Where a national university teacher requests an appeal review to the Appeal Committee for Teachers against unfavorable measures, such as disciplinary action of the president, but is dismissed, whether it is possible to seek cancellation of the decision on appeal review due to a defect in the disposition, such as disciplinary action of the president, the original disposition, or an abuse or omission of discretionary power (negative)

Article 19 of the Administrative Litigation Act, Article 10 (3) of the Special Act on the Improvement of Teachers' Status

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff

Appeals Review Committee for Teachers

Seoul High Court Decision 2008Nu37130 decided June 25, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 19 of the Administrative Litigation Act provides that "an action for revocation shall be subject to a disposition, etc.: Provided, That in the case of a lawsuit for revocation of adjudication, it shall be limited to cases where the adjudication itself is based on the inherent illegality of the adjudication itself, and the special act for improvement of teachers' status shall establish an appeals review committee for teachers in the Ministry of Education, Science and Technology (Article 7 (1)), in cases where a teacher is dissatisfied with a disciplinary action or other unfavorable action against his/her will, or other unfavorable action against his/her will, he/she may request an appeal review to the teachers' appeals review committee (Article 9 (1)), and the teacher may file a lawsuit as prescribed by the Administrative Litigation Act within 90 days after he/she is informed of such disposition (Article 10 (3)).

Therefore, an unfavorable disposition such as disciplinary action against a teacher of a national university is an administrative disposition. If a teacher of a national university is dissatisfied with a unfavorable disposition such as disciplinary action against the president of a national university, he/she shall file a petition review with the relevant National University Review Committee, and if he/she is dissatisfied with the decision on appeal review, he/she shall be subject to appeal review. In such cases, the disposition subject to appeal is, in principle, an administrative disposition by the president of a national university, which is the original disposition, and an appeal against the decision on appeal review, dismissal of the petition review request by the president of a national university, cannot be asserted on the ground of a defect in the original disposition. In other words, where the appeal review decision itself has a violation of the authority, procedure, form, or content inherent in the original disposition, and is limited to the cases where there is no illegality in the authority or composition of the Appeal Review Committee, the procedure or form of the appeal review decision, and there is no illegality in the determination on appeal review itself, such as misunderstanding of facts or a decision on appeal.

In this case, the Defendant’s dismissal of the Plaintiff’s petition review request seeking revocation of disciplinary action against the Plaintiff by the president of the Jeonnam University, a National University, sought revocation of the decision on review of the appeal. The purport of the Plaintiff’s ground of appeal is that all of the grounds alleged in the grounds of appeal was erroneous in the original disposition, i.e., mistake of facts or abuse and exclusion of discretionary power in the decision on review of the appeal, and such ground of appeal cannot be deemed as an assertion of illegality inherent in the decision on review

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the subject of administrative litigation and the scope of deliberation and determination of adjudication revocation litigation.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)