[1] The purport of Article 53-2 (7) of the Private School Act stipulating the grounds for deliberation on reappointment to be based on the "insignificant reasons" stipulated by school regulations

[2] In a case where school juristic person Gap (hereinafter referred to as "school juristic person Gap") rejected reappointment for the reason that he/she failed to meet the standards for reappointment under the contract for the appointment of teachers, the case affirming the judgment below which held that the disposition rejecting reappointment is unlawful on the ground that the terms of reappointment agreed between the school juristic person Gap and Eul in an individual contract cannot be deemed as falling under "the objective reasons" under Article 53-2 (7)

[1] Article 53-2 (7) of the Private School Act / [2] Article 53-2 (7) of the Private School Act

[1] Supreme Court Decision 2010Du1835 Decided January 13, 2011 (Gong2011Sang, 349)

School Foundation Cheongwon Institute (Law Firm Hannuri, Attorneys Kim Sang-won, Counsel for defendant-appellant)

Teachers of the Ministry of Education, Science and Technology (Attorney Seo-young et al., Counsel for the plaintiff-appellant)

Defendant Intervenor (Attorney Kim Jong-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu2731 decided July 27, 2010

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are also examined.

1. The main sentence of Article 53-2(7) of the Private School Act provides that when the teachers’ personnel committee deliberates on whether to re-appoint the relevant teacher pursuant to Article 53-2(6) of the Private School Act, it shall be based on the objective reasons as determined by school regulations, such as matters concerning the education of students, academic research, evaluation of “matters concerning the guidance of students,” etc.

In full view of the following circumstances: (a) the amendment process of the Private School Act including the content of the foregoing provision; (b) the structure of deliberation on the reappointment within a university as prescribed by the Private School Act; and (c) the procedure for remedying the decision to refuse the reappointment as well as the scope of judicial review; and (d) the purpose of Article 53-2(7) of the Private School Act stipulating the grounds for deliberation on the reappointment as prescribed by the school regulations is to be based on objective grounds prescribed by the school regulations; (b) not only on the person who has the authority to appoint the university, but also on the student education; (c) evaluation of the matters regarding academic research and the guidance of students; and (d) the criteria for examination on the reappointment should be required to be established as an objective provision in advance to ensure that the determination to refuse the reappointment was made fairly based on reasonable standards (see Supreme Court Decision 2010Du1835, Jan. 13, 2011).

2. According to the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as stated in the judgment after comprehensively taking account of the adopted evidence, and found the following facts. However, although the plaintiff set forth the detailed items and allocation criteria of faculty members in the faculty evaluation regulations, the criteria for reappointment do not specify them. Whether such criteria have been fulfilled or not shall be determined based on individual contract terms and conditions agreed between the intervenor joining the defendant, and the school juristic person and teachers may be adjusted by mutual agreement as to the objective reasons and criteria, considering the special circumstances of the school juristic person or teachers to the extent that they do not violate the provisions of the school juristic person, within the extent that they do not violate the provisions of the school juristic person. However, even if the school juristic person did not provide for the objective reasons and criteria themselves, it is difficult to secure fairness, objectivity, rationality, and equity with other teachers of the conditions stipulated in the individual contract, and even if the contract terms entered into between the plaintiff and the intervenor joining the defendant do not deviate from the scope prescribed in the provisions, the disposition rejecting reappointment by the plaintiff in violation of Article 53-2 of the Private School Act cannot be deemed unlawful.

In light of the above legal principles and records, such fact-finding and determination by the court below are justifiable. Contrary to the allegations in the grounds of appeal, the court below did not conduct necessary deliberation by misapprehending the legal principles as to self-determination rights based on Article 53-2 (7) of the Private School Act and Article 31 (4) of the Constitution, or did not err in violation of logical and empirical rules and in violation of the principle of free evaluation of evidence.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)