[Defendant-Appellee] Korea Educational Institute (Attorney Gyeong-young, Counsel for defendant-appellee)

Teachers' Appeals Review Committee (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant Intervenor 1 and 3 others (Attorney Park Jong-soo, Counsel for the defendant-appellant)

October 15, 2010

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

On April 5, 2010, the Defendant’s revocation decision regarding the case of dismissal (re-employment) between the Plaintiff and the Defendant’s Intervenor 1; 2010-040 between the Plaintiff and the Defendant’s Intervenor 2; 2010-040 between the Plaintiff and the Defendant’s Intervenor 3; 2010-044 between the Plaintiff and the Defendant’s Intervenor 4; and 2010-052 between the Plaintiff and the Defendant’s Intervenor 4 is revoked.

1. Details of the disposition;

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking account of the overall purport of the pleadings in each of the descriptions of Gap evidence Nos. 1-7, Eul evidence No. 8-4, Eul evidence No. 1-4, 12, 15, 17, Eul evidence No. 5, 6, 10, and 11.

A. The Defendant’s Intervenor’s Intervenor (hereinafter each Defendant’s Intervenor’s Intervenor’s names are indicated only in all names, and the Defendant’s Intervenor’s Intervenor’s Intervenor’s contract for the appointment of contracting faculty members, including the contract for the appointment of contracting faculty members, is collectively referred to as “instant appointment contract”).

1) The Plaintiff is an educational foundation that establishes and operates a racing university under its control.

2) On March 1, 2004, Defendant Intervenor 1 was newly appointed as a full-time lecturer in the management department of the racing University on the basis of a full-time lecturer on March 1, 2005, and was reappointed on March 1, 2006 as a full-time lecturer during the contract term of March 1, 2006, respectively. On February 11, 2008, the Plaintiff was reappointed as a full-time lecturer during the contract term of two years from March 1, 2008 to February 28, 2010, and continued to enter into a contract for employment as a full-time lecturer (non-retirement, non-standing: the meaning of status that does not guarantee retirement age), and served as a full-time lecturer.

3) On March 1, 2005, the Defendant joining the Defendant 3 was newly appointed as a full-time lecturer in the management department of the racing University on March 1, 2005, and was reappointed as a full-time lecturer on March 2, 2007 as a contract term of March 1, 2007. On February 26, 2009, the Defendant entered into a contract with the Plaintiff for a contract term of one year from March 1, 2009 to February 28, 201, and continued to serve as a full-time lecturer.

4) On March 1, 2006, Defendant Intervenor 2 was newly appointed as a full-time lecturer in the special sports department at the racing University. On February 11, 2008, Defendant 2 entered into a contract between the Plaintiff and the Plaintiff for two years from March 1, 2008 to February 28, 2010, and continued to serve as a full-time lecturer.

5) On March 1, 2005, Defendant Intervenor 4 was newly appointed as a full-time lecturer with the Government-time lecturer with the Culture Department of the University on March 1, 2005. On March 2, 2007, Defendant Intervenor 4 was reappointed as a full-time full-time lecturer with the contract term of March 1, 2009, and on February 26, 2009 between the Plaintiff and the Plaintiff, the contract term of the contract was one year from March 1, 2009 to February 28, 201, and continued to work as a full-time lecturer (non-retirement). (After that, on September 1, 2009, Defendant Intervenor 4’s affiliation was changed from the Government of Culture to the management department).

(b) Action taken against intervenors;

1) On October 30, 2009, the president of the Korea Development Bank of Korea notified the intervenors of the expiration date of the appointment period for the intervenors to submit an application for review of reappointment. The intervenors submitted an application for review of the appointment of teachers until November 10, 2009.

2) However, on December 11, 2009, the Racing University held a teachers’ personnel committee and decided to dismiss the intervenors as the expiration date without undergoing a separate examination procedure for reappointment for the intervenors, and then requested the Plaintiff to refuse to dismiss the intervenors on December 18, 2009.

3) On December 29, 2009, the Plaintiff opened a board of directors on December 29, 2009 to deliberate and resolve on the removal of the intervenors from office (re-employment refusal). The Plaintiff notified the president of the racing University.

4) On the same day, the president of the racing University notified the Intervenor of his/her appointment of his/her dismissal. On December 30, 2009, the Plaintiff notified the Intervenor of his/her termination of each contract period.

C. The defendant's decision to revoke the dismissal

1) On January 18, 2010, the Intervenor 1 filed a petition with the Defendant seeking revocation of the dismissal disposition against the Plaintiff, and the Defendant’s Intervenor 2 filed a petition with the Defendant on January 22, 2010 as follows: (a) January 22, 2010; (b) January 25, 2010; and (c) January 25, 2010-044; and (d) the Defendant’s Intervenor 3 filed a petition with the Defendant on January 26, 2010; and (c) the Defendant’s Intervenor 4 filed a petition with the Defendant seeking revocation of the dismissal disposition.

2) On April 5, 2010, the Defendant rendered a decision to revoke each disposition of dismissal on December 30, 2009 against the intervenors on the ground that it was unlawful for the Intervenor to simply make an action of dismissal on the ground that the Intervenor’s dismissal without a lawful review of reappointment was illegal (hereinafter “instant decision”).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

According to the following reasons, the decision of this case by the defendant is unlawful and should be revoked.

1) Since the appointment contract for private school teachers constitutes a private employment contract, it is subject to the principle of freedom of contract, and thus, the Plaintiff and the Intervenor have agreed to automatically retire from office and waive the right to request re-election as a matter of course on the last day of the semester to which the termination date of the contract expires without taking separate procedures, such as notification of dismissal, if the contract is not concluded with the Plaintiff by two months before the contract expires, and thus, they need not undergo an examination for re-election against the intervenors.

2) The intervenors are all non-retirement machine teachers, and according to the plaintiff's rules for the appointment of non-retirement machine teachers, the appointment period of non-retirement machine teachers shall be one year, but may be reappointed only once. The intervenors are already reappointed once on March 1, 2009, in which the above non-retirement machine appointment rules were enforced, and therefore there is no further right to request the review for reappointment for the intervenors.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

(c)Provisions for non-retirement faculty members of the racing University, and the terms of the instant appointment contract;

(i)the Regulations on the Personnel Management of Teaching Staff of the Racing University;

Article 3 (Application)

(1) This Regulation shall apply to the faculty members of this university.

(2) Matters concerning the appointment and commissioning of non-retirement Pension Teachers, honorary professors, associate professors, professors holding concurrent posts, part-time lecturers, assistant instructors, etc. shall be prescribed separately by the President of UNIST.

Article 4 (Name of Teaching Staff)

The full-time faculty members shall be professors, associate professors, assistant professors, and full-time instructors.

Article 10 (Qualifications for Teachers)

The teachers of this university shall be any of the following persons who have no grounds for disqualification under the Public Educational Officials Act and the articles of incorporation of a school foundation or a private teaching institute:

1. A doctorate holder;

2. A person who majored in a special field and is deemed to meet the requirements corresponding to subparagraph 1 because of his/her actual achievements in the relevant field.

(ii)Rules for the appointment of non-retirement machine teachers at the racing University;

Article 4 (Qualification)

The non-retirement pension trustee shall be qualified under Article 10 of the Regulations on the Personnel Management of Teachers.

Article 6 (Term of Contract)

The term of appointment for non-retirement track teachers shall be one year, and they may be reappointed only once.

Article 8 (Service)

(1) The personnel management regulations for teaching staff shall apply to the service of non-retirement track teachers.

Article 9 (Removal)

(1) The dismissal of a non-retirement Park shall be based on the termination of the contract, and no separate notice of dismissal shall be given.

Addenda

1. This Regulation shall enter into force on March 1, 2009.

(2) This provision shall also apply to non-retirement track teachers who hold office at the time this provision enters into force: Provided, That the term of contract and the term of contract at the time of initial contract shall be applied with respect to their reappointment.

3) Terms of contract to appoint contract teachers between the Plaintiff and the Intervenor

○ class: The class of the intervenor shall be a full-time lecturer.

○ Service: The service of the intervenor shall be governed by the rules on the teaching staff and personnel of racing universities and other relevant regulations.

○ Recontract: The intervenor naturally retires from office on the last day of the semester that includes the date on which the contract term expires without any separate procedure, such as notification of dismissal, if the re-contract is not concluded two months before the contract expires, and his/her teacher status shall be lost.

[Ground of recognition] Gap evidence Nos. 6, 7, and 8-1 to 4

D. Determination

1) Whether the Intervenor constitutes a teacher under Article 9 of the Higher Education Act or the Special Act on the Improvement of Teachers’ Status

Article 14 (2) of the Higher Education Act provides that teachers who are assigned to a school shall be classified into professors, associate professors, assistant professors, and full-time lecturers in addition to the presidents and deans, and Article 17 of the same Act stipulates that teachers who are assigned to a school may be assigned to concurrent teachers, honorary professors, and part-time lecturers in addition to the above teachers. In addition to the above teachers, there is no distinction between them, and there is no distinction between them, and as shown in the above fact of recognition, it requires the same qualification as non-retirement teachers, and the position of the intervenors in the appointment contract of this case is defined as full-time instructors. In light of the fact that the participants are defined as full-time instructors, the intervenors are deemed to fall under Article 14 (2) of the Higher Education Act or Article

(2) The validity of an agreement to exclude or waive the right to apply for review of reappointment.

A private school teacher is appointed and dismissed under an employment contract with a school juristic person (Article 53 and Article 53-2 of the Private School Act), and a school juristic person and a teacher's relationship such as receiving wages from a school juristic person as consideration for educating students are based on a judicial legal relationship. Thus, in principle, the working conditions, status, treatment, etc. are determined pursuant to the terms and conditions of the contract concluded between the parties concerned. However, due to the characteristics of "education", it is necessary to allow a teacher to educate students independently, professionally, and neutrally, and to protect a minimum extent that the status of a teacher is not unfairly deprived of the status of a teacher. Accordingly, the principle of private autonomy between a school juristic person and a teacher cannot be restricted to a certain part within the scope of the legal principle of teacher's status.

Article 53-2 of the Private School Act provides that the duty of prior notification of whether the person who has the right to appoint and dismiss applies for review of reappointment, the right to apply for review of reappointment of the relevant teacher, the duty of prior notification of the grounds for refusal of reappointment of the person who has the right to appoint and dismiss, the right to deliberate on reappointment under objective standards, the right to state opinions and submit opinions in the procedures for review of reappointment of the relevant teacher, and the method of appeal against such refusal. In light of the current provisions of the Private School Act, the teacher of a private school, the term of appointment of which normally expires after being appointed as a fixed-term teacher, has the right to request reasonable and fair review according to the procedures prescribed by the current Private School Act, based on objective grounds such as student education, academic research, evaluation of matters concerning guidance, etc., which are determined by the regulations on the examination of appointment and dismissal of the teacher, and the right to request the examination of appointment and dismissal of the teacher under Article 54-2 of the Private School Act, if it is inevitable to exclude the fixed term teacher from appointment and dismissal from office.

3) In the instant case:

Therefore, the defendant's decision of this case based on the above premise is legitimate, and the plaintiff's assertion on the different premise is without merit. The plaintiff's assertion is without merit. The plaintiff's decision of this case is legitimate.

Meanwhile, according to the provision on the personnel management of teachers, the Plaintiff set the minimum standards for reappointment of 610 points, including 300 points in educational business, 160 points in research business, and 80 points in salary business for the last two years for full-time instructors, such as the intervenors, as the requirements for reappointment. As a result of the evaluation of achievements conducted in 2008 and 2009, Defendant Intervenor 1, among the intervenors, did not meet the requirements for reappointment by acquiring total 575.4 points out of the Intervenor 1, and thus, it is justifiable to refuse the reappointment of Defendant Intervenor 1. Accordingly, the Plaintiff’s assertion that the part regarding Defendant Intervenor 1 among the instant decision should be revoked. However, the Plaintiff’s assertion that the requirements for reappointment, such as the grounds for the Plaintiff’s assertion, should be determined at the stage of reappointment. Accordingly, it cannot be deemed that the Plaintiff’s dismissal of Defendant 1 on the ground of defects in the examination of reappointment itself, and thus, the Plaintiff’s assertion above is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.

[Attachment Form 5]

Judges Kim Hong-do (Presiding Judge)