[1] The legal nature and limitation of the act of refusing the reappointment of fixed-term teachers of private universities

[2] Requirements for the evaluation criteria for reappointment of fixed-term teachers of private universities

[3] The case holding that the criteria for review of reappointment of fixed-term faculty members of private universities consisting of unreasonable evaluation areas, evaluation items, and evaluation criteria, which cannot be expected to be fair review of reappointment by social norms

[1] Whether to re-appoint a fixed-term teacher of a private university is within the scope of free discretion, considering the high level of professional knowledge, teaching ability, and personality required of the university faculty under the education-related Acts and subordinate statutes. However, if there are special circumstances to deem that the refusal to re-appoint by the appointing authority has considerably lost validity under social norms due to such reasons as not going through fair review based on reasonable standards, it shall be deemed that the appointing authority abused or deviates from discretionary authority.

[2] The criteria for the evaluation of reappointment of fixed-term teachers of private universities shall be based on objective criteria such as research performance of teachers and teaching ability, and specific evaluation factors shall be set up according to the standards so that subjective and arbitrary evaluation does not intervene.

[3] The case holding that in a case where the criteria for the examination of reappointment for a fixed-term teacher of a private university did not determine the detailed criteria and methods for the calculation of the classification by the evaluation items, some evaluation items are difficult to establish an objective criteria, and 70% of the total evaluation items are assessed as a mixed person by the student support division, which is composed of unreasonable evaluation items, evaluation items, and evaluation criteria, and thus, it cannot be expected that the fair examination of reappointment is conducted under social norms.

[1] Article 53-2 of the Private School Act; Article 27 of the Administrative Litigation Act / [2] Article 53-2 of the Private School Act; Article 27 of the Administrative Litigation Act / [3] Article 53-2 of the Private School Act; Article 2 subparag. 1, 2, 3, 3, 7, and 8 of the Special Act on the Relief of Persons Disqualified from Appointment System of University Faculty Members; Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm KEL, Attorneys Park Jong-min et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Song Byung-young et al., Counsel for defendant-appellant)

Maximum gender (Law Firm Lee & Lee, Attorneys Song-hee et al., Counsel for defendant-appellant)

March 14, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The defendant's decision to revoke the revocation of the revocation of the revocation of the revocation of the revocation of reappointment on August 30, 2006 between the plaintiff and the defendant's assistant intervenor on August 30, 2006.

1. Details of the decision;

The following facts shall not be disputed between the parties, or may be acknowledged in Gap evidence 1 by integrating the whole purport of the pleadings:

A. Based on the educational ideology of the Republic of Korea, the Plaintiff is a school juristic person established with the aim of providing higher education for early childhood education, secondary education, and vocational training, and the Defendant’s Intervenor (hereinafter “ Intervenor”) was newly appointed as a full-time lecturer in tourism service at the Plaintiff-affiliated university (hereinafter “Plaintiff’s University”) college (hereinafter “Plaintiff’s University”) on March 1, 201, and served until February 28, 2003.

B. On February 28, 2003, the Plaintiff rendered a disposition not to be reappointed to the Intervenor on the ground that the results of the review of reappointment do not meet the criteria for the evaluation of reappointment (hereinafter “instant disposition rejecting reappointment”).

C. After the adoption of the fixed-term recruitment system, the intervenor filed a claim with the defendant on March 14, 2006 for the cancellation of the disposition rejecting the reappointment of the case on the ground that the criteria for calculating the Plaintiff’s fixed-term faculty's fixed-term reappointment is not objective or specific, and that part of the evaluation of the intervenor was unfair (see, e.g., the defendant’s claim against the intervenor for the cancellation of the disposition rejecting the reappointment of the case on July 28, 2003, which was enacted by Act No. 7583, Jul. 13, 2005 to give the intervenor an opportunity to review whether the decision to decline the reappointment of the university was made based on legitimate criteria (see, e.g., the defendant’s decision to refuse the reappointment of the case on August 30, 2006).

D. Meanwhile, Article 9(1) of the Act of this case provides for the prohibition of a school juristic person from filing a lawsuit against the defendant's decision. On April 27, 2006, the Constitutional Court rendered a decision of unconstitutionality on the grounds that it violates the principle of equality under Article 11 of the Constitution and Article 101(1) of the Constitution that granted the court the power to exercise jurisdiction over all legal disputes, as a provision that infringes the right to claim a trial under Article 27(1) of the Constitution concerning the above provision on April 27, 2006 ( Constitutional Court Order 2005Hun-Ma119 dated April 27, 2006).

2. Whether the instant decision-making disposition is lawful

A. The plaintiff's assertion

In relation to the standards for the evaluation of reappointment, the Plaintiff’s university prepared guidelines for the evaluation of reappointment, and conducted a fair evaluation of reappointment based on the following: (a) four separate evaluation fields, including the field of faculty members (including faculty members), educational field, student guidance ability, performance, work status, and other matters; (b) four separate evaluation items by evaluation field; and (c) the detailed criteria for the evaluation items (not less than 0-8 points by evaluation items, full marks of 150; and (d) seven professors, such as faculty members, related to the school support division and the relevant faculty members were selected and submitted by seven evaluators; (b) the Plaintiff’s university conducted a fair evaluation of reappointment based on the teachers’ business report prepared and submitted by the evaluation officer. However, the Intervenor’s disposition was unlawful in the “domestic academic activity” category in the “education field” category; (d) the “other matters concerning the recruitment of faculty members’ ability and performance” category in the “other matters; and (e) the Plaintiff’s refusal of the recruitment of the Plaintiff’s position and consultation with the Plaintiff’s head of the Plaintiff 2.

B. Relevant statutes

【Special Act on the Relief of Persons Disqualified for the Appointment of University Faculty Members】

Article 1 (Purpose) The purpose of this Act is to protect and remedy the rights and interests of university faculty members unfairly excluded from reappointment by offering opportunities for review for reappointment to faculty members excluded from reappointment in the fixed-term appointment system for national, public and private universities.

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term “period appointment system for university faculty members” means a system introduced since July 23, 1975 under the Act on the Appointment and Dismissal of University Faculty Members, the Educational Officials Act (Act No. 2774), and the Private School Act (Act No. 2775);

2. "Dismissal from reappointment" means the case of being reappointed due to the expiration of the term of appointment (including the case of being awarded a favorable judgment in a lawsuit disputing the expiration of the term of appointment after dismissal, removal, or dismissal from office, or dismissal from office, or the case of not re-appointed for the reason of expiration of the term of appointment) or the case of falling short of the standard of review for reappointment from among the faculty members appointed under the term of appointment system for university faculty members on or before the enforcement date of the Private School Act (Act No. 7352) and Article 7353 of the Educational Officials Act;

3. The term "examination of reappointment" means an examination conducted by the Special Committee on Examination of Appeal against Teachers under Article 3, from among faculty members excluded from reappointment, whether the exclusion from reappointment is unfair in accordance with the criteria for examination under Article 7;

Article 3 (Establishment, etc. of Special Committee on Appeal against Teachers)

(1) A Special Committee on Examination of Appeals against Teachers (hereinafter referred to as the "Committee") shall be established (hereinafter referred to as the "Committee") under the Appeal Commission for Teachers established pursuant to the Special Act for the enhancement of Teachers' Status in order to review and bring legal proceedings for the reappointment of

Article 7 (Criteria for Review) In conducting review of reappointment of faculty members excluded from reappointment, the Committee shall establish the criteria for review as to whether the exclusion from reappointment was made in accordance with justifiable and objective grounds, such as the matters regarding education of students, academic studies, academic guidance, and matters provided for in school regulations or regulations related to reappointment.

Article 8 (Decisions on Review of Reappointment)

(1) The Commission shall decide on the validity of the exclusion from reappointment within 180 days from the date it receives an application for review of reappointment: Provided, That the period may be extended by 30 days by resolution, if there are extenuating circumstances, such as destruction of documents related to the exclusion from reappointment, dissolution of an educational foundation, etc., or there are no data necessary to determine the validity of

(2) Necessary matters concerning procedures for review of reappointment, such as filing an application for review, review, and determination shall be prescribed by Presidential Decree.

Article 9 (Effect of Decision on Review of Reappointment)

(1) The dispositive authority shall not dispute a lawsuit against a decision made by the Committee that the exclusion from reappointment has been unfair.

C. Facts of recognition

In full view of the overall purport of the pleadings, the following facts can be acknowledged in relation to the statements in Gap evidence 1 through 11, Eul evidence 1 through 3, Eul evidence 4-1 through 5, and each part of the testimony on the date of use such as the witness lowest bar, and the date of use, and the remaining parts of the testimony are insufficient to reverse it, and there is no counter-proof otherwise.

(1) The intervenor’s career, research, and internal and external activities;

(A) Around February 1978, the Intervenor graduated from the Social Education Department of the Seoul University and obtained a master’s degree from a graduate school of the same college as “research on whether it is a part-time,” and around August 1982, the Intervenor took part in the field of geographic information and tourist destination, who obtained a doctor’s degree from the German Murzburg University on December 1, 1994, and worked until February 28, 2003 after being newly appointed as a full-time lecturer at the Plaintiff’s university’s tourism service department as a full-time lecturer at the Plaintiff’s university’s tourism service department. Around December 1, 1994, the Intervenor took part in the area of geographic information and tourist destination information search, “tourist geographic information search,” “II, tourist resource theory,” “tourist resort theory,” “tourist guide,” “tourism guide,” “ebGIS,” “tourism culture,” etc.

(B) On 201 to 202, the Intervenor created “AcrV bbics 1” materials very useful for practice at the Plaintiff’s university, and around September 2001, the Intervenor took part in a joint work of “the sediment of the sedimentary environment analysis of the sediment route distribution in the 2nd floor of the additional age structure,” and around August 2002, the Intervenor published the research foundation’s final report on “the center of the research-related area of the North Korea’s open area of its opening” and “the natural landscape and land use research in the lower reaches the Han River basin area of the Han River” and “the 0th academic research trend and 20th academic research area of the 1st academic year of the 20th academic research site of the 20th academic research complex of the Republic of Korea,” and “the 1st academic research area of the 20th academic research site of the 1st academic research complex of the 20th academic research complex of the Republic of Korea.”

(C) From September 1, 2001 to October 31, 2002, the Intervenor conducted research on the teaching ability and the theories and diagnosis for the extension thereof of junior colleges while performing the duties of the director of the professor learning development center at the Plaintiff’s college, and prepared a research report by the Faculty Council at the junior college, “research on the development of the teaching ability extension program of professors at junior colleges” around December 2001.

(D) The Intervenor worked for the Plaintiff University from around 2001 to around 2002, provided that students belonging to the tourism service department frequently consulted with academic studies, living, and entrance into a school, while making a lot of recommendations for employment for the employment of many students.

(E) In addition, the Intervenor submitted a “A Study on Permission for Extension of Course” which contains the content that a lecture needs due to retirement age retirement or overseas travel professor from the District Education Department of Seoul University, and submitted an official permission with the approval of the president of the Plaintiff’s University from March 2001 to June 200 of the same year, and submitted the Plaintiff’s University as a part-time lecturer of the “natural Geographical Studies” subject from March 201 to Seoul University.

(2) Grounds for the disposition rejecting the reappointment of this case

(A) Around November 2002, the Intervenor requested the Plaintiff’s university intervenors to submit documents relating to reappointment, and the Intervenor submitted to the Plaintiff a teachers’ report related to reappointment containing the same content as that set forth in paragraph (1) above.

(B) On November 25, 2002, the Plaintiff’s university conducted the evaluation of reappointment of the Intervenor in accordance with the personnel regulations of the Plaintiff’s legal entity, Article 15, and the guidelines to conduct the evaluation of appointment of teachers. The result is as follows. In particular, the results of the evaluation of the Intervenor’s participation in the Plaintiff’s university are as follows: 4 points out of 5 points on the ground that the Intervenor’s research thesis was not considered in the “domestic and foreign academic activity” item in the “education area,” and 4 points out of the “student’s instruction and performance” item in the “school instruction and performance” area, 8 points out of 8 points on the basis that the Intervenor’s participation in the recruitment of full-time teachers, life and study,” and 2 points out of 7 points on the basis that there is no evidence to measure active and specific guidance ability and performance of the Intervenor’s participation in the recruitment of teachers, and 2 points out of 8 points on the ground that the Intervenor’s participation in the recruitment of teachers is merely 8 points or 7 points in the above.

본문내 포함된 표 구분 평가영역 평가자 평가항목 배점 평가자 점수 심사위원회 조정 점수 1.교수 (강의) 영역 학생지원 처장 교수능력(강의의 질, 내용, 진행, 목표 등) 8 8 ？ 교수의 열의와 수업이행 상태(강의 만족도 등) 8 6 ？ 교육효과(학생반응 등) 8 6 ？ 학습자료의 활용도(학습량, 교재 선택 등) 8 6 ？ 2.교육 영역 학생지원 처장 소지학위 종류(박사, 박사수료, 박사과정중, 석사, 학사) 5 5 ？ 국내외 학술활동 5 4 5 국내외 연수실적 5 3 ？ 면학분위기 조성을 위한 노력 등 8 6 ？ 3.학생지도능력과 실적 학생지원 처장 학생지도에 대한 열의와 자세 8 6 ？ 분담(개인 및 집단) 지도 실적 8 2 4 학내외 행사 참여와 지도실적 8 4 ？ 취업센터센터장 산업체 현장실습과 취업지도 실적 8 4 ？ 4.근무 상황 평가위원 전원 근무자세 7 3 ？ 타 대학 출강상황{안함, 승인, 임의(1회, 2회 이상)} 8 2 4~5 타 업무 종사관계(없음, 승인비영리, 임의비영리, 영리) 8 8 ？ 상벌상황(훈장, 표창, 정직, 감봉, 견책, 경고, 주의) 8 2 ？ 5.기타 평가위원 전원 학내 인화관계 8 3.3 ？ 대학, 전공계열의 발전에 대한 기여도 8 2.7 4 교육자로서의 인격과 품위 8 3.7 ？ 대학행정의 기여도 8 2.7 ？ 계 150 87.4 ？

* In the case of 1 in the evaluation field, students evaluate their lectures as above items at the end of each semester, and extract statistical data on their results. In the evaluation of reappointment, the results are submitted as data and are compared with the average value of all professors in the university and college.

* In the case of the evaluation field 2, the three evaluation items must be evaluated in a quantitative manner on the basis of the degree submitted by the professor, the results of the publication of the thesis, the results of training, etc., and the remaining one evaluation items should be evaluated in a five-dimensional way from the "proactive" to the "unexplicant box" on the basis of the faculty's written opinion and the degree of efforts of the professor who has been managed in a normal manner.

* In the case of three evaluation fields, three evaluation items shall be assessed on the basis of the three written opinions of the faculty members of the department and the data submitted by them, and the remaining evaluation items shall be assessed on the basis of the results of employment guidance submitted by the employment support center and the results of guidance.

*In the case of 4 evaluation field, the assessment items of "workers' tax" shall be assessed on the basis of the evaluation materials on the five-dimensional basis, and the assessment items of "the status of entrance examinations at other universities" shall be assessed by the entrance through a cooperative system with other universities when the request from other universities to appoint the relevant professor is delivered in the official letter. The assessment items of "the status of entrance examinations at other universities" shall be assessed by the entrance of the principal, by the personal connection, by the entrance approval of the principal, and by the voluntary entrance from the entrance without the entrance approval and approval, and by the quantitative assessment items based on the data submitted by the person himself/herself and the administrative department.

* In the case of 5 evaluation field, all evaluation committee members shall be assessed on the basis of evaluation data on each item.

(C) On November 25, 2002, the Plaintiff: (a) held a university faculty member’s personnel committee to vote on whether to approve the Intervenor’s fixed-term appointment; (b) decided to give consent to the Intervenor as a full-time member of nine members present; (c) held a board of directors on February 20, 2003 to vote on a proposal to dismiss the Intervenor; and (c) passed a resolution with the consent of eight members present.

(D) On the other hand, the criteria for grading by assessment items according to the detailed implementation plan 4. The criteria for grading by the Plaintiff corporation are classified as the assessment areas, items, grades, and scores, such as the aforementioned list of evaluation items, but the detailed criteria and methods for grading, whether it is a quantitative assessment or a qualitative assessment, are not otherwise prescribed.

(3) Other circumstances

(A) On October 27, 2002, the Plaintiff’s university issued a warning letter under the name of the principal of the school on the ground that the Intervenor did not make the best efforts to perform his duties because the Intervenor was unable to timely handle the affairs related to the education guidance for the Korea Vocational Skills Development Institute.

(B) In addition, even though the intervenor is of an in-depth nature and has tendency to bury his research activities, he did not neglect part of the education suitable for the visual height of students with the East professors.

(4) The rules on the personnel management of Plaintiff teachers and staff relating to the reappointment of fixed-term teachers are as follows.

[Personnel Regulations of Faculty Members]

Article 15 (Appointment of Fixed-Term Teachers of Universities and Colleges)

(1) When teachers are reappointed, they shall be reappointed by giving the term of appointment pursuant to the provisions of Article 39 (2) of the Articles of incorporation of a corporation: Provided, That with respect to those who have passed the retirement age prior to the expiration of the term of appointment, they shall

(2) When the expiration date of the term of appointment of teachers is underway, the end of the term of appointment that expires shall be deemed the expiration date of the term of appointment, and the beginning date of the term of appointment ( March 1 and September 1) shall be deemed the expiration date of the term of appointment.

(3) Teachers shall be reappointed after deliberation by the teachers' personnel committee established in universities.

(4) In examining whether the teachers' personnel committee is reappointed for teachers, the term of appointment of which expires, it shall comprehensively examine various performance records of the teachers during the period of appointment and determine whether to be reappointed.

(5) When a teacher intends to be reappointed, he/she shall comply with the guidelines for evaluating the appointment of teachers under Article 24 (3) and (4) of the Regulations.

【Guidelines for Evaluating the Appointment of Teachers】

4. Detailed implementation plans;

(1) The items of rating shall be subdivided into 20 items and rated, the average point of which is at least 90 points shall be an average of 90 points for reappointment, and a person who is less than 90 points shall be automatically dismissed from reappointment.

(2) A report on the achievements of teachers subject to reappointment shall be prepared in good faith in accordance with the prescribed forms requested by the relevant departments, and shall be submitted to the Minister for Educational Support within the fixed period determined by the dean, along with evidential data.

(3) Materials concerning the evaluation of each item shall be prepared by each relevant Ministry within the fixed date determined by the dean and submitted to the dean at his/her school expense along with relevant materials.

(4) In rating, the rating shall be fair in order to exclude the management of an evaluator, to evaluate it based on objective grounds, and to ensure reliability and feasibility.

(5) The dean shall evaluate each item in accordance with the evaluation criteria and the evaluation table based on the evaluation data of "B" and "C" above.

(d) Determination - Whether the criteria for screening new appointment are appropriate.

(1) In light of the circumstances such as high-level specialized knowledge, teaching ability, and personality required by the person having authority to appoint the university professors, whether the university professors are reappointed or not falls within the scope of free discretion to be judged jointly, but in special circumstances where it is deemed that the person having authority to appoint has considerably lost the validity of social norms due to such reasons as not going through fair review based on reasonable standards, etc., it shall be deemed that the person having authority to appoint has abused or deviates from discretionary authority.

(2) First of all, the evaluation criteria for the reappointment of full-time faculty members, which are the criteria for the examination of reappointment, should be based on objective criteria such as research performance and teaching ability of professors. In addition, even if they are objective criteria, specific evaluation factors should be prepared by criteria so that subjective and arbitrary evaluation does not interfere with. However, as seen earlier: ① the evaluation criteria by evaluation items according to the detailed implementation plan 4. The evaluation criteria by evaluation items of the Plaintiff corporation are classified as the above "evaluation table for full-time teachers," but the evaluation criteria by evaluation items, classes, and points are only such as excellent, excellent, ordinary, insufficient, and very insufficient detailed criteria and methods for the determination of reappointment are weak, and objective evaluation criteria are likely to interfere with the evaluation criteria, and thus, it is difficult for the person who has the authority to appoint and appoint full-time faculty members to use the evaluation criteria by taking into account the following factors: the evaluation criteria by evaluation items and the degree of "the evaluation criteria by all of the participants' subjective evaluation items" to achieve the objective evaluation criteria and the degree of "the evaluation criteria by the participants' subjective evaluation items and other subjective evaluation criteria."

(3) Furthermore, it is difficult to view the Intervenor’s refusal disposition of reappointment as fair in accordance with the above criteria for review: (i) the Intervenor’s research paper was 5 points out of the total number of terms of office, on the ground that the Intervenor’s research paper did not take into account the characteristics of the junior college; (ii) the Intervenor’s consultation on academic issues, living problems, and career problems during his/her tenure of office from among the categories of “student’s ability to provide guidance and performance” to the 8th professor’s employees who were not assigned to the 8th professor’s employees on the ground that it was difficult for the Intervenor to take into account that the Intervenor’s specific consultation details were stated or that the 8th professor’s employees were not assigned to the 8th professor’s employees on the ground that it was difficult for the Intervenor’s employees to take into account the above 8th professor’s employment cooperation system without any justifiable reason; and (iii) the Plaintiff’s 8th professor’s employees on the ground that the 8th professor’s employees did not have been assigned to the 8th professor’s employees on his/her work experience.

(4) Therefore, the Plaintiff’s assertion that the disposition rejecting the reappointment of this case is lawful as it goes through an objective and fair review criteria is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-ho (Presiding Justice)