[1] Legislative intent of Article 53-2 (3) of the former Private School Act and whether the status relationship of the faculty of a private university who is appointed for a specified period is naturally terminated due to the expiration of the term of appointment (affirmative with qualification)

[2] Legal nature of a private school teacher appointment contract

[3] The case holding that since a contract for appointment of a private school teacher can determine the term of appointment within the scope of the term of appointment stipulated in the articles of incorporation, the part of the term of appointment can not be deemed null and void because the term of appointment is shorter than the period stipulated in the articles

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) provides that "a faculty member of a college educational institution may be appointed or dismissed for a specified period under the articles of association of the relevant school juristic person." This provision is a provision that permits a person who has the right to appoint and dismiss a teacher upon expiration of the term of appointment of a private university to examine eligibility as a teacher and decide whether to appoint a teacher again. It is a provision that allows a person who has the right to appoint and dismiss a teacher to exclude the reappointment of a professor who has a problem of expertise, research performance, etc., so that he/she can continue his/her term of office by guaranteeing the reappointment of a teacher. Therefore, if a teacher of a private university appointed for a specified period is not a provision that guarantees his/her reappointment of a teacher, his/her status as a teacher at the expiration of the term of appointment, his/her status as a teacher, and the provision that prohibits the appointment of a teacher from expiration of the term of appointment is ultimately.

[2] Although a contract for the appointment of a private school teacher is made according to the procedure stipulated in the Private School Act, its legal nature depends on the free will or judgment of the relevant school juristic person in principle, and if the contract is conditional, the contract will depend on the fulfillment of the conditions.

[3] The case holding that since a contract for appointment of a private school teacher can determine the term of appointment within the scope of the term of appointment stipulated in the articles of incorporation, the appointment period is shorter than the period stipulated in the articles of incorporation, the part of the term of appointment shall not be deemed null and void

[1] Articles 53-2 (3) and 56 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) / [2] Article 655 of the Civil Act, Article 53-2 of the Private School Act / [3] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997)

[1] Supreme Court Decision 96Da7069 delivered on April 23, 1993 (Gong1993Ha, 1538), Supreme Court Decision 94Da12852 delivered on October 14, 1994 (Gong1994Ha, 2976), Supreme Court Decision 96Da7069 delivered on June 27, 1997 (Gong1997Ha, 2315), Supreme Court Order 200Ka18 delivered on February 11, 200 (Gong200Sang, 767) / [2] Supreme Court Decision 94Da15479 delivered on August 26, 1994 (Gong194, 2525Ha, 296Da196399 delivered on May 16, 196 (Gong1965, 1965)

Plaintiff (Attorney Park Byung-chul et al., Counsel for the plaintiff-appellant)

School Foundation Involving Private Teaching Institutes (Law Firm Jeong, Attorney Lee Jae-ap, Counsel for defendant-appellant)

Seoul High Court Decision 99Na11382 delivered on August 27, 1999

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

The grounds of appeal are examined.

The court below, on March 1, 1985, concluded an employment contract with the plaintiff as an assistant professor at the National Institute of Science and Technology at the same university on March 1, 1991 and the employment period expires on August 31, 1994. Accordingly, on September 1, 1994, the defendant concluded an employment contract with the plaintiff as an assistant professor at the same university on August 31, 1994 with the employment period of two years until August 31, 1996 (hereinafter referred to as the "employment contract of this case"), and notified the plaintiff of removal from office at the expiration of the above employment period on August 31, 1996 by the articles of incorporation for the reason that the above employment period of 19 years elapsed since the above employment period of 3 years was no longer effective than the above employment period of 5 years under the articles of incorporation of the National University Act, and determined that the appointment period of 3 years under the provisions of Article 5-2 (3) of the former Private School Act was no longer effective.

However, in light of the legislative intent of Article 53-2(3) of the Act, which provides for the fixed-term appointment system for private university teachers, it is difficult to accept the judgment of the court below that the fixed-term appointment period of the instant employment contract violates the provisions of the articles of association

Article 53-2 (3) of the Act provides that "If the term of appointment of a teacher of a college educational institution expires, he/she may appoint or dismiss the teacher of the relevant school juristic person with a fixed term as prescribed by the articles of association of the relevant school juristic person." This provision is a provision that permits the person authorized to appoint and dismiss the teacher to examine eligibility as a teacher upon expiration of the term of appointment. It is not a provision that guarantees the reappointment of a teacher to ensure that he/she will continue to serve his/her term of office by excluding the reappointment of a professor who has problems with expertise, research performance, etc., but it is not a provision that guarantees the reappointment of a teacher. Therefore, if there is no ground for imposing an obligation of reappointment on the articles of association or personnel regulations of the relevant school juristic person, the status relationship as a teacher of the private school educational institution with the expiration of the term of appointment, is naturally terminated, and if the term of appointment expires, the status of the teacher whose term of appointment expires. Article 56 of the Act on the Guarantee of Status of a teacher, such as restrictions on dismissal, is not a provision that prohibits 194.

In addition, although a contract for the appointment of a private school teacher is made according to the procedure prescribed by the Private School Act, the legal nature of the contract depends on the free will or judgment of the school juristic person concerned in principle, and if the contract is conditional, the contract will depend on the fulfillment of the conditions (see Supreme Court Decisions 94Da15479 delivered on August 26, 1994; 95Da26971 delivered on May 31, 1996).

However, prior to the conclusion of the instant employment contract, the Defendant tried to exclude the Plaintiff from the subject of reappointment due to lack of qualifications as university faculty members. The Defendant accepted the Plaintiff’s request from the Plaintiff to extend the previous employment period or to change the time needed for the transfer to a short employment period than the articles of association, and entered into the instant employment contract for two years between the Plaintiff and the Plaintiff. As seen earlier, the legislative purport of Article 53-2(3) of the Act, the legal nature of the contract for the appointment of faculty members, and Article 53-2(3) of the Public Educational Officials Act, which provides for the system for the fixed employment of faculty members at national and public universities, and Article 5-2(2)1 of the Decree of the Decree on the Appointment of Education, stipulate that the appointment period shall be within four years, and the appointment period shall be set within the scope of the appointment period prescribed by the articles of association, taking into account the above circumstances, and thus, the Plaintiff and the Defendant, as the party to the instant employment contract, may not be deemed to be in violation of the provisions of the articles of association.

Therefore, the judgment of the court below that only the part of the employment period of this case is null and void because it violated the provisions of the articles of association, is erroneous in the misunderstanding of legal principles as to the legal nature of the employment contract for private universities and the appointment contract for private colleges, which affected the conclusion of judgment.

The ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Cho Cho-Un (Presiding Justice)