2017Guhap70380 Decision and revocation of the Appeal Committee for Teachers

A

Law Firm Il-tae, Attorney Il-tae et al.

Attorney Kim Young-young

The Minister of Education

Government Legal Service Corporation (Law Firm LLC)

Attorney Kim Jae-chul

March 9, 2018

April 20, 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition ex officio to the Plaintiff on December 26, 2016 is revoked.

1. Details of the disposition;

A. On September 1, 200, the Plaintiff was appointed as an assistant professor at a college of medical science, and was promoted as an associate professor on September 1, 2004. The Plaintiff was reappointed on March 1, 201 by setting the term of appointment until February 28, 2017.

B. From November 11, 201 to December 2, 2011, the president of the B University wanting to be appointed as a faculty member of B University, including the Plaintiff, on three occasions, pursuant to Article 5 of the Addenda to the Act on the Establishment and Operation of B University (Act No. 10413, Dec. 27, 2010; hereinafter referred to as the “Annex to the C law”), Article 3(1) of the Addenda to the Enforcement Decree of the Act on the Establishment and Operation of B University, a national university (Presidential Decree No. 23116, Sept. 6, 201; hereinafter referred to as the “Annex Enforcement Decree of the C law”), the president of the B University asked to be appointed as a faculty member of B University, a public official, who is appointed as a faculty member of B University, while not wishing to be appointed as a faculty member of B University that is converted into a national university corporation, and asked to appoint a public official belonging to the Ministry of Education for five years.

C. On December 1, 2011, the Plaintiff expressed to the president of the National University, who did not wish to be appointed as a faculty member of the National University B as a national university.

D. A National University was established on December 28, 201 by Act on the Establishment and Operation of National University B (hereinafter “C Act”) and the Plaintiff was dispatched to B University as a public official belonging to the Ministry of Education from December 28, 201 to December 27, 201, pursuant to Article 5(3) of the Addenda to C Act and Article 3(1) and (2) of the Addenda to C Act.

E. On December 26, 2016, based on Article 70(1)3 of the State Public Officials Act, the Defendant notified the Plaintiff that the Plaintiff was punished by ex officio dismissal (hereinafter “instant disposition”) on December 28, 2016, based on the deliberation and resolution by the ex officio dismissal review committee and the Special Disciplinary Committee on Public Educational Officials.

F. The Plaintiff filed an appeal review seeking revocation of the instant disposition with the Appeal Commission for Teachers, but the said commission dismissed the Plaintiff’s request on April 5, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) Even in the relevant statutes, such as the Addenda to the C law and the Addenda to the C law enforcement decree, there is no ground provision that the existing faculty members of the BU may be ex officio dismissed, so the Defendant may not ex officio dismiss the Plaintiff.

2) Article 70(1)3 of the State Public Officials Act provides that “the change or abolition of the position system and the fixed number of personnel shall be made ex officio grounds.” However, the Ministry of Education, pursuant to Article 3(1) of the Addenda to the Enforcement Decree of the C Act, has separately set the fixed number of personnel concerning the Plaintiff, so it cannot be deemed that the fixed number of personnel has been changed or abolished. Therefore, the grounds for ex officio dismissal under Article

3) Pursuant to Article 70(3) of the State Public Officials Act, the Defendant had a duty to examine whether there is a possibility to avoid dismissal of the Plaintiff through the issuance of a transfer to another national university or to a brain science center under the Ministry of Science and ICT. Nevertheless, the Defendant neglected such duty and neglected the instant disposition, and thus, the instant disposition was unlawful as a deviation from and abuse of discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination as to the absence of legal basis for the disposition

Article 70 (1) 3 of the State Public Officials Act provides that "the appointing authority may dismiss a public official ex officio in the event of an alteration or abolition of the organization of office and fixed number of personnel," and Article 53 (3) of the Public Educational Officials Act provides that "the alteration or abolition of the organization of office under Article 70 (1) 3 of the State Public Officials Act includes the abolition of school, department

Article 70(1)3 of the State Public Officials Act and Article 53(3) of the Public Educational Officials Act should be ex officio pursuant to Article 70(3) of the Act on December 28, 201, inasmuch as the organization of the faculty members of the existing B university was abolished due to the establishment of B university, a national university corporation, on December 28, 201. Nevertheless, Article 5(3) of the Addenda to the C Act and Article 3(1) and (2) of the Addenda to the C Act provide the teachers of the existing B university who wish not to be appointed as the faculty members of the B university, a national university, with an opportunity to maintain the status of public officials belonging to the Ministry of Education for five years and to be dispatched to B university, a national university corporation. The purport thereof is not to grant them the right to maintain their status even after five years have elapsed.

The Defendant, at least five years after the establishment of the National University, may temporarily dispose of the faculty members of the previous University who had maintained the status of public officials belonging to the Ministry of Education for a limited period of time based on Article 70(1)3 of the State Public Officials Act, regardless of whether there is any provision in the Addenda of the C law and the Addenda of the C law, and there is no legal basis to restrict this. Thus, the Plaintiff’s assertion that the instant disposition is unlawful due to the absence of any relevant statute is without merit

D. Determination as to the non-existence of grounds for ex officio dismissal

In accordance with Article 5(3) of the Addenda to the C law and Article 3(1) of the Addenda to the C law, the teachers of the existing B university who did not wish to be appointed as the National University was temporarily assigned to the Ministry of Education for a five-year period of time pursuant to Article 3(2) of the Addenda to the C law, and at the same time dispatched to B university as a national university for five years pursuant to Article 3(2) of the Addenda to the C law.

In addition, in light of the purport of the above provisions, it is reasonable to interpret that the phrase "the prescribed number of teachers in Article 3 (1) of the Addenda to the Enforcement Decree of the C law shall be deemed to be separate" means that the prescribed number of teachers shall be set up for a limited period of five years.

Ultimately, since the Ministry of Education did not have the organization of the Plaintiff in respect of the Ministry of Education from the beginning of the year, and the number of the Plaintiff was changed and closed at the lapse of five years after the establishment of the National University B University, it is sufficiently recognized that the Plaintiff has a ground for ex officio dismissal, such as "the title system and the opening and closing of the fixed number of students" under Article 70 (1) 3 of the State Public Officials Act. Therefore, the Plaintiff

E. Determination on the assertion of deviation and abuse of discretionary power

C. The Addenda of the C law and the C law enforcement decree provide an opportunity to choose whether to be appointed as a teacher at a national university, and guarantees retirement age and pension equal to those of the B university at the time of the public official’s employment to those who wish to be appointed as a teacher at B university, and given consideration to those who wish not to be appointed as a teacher at B university, a national university corporation, to maintain the status of public officials belonging to the Ministry of Education for five years and to perform the same duties as the previous one. As such, the Addenda of the C law and the C law enforcement decree have taken a variety of transitional measures to minimize disadvantages arising from the loss of the status as public officials of the former B university due to transition into B university corporation. Nevertheless, if the former B university, which did not wish to be appointed as a teacher at B university, continues to maintain the status of public officials even after five years have passed, it may result in unreasonable results that granting them a right not prescribed in the C law, unlike the original purport of the C law and the C law enforcement decree, and thus, it may result in the maintenance of the status of public officials for five years.

The duty of reviewing the possibility of removal through the issuance or conversion of a change of placement under Article 70 (3) of the State Public Officials Act refers to a legal obligation that examines whether the issuance or conversion of a change of placement is possible within the scope of the appointment right of the appointing authority. It does not mean an intentional obligation that the appointing authority requests the appointment authority to appoint a public official belonging to another appointing authority beyond the scope of its appointment right.

Since the right to appoint faculty members of B University is against the president of B University who is not a defendant (Article 15(2) of C Act), whether it is possible to transfer to another department within B University is not included in the scope of the defendant's duty to examine the possibility of avoidance from dismissal.

In addition, when the authority is delegated, the delegated agency has the authority to manage its affairs and the delegated agency has the authority to manage its affairs. Since the authority to appoint other national universities is delegated by the head of each university, which is not the defendant, the delegated agency (Articles 25(1) and 33(1) of the Public Educational Officials Act, Articles 3(1)2 and 3-2(1)1 of the Decree on the Appointment of Public Educational Officials, Articles 3(1)2 and 3-2(1)1 of the Public Educational Officials Act), it is not included in the scope of the defendant's duty

In addition, the appointment authority of other administrative agencies than the Ministry of Education is not the defendant, and it is possible to issue a new appointment to the brain science center of the Ministry of Science and ICT (Article 32 of the State Public Officials Act and Article 5 of the Decree on Appointment of Public Officials).

Ultimately, insofar as the Defendant cannot be deemed to have been obligated to examine whether the transfer of a position to another National University or another National University, or the Brain Science Center of the Ministry of Science and ICT is possible, it cannot be deemed that the Defendant did not review it, and thus, the Defendant’s failure to do so. Since the Plaintiff, a teacher specializing in veterinary science, has no expertise in performing other general administrative duties in the Ministry of Education, it is not possible to issue or assign a transfer within the Ministry of Education, and there is no other circumstance to deem that the instant disposition was a deviation or abuse of discretionary authority, this part of the Plaintiff’s assertion 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.

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

1) The Plaintiff stated in the complaint that the date of the above disposition was December 28, 2016. However, the date of the above disposition is December 26, 2016 (see evidence 3) and the written statement in the complaint is obvious that it is a clerical error. Thus, the Plaintiff’s correction is made.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.