellent teachers by establishing personnel order in accordance with objective standards, thereby promoting the autonomy, autonomy, autonomy, and guarantee of the status of the university at the same time. Thus, the head of a university cannot be deemed to have abused or abused the discretionary authority, unless there are special circumstances to deem that the refusal to recommend a university professor appointment or appointment on the ground that the letter of consent to appointment was rejected by the university personnel committee

[2] In a case where the president of a national university refused to appoint a professor by respecting the resolution contents of the university personnel committee, the case holding that such refusal does not violate the principle of trust protection because it does not seem to have significantly lost validity under social norms, and that there is no violation of the law of abuse of discretionary power, and that there is no legitimate trust to be appointed as a professor in the absence of a university personnel committee

[1] Article 25 of the Public Educational Officials Act, Articles 1 [general Administrative Disposition], 2, and 27 of the Administrative Litigation Act / [2] Article 25 of the Public Educational Officials Act, Article 1 of the Administrative Litigation Act [general Administrative Disposition], Articles 2, 27 of the Administrative Litigation Act, Article 4 of the Administrative Procedures Act

[1] Supreme Court Decision 96Nu12641 delivered on January 23, 1998 (Gong1998Sang, 620)

Plaintiff (Law Firm Lee & Lee, Attorneys Lee Ho-hun et al., Counsel for plaintiff-appellant)

Gangnam University President (Law Firm Squa Law Firm, Attorneys Gyeong-Jon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Nu13863 delivered on June 18, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below determined that the defendant's refusal to appoint the plaintiff on the ground of the rejection by the personnel committee of the plaintiff who submitted documents necessary for appointment after receiving the notification of the appointment to the appointment to the appointment to the appointment to the plaintiff was considerably unreasonable under the social norms, and was in violation of the trust of the plaintiff who is the applicant for the appointment to the appointment to the appointment to the extent that the personnel committee has reasonably deliberated on the grounds of the provision on the appointment to the appointment to the appointment to the appointment to the extent that the appointment to the plaintiff was not resolved, and that there was an error of deviation from or abuse of discretionary authority, since it was against the social norms.

2. The judgment of this Court

However, we cannot accept the judgment of the court below for the following reasons.

A. Whether to appoint university professors belongs to the discretion of free evaluation, taking into account high level of professional knowledge, abilities and personality required for university professors under the Education Act (see Supreme Court Decision 96Nu12641, Jan. 23, 1998). In particular, Article 25 of the Public Educational Officials Act provides that the head of university personnel committee in appointing or recommending university professors shall obtain the consent of the university personnel committee when he/she appoints or recommends university professors under Article 25 of the Public Educational Officials Act intends to secure excellent teachers by suppressing the appointment authority or appointment-recommendation authority and establishing personnel order in accordance with objective standards, and at the same time promoting the autonomy, autonomy, autonomy, and status guarantee of university teachers. Therefore, the refusal by the head of university personnel committee to appoint or recommend university professors on the ground that the consent to appointment was rejected by the university personnel committee cannot be deemed to have abused or abused discretion unless there are special circumstances to deem that such refusal has lost substantial validity in light

B. According to the records, the Defendant, the president of the National University, on July 4, 2002, announced the appointment of a full-time assistant professor to the Plaintiff, etc. on the ground that the Plaintiff, Nonparty 1, and 2, etc. applied for the above landscaping design field around that time, despite the opposition of the previous faculty members who unilaterally conducted an examination by excluding the opinions of the existing faculty at the university headquarters, the Plaintiff’s highest interest in the results of the examination of documents, foundation, major examination, and interview conducted with the above assistant members. In order to deliberate on the Plaintiff’s appointment consent, the personnel committee established at the university personnel committee established to exclude the existing faculty members from the existing faculty members, which unilaterally suspended the appointment examination by the existing faculty members at the university headquarters, and the opposition of the existing faculty members at the above conflict situation, which led to the postponement of new appointment, reflecting the opinions of the existing faculty members at the university, which was seriously opposed to research members at the time of the above examination, and the details of the Plaintiff’s appointment approval by the above research committee members at the university’s personnel committee.

C. Examining the above circumstances in light of the legal principles as seen earlier, the Gangnam University Personnel Committee may deliberate on matters concerning the appointment of public educational officials by taking into account other circumstances than eligibility as a professor such as education experience and research performance of the subject in deliberating on matters concerning the appointment of public educational officials. The rejection of the Plaintiff’s motion for appointment can be deemed as reflecting the opinion of personnel committee members on the part of the headquarters of a university, which unilaterally intends to appoint teachers without excluding the opinion of the existing professors of the department. As such, the Defendant’s rejection of appointment in this case by respecting the above resolution of the Personnel Committee seems to have considerably lost validity under the social norms. Therefore, it cannot be said that there was an error of deviation or abuse of discretion in the disposition on refusal of appointment in this case against the Plaintiff.

Meanwhile, according to Article 25 of the Public Educational Officials Act, the appointment of a university professor is subject to the consent of the university personnel committee. Thus, it is difficult to view that the university personnel committee has a legitimate trust in protecting the appointment of a professor without holding the university personnel committee, and this does not change on the ground that the employee of the university personnel committee has notified the Plaintiff of the scheduled appointment. Thus, the rejection of the appointment of the Plaintiff cannot be deemed to violate the principle of trust protection.

Therefore, the judgment of the court below that revoked the defendant's rejection of appointment of this case against the plaintiff is unlawful, and there is an error in the misapprehension of legal principles as to deviation or abuse of discretionary power, violation of the rules of evidence, and the ground of appeal

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)