The case holding that there is no legal interest to seek cancellation of a decision on the examination of a teacher's petition with the purport that the cancellation of a decision on the examination of a teacher's petition which retroactively loses its validity is cancelled, on the ground that the previous removal becomes retroactively effective and only becomes effective, where a school juristic person has changed from the removal of a teacher's disciplinary action against the

Article 12 of the Administrative Litigation Act

School Foundation (Law Firm Barun, Attorneys Jeong Jin-jin et al., Counsel for the defendant-appellant)

Teachers Appeals Review Committee (Law Firm International et al., Counsel for the plaintiff-appellant)

Intervenor (Law Firm International et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2008Nu24943 decided Oct. 28, 2008

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

Judgment ex officio is made.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff, as a school juristic person established on June 16, 1978, operated a Changwon junior college (hereinafter “original junior college”) and a literature high school. The Intervenor joining the Defendant (hereinafter “ Intervenor”) served as a professor on March 1, 1980 after being newly appointed as a hotel for Changwon Major and a full-time lecturer, and served as a professor on April 18, 2005 through December 5, 2005.

B. On January 18, 2007, the Plaintiff teachers' disciplinary committee decided to dismiss an intervenor based on the grounds that the intervenor exercised illegal personnel rights, financial rights, etc. while serving as the Head of Changwon University and as an agent for the President of the University on behalf of the President of the University and the President of the University on behalf of the President of the University and the President of the University on January 18, 2007. The Plaintiff notified the intervenor of the result of the disciplinary action on February 12, 2007.

C. On March 7, 2007, the Intervenor filed a petition review with the Defendant, asserting that the above removal was unlawful.

D. On April 23, 2007, the Defendant rendered a decision to revoke the disposition of removal on the ground that there is a serious procedural defect in the resolution of the Plaintiff’s board of directors on a request for disciplinary decision, which is a premise for the above disposition of removal (hereinafter “decision on examination of the petition for teacher of this case”).

E. On March 19, 2009, the Plaintiff filed the instant lawsuit seeking revocation of the decision on review of the instant teacher’s petition. On March 19, 2009, the Plaintiff’s teachers’ disciplinary committee, while the instant lawsuit was pending in the trial, rendered a new disciplinary decision to change the Plaintiff’s original disciplinary measure to the dismissal disposition against the Intervenor. On April 7, 2009, the Plaintiff notified the Intervenor of the result of the said disciplinary measure.

2. According to the above facts, since the plaintiff's previous removal from a disciplinary action against the intervenor was changed to a removal from a disciplinary action against the intervenor, and only the previous removal from a disciplinary action becomes effective retroactively and as a result, the previous removal from a disciplinary action retroactively becomes effective, the decision of review of the teacher's petition of this case with the purport that the previous removal from a retroactive effect is revoked only formally, and the plaintiff did not have any binding force against the plaintiff. Ultimately, the lawsuit of this case is merely seeking the cancellation of the decision of review of the teacher's petition which does not have any binding force against the plaintiff, and thus, there is no legal interest to

Therefore, since the plaintiff's lawsuit of this case was unlawful as there is no benefit of lawsuit, the judgment of the court below cannot be maintained as it is, and this court directly decides on it. The judgment of the court of first instance is revoked and the lawsuit of this case is dismissed. The total cost of lawsuit is assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Ahn Dai-hee (Presiding Justice)