Plaintiff 1 and five others (Law Firm Sang, Attorneys Park Young-young et al., Counsel for the plaintiff-appellant)

Teachers' Appeals Review Committee (Attorney Seo-young et al., Counsel for the plaintiff-appellant)

Participant of a school juristic person (Attorney Ha-young, Counsel for defendant-appellant)

September 27, 2010

Seoul Administrative Court Decision 2008Guhap38711 Decided November 6, 2009

1. The part against Plaintiff 6 in the judgment of the first instance shall be revoked.

2. On July 21, 2008, the Defendant’s decision to dismiss the dismissal of the ex officio dismissal disposition, which was made between Plaintiff 6 and the Intervenor joining the Defendant, with respect to the claim for nullification of the ex officio dismissal disposition No. 2008-151, is revoked.

3. The appeals filed by plaintiffs 1, 2, 3, 4, and 5 are dismissed, respectively.

4. Of the total costs of the lawsuit between the plaintiff 6 and the defendant, the part resulting from the participation is borne by the defendant, and the remainder is borne by the defendant. The costs of the appeal between the plaintiff 1, 2, 3, 4, and 5 and the defendant are borne by the plaintiff 1, 2, 3, 4, and 5.

Plaintiff 1, 2, 3, 4, and 5: The first instance judgment is revoked, and the Defendant’s decision to dismiss the claim for nullification of ex officio dismissal on July 21, 2008 between the aforementioned Plaintiffs and the Intervenor joining the Defendant (hereinafter “ Intervenor”) is revoked on July 21, 2008.

Plaintiff 6: Judgment as per Disposition Nos. 1 and 2.

1. Circumstances and basic facts of the disposition;

The following facts may be acknowledged as either of the parties to a dispute or as a whole by adding up the whole purport of pleadings to the statements in Gap's 1 through 5, 20, 21, 23, 25 through 29, 42 through 47, Eul's 2 through 10, and 12 through 29 (including each number):

A. Status of the parties

An intervenor is a school juristic person which establishes and operates ○○ University in Thai-si (hereinafter omitted), and the plaintiffs are appointed and work experience as teachers belonging to ○○○ University, and the appointment and work experience are the same as the attached Table 1>.

The appointment and work experience of the plaintiffs 1>

본문내 포함된 표 성명 임용 경력 원고 1 1996. 3. 건축과 전임강사 ？ 원고 2 1996. 3. 건축과 전임강사 2005. 4. 부교수 승진 원고 3 2002. 4. 건축과 전임강사 ？ 원고 4 2001. 4. 관광디자인과 전임강사 ？ 원고 5 1999. 9. 관광디자인과 전임강사 2003. 10. 조교수 승진 원고 6 1999. 9. 컴퓨터정보과 전임강사 2003. 10. 조교수 승진

* ○○○○ University submitted each of the “Plan for the Adjustment of Maximum Student Number” on June 2, 2005 to the Ministry of Education and Human Resources Development by changing the Home Art Design Department into the name of a department for construction of the Home Art Art. 1, 200, the Home Art. 1, 2006, and the Ministry of Education and Human Resources Development on November 29, 2005. The name of the department is referred to as “building Department” and “tourism Design Department” in total before and after the change.

B. Progress from the date of dismissal to the date of removal

(1) Promotion of university restructuring

(A) From around 2003, the ○○○ University promoted the restructuring of the university according to the Ministry of Education’s demands, etc. as a measure to reduce the number of students (at the time of entering the year 2002, the number of enrolled students would be 52.4%).

(B) On October 27, 2004, the Committee on the School Affairs of the ○○○ University closed a department of less than 50% with the consent of all members present, and closed a department of less than 50% with the consent of all members present at the 004. On February 21, 2006, the Committee prepared a “205 University Structure Reform (hereinafter referred to as the “2005 University Structure Reform”) to provide retirement consolation benefits to the professors who are subject to closure of a department of less than the recruitment capacity of less than 50%,” with the consent of all members present at the 205 Year University Reform (hereinafter referred to as the “School Department of less than 50% with the consent of all members present at the 2005 University Reform”) and decided to close a department of less than 50% on February 21, 2006 with the consent of members present at the 2005 University Structure Reform (hereinafter referred to as the “School Reform”) and 250% of the number of members present at 20.

(C) On January 24, 2006, the School Affairs Committee passed the “2006 University Structure Reform (hereinafter “2006 University Form Reform”) to ensure that the faculty members of the department to which the plaintiffs belong will abolish the department whose registration rate of new students is less than 50% as of February 21, 2006,” and agreed on February 16, 2006 that the University Structure Reform Advisory Committee passed through the School Affairs Committee on February 16, 2006.

(D) As a result of the recruitment of new students in 2006 of ○○○ University, three buildings with a prescribed number of 40 persons, five tourism designs, and three computer information departments were registered, but all registered students had been convicted of, or have renounced registration to, similar departments or desired departments within the prescribed number of students, and there was no new students of the said three departments in the year 2006. The details of the recruitment of students from 2004 to 2006 of the said three departments are as shown in the attached Table 2.

Table 2> Details of student recruitment by Department

본문내 포함된 표 ？ 입학정원 2004년 2005년 2006년 등록인원 충원률 등록인원 충원률 등록인원 충원률 건축과 40 22 55% 30(8명은 산업체 인원) 75% 0 0 관광디자인 40 2004년도 폐과 5 12.5% 0 0 컴퓨터정보 40 22 55% 20 50% 0 0

(E) On February 22, 2006, the Intervenor Council decided to abolish the construction department, tourist design department, and computer information department, and decided to “the above “the University Structural Reform (B006)” as a part of the subsequent measures, the Intervenor Council decided on June 27, 2006 that “the 7-month salary (total amount) shall be paid to the professors who wish to retire by July 31, 2006 and KRW 30 million per capita retirement allowance shall be paid only to those professors who wish to retire by July 31, 2006.”

(F) On the other hand, on May 15, 2006, the construction division of ○○○ University consented to the following: “B” related to the guidelines for overall process of restructuring; “B” related to tourism design; “B” related to the subject of restructuring in 2006-2007 as of May 16, 2006; and “B” as of the computer information department’s structural reform (hereinafter “W”), respectively, to the extent that the standard for abolition and abolition were less than 50% of the prescribed number of personnel.

(G) On August 23, 2006, the head of the ○○○ University submitted to the Ministry of Education and Human Resources Development the “the result of the quota adjustment for the year 2007” to the effect that the construction department, tourism design department, and computer information department belonging to the Plaintiffs are discontinued.

(2) Details of discussions at a university structure reform advisory committee meeting and a faculty meeting

(A) On January 206, the Intervenor organized a university structure reform advisory committee consisting of four professors and three representatives of employees, the principal of students, and the president of the board of representatives, etc. as a central advisory committee that provides legal and administrative support for the establishment of the ○○○○ University’s structural reform proposal. At the same time, the advisory committee has held several meetings to gather reasonable opinions from university members on the structural reform of the university. At the same time, the advisory committee performs the role of advising on matters related to the establishment of the university’s facilities management plan.

(B) According to the professor proposal of the Advisory Committee, a department with weak competitiveness due to the flow of the times and less than 50% as a result of the recruitment of new students in 2006 should be closed. However, it is not immediately closed, but immediately closed, and if the registration rate is less than 50% after introducing new students in 2007, the department of new establishment was introduced to collect new students in 2007, and the department is more than 50%, it is ultimately closed, and the relevant professor will receive consolation money and voluntarily retire.

(C) The Plaintiffs submitted a plan to establish a new department at ○○ University after the construction department, tourism design department, and computer information department was designated as the subject of closure in 2006, but this was not accepted due to the reflection by students, etc.

(D) On October 21, 2005, ○○ University Professor○○ University’s faculty meeting held an estimated workshop to seek a direction-setting for university development and voluntarily established by professors belonging to ○○ University. On March 21, 2006, 4 departments are closed by holding a meeting on March 21, 2006, and instead, submitted the name of the newly established department, the development plan of the department, and the draft of the curriculum by April 10, 2006 and decided by the school affairs committee.

(E) At the faculty meeting for restructuring held on May 22, 2006, four departments were newly established instead of closing four existing departments at ○○○ University, and a detailed plan for the establishment accordingly was submitted until May 25, 2006. In particular, on February 28, 2007, consultation was made where the number of new students registered is not more than 20 persons.

(3) The first ex officio dismissal

(A) On November 2, 2006, the Intervenor Council decided to ex officio dispose of the Plaintiffs, who are not applicants for retirement consolation benefits, among the professors affiliated with the closure department, and decided to dismiss the Plaintiffs on February 27, 2007 upon the recommendation of dismissal from the head of ○○ University (hereinafter “the first ex officio dismissal”) on February 28, 2007 on the ground of the closure department (hereinafter “the dismissal”).

(B) On March 27, 2007, the plaintiffs filed a petition with the defendant seeking confirmation of invalidity of ex officio dismissal. On June 18, 2007, the defendant decided on the grounds that "a abolition department" under the proviso of Article 56 (1) of the Private School Act refers to the time the organization is no longer established under the school regulations through lawful procedures for amendment of the school regulations, and "a member" refers to a teacher in the closed department. Since ○○○ University did not amend the school regulations until the date of ex officio dismissal on February 28, 2007, it cannot be deemed that the above departments were closed because the construction department, tourism design, and computer information department remains in the establishment department and organization of the school regulations, and therefore, it cannot be deemed that the plaintiffs were dismissed due to the abolition of the school regulations, on the ground that the dismissal of the plaintiffs on the ground that the abolition of the school regulations was null and void."

(iv)an order of reinstatement and the second ex officio dismissal;

(A) On April 1, 2007, 2007, the ○○ University announced the amendment of the school regulations, which included the contents of construction, tourism design, and closure of computer information, on the university website (Internet address omitted), for 10 days from March 18, 2007 to March 27, 2007. The ○○ University Council deliberated and resolved on the amendment of the above school regulations on March 28, 2007, and the ○○ University reported the school regulations amended on April 12, 2007 to the Ministry of Education and Human Resources Development.

(B) On September 20, 2007, the Intervenor Council decided on September 28, 2007 against the Plaintiffs on the issuance of reinstatement as of March 1, 2007 and the second ex officio dismissal as of October 1, 2007 (hereinafter “the second ex officio dismissal”) upon the recommendation by the head of ○○○○ University on September 20, 207, and filed a petition with the Defendant seeking confirmation of the second ex officio dismissal as of October 31, 2007.

(C) On January 7, 2008, the Defendant again accepted the Plaintiffs’ claim on the ground that “In publicly announcing the amendment of school regulations as of April 1, 2007, it is unreasonable to set the period of public notice for 10 days, rather than 20 days, which is the period of public notice as stipulated by school regulations, without any special circumstances.” The relevant amendment of school regulations setting the closure department of the departments to which the Plaintiffs belong, without deliberation by the school regulations committee, is null and void in violation of the amendment procedures of school regulations.

C. Ex officio dismissal of this case

(1) On February 29, 2008, the head of the ○○ University re-announces the amendment of school regulations from February 29, 2008 to March 20, 2008 to supplement the procedural problems. The Plaintiffs, upon receiving a reinstatement notice from an intervenor on March 17, 2008, submitted a written opinion without stating any details of the amendment of school regulations publicly notified by the head of the ○○ University on March 20, 2008. Thereafter, the Committee on the Department of the ○○○ University deliberated on the amendment of school regulations on March 24, 2008.

(2) The board of trustees of ○○○ University deliberated on the amendment of school regulations on March 26, 2008. At the above conference, the amendment of the school regulations proposed at this time contains the same content as the amendment of the school regulations enforced on April 1, 2007. However, as a transitional measure, “all acts before the amendment of the school regulations shall be deemed to have been applied to this school regulations” as a transitional measure, it shall be deemed that it is included in the school regulations. After that, according to the promulgation of the amended school regulations on April 1, 2008, construction, tourism design, and computer information have been abolished.

(3) On March 17, 2008, the Plaintiffs received an order of reinstatement from the Intervenor on October 1, 2007, and the ○○○ University Dismissal Review Committee deliberated and resolved on April 2, 2008 on an ex officio dismissal of the Plaintiffs (five supporting persons and two supporting persons). On April 15, 2008, the teachers’ disciplinary committee submitted the Intervenor’s written opinion to the Intervenor on April 15, 2008 (six members present, with the consent of all members present), and the teachers’ personnel committee deliberated and resolved on the ex officio dismissal of the Plaintiffs (seven members).

(4) On April 17, 2008, the head of the ○○○ University requested the intervenors to dismiss the Plaintiffs. On May 1, 2008, the Intervenor held a board of directors and resolved ex officio dismissal of the Plaintiffs, and thereafter dismissed the Plaintiffs on May 1, 2008 (hereinafter “ex officio dismissal”). On May 29, 2008, the Intervenor filed a petition with the Defendant seeking confirmation of invalidity of ex officio dismissal.

(5) On July 21, 2008, the Defendant rendered a decision to dismiss the Plaintiffs’ claim on the ground that “it is difficult to see that there was any defect in the amendment of the school regulations as of April 1, 2008, including the abolition of the department to which the Plaintiffs belong, and the department to which the Plaintiffs belong is deemed to have been lawfully made in accordance with the relevant regulations and procedures, and in light of the developments leading up to the ex officio dismissal and its procedure and the need for structural reform of the ○○○ University’s ○○○ University, etc., it cannot be deemed that the ex officio dismissal in the instant case is illegal or unreasonable, or that it is invalid due to deviation or abuse of discretionary power (hereinafter “instant decision disposition”).

D. Whether it is possible to give lectures to other departments of the plaintiffs

(1) The details of the acquisition of the Plaintiffs’ degrees are as indicated in the 3rd Table.

Table 3: Details of acquisition of the Plaintiffs’ degrees

본문내 포함된 표 성명 학사 석사 박사 원고 1 청주대학교 건축공학과 청주대학교 건축공학과 청주대학교 건축공학과 원고 2 성균관대학교 건축공학과 성균관대학교 건축공학과 ？ 원고 3 삼척대학교 건축공학과 관동대학교 건축공학과 건축대학교 건축공학과(수료) 원고 4 삼척대학교 산업디자인과 건국대학교 산업디자인과 ？ 원고 5 서울산업대학교 산업디자인과 서울산업대학교 산업디자인과 ？ 원고 6 경원대학교 전자계산학과 숭실대학교 전자계산학과 숭실대학교 컴퓨터학과(수료)

* Plaintiff 2, other than his major major, entered the doctorate course at △ University Tourism University on March 2007 and completed the doctorate course on February 2010. Plaintiff 5 entered the computer science and doctorate course at △ University on March 2001 and closed the course on February 2008.

(2) From among the professors belonging to the ○○○ University by its ex officio dismissal, there are eight majors, including Plaintiff 6, and their changes are as shown in the attached Table 4> The changes in their departments are as shown in the attached Table 4> As shown in the attached Table 4> The six professors, other than Plaintiff 6 and Nonparty 1, are assigned to the Tourism Information Processing Department, noncommissioned Officers, and Infant Care and Welfare Department (hereinafter referred to as the “In addition to the above three departments”), respectively, to the full-time faculty, but the Plaintiff 6 and Nonparty 1 were not assigned to the neighboring department.

Table 4> Details of the transition assignment to computer-related majors

Computer information in 2005, 2006, 2007, 2007, and 2 (Plaintiff 6, 1, 2000, 22-(closed) electronic information and communications, and 2-(closed) - Tourist information processing, 44-(closed) - noncommissioned Officer and - 4-2(Newly established) - Infant Infant Care Welfare and -2(Newly established) -22

* With the closure of the Electronic Information and Communications Department, the title of the Infant Care Department was newly established in 2005 and changed to that of the Infant Care Department in 2008.On the other hand, as the Tourism Information Management Department was abolished in 2006 and the noncommissioned Division was newly established in 2007, two of the four full-time teachers with noncommissioned Officers were assigned to the Tourism Information Management Department.

(3) The Ministry of Education, Science and Technology announced the structural reform plan of a private university on December 2004, and announced that he shall secure full-time faculty according to the standards for securing annual full-time faculty, such as the entry in Table 5> and that he will reduce the number of faculty for a university which fails to meet such standards after 2009. The ratio of securing faculty of the ○○○○ University is 54.9% as of the end of 2008.

Table 5> Standards for securing annual full-time faculty members

The table classification contained in the main sentence in the year 2005, 2006, 2007, 55.0% 57.5% 60.0% 62.5% 65% general (centered) 54.5% 56.0% 57.0% 57.0% 69.0% 61.0% industrial and specialized 40.0% 42.0% 45.0% 48.0% 48.0% 50% for industrial and specialized 2007

On the other hand, the ratio of securing of full-time faculty to noncommissioned Officers and Infant Care Welfare Division in 2008 among neighboring departments is below the criteria determined by the Ministry of Education, Science and Technology, such as the attached Table 6>

Table 6> Annual standards for securing full-time teachers

The rate of tourism information processing of full-time faculty members for full-time lecturers in the course of study included in the main sentence, and the rate of tourism information processing of 80 full-time faculty members, 50 noncommissioned officers, 60 and 33% childcare welfare for infants and children, 160 and 25% for 160 full-time faculty members.

* The rate of securing full-time teachers is calculated on the basis of the student quota.

(4) Of the education subjects of neighboring departments, courses related to Plaintiff 6’s major field are as follows:

(a) Tourist Information Processing Division (based on 2007)

(1) Major requirements: General calculator, unit protocol, office management, and information and communications theory.

(2) Major selection: Professional programming practice 1, OA practice , Internet utilization 1, video editing, video editing, computer utilization, programming practice2, programming practice2, OA practice , production of website 2, computer graphics, document editing practice 1, database, web programming, electronic commerce, management information system, management information system, fashion application1, operating system, information security theory, business start-up support theory, project planning.

(b) Noncommissioned Officer (based on year 2008) and noncommissioned Officer

(1) Major compulsory: Utilization of the Internet, frigroology, information search, office management, OA practice, document editing practice, web media understanding, information management practice, and publication on the website.

(2) Major selection: The opening of information and communications technology, the opening of computer science, and the planning of projects.

(C) Infant Care and Welfare Division (based on two semesters in 2008)

Welfare computers, Infant Care Computers, etc.

(5) The ○○○○ University, like the entry in the 7th Table, invited a part-time lecturer to teach a course related to Plaintiff 6’s major from among the subjects of the adjacent department from 2007 to 2009, and invited two professors holding concurrent posts in 209. Of the adjoining department, two full-time teachers, as of the first semester in 2009, were subject to 22 to 25 hours per week for each 11 semester, and six full-time lecturers were assigned for 22 hours for the rest of 22 subjects. The number of hours of lectures exceeding the 15 hours of Nonparty 2 professor’s responsibilities (15 hours) of Nonparty 3, a full-time teacher, is seven hours, and the number of hours of lectures exceeding 15 hours of Nonparty 3 professor’s responsibilities (10 hours).

Table 7> Part-time instructors of the neighboring Department and the details of invitation of professors:

The name of the voting department included in the main text, 1 Semesters 2007 1 Semesters 2, 2008 Semesters 2, 2008 Semesters 2, 2008 Semesters 2, 2009 Semesters 2, 2009 Semesters 1 2,009 Semesters - Web programming, D/B, computer-based programming, web programming, web programming, fashion, application, D/B, computer utilization - Electronic Accounting, Computer Engineering, Computer Engineering, Computer Engineering, Computer Engineering Practice, Information Search, Information Search - Infant Care and Welfare -- Computer

(6) An intervenor has prepared for the establishment of a tentatively named “university at the time of the opening of the school on March 1, 201.” On February 1, 2010, the public notice of the invitation of a professor at a college at the time of the opening of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a local government

E. Progress of the relevant lawsuit

In addition to Plaintiff 6, Nonparty 1, who was a professor of computer information, was dismissed on May 1, 2008 as well as the Plaintiffs. On July 21, 2008, the Defendant rendered a decision to dismiss Nonparty 1’s request for nullification of ex officio dismissal between Nonparty 1 and the Intervenor. Nonparty 1 filed a lawsuit against the Defendant to revoke his request for nullification of ex officio dismissal, and the first instance court (Seoul Administrative Court Decision 2008Guhap42369) rendered a decision to dismiss Nonparty 1’s request on July 10, 2009. However, in the appellate court (Seoul High Court 2009Nu26151) (Seoul High Court 209Nu26151), the appellate court dismissed Nonparty 1’s request for revocation of the above decision to dismiss Nonparty 1 on the ground that Nonparty 1’s request for nullification of ex officio dismissal constituted an abuse of discretion by the Defendant’s decision to dismiss Nonparty 10 and Nonparty 15’s request for nullification of ex officio dismissal.

2. Summary of the plaintiffs' assertion

For the following reasons, the Plaintiffs asserted that the instant decision-making disposition was unlawful by ex officio dismissal.

(a) argument that the amended school regulations nullify;

(1) The allegation of illegality in the publication procedure

The amendment of the school regulations on February 29, 2008, before March 17, 2008, by the intervenor issued a reinstatement order to the plaintiffs, is unlawful since it cannot be deemed that the amendment of the school regulations on February 29, 2008 was lawfully made. Thus, the amendment of the school regulations on April 1, 2008 is null and void.

(2) Opinion regarding the consent of the faculty conference

An amendment to school regulations, the contents of which are the abolition of a department, is an amendment to school regulations unfavorable to teachers who can extinguish their status relationships. Thus, barring any reasonable ground under the generally accepted social norms, the consent or agreement of the university faculty group is required, and the establishment and amendment of a university structure reform constitute an amendment to the rules of employment unfavorable to the workers, and thus, the consent of a majority of the teachers is required pursuant to the proviso to Article 94(1) of the Labor Standards Act. However, in the process of an amendment to a series of school regulations for the abolition of a department, including an amendment to the school regulations as of April 1, 2008, the intervenor was merely subject to the procedure of collecting opinions from the relevant department or undergoing a deliberation and resolution by the school affairs committee, and without obtaining the consent by holding a faculty council. Therefore, the above amendment’s school regulations are null and void, and the ex officio dismissal

(3) argument regarding the deliberation of the faculty council

Before the amendment, the school regulations stipulate that the amendment of the school regulations must be subject to deliberation by the faculty council. However, since the amendment of the school regulations without deliberation by the faculty council, the amended school regulations are null and void and void ex officio dismissal of this case.

(4) Claim regarding amendment of school regulations on abolition and standards

School regulations amended as of April 1, 2008 stipulate that measures such as the opening and closing of the department of establishment or the adjustment of the fixed number of admission can be taken according to the results of new students recruitment, and did not go through the procedures for amending school regulations to provide for the registration rate of new students, establishment of the standards for the abolition of the department, and modification of the school regulations. Therefore, ex officio dismissal of this case is unlawful without going through the procedures for amending school regulations on closure and standards.

(5) Retroactive application of the amended school regulations

As of April 1, 2008, the newly amended school regulations were applied to acts done prior to the enforcement date of the school regulations. However, in light of the fact that the school regulations were duly amended on April 1, 2007 and December 17, 2007, it cannot be deemed only that the school regulations without deliberation by the board of trustees were retroactively implemented. Thus, the ex officio dismissal of this case, which was based on this, is unlawful.

(b) argument regarding abolition and requirements

(1) argument that new students are recruited or the name of department is changed and the opportunity to establish new students is not given.

The purport of the Defendant’s decision to nullify the first ex officio dismissal and the second ex officio dismissal is that the Plaintiff’s position may be retroactively abolished, such as providing the Plaintiffs with an opportunity to recruit new students so that the department belonging to the Plaintiffs does not cease to be closed. However, it is unlawful for the Intervenor to repeatedly ex officio dismissal of the instant case without providing the Plaintiffs with an opportunity to recruit new students in 2007, in disregard of the Defendant’s repeated decision to nullify the invalidity.

(2) The Plaintiffs’ assertion that the closure and requirements of the construction department, tourism design department, and computer information department are not satisfied

In the case of computer information department, there was a temporary closure until the time of the dismissal, and in the case of construction and tourism design, the department was not closed until the time of the second dismissal, and the ex officio dismissal of this case was based on the premise of this. Thus, the ex officio dismissal of this case is unlawful since it did not meet the requirements for closure and reduction of the cost.

(c) The assertion of deviation and abuse of discretionary authority;

Since the appointment, the plaintiffs worked in good faith as a professor, and there is no defect in the form of appointment, business performance, job performance ability, etc., and the plaintiffs are teachers specializing in each of the construction engineering, industrial design, and electronic accounting, and may be allowed at any time in the course of study established in the field of tourism information processing, noncommissioned, infant and child care, and the field of quality management, etc., which are neighboring departments, in addition to individual department. However, in the case of the above adjacent departments, the number of full-time teachers required in the regulations on the establishment and operation of universities is not secured, and therefore, they are invited as part-time lecturers. In light of the above adjacent departments, the ex officio dismissal of this case conducted by the plaintiffs without taking measures such as guaranteeing the plaintiffs the opportunity to change their majors through temporary retirement or converting them into and assigning them to adjacent departments is unlawful.

3. Relevant statutes;

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

4. Judgment by issue

In order to legally conduct an ex officio dismissal disposition against a private school teacher, such as the Plaintiffs, the position or prescribed number of the relevant teacher should be nonexistent due to the abolition of the establishment class or department through legitimate procedures of the school regulations amendment. In this case, an ex officio dismissal disposition should be conducted through legitimate procedures by meeting the closure and requirements, and there should be no illegality of deviation from or abuse of discretion. hereinafter, in order to determine the legitimacy of the instant determination disposition, it should be examined in order to determine the legitimacy of the instant ex officio dismissal.

(a) Whether the amended school regulations nullifys;

(1) Whether the publication procedure is unlawful

As seen earlier, the head of ○○ University announced the amendment of the school regulations on February 29, 2008 in accordance with the relevant provisions, such as Article 6 of the Higher Education Act, Article 4 of the Enforcement Decree of the same Act, Article 26-2 of the Private School Act, Article 18 of the Intervenor’s Articles of Incorporation, Articles 77 and 84 of the School Regulations, etc., and promulgated the amended school regulations on March 24, 2008 after deliberation by the school affairs committee on March 26, 2008, following the deliberation by the board of trustees on March 26, 2008. The head of ○○ University reported the amended school regulations to the Ministry of Education, Science and Technology on April 22, 2008. Thus, it is difficult to view that the Plaintiffs were erroneous in the above amendment procedure, and that the Plaintiffs did not suffer any disadvantage in relation to the above amendment procedure, so long as they did not have any reasons to deem the Plaintiffs’ written opinion.

(2) Whether the consent of the faculty council is necessary

An amendment to school regulations is made pursuant to relevant provisions, such as Article 6 of the Higher Education Act, Article 4 of the Enforcement Decree of the same Act, Article 26-2 of the Private School Act, Articles 18 of the Intervenor’s Articles 77 and 84 of the Regulations on ○○ University, etc., and the amended articles of incorporation of the Intervenor stipulates that an amendment to school regulations shall be subject to deliberation by the board of directors. In addition, in any relevant statutes or the articles of incorporation of an intervenor, an amendment to school regulations shall be made within the scope of deliberation by the board of directors. Unless there is a provision that the Intervenor should hold a faculty meeting and obtain consent in addition to the board of directors in amending school regulations, the amendment to school regulations shall not be deemed unlawful on the ground that the Intervenor’s abolition of the school regulations without the consent of the board of directors.

In addition, the Intervenor’s structural reform plan formulated on a reasonable and objective basis after gathering the opinions of university members on the status of professors who are closed and subject to closure in the course of implementing the structural reform for the ○○○ University, does not fall under the rules of employment as provided by the proviso of Article 94(1) of the Labor Standards Act. Therefore, the argument that the university structural reform plan does not apply to the Plaintiffs on the grounds that there is no consent of the majority of the faculty members of △△ University on a different premise

(3) Whether deliberation by the faculty council is necessary

(2) Article 55 of the school regulations prior to the amendment by ○○○ University’s ○○ University’s ○○○ University 1 through 3, respectively, provides that “The President of the University shall convene and preside over the matters relating to the amendment of school regulations,” and that “the Faculty Council shall deliberate on the matters relating to the amendment of school regulations (Article 2(1)1) of the Enforcement Decree,” and that the amended school regulations, including the previous school regulations, grants authority to deliberate on the amendment of school regulations to the Private School 4 at the same time as before March 204, may only be recognized as lawful matters pertaining to the amendment of school regulations, on the grounds that the amendment by ○○ University 2, supra, had no authority to deliberate on the amendment of school regulations, and that the amendment by ○○ University 2, supra, had no authority to deliberate on the amendment of school regulations, may only be recognized as an amendment of the school regulations, which provides that the amendment of school regulations shall be subject to deliberation by the Private School Regulations.

(4) Whether to amend school regulations on abolition and standards

Article 5(2) of the school regulations of ○○○ University provides that “The department of establishment may be amended or abolished or the fixed number of admission may be adjusted according to the result of new students recruitment.” Under the above provision, the intervenor prepared a university structure reform plan and set reasonable and objective standards, and subsequently lawfully deliberated and decided on whether the department to which the plaintiffs belong is closed or not. Furthermore, in determining whether the department is closed or not, it does not necessarily require the provision of school regulations concerning the criteria for the abolition of the department, such as the rate of new students registration. Accordingly, the plaintiffs’ assertion on different premise

(5) Whether the amended school regulations retroactively apply

As seen earlier, the Intervenor re-announces the amendment of the school regulations on February 29, 2008 before ex officio dismissal of the instant case, and promulgated the amended school regulations on April 1, 2008 after undergoing each deliberation by the school affairs committee and the board of trustees in order, and subsequently enacting the school regulations on April 1, 2008, to which the Plaintiffs belong, and since the construction department, tourist design department, computer information department, etc. was terminated on April 1, 2008, it is not ratified retroactively by the amended school regulations, as long as the previous termination of the school regulations was not ratified retroactively by the amended school regulations, it is difficult to view that the existence of any defect in the transitional provisions on the time of application or retroactive effect of the amended school regulations in the procedure on ex officio dismissal of the instant case has any impact on the time of application of

(b) Whether the conditions have been abolished and met;

(1) Whether it is necessary to recruit new students or to give an opportunity to change the name of department and establish new students

The purport of the decision to invalidate the first ex officio dismissal and the second ex officio dismissal of the defendant is that there is a serious procedural defect in the amendment of school regulations, which served as the basis for the disposition of ex officio dismissal of the plaintiffs. Thus, the amendment of the school regulations and the closure of the department to which the plaintiffs belong does not retroactively take place. In the process of the intervenor's ex officio dismissal of the plaintiffs, the plaintiffs, who are professors of the closed department in 2007 through the Advisory Committee or the Teaching Committee, expressed their opinions about the closure of the department when the registration rate is less than 50% as a result of recruiting new students in 207 through the Advisory Committee or the Teaching Committee. However, this is merely a part of the procedure for collecting opinions from the university members in the process of implementing structural reform of the ○○○○ University, and it is difficult to view that the intervenor's closing of the department to which the plaintiffs belong or the intervenor's establishment is bound by the plaintiffs' opinions. Thus, it is difficult to see that the intervenor or the ○○ University lawfully completed the resolution of this case and its reasoning.

(2) Whether construction, tourism design, computer information, and closure requirements belonging to the Plaintiffs are satisfied

Article 56 (1) (proviso) of the Private School Act refers to a case where there is no registered student due to the lack of the fixed number of admission through lawful procedures for the revision of the school regulations, as well as the case where there is no registered student due to the absence of the fixed number of students. “A student” refers to a teacher in the closed department. In full view of the evidence and the purport of the whole arguments adopted earlier, it may be recognized that there was no new student from the year 2006, and the student was a previous student or a student did not have been enrolled in another department, and that there was no previous student or a student was removed from the other department at the time of the closure or return of the department at the time of the commencement of discussions on the restructuring of the department at ○○○○○ University. Accordingly, it is difficult for the Plaintiffs to view that the part of the department, which belongs to the Plaintiffs at the time of abolition or abolition of the school regulations at the time of 2005do206, and that it is difficult for the Plaintiffs to be seen as a new student and the newly abolished school regulations at the same time.

C. Whether the discretion is deviates or abused

(1) Standards for ex officio dismissal of teachers in private schools

헌법 제31조 제6항 은 “교원의 지위에 관한 기본적인 사항은 법률로 정한다”고 규정하고 있고, 사립학교법 제56조 제1항 본문, 교육공무원법 제43조 제2항 및 교원지위향상을 위한 특별법 제6조 제1항 은 모두 “교원은 형의 선고·징계처분 또는 법률이 정하는 사유에 의하지 아니하고는 의사에 반하여 휴직·면직 등 불리한 처분을 받지 아니한다”는 취지로 규정하여 교원의 신분을 두텁게 보장하고 있으며, 사립학교법 제56조 제1항 단서는 “학급·학과의 개폐에 의하여 폐직이나 과원이 된 때”를 사립학교 교원의 직권면직사유로, 교육공무원법 제53조 제3항 , 제57조 제3항 , 국가공무원법 제70조 제1항 제3호 , 지방공무원법 제62조 제1항 제3호 는 “각급 학교에 있어서 학교·학과 또는 학부의 폐지 등에 의하여 폐직 또는 과원이 된 때”를 국·공립학교 교원의 직권면직사유로 각기 규정하고 있다. 공무원인 국·공립학교 교원에 대하여 적용되는 국가공무원법 제70조 제3항 , 지방공무원법 제62조 제3항 은 “폐직, 과원이 되었음을 이유로 공무원을 직권면직시킬 때에는 임용형태·업무실적·직무수행능력·징계처분사실 등을 고려하여 면직기준을 정하여야 한다”고 규정하고 있는데, 사립학교법에는 비록 이러한 내용을 규정한 조항은 없으나 사립학교에서 학급·학과의 폐지에 의해 폐직, 과원이 되었음을 이유로 교원을 직권면직함에 있어서도 교원의 신분보장이라는 관점에서 합리적이고 객관적인 기준과 근거에 따라 면직 여부를 결정함이 필요하고 이에 따르지 아니한 채 자의적으로 면직처분을 하는 것은 교원 임면에 관한 재량권을 일탈, 남용한 것으로 된다고 봄이 상당하며, 국가공무원법 제70조 제3항 , 지방공무원법 제62조 제3항 이 말하는 “임용형태·업무실적·직무수행능력·징계처분사실 등을 고려하여 정한 면직기준”이란 결국 합리적이고 객관적인 기준의 내용을 구체적으로 정한 것으로 볼 수 있으므로, 사립학교에서 폐과 등에 의한 폐직, 과원이 발생하여 교원을 직권면직함에 있어서도 위와 같은 면직기준을 정하고 그에 따라 면직대상자의 실적과 능력 등을 심사하여 별다른 하자가 없는 교원은 가급적 구제하는 조치가 요구된다.

However, in the case of a national or public school, it may be inevitable to dismiss the teacher even if the teacher is closed due to the abolition of the school, department or faculty, and even if the teacher is dismissed, the State or local government, which is the main body of the appointment of the teacher, may avoid or minimize the dismissal of the teacher by means of issuing or converting the teacher into another national or public school under its control or another department, faculty, etc. On the other hand, in the case of a private school, it is impossible to issue a new appointment due to the abolition of the school or the absence of any other school established and operated by the school foundation even if the teacher becomes a member of the school, and as such, it may be inevitable to dismiss the teacher without any particular defect in the teacher’s performance or ability. Thus, even if the teacher becomes a member of the school, it shall be deemed that there is no possibility that the teacher was dismissed or transferred to another school under its control due to the removal from office based on the aforementioned standards by analogy of the provisions of Article 70(3) of the State Public Officials Act and Article 62(3) of the Local Public Officials Act.

(2) Determination on Plaintiffs 1, 2, 3, 4, and 5

In light of the following circumstances acknowledged as above, the intervenor did not have the possibility of avoiding the dismissal of the above plaintiffs by means of a new appointment or a conversion assignment, and on different premise, the above plaintiffs' assertion that the above plaintiffs' ex officio dismissal of the above plaintiffs in this case is erroneous.

(A) It is difficult for the intervenor to take measures such as ordering the above plaintiffs to transfer to another school due to the establishment and operation of the ○○○ University (the tentative name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the real name and the name of the

(B) Plaintiffs 1, 2, and 3 majored in the faculty process to the master and doctoral degree process, and Plaintiff 4 and 5 majored in the industrial design process, and Plaintiff 4 and 5 majored in the faculty process and masteral degree process. Most of the education subjects of the tourism information processing department, noncommissioned department, infant care and welfare department, or tourism quality management department claimed conversion of the above plaintiffs appears to be not related to the above plaintiffs' major (the plaintiff 2 was in the tourism department and doctoral degree course at the time of ex officio dismissal, other than the construction engineering as one's major major, and the plaintiff 5 was in the course of the computer science and doctoral degree at the time of the ex officio dismissal in addition to the industrial design as one's major, the plaintiff 2 and 5 should consider not only the major, but also the new major, but also the major of the plaintiff 2 and 5's major at the time of the ex officio dismissal in this case. However, the plaintiff 2 and 5's new major at the time of the foregoing dismissal in the Plaintiff 2 and 5's major.

Even if there are some courses related to the above plaintiffs' major in the above education course, such circumstance alone is insufficient to recognize that the above plaintiffs are fully capable of performing their duties to teach as an expert who majored in the relevant department, and there is no other evidence to acknowledge it. These subjects are sufficiently strong lectures with only full-time instructors and part-time lecturers in each relevant department, and it is inappropriate to assign the above plaintiffs additional courses. In addition, in case of restructuring of university, it cannot be said that the intervenor has any duty to guarantee the plaintiffs the opportunity to change their major through temporary retirement.

(C) The ○○○ University is a junior college with the aim of teaching and research of professional knowledge and theories and training of practical professionals for major, which is a junior college with the aim of fostering of practical professionals for major, and has practical experience in major. Therefore, the method of education by inviting practical professionals in each field as part-time instructors is in line with the purpose of the establishment thereof. Therefore, it is difficult to readily conclude that there is a need to place full-time teachers in the relevant department solely on the ground that a large number of lectures in the departments, which the above plaintiffs asserted for transition, are conducted by part-time lecturers.

(D) Since the Ministry of Education and Human Resources Development was designed to measure the competitiveness of university education and the outcomes of restructuring from around 2004 in the course of leading the opening of university from around 2004, whether or not the Intervenor was entitled to convert and place the above Plaintiffs to another department prior to the ex officio dismissal of the instant case does not necessarily necessarily depend on the number of times of responsibility or the ratio of securing full-time teachers. Moreover, as of the end of 2008, ○○○ University admitted the ratio of securing full-time teachers to 54.9% as of the end of 2008, 48.0% of the base value of junior college.

(E) The intervenor inevitably closed the above departments in order to promote the sound development and existence of the school juristic person due to financial deterioration due to the low rate of new students registration. In order to solve the problem of excess due to the abolition of the department, the intervenor collected various opinions from university members and prepared objective and reasonable standards and ex officio dismissal of the case.

(3) Determination as to Plaintiff 6

In light of the following circumstances acknowledged as above, it is reasonable to view that the intervenor could avoid dismissal of the plaintiff 6 by means of an order of change of position or conversion placement. Thus, ex officio dismissal without making any effort to relieve the plaintiff 6 constitutes an action of dismissal arbitrarily taken without any objective basis and is unlawful as it is in violation of the discretionary power regarding the appointment and dismissal of teachers. Therefore, the defendant must confirm that ex officio dismissal against the plaintiff 6 is null and void. However, the decision of dismissal of the plaintiff 6's claim is unlawful, since the defendant made a decision to dismiss the plaintiff 6's claim on the premise that ex officio dismissal against the plaintiff 6 is valid, the decision of this case against the plaintiff 6 is unlawful.

(A) The Intervenor, among six major professors related to the computer of the ○○○ University, was assigned to six full-time faculty members of the neighboring department established by the time of the closure of the computer information department and the electronic information and communication department, but was excluded from the subject of transition assignment only for Plaintiff 6 and Nonparty 1.

(B) A large number of subjects in the course of study with tourism information processing department and noncommissioned officer are related to Plaintiff 6’s major (a bachelor’s degree, master’s degree course, and computer faculty doctor’s degree course), and some subjects of infant and child care department are related to Plaintiff 6’s major.

(C) Of the adjoining departments, full-time faculty members in the tourism information processing division are taking a time limit exceeding the number of times responsible, and the ratio of securing full-time faculty members in 2008 between noncommissioned Officers and Infant Care Welfare Division does not meet the standards set by the Ministry of Education, Science and Technology, and the head of ○○○ University (○○○○○ University), with respect to the course of the tourist information processing division among neighboring departments, with respect to the computer information to which Plaintiff 6 belonged and several subjects related to Plaintiff 6’s major continuously from 2007 to 2008, when the date of the ex officio dismissal of this case, there is room for allocating the lecture for the major subjects related to Plaintiff 6, which was established in the neighboring department at the time of the ex officio dismissal of this case.

(D) Nonparty 1, who was a professor of computer information with Plaintiff 6 and was ex officio dismissed, won in a lawsuit to revoke the revocation of the claim to nullify the ex officio dismissal, and returned to ○○○○ University.

E. Sub-decision

Ultimately, the part against Plaintiff 6 among the Defendant’s instant decision-making disposition is unlawful, and the remaining part against the Plaintiffs is legitimate.

6. Conclusion

Therefore, the plaintiff 6's claim shall be accepted for the reasonable ground, and the remaining plaintiffs' claim shall be dismissed for the ground of appeal. Since the part against the plaintiff 6 in the judgment of the court of first instance is unfair with different conclusions, it shall be accepted by the plaintiff 6's appeal and the defendant revoked it, on July 21, 2008, with respect to the claim to nullify the invalidity of the ex officio dismissal disposition between the plaintiff 6 and the defendant's intervenor, the decision to dismiss the invalidity of the ex officio dismissal disposition which was made between the plaintiff 6 and the defendant's intervenor, and the remaining plaintiffs' appeal shall be dismissed for the ground of appeal.

[Attachment]

Judge Lee Ji-hun (Presiding Judge)