Plaintiff (Attorney Park Jae-ju et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Rate, Attorneys Park Jong-sik et al., Counsel for the plaintiff-appellant)

May 28, 2010

Seoul Administrative Court Decision 2009Guhap25859 Decided October 23, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The plaintiff confirms that he was in the teaching position of the ○○ school established and operated by the defendant. The defendant pays to the plaintiff 6,738,030 won per month from June 25, 2009 to the time this judgment becomes final and conclusive.

1. Quotation of judgment of the first instance;

A. The reasoning for this case is as stated in the reasoning of the judgment of the court of first instance, except for the portion to be determined additionally in the following B. As such, this case is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Additional determination

(1) The plaintiff asserts that at the time of appointment as president of the Arts School, the plaintiff was temporarily dismissed from teaching staff for the following reasons, and that the plaintiff naturally retired from the president of the Arts School.

㈎ 교육공무원법 제44조 제3항 에 의하면, 대학에 재직 중인 교육공무원이 교육공무원 외의 공무원으로 임용되는 사유로 휴직을 원하는 경우에는 임용권자는 휴직을 명할 수 있다. 원고는 예술학교 총장으로 임명될 당시 위 규정에 근거하여 휴직처리된 것으로 보아야 한다.

㈏ 교육공무원법 제44조 제1항 제4호 에 의하면, 교육공무원이 기타 법률의 규정에 의한 의무를 수행하기 위하여 직무를 이탈하게 된 때에는 임용권자는 반드시 휴직을 명하여야 한다. 원고는 예술학교 총장으로 임명될 당시 위 규정에 근거하여 휴직처리되었어야 한다.

B. As seen earlier, the Plaintiff’s assertion that Article 24(5) of the Public Educational Officials Act is premised on the premise that “if a professor is employed as a professor at a university and is appointed as the head of the relevant university, he/she shall lose his/her teaching position.” As such, the Plaintiff’s assertion that the Plaintiff, while being employed as a professor, shall be deemed as having been temporarily dismissed at the

Furthermore, Article 14(1) of the Higher Education Act provides that “A school shall have the president or the dean as the head of the school,” and Article 14(2) of the same Act provides that “A school faculty member shall be classified as professors, associate professors, assistant professors, assistant professors, and full-time instructors in addition to presidents and the deans under the provisions of paragraph (1).” Article 2(1)1 of the Public Educational Officials Act provides that “A school staff member and assistant instructors working for an educational institution” shall be a public educational official, and thus, the president of the art school shall be a public educational official. Even if the Plaintiff was appointed as the president of the art school while he/she was appointed as the president of the art school, he/she cannot be said to be appointed as a public official other than a public educational official. Accordingly, the Plaintiff’s above assertion on different premise is without merit.

In addition, in order to fall under the case of “a secession from office to perform the duties under the provisions of other Acts”, the performance of such duties must be governed by the provisions of Acts. The Plaintiff is not appointed as the president of the Arts School for the purpose of “performance of the duties under the provisions of other Acts” while serving as a professor of the Arts School. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Byung-chul (Presiding Judge)