2014Guhap50866 Decision and cancellation of the Appeal Committee for Teachers

A

Appeals Review Committee for Teachers

B Educational Foundation

May 1, 2014

July 10, 2014

1. On January 15, 2014, the decision of dismissal rendered by the Defendant against the case of filing a claim for revocation of the disposition of rejection of reappointment between the Plaintiff and the Intervenor joining the Defendant (2013-427) is revoked.

2. Of the costs of lawsuit, the part relating to the principal lawsuit shall be borne by the defendant, and the part pertaining to the intervention shall be borne by the defendant.

The same shall apply to the order.

1. Details of the decision;

A. Status of the parties

On March 1, 2002, the Plaintiff was appointed as a full-time lecturer at C University established and operated by the Intervenor joining the Defendant (hereinafter referred to as the “university of this case”).

(b) Measures to refuse the first appointment and administrative litigation and civil litigation thereon;

(1) On November 24, 2003, when the Plaintiff attended the U.S. Public Health Academy and visited the said University upon the invitation of the Sliva University, the Plaintiff received a notice of re-contract that the Plaintiff would be deemed to have no intention to file an application for re-contract without submitting research materials, etc. necessary for re-contract from the pertinent university by November 28, 2003, which was staying in the United States. The Plaintiff returned to the Republic of Korea on December 27, 2003 and submitted research materials, etc. to the instant university on December 4, 2003.

(2) However, the university of this case decided to refuse to renew the contract with the plaintiff on December 11, 2003 at the meeting of the board of directors held on the 30th day of the same month as the teachers' personnel committee held on December 11, 2003. The defendant joining the defendant, on January 7, 2004, notified the plaintiff that he would refuse to renew the contract with the plaintiff whose contract term expires as of February 29 of the same year due to the reason that the plaintiff failed to submit the research material by the date of submitting "the lack of qualification as a professor" (hereinafter referred to as "the first refusal to re-election").

(3) On October 14, 2005, the Plaintiff filed a petition with the Special Committee on the Appeal against Teachers of the Ministry of Education and Human Resources Development for the revocation of the first measure to reject reappointment. However, on February 14, 2006, the Plaintiff (Seoul Administrative Court No. 2006Guhap16410) filed a lawsuit seeking the revocation of the above dismissal decision on May 2, 2006 (Seoul Administrative Court No. 2006Guhap16410). The above court decided on December 7, 2006 that the Defendant submitted sufficient research materials to the Plaintiff for re-contract review to the effect that “the above dismissal decision was unlawful” was deemed to have satisfied the minimum research guidelines for re-contract review. However, the Plaintiff filed an appeal with the Special Committee on the Appeal against Teachers of the Plaintiff and filed a final appeal against the Defendant’s dismissal on December 18, 2007 (Seoul High Court No. 2006Nu3192538, Apr. 28, 2005).

On February 5, 2010, the Plaintiff filed an appeal (Seoul High Court 20104966), and on June 28, 2011, the following mediation was established in the course of the lawsuit (hereinafter referred to as "mediation of this case").

1. The Intervenor joining the Defendant confirms that the Plaintiff is in the position of assistant professor of the university of this case from March 1, 2004 to February 29, 2012. On August 2, 2011, the Intervenor joining the Defendant shall pay the Plaintiff monthly salary of KRW 80 million from March 26, 201 to August 201: Provided, That the Defendant’s Intervenor’s monthly salary of KRW 201, from March 3, 2011 to February 1, 2011, the amount of salary of KRW 2012, and the amount of salary of the University D professors (Early Childhood Education Department) reported to the Department of Study as of April 1, 201, the Plaintiff shall be divided into the Plaintiff’s Intervenor’s position of assistant professor from March 1, 2004 to February 29, 201, and the amount of taxes imposed during the above period shall be deducted from the Plaintiff’s annual salary of KRW 200,200,29.

The above or group activities should not be carried out.However, the defendant joining the defendant does not seem to be an issue even if the plaintiff does not attend various meetings, such as the professor's Council.6. The plaintiff waives the remaining claims of the plaintiff.

(d) Measures to reinstate the plaintiff and refuse the second appointment;

(1) On August 17, 2011, the Defendant joining the Defendant notified the Plaintiff that he was reinstated as an assistant professor for the period from March 3, 2004 to February 29, 2012, upon the instant conciliation, from August 17, 201.

(2) After that, the pertinent university deemed that the Plaintiff was in service only until February 29, 2012 and agreed to retire thereafter. On February 9, 2012, the Plaintiff dismissed the Plaintiff from office on the ground of the expiration of the term of appointment at the board of directors held on February 1, 2012 and the teachers’ personnel committee held on February 16, 2012, and the board of directors held on February 9, 2012. The Defendant Intervenor notified the Plaintiff on February 10, 2012 that the term of appointment expires (hereinafter “the second refusal measure”).

(3) On March 13, 2012, the Plaintiff filed a claim against the Defendant for the revocation of the second rejection of reappointment, and the Defendant, on June 4, 2012, issued a decision to revoke the second rejection of reappointment on the ground that the Plaintiff, who was reappointed as an assistant professor, had the right to request the review of reappointment based on reasonable standards and reasonable evaluation pursuant to Article 53-2 of the Private School Act. The Defendant did not comply with the prior procedure stipulated in Article 53-2(4) through (7) of the Private School Act and infringed the Plaintiff’s right substantially.

(4) Although the Intervenor did not proceed with the examination procedure for reappointment against the Plaintiff, the Plaintiff filed a lawsuit ( Daegu District Court 2012Gahap4392) claiming compensation for damages or consolation money from the time the second refusal of reappointment was confirmed null and void, and until the reinstatement was made, and the said court rendered the second refusal of reappointment is null and void on September 5, 2012 due to substantial and procedural defects. However, the Plaintiff’s status as the university faculty member was terminated as a matter of course on February 29, 2012, and thus, the Plaintiff’s claim for wages is without merit, but the Intervenor rejected second re-employment without objective justification due to lack of objective legitimacy, and the Defendant’s Intervenor’s second refusal of reappointment was liable to pay damages equivalent to the Plaintiff’s wages in March 2012 and damages for delay from April 1, 2012 to April 1, 2012, and the Defendant’s appeal and damages for delay from the Seoul High Court 2013.14.25.

E. Measures to deny the reappointment of the instant case

(1) On August 6, 2013, the chairman of the faculty personnel management committee of the pertinent university decided to conduct re-employment review for a period from March 1, 2004 to February 29, 2012, the Plaintiff notified the Plaintiff of the purport that “the Plaintiff shall be removed from shipping materials until August 16, 2013.” Accordingly, on August 8, 2013, the Plaintiff requested that “the Plaintiff shall implement from reinstatement since the term of office expires,” and “the Plaintiff shall prepare a separate standard for the period of his/her dismissal from office due to the Defendant’s fault, and the chairman of the said faculty personnel management committee sent a notice to the effect that “the Plaintiff shall review only the research personnel management from March 1, 2011 to February 29, 2012” from March 1, 2011 to 203.

(2) On August 23, 2013, when the Plaintiff did not submit data on the research business, the chairman of the said faculty personnel management committee again requested the Plaintiff to submit data on September 3, 2013, and on September 6, 2013, the Plaintiff submitted a thesis of “E” (hereinafter referred to as the “the thesis of this case”) to the Chairman of the said faculty personnel management committee.

(3) On September 30, 2013, the teachers’ personnel committee of the pertinent university assessed the Plaintiff’s instant thesis at the teachers’ personnel committee. However, this paper notified the Plaintiff of the content that “if there is an objection to the appointment of the Plaintiff on October 17, 2013, the Plaintiff did not meet Articles 38 and 39 of the Regulations on the Personnel Management of Teachers because it did not comply with international academic sites, domestic academic sites, and other academic sites, the Plaintiff was dismissed from reappointment.”

(4) After hearing the plaintiff's explanation on October 17, 2013, the teachers' personnel committee of the instant university decided to dismiss the plaintiff from reappointment on the ground that the instant thesis does not comply with international academic sites, domestic academic sites, and other academic sites stipulated in the teachers' personnel management regulations. The board of directors of the Intervenor joining the Defendant decided to dismiss the plaintiff from reappointment on October 28, 2013, on the ground that it is not a research academic achievement, and the board of directors of the Intervenor joining the Defendant decided to dismiss the plaintiff from reappointment on October 29, 2013. The president of the Intervenor joining the Defendant notified the plaintiff that the plaintiff was dismissed from reappointment on the same ground (hereinafter referred to as "the refusal of reappointment of this case").

F. On October 30, 2013, the Plaintiff filed a petition with the Defendant seeking the revocation of the measure to refuse the reappointment of the instant case. However, on January 15, 2014, the Defendant rendered a decision to dismiss the petition on the following grounds (hereinafter referred to as “decision to dismiss the instant case”).

0. On February 29, 2012, the plaintiff's assertion that the defendant should take measures to reinstate the plaintiff is without merit. The plaintiff's assertion that the defendant should take measures to reinstate the plaintiff is not erroneous. There is no error in law in granting an opportunity to vindicate, including the procedure for review and notification of the refusal to re-appoint the plaintiff in this case, the composition of the teachers' personnel committee, and the notice of criteria for review.The period of review for re-election of the plaintiff is from August 29, 2011 to February 29, 2012, and the standards for review for re

The personnel regulations and faculty evaluation regulations are the following. ① The Intervenor joining the Defendant stipulates that the Plaintiff shall evaluate only research studies during the period of research and long-term overseas training, etc., and interpret it as equivalent to the principle of equity even if the Plaintiff is subject to unfair dismissal. ② The Intervenor joining the Defendant is obligated to prepare a relative standard to ensure fair competition with other professors who are subject to unfair dismissal disposition like the Plaintiff, but it is difficult to readily conclude that the criteria for evaluation of achievements should be applied in proportion to the actual working period. ③ The Defendant’s application of the standards for evaluation of achievements cannot be deemed unreasonable. ④ In the case of an assistant professor ordinarily working in the university of this case, the Plaintiff, a professor working in the humanities for the past six months, cannot be deemed as a standard for actual achievement of 100 points of Part 1 of this paper, and the Defendant’s submission of this case’s paper does not constitute an international academic research institute’s refusal to appoint the Plaintiff, even if it is difficult to recognize that the Plaintiff did not directly go beyond the UN academic research institute’s internal research paper.

[Ground of Recognition] Facts without dispute, Gap evidence 1 through 4, Gap evidence 5, 9, 10, 15, 16, Eul evidence 1-1 through 3, Eul evidence 1 through 7, Eul evidence 8-1 through 3, Eul evidence 1 through 16, and the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the decision is legitimate;

A. The plaintiff's assertion

In the following respect, the rejection of the reappointment of this case is unlawful, and the decision of this case that the rejection of the reappointment of this case is legitimate as it does not deviate from or abuse discretionary authority shall be revoked in an unlawful manner.

(1) According to Article 11(3) of the Regulations on the Personnel Management of Teachers of the University of this case, the Teachers’ Personnel Committee shall be composed of a faculty member other than the president. Thus, the F, appointed as the president and vice president from July 4, 2013, should be excluded from the Teachers’ Personnel Committee, but F, within the review of reappointment, participated in the position of a faculty member, as a faculty member. The instant measure of refusal to re-election was significant procedural defect.

B. Since the president did not have any accident, it is illegal to appoint F as the president’s letter. Article 46 of the Articles of Incorporation of the Defendant and Article 46 of the Regulations on the Personnel Management of Faculty Members of the University of this case provide that he does not assign a position to the faculty who is prosecuted for a criminal case. Since F was prosecuted for an occupational embezzlement, he is naturally released from his position. Such F is unlawful in participating in the teachers’ personnel committee, and further, such F is also illegal.

(2) Since the Plaintiff was reinstated on August 29, 201 due to a cause attributable to the Defendant joining the Defendant, which unfairly set the period of review for reappointment, the period of review for reappointment should be excluded from the period of review for reappointment from March 1, 2011 to August 28, 201, i.e., the period of review for reappointment from March 1, 2011 to February 29, 2012, including the first semester, the Defendant joining the Defendant applied a research-based review rule for one year from March 1, 2011 to February 29, 2012.

(3) Illegality regarding criteria for review of reappointment

(A) The Intervenor joining the Defendant has a duty to re-examine the Plaintiff within a reasonable period of time based on the binding force of the final and conclusive judgment that the second refusal of reappointment is null and void. Although the criteria for review of reappointment should be objectively provided in advance, the Intervenor’s Intervenor amended the Regulations on the Personnel Affairs of Teachers on August 9, 2013 and applied them retroactively to the Plaintiff, which is unlawful since it applied the criteria for review that did not provide predictability of the methods of review. However, there is no provision on the personnel affairs of teachers applicable to the Plaintiff subject to review of reappointment in accordance with the judgment. Accordingly, the refusal of reappointment was made without any objective criteria for review. Accordingly, the Plaintiff’s personnel committee on August 9, 2013 set the Plaintiff’s criteria for review of reappointment as 10% as research goods for one year, and the Plaintiff did not know the criteria for review of reappointment to the Plaintiff at least 10-10-2 months of his research event for which the Plaintiff lost his status as a professor of social sciences and arts, and the Plaintiff was unfairly dismissed from 10-20-10-10-2-10-2-10-year.

(4) In addition, if the Plaintiff’s assertion applies the faculty evaluation rule of March 1, 2010 to the Plaintiff, the criteria for the evaluation of the research goods required for a four-year assistant professor are 300%. Thus, the criteria for the evaluation of the research goods required for the Plaintiff, who worked for six months, are 37.5%. This case’s thesis, which is an international academic thesis directly produced and published as a thesis book, is over 50%, which is the ordinary point of other academic papers as stipulated in the above faculty evaluation rule, and the Plaintiff passed such examination criteria.

(p) The defendant promoted the professors excluded from reappointment for lack of research business, and the refusal of the reappointment of this case against the principle of equality, as it discriminates against the plaintiff without reasonable grounds.

B. Relevant statutes

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

C. Determination of procedural illegality

(1) If Gap evidence Nos. 1, 6, 7, and 8 and Eul evidence Nos. 20 are added to the purport of the entire argument, the following facts are prescribed in the articles of incorporation of the defendant joining the defendant to appoint the president, subject to a resolution of the board of directors, when the president’s accident occurred. The defendant joining the defendant’s board of directors decided on July 4, 2013 that "F, which is the graduate school principal, shall be appointed as the president’s assistant director." Article 11(3) of the above provision on the personnel management of the university of this case provides that the teachers’ personnel committee shall be composed of the faculty members excluding the president. However, according to each evidence Nos. 1, 6, 7, and Eul’s evidence No. 20, there is no provision that the president excludes the president from the personnel committee of the teacher’s personnel committee. The defendant’s board of directors of the defendant to appoint the president as the president’s deputy chairman and the president’s independent appointment of the president’s position cannot be acknowledged as unlawful.

(2) On the other hand, Article 11(3) of the Regulations on the Personnel Management of Teachers of the University of this case provides that a private committee, who is a teacher, shall be composed of the members of the teachers' personnel committee as the president, not the members of the teachers' personnel committee as the president, but the members of the teachers' personnel committee as the principal of a graduate school, who participated in the position of the teachers' personnel committee as the principal of a graduate school. Thus, whether it is illegal to appoint

(3) Furthermore, according to each of the evidence Nos. 6, 7, 8, and 31, Article 46 of the Defendant’s Articles of Incorporation and Article 46(1) of the University Teachers’ Personnel Management Regulations provide that a position shall not be assigned to a teacher charged for a criminal case; however, it is acknowledged that a summary order has been requested against F; however, there is no evidence to acknowledge that the person who has the right to appoint and dismiss was dismissed from his position as a matter of course solely on the fact that he was prosecuted for a criminal case without a release from position by the person who has the right to appoint and dismiss, and Article 58-2(1)3 of the Private School Act provides that the person for whom the summary order was requested from the grounds for the removal of position shall not be denied as the president’s position, and thus, the Plaintiff’s assertion based on the premise that the F position was naturally dismissed is without merit.

Ultimately, the rejection of reappointment of this case cannot be deemed unlawful on the ground that F participates as a member of teachers' personnel committee and proposed the withdrawal of reappointment.

(d) Violations regarding the period of review for reappointment and criteria for review for reappointment;

(1) Illegal regarding the period of review for reappointment

(A) The principle of equity is reasonable to exclude the period during which a person subject to review of reappointment was unable to work as a university faculty member due to a cause attributable to the appointment entity, such as where the appointment entity rendered a decision to refuse reappointment illegally.

(2) However, the Defendant’s Intervenor determined that the Plaintiff could be reinstated to the university of this case from March 1, 2011 to February 29, 2012 according to the instant conciliation and determined that the Plaintiff could work for the said university from March 1, 2011 to August 29, 2011, and that the research program from March 1, 201 to February 29, 201 is the object of review for reappointment. However, there is no evidence to acknowledge that the instant conciliation was conducted only after the Plaintiff was reinstated to the university of this case from March 1, 2011 to August 28, 201, and that the conciliation of this case was unlawful until June 28, 2011, the Defendant’s Intervenor’s refusal of reappointment was against the Plaintiff’s right to be re-appointed from March 1, 201 to 201, which was recognized as unlawful until the date of the instant judgment became final and conclusive.

(2) A teacher of a private university whose term of appointment expires due to an illegal fixed-term appointment for the criteria for review of reappointment shall be granted fair review on his or her ability and qualities in accordance with such criteria if he or she complies with such criteria.

Unless there exist any circumstances, it shall be deemed that the right has the right to demand a fair review based on reasonable criteria as to whether to be reappointed (see, e.g., Supreme Court Decision 2003Da52647, Mar. 9, 2006). If a decision rejecting the reappointment of a private university teacher whose appointment period has expired due to procedural or substantive reasons, the school foundation is obligated to resume the procedure for examining whether to be reappointed of the relevant teacher (see, e.g., Supreme Court Decision 2007Da47841, Sept. 30, 2010). Furthermore, in full view of the legislative process of the Private School Act as amended by Act No. 7352, Jan. 27, 2005; the legal nature of the reappointment of a university faculty; the structure of deliberation within a university as prescribed by the Private School Act; the procedure and scope of judicial review on the decision to refuse reappointment; the purport of such decision should not only be construed as an objective ground for the examination of qualifications or qualifications of the relevant teacher after the examination.

B) However, considering the following points, the criteria for review of reappointment applied by the Intervenor to the Intervenor at the time of review of reappointment against the Plaintiff cannot be deemed as an objective criteria that can be predicted, and it is difficult to view that the measure of refusal of reappointment was taken fairly in accordance with reasonable criteria.

① If the purport of the entire argument is added to the statements in Eul evidence Nos. 1 through 4, Eul's evidence Nos. 6, 7, 12, 13, and 16, the teachers' personnel committee of the pertinent university on August 9, 2013 set the Plaintiff's research records from March 1, 2011 to February 29, 2012 as the basis for the examination for reappointment of the Plaintiff. Nevertheless, the teachers' personnel committee of the pertinent university did not inform the Plaintiff of all the above criteria while notifying the Plaintiff of various standards for the examination for reappointment. Thus, the Plaintiff did not have any opportunity to know or forecast such examination standards.

② As long as an illegal second rejection measure against reappointment is invalidated by a judgment, the Intervenor joining the Defendant, despite the fact that in the review of reappointment against the Plaintiff, the Plaintiff prepared relative criteria for the review criteria for reappointment, taking into account the circumstances in which the Plaintiff did not work for a certain period of time. Rather, according to the written evidence Nos. 6 and 7, the Intervenor joining the Defendant did not provide a separate criteria for the review criteria. Rather, according to the written evidence Nos. 6 and 7, the Intervenor’s Intervenor’s amendment of a private provision that is a teacher on August 9, 2013, that “it is possible to proceed with the review procedures for reappointment according to a separate criteria set forth in the Teachers Personnel Committee.” On the same day, Article 56 of the Regulations on the Personnel Management of Faculty Members of the University of this case was newly established. On the same day from March 1, 2011 to February 29, 2012, the Defendant did not set the relative criteria for the review criteria for reappointment of the Plaintiff’s research personnel committee.

③ According to the evidence evidence No. 1, Article 19(1) of the Regulations on the Evaluation of Teaching Staff, which was applied from August 29, 2011 to February 29, 2012, provides that the term of appointment expires as an assistant professor subject to evaluation for the last four years, the education-based 160 points, research-based 300 points, and salary-based 160 points at the lowest level. However, even if the research-based 300 points, which were conducted for 4 years as set out in the above standard, are indirectly converted into 37.5 points 1) for 6 months, it is too unfavorable to the Plaintiff.

④ Furthermore, according to Gap evidence Nos. 1, 6, and 7, the proviso to Article 19(1) of the Regulations on the Evaluation of Faculty Members provides that the deliberation point of the research achievement corresponds to the standards for research performance set forth in Chapter 6. Article 39(1) of the Regulations on the Personnel Management of Teaching Staff provides that "it shall be limited to the thesis published in the major field of study at a national level within the scope of recognition of research achievements." Ultimately, in order to secure 10 points for research, it requires the plaintiff to publish the thesis in the major field of study published at the national level within 6 months from the time of reinstatement. In light of the fact that the procedure for publishing the thesis in the major field of study requires considerable time for the plaintiff to be reappointed at a graduate school, it is time for the plaintiff to be unfairly admitted to the position of professor on August 29, 201 through illegal second rejection of reappointment, and that it is also necessary to give the plaintiff an objective instruction on the subject of study set forth in Article 2 of the Private School Act.

(3) Ultimately, the refusal of reappointment of this case is not only an infringement of the Plaintiff’s right to receive a fair review of reappointment by calculating the period of time subject to review of reappointment unfairly, but also an infringement of the Plaintiff’s right to receive a fair review of reappointment. Thus, it is difficult to view that the Plaintiff’s remaining arguments were conducted fairly in accordance with the predicted, objective, and reasonable review criteria for reappointment. Therefore, the refusal of reappointment of this case is unlawful

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

The presiding judge and judges shall be appointed.

Suspension of Judge

Judges Yoon Jin-jin

(i) 37.5 - 300 points (1 year 4), (6 months/12 months);