Plaintiff 1 and two others (Attorneys Lee Jong-hee et al., Counsel for the plaintiff-appellant)

School Foundation ○ Private Teaching Institutes (Law Firm Squa, Attorneys Gyeong-soo et al., Counsel for the defendant-appellant)

January 14, 2015

Gwangju District Court Decision 2013Gahap2035 Decided July 10, 2014

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant confirms that each teacher dismissal disposition against the Plaintiffs on August 28, 2013 is null and void. The Defendant, from August 29, 2013 to August 29, 2013, paid to Plaintiff 1 each amounting to KRW 6,409,50 per month, KRW 6,637,273 per month, and KRW 6,715,982 per month to Plaintiff 2 and KRW 6,715,982 per month, respectively.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

A. Status of the parties

1) The Defendant established and operated ○ University (hereinafter referred to as ○ University’s institution, department, internal regulation, etc.) without stating the name of the pertinent institution, department, internal regulation, etc., and the Plaintiffs are teachers working at ○ University.

2) On March 1, 1997, Plaintiff 1 was newly appointed as a full-time lecturer of the Department (Name 1 omitted) (former Department (Name 2 omitted) department, and was promoted to the assistant professor on March 1, 1999 and the associate professor on March 1, 2004, respectively.

3) On March 1, 1997, Plaintiff 2 was promoted to the associate professor on March 1, 2005 after being re-registered as a full-time lecturer at the (name 3 omitted) Department (name 4 omitted), and as a full-time lecturer at the (name 4 omitted), on March 1, 1999, and (name 1 omitted) Department (name 1 omitted) on March 1, 2001.

4) On March 1, 1994, Plaintiff 3 was newly appointed as a full-time lecturer at the (name 5 omitted) department, and was promoted as an associate professor on April 1, 1996, the associate professor on April 1, 2001, and the associate professor on October 1, 2007, respectively, and was in office as a professor of (name 6 omitted) department.

B. Progress of the closure and disposition of the department to which the plaintiffs belong (hereinafter “the closure and disposition of this case”).

1) On October 7, 2008, the Defendant organized a “Committee on the Right to Re-Resolution” to establish a restructuring plan to normalize the management of ○○ University, which suffered managerial difficulties due to the rapid decline in the enrollment registration rate of new students. On January 6, 2009, the Committee on the Right to Re-Resolution selected four departments, including (name 2 omitted) departments and (name 6 omitted) departments, to which the Plaintiffs belong, as the departments subject to self-corporate restructuring (the suspension of student enrollment from January 2010), and (name 6 omitted) departments.

2) On June 26, 2009, the Defendant opened the first school affairs committee and passed a resolution that “the recruitment of new students of four departments, including (name 2 omitted) departments from the year 2010 and (name 6 omitted) departments, shall be suspended.” The Defendant announced the amendment of the school regulations, including the contents of the closure and disposition of the instant case, on the bulletin board from September 30, 2009 to October 9, 2009. On October 29, 2009, the Defendant decided to open the second school affairs committee to reduce the number of students of the said four departments.

3) On December 29, 2009, the Defendant convened the board of trustees, and resolved on the amendment of the school regulations to delete the number of four departments, including (name 2 omitted), (name 6 omitted), and (name 6 omitted), as of February 28, 2013, and promulgated the amendment of the above school regulations on December 30, 209.

C. The defendant's first dismissal against the plaintiffs

1) On September 24, 2012, the Defendant rendered a disposition to the Plaintiffs that “the Plaintiffs shall be dismissed from office as of February 28, 2013, which is the time of closure and expiration pursuant to Article 56 of the Private School Act and Article 86 of the Articles of Incorporation,” and filed a petition review with the Appeal Commission for Teachers on October 19, 2012.

2) On October 26, 2012, the Defendant revoked the disposition of dismissal against the Plaintiffs, and the Plaintiffs also withdrawn the said request on November 1, 2012.

D. The plaintiffs' demand for the reorganization of departments and the defendant's response

1) On December 2010, Plaintiff 2 (hereinafter “Mediation Committee”) wished to rearrange the “living Chinese characters,” etc. from the “△△△△△ Department” department to the “△△△△△△ Department,” and Plaintiff 1 wished to rearrange the said department to the “(name 8 omitted) Department,” and the Defendant notified the said Plaintiffs of the need to rearrange the said department to the said department.

2) On November 2012, Plaintiff 1 applied to the Mediation Committee for the reorganization of Plaintiff 2 as “(name 9 omitted),” Plaintiff 2 as “(name 10 omitted) department,” and Plaintiff 3 as “(name 11 omitted) department or △△△△△△△△△△△△△△” respectively.

3) On December 28, 2012, the Mediation Committee notified the Plaintiffs of the result of the first meeting as of December 6, 2012 as follows.

2. The annual salary for the year 2013 as of the date immediately preceding the beginning of the pertinent school year is ex officio in the immediately preceding 80% of the annual salary for the year 2014 as of the year 80% of the annual salary for the year 2014 as the number of teachers exceeds 61%, and thus, in the (name 9 omitted) department (name 11 omitted), in the (name 11 omitted), one professor with qualification as a medical recorder is required in the (name 11 omitted) department, but in the (name 11 omitted) department, one professor with qualification as a medical recorder is required in the (name 61 omitted) department, and thus, if the number of teachers is more than 61% or the suspension of recruitment is decided, it is impossible to rearrange the said department as of February 28, 2016.

4) On January 7, 2013, the Plaintiffs had the record of the first meeting at the Mediation Committee, as a result of the retroactive application of the “Personnel Regulations on Closure and Teaching Staff”, and had the burden of proving that they cannot be accepted. On January 17, 2013, the Mediation Committee notified Plaintiff 1 that “the Plaintiff 1 refused to rearrange to (name 9 omitted) department.” On January 21, 2013, the Mediation Committee notified Plaintiff 2 and Plaintiff 3 of the application for further reorganization by January 24, 2013.

5) On January 2013, Plaintiff 1 applied for reorganization to the Mediation Committee (name 9 omitted), Plaintiff 2, “(name 12 omitted),” and Plaintiff 3 applied for reorganization, respectively. The Mediation Committee, on February 19, 2013, notified the Plaintiffs of the result of the second meeting as of January 24, 2013, as follows.

2. Where the rate of securing faculty members of the relevant department exceeds 61% or the suspension of recruitment is decided on February 28, 2016, by the date immediately preceding the beginning of the relevant school year, the desired retirement of the 2013-year salary is required to be adjusted to 80% of the annual salary in the immediately preceding year, and the military career (title 12 omitted) is required to be adjusted to 80% of the annual salary in the immediately preceding year, and the recruitment announcement of new teachers in the 2010-year salary is also required to be referred to as “a person with higher rank than the head of reserve (retirement Age 9 omitted), a person with higher career than 25 years in the military (non-retirement Age 25 years or more), and thus, Plaintiff 3: 3 is not required to be in exclusive charge of teaching staff members, and thus, it does not constitute “a person with higher than 10 years old or higher than 10 years old,” and thus, it does not constitute “a person with higher career than 20 years old or higher than 17 years old.”

6) On May 20, 2013, the Mediation Committee notified the Plaintiffs that “Inasmuch as it had consulted on the issue of reorganization on March 7, 2013, March 28, 2013, and May 28, 2013, but it was not possible to rearrange the case, the Mediation Committee made a decision to rearrange the case to the department (name 9 omitted) on the same condition as that of the above 5.” On May 28, 2013, the Mediation Committee notified the Plaintiffs of the opinion that “as such, it would not be possible to reply to whether to accept the case.”

E. The Defendant’s dismissal against the Plaintiffs

On August 26, 2013, the Plaintiffs demanded the president of ○ University to rearrange himself/herself, but the Defendant held the fifth board of directors in August 27, 2013 and decided to dismiss the Plaintiffs. On August 28, 2013, the Plaintiffs were subject to dismissal disposition (hereinafter “instant dismissal disposition”).

○ Plaintiff 1: (Name 9 omitted) Department applied for re-transfer, but rejected it.

○○ Plaintiff 2: (name 13 omitted) course of study applied for (name 13 omitted), but it is not re-re-convened due to disagreements with major and research papers.

○○ Plaintiff 3: He tried to re-transfer to the Gisung school department applied for, but it is not possible to re-transfer to the major irregular school.

F. The details of the laws, enforcement decree, and the articles of incorporation, school regulations, and other regulations relating to the instant case are as shown in the attached Form.

【Ground of recognition】 In the absence of dispute, the contents and the purport of the whole pleadings and arguments described in Gap’s 1 through 16, 25, Eul’s 2 through 8, 13, 14, 17 through 26, 36 through 39 (including each number for those with a serial number)

2. Determination as to the procedural defect of the dismissal of this case

A. Claim of procedural defect in amendment to school regulations

1) The plaintiffs' assertion

In order to abolish the department or suspend the recruitment of new students, the school regulations shall be amended, and in order to amend the school regulations, after making a prior public announcement of the draft school regulations and draft amendment on the bulletin board of the school at least seven days, the defendant did not go through the deliberation and resolution of the faculty council, the faculty council, and the faculty council, but the defendant did not go through it. Thus, the abolition and disposition of the case and the disposition of the dismissal of the case based thereon are unlawful.

2) Determination

Article 64(1) of the school regulations of ○ University provides that “Any amendment of the school regulations shall take effect upon its promulgation after deliberation by the school affairs committee and the board of trustees.” Paragraph (2) of the same Article provides that “where ○ University intends to amend the school regulations pursuant to paragraph (1), it shall publicly announce the purport of the amendment and the main contents of the amendment on the bulletin board for a fixed period of at least seven days.” ② The ○ University held the first school affairs committee on June 26, 2009 and passed a resolution to suspend the recruitment of new students (name 2 omitted), such as (name 2 omitted), (name 6 omitted), and (name 6 omitted) from September 30, 2009 to October 9, 2009, by opening a resolution of the school regulations on the bulletin board containing the contents of the school regulations on the abolition and disposition of this case, and opening the ○ University’s establishment and disposition on October 29, 2009 to 209.

According to the above facts of recognition, the defendant has lawfully announced the amendment of school regulations including the closure and disposition of this case at least seven days in accordance with school regulations and subsequently passed the process of promulgation after deliberation and resolution by the school affairs committee.

3) In addition to the above procedure, the plaintiffs asserted that the defendant should necessarily undergo deliberation by the faculty council while amending the school regulations for the abolition and disposition of the case. However, Article 64 (1) of the school regulations of ○○ University does not provide for deliberation by the faculty council as the requirements for the validity of the amendment of the school regulations, i.e., the whole purport of each of the above evidence. In addition, in light of Article 56 (2) of the school regulations, deliberation by the faculty council is to respond to the president’s advice, and thus, there is no need for deliberation on matters not presented by the president. However, there is no evidence that the president of ○○ University submitted such regulations to the faculty council while amending the school regulations on the abolition and disposition of the case. (3) The purport of Article 64 (1) of the school regulations of ○ University is to ensure the status of teachers of private schools through deliberation by the school regulations of the ○ University, and thus, it is difficult to accept the plaintiffs’ assertion that the above amendment of the school regulations does not apply to the above administrative regulations.

B. The defendant's assertion that the defendant's reorganization procedure retroactively applies the unfavorable provisions to the plaintiffs

1) The plaintiffs' assertion

Although the Defendant followed the procedure for the reorganization of the Plaintiffs in accordance with the procedure of the Personnel Regulations on Closure and Teaching Staff enacted on March 16, 2012, the aforementioned provision was enacted after the closure and disposition of the instant case, which was resolved on December 29, 2009, and thus, the Defendant’s measure proceeding to rearrange the Plaintiffs pursuant to the said provision was deemed to have retroactively applied the disadvantageous provisions to the Plaintiffs, and thus, the instant dismissal disposition based thereon was also unlawful.

2) Determination

On December 29, 2009, the Defendant passed a resolution to amend the school regulations that deletes the fixed number of admission from (name 2 omitted) department (name 6 omitted) department as of February 28, 2013 (the deletion of the fixed number of admission under the school regulations). However, the fact that there was no provision on the personnel management of abolition and teachers under the school regulations at the time, and the fact that the Defendant enacted the “the personnel regulations for abolition and teachers” on March 16, 2012 is as seen earlier.

However, the “Personnel Regulations for Closure and Teachers” is deemed to have been established by the Defendant to smoothly deal with the affairs related to the follow-up personnel management of the closed school and teachers that were not prescribed in the school regulations that serve as the basis for the closure and disposition of the instant case. Therefore, it cannot be said that the Defendant erred by applying the “Personnel Regulations for Closure and Teachers” to the Plaintiffs.

Therefore, this part of the plaintiffs' assertion is not accepted.

C. The assertion that the abolition and disposition of this case are contrary to the closure and standard

1) The plaintiffs' assertion

In light of Article 2 of the "Regulations on the Abolition of the Department (Ministry)", since the recruitment quota of Plaintiffs 2 and 1 for three years from 2007 to 2009 is 40, 40, and 30 persons each, respectively, and thus, it should have been determined whether the recruitment quota is closed or not after the adjustment of the recruitment quota. Since the (name 6 omitted) department to which Plaintiff 3 belongs is more than 50% of the fixed number of recruitment quota for three years from 2007 to 2009, it is not subject to closure, the Defendant's closure and disposition against the above provision and dismissal of this case based thereon is unlawful.

(ii) the facts of recognition

Article 2(1) of the Regulations on the Abolition of a Department provides that “Except as otherwise expressly provided for in any other special provisions, this provision shall apply to the abolition of a department of this university.” Article 2(2) provides that “The scope of application of the above provision shall be subject to the provisions of this Act.” The above provision provides that “1. 2. 5% of departments (including departments whose number of new students is less than 50% prior to the year 2004 are evaluated as of January 205 through three consecutive years (including where the number of new students does not meet this standard) shall be less than 30% of the total number of new students recruitment; 2.” Article 15(2) of the Regulations on the Regulations on the Regulation of “Article 15(2) of the Regulations becomes invalid.” Paragraph (3) of the Regulations on the Abolition of a Department shall take precedence over each other when the provisions are inconsistent with the Regulations on the Abolition of this case and the Regulations on the Abolition of this case.

In addition, according to the evidence Nos. 18 and 2-2 and 8 of evidence Nos. 18 and 2, the president of ○ University provides that ① the number of new students and students who belong to the plaintiffs, from August 30, 2007, (name 14 omitted), (name 15 omitted), (name 16 omitted), (name 17 omitted), and (name 17 omitted), each of the above “Rules on the Abolition of the Department” (name 14 omitted), shall be subject to closure and standards (name 15 omitted), (name 16 omitted), (name 17 omitted), (name 17 omitted), and (name 17 omitted), the (name 205 to 208, the jointly established Department No. 2005 to 208 shall be determined based on the possibility that the number of faculty members and students who were enrolled in the Department is less than 15 per cent of the total number of subjects and the number of new students who were enrolled in the University and the following (name 216130 per year).

The number of students enrolled in the course of study in the main sentence (on one-time school per week, as of 2008) 2005 2007 2008 2006 2006 2007 20007 20008 2008 2007 2008 300 30 30 30 30 30 120 30 120 120 40 120 120 120 120 120 45 5 57 57 18 15 238 238374 216 204 2016 204 2016 204 2016 204 204 2016 2016 16 204 16

3) Determination

In light of the above facts, it is reasonable to view that the (name 2 omitted) department and (name 6 omitted) department and (name 6 omitted) department are not subject to closure in light of the "Regulation on the Abolition of Department (Divisions)". However, the "Regulation on the Abolition of Department (Divisions)" conflict with the amended school regulations that contain the closure and disposition of this case, and thus, it has lost its validity within the scope of such provision.

In addition, considering the actual operational status of the department (name 2 omitted) and (name 6 omitted), the autonomy and autonomy of the university of ○○ University, the government’s efforts to rescue the university of ○○ University in line with the purport of the university restructuring policy as seen earlier, the closure and disposition of the instant case in violation of the Regulations on the Abolition of the Department, and thus, cannot be deemed unlawful.

Therefore, this part of the plaintiffs' assertion is not accepted.

D. The assertion that the department at the time of the instant dismissal (name 6 omitted) was not closed.

1) Plaintiffs 3 and Defendant’s assertion

A) Plaintiff 3’s assertion

The dismissal of Plaintiff 3 on the premise that the (name 6 omitted) department at the time of the instant dismissal was closed (name 6 omitted) department because two temporary students maintained the school register and remain registered students (name 6 omitted). Therefore, the dismissal of Plaintiff 3 on the premise that the (name 6 omitted) department was closed is unlawful.

B) Defendant’s assertion

Article 56 (1) (proviso) of the Private School Act refers to a case where the number of students in school is zero, excluding temporary students. Thus, the dismissal of Plaintiff 3 is legitimate.

2) Determination

A) Article 56(1) of the Private School Act provides that “No teacher of a private school shall be subject to unfavorable disposition against his/her will, except by a sentence or disciplinary action or by a reduction of organization, such as temporary retirement or dismissal from office against his/her will: Provided, That this shall not apply where he/she has become a teacher in a private school due to the abolition or abolition of class or department.” In light of the purport of Article 86(1) of the Defendant’s Articles of incorporation to guarantee his/her status as a teacher in a private school, the term “when he/she has become a teacher in a position or personnel due to the abolition or abolition of class or department established through legitimate procedures or due to the reduction of organization” under the proviso to Article 56(1) of the Private School Act shall be deemed to mean cases where the position or personnel of a teacher in a private school becomes extinct due to the abolition of class or department established through legitimate procedures for revision of school regulations (see Supreme Court Decision 2010Du5103, Jun. 24, 2010).

B) The following circumstances: (i) Article 31(6) of the Constitution provides that “the basic matters concerning the status of the faculty shall be determined by Act; (ii) the main text of Article 56(1) of the Private School Act; Article 43(2) of the Educational Officials Act; and Article 6(1) of the Special Act on the Improvement of Status of Teachers shall not be subject to unfavorable measures against the will of the relevant teacher without punishment, disciplinary action, or other reasons prescribed by Act; and (iii) further guarantees the status of the relevant teacher to secure the autonomy and peculiarity of education; (iv) However, the term “retirement” means a disposition that directly threatens the status of the relevant teacher, which is prohibited in principle, and thus, constitutes an unfavorable measure against the relevant teacher in light of the legislative purport of the proviso to Article 56(1) of the Private School Act; and (iii) it is necessary to strictly examine the relevant matter in light of the legislative purport of the proviso to Article 56(1) of the Private School Act as well as the legislative purport of the amendment of the relevant Private School Act to ensure the establishment and financial Status of the relevant teacher.

C) We review the instant case back to the instant case. The fact that there was a registered student in the department (name 6 omitted) at the time of the instant dismissal is no dispute between the parties. In the case of the department (name 6 omitted), it cannot be deemed that the instant dismissal disposition against Plaintiff 3 based on the premise that the said department was closed, is unlawful, since it cannot be deemed that the instant dismissal disposition against Plaintiff 3, which is based on the premise that the said department was closed.

E. Small conclusion

Ultimately, there is no procedural defect in the removal of this case against Plaintiff 1 and Plaintiff 2, but the removal of this case against Plaintiff 3 is null and void due to procedural defect.

3. Determination as to the substantive defect of the dismissal of this case

A. The parties' assertion

1) The plaintiffs' assertion

Even if the requirements for the closure and disposition of the instant case were satisfied, the Defendant, even though there was a possibility of avoiding dismissal by means of the issuance or conversion of the Plaintiffs due to the circumstances of the ○○ University, did not make any effort to avoid dismissal and issued the instant dismissal to the Plaintiffs. Therefore, the instant dismissal disposition is null and void due to deviation from and abuse of discretion.

2) The defendant's assertion

Although the Defendant made efforts to rearrange the Plaintiffs to another department after the closure and disposition of the instant case, it was difficult for the Plaintiffs to refuse the terms and conditions of the reorganization or to rearrange them in light of the circumstances of the department wishing to rearrange. Nevertheless, the Plaintiffs were inevitably refused to rearrange the Plaintiffs by demanding the Defendant, without any conditions, and the Defendant’s dismissal against the Plaintiffs was forced to be taken, and thus, the instant dismissal disposition cannot be deemed to have exceeded and abused discretionary power.

(b) Fact of recognition;

1) The details of the Plaintiffs’ academic degree acquisition are as shown in Table 2.

A bachelor’s degree degree degree degree degree degree degree in name included in the main sentence, Plaintiff 1 △△ University’s graduate school management department (organization theory/personnel management), Plaintiff 2, △△ University’s graduate school management department (organization theory/person management), Plaintiff 2, △△ University’s graduate school economics, Plaintiff 3, △△△ University’s graduate school, major in the department of law and economics in the department of administration at △△ University, △△△ University, Plaintiff 3, △△△ University’s graduate school (chemical engineering), Japan’s graduate

2) On June 4, 2009, Nonparty 1, the president of ○ University, the president of ○ University, and the faculty members of the Department (name 15 omitted), (name 2 omitted), (name 16 omitted), (name 16 omitted), (name 6 omitted), and (name 6 omitted), shall maintain the Department for three years during which the current student is enrolled, serve in the Department for three years during which he/she is enrolled, and perform the duties of the principal faculty member. (2) At the time of conversion into a general university in 2012, he/she shall rearrange the faculty members of the Department in accordance with the relevant and similar educational system. (3) The phrase “the person has an opportunity for re-education as required under the preceding two paragraphs.”

3) On March 1, 2009, the Defendant transferred Plaintiff 1 to the Department of (Name 8 omitted), and Plaintiff 3 to the Department of YU, but transferred Plaintiff 1 to the Department of YU (Name 2 omitted) and Plaintiff 3 to the Department of (Name 6 omitted) on March 3, 2009.

4) (Department 8 omitted) The department of (department 2008) shall have served as Nonparty 2 associate professor (market major), Nonparty 3 associate professor (major in insurance), and Nonparty 4 assistant professor (international major in management) from February 2008 to the time of the closure and disposition of the instant case.

5) 원고 2는 30여 년 동안 ♡♡향교에서 사서삼경, 노장사상 등을 공부하였고 그와 관련된 강의와 저술 활동도 여러 주1) 차례 하였으며, 2011년부터 ▷▷ 전통문화 진흥원에서 ‘일요 한문반’ 강사를 맡는 등의 활동을 해 왔다.

6) From September 15, 2009 to December 31, 2011, Plaintiff 3 was elected as the International tea Culture Exchange and Cooperation Foundation ------------ Vice-President of an incorporated association. On March 19, 2010, Plaintiff 3 published a thesis of “The consideration of recent trends in the safety and international management system for food health impact factors and safety management” in the first time ------------- of the first time on March 19, 2010, and published a thesis of “the recent trends of safety and international management of children’s sign drinks” on October 16, 2010.

7) On December 23, 2010, the professors of △△△△△△△△ submitted their opinions on Plaintiff 2’s application for the re-transfer, adding to the following conditions: “Plaintiff 2 shall be issued concurrently with other major departments, and Plaintiff 2 shall be admitted to a graduate school course with a master’s degree or higher in relation to the subjects of the Living Matern,” before the second semester of 201.

8) (Department 9 omitted) Professors consented to the Plaintiff 1’s application for change of the department on May 201, on the condition that “at least five new students shall be recruited each year, and two subjects and years shall be in principle, and in the case of the agreement on the completion of the department and the closure of the department, the Plaintiff 1’s application for change of the department shall be given priority to disadvantage.”

9) From January 1st to February 2012, 2009, ○ University invited part-time instructors as indicated in Table 3 â……………………………………………………………………………………………) and continued the lectures of △△△ University. The full-time professors of △△△ college were demoted more

27 subjects (135 credits) in total (135) of 27 subjects (135 credits), such as food science, diet culture, nutrition science, nutrition science, nutrition chemistry, etc. (127 credits), 25 subjects (127 credits), such as food storage science, food and microbiological science, etc. (127), 15 diet and 18 subjects (100 credits) in total of 14 nutrition and development, nutrition determination, organization management theory, food and beverage management theory, 16 subjects (69 credits) in total of 16 subjects (19 semesters), 201, 10, 28, 28, 28, 28, 201, 28, 28, 26, 28, 201, 28, 28, 201, 328, 201, 328, 25, 201, 26, 201, 28, 31, 325, me,25, etc.

[Based on Recognition] Evidence Nos. 19 through 21, 24-3, 25, 28, 29, 33, 35, 36, 43 through 49, 52, 53, 55, 66, 68, 70, 73, 75, 80, 84, 85 evidence Nos. 13, 27, 32 through 35 (including any number), and the purport of the whole pleadings

C. Determination

1) 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 않는다’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 타당하며, 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( 대법원 2008. 3. 13. 선고 2007다66071 판결 등 참조).

2) In light of the above facts and the evidence revealed as seen earlier, the Defendant appears to have been able to avoid the instant dismissal by relocating the Plaintiffs to another department within the ○○ University that applied for reorganization. Nevertheless, without making any particular effort to remedy the Plaintiffs, the Defendant dismissed the instant dismissal without any specific basis, and it is reasonable to deem the Defendant’s dismissal to be null and void as it was arbitrarily conducted without any objective basis and without any discretionary power as to the appointment and dismissal of teachers.

A) On June 4, 2009, the Defendant, notwithstanding the closure and disposition of the instant case, re-consigns the Plaintiffs to the relevant similar departments, and expressed their intent to re-consign them through re-education in the absence of major similar departments, but did not completely give the Plaintiffs an opportunity to re-education regarding other major departments after the closure and disposition of the instant case, and there was no fact that the Plaintiffs consulted with the Plaintiffs or recommended re-education in connection with re-education. Although the Defendant asserted that the Defendant did not grant the Plaintiffs an opportunity to re-education because the president of ○○ University did not apply for re-education. However, the purport of the instant promise made on June 4, 2009 by the president of ○○ University did not grant the Plaintiffs an opportunity to re-education due to the absence of the Plaintiffs’ request for re-education. This is because, in principle, the Plaintiff’s selection of the departments to re-educate the Plaintiffs in consultation with the Plaintiffs, and the opportunity to re-education the major of the relevant department cannot be known to the Plaintiffs in the situation of re-education of the major.

B) It is merely a concept designed to measure the competitiveness of university education and the outcomes of restructuring in the process of leading university restructuring from around 2004 by the Ministry of Education, Science and Technology. Therefore, it is difficult to deem that whether the Defendant was able to rearrange the Plaintiffs to another department prior to the dismissal of the instant case, necessarily depends on the ratio of securing professors of individual departments.

C) There is no academic relationship between the major and academic activities of the Plaintiffs and the departments that the Plaintiffs wish to rearrange, and the Defendant was in charge of lectures, such as departments that the Plaintiffs want to rearrange by employing a number of new teachers near to 30 persons following the closure and disposition of the instant case or by utilizing them as part-time instructors on March 30, 201.

D) In the past, the defendant, regardless of the consent of the departments that wish to rearrange the plaintiffs, did not assign the plaintiffs, and in the case of this case, some professors of the departments abolished and abolished by the closure and disposition of this case were re-reconvened to other departments, but the plaintiffs were not aware of the grounds for objective and reasonable difference between the plaintiffs and the professors of the said re-re-convened departments. Although the defendant alleged that the professors of the said departments failed to rearrange the plaintiffs without the consent of the professors of the said departments, the consent of the said departments is merely the conditions of the re-reconvening that the defendant determined internally, it is nothing more than reference matters in the reorganization of the plaintiffs, and it

E) The circumstances related to Plaintiff 1 are further examined as follows.

① The Defendant did not accept the Plaintiff’s application for reorganization on the ground that there was no consent from the (name 8 omitted) department (name 8 omitted) department, even though the professor Nonparty 5 (economic major) department affiliated with (name 16 omitted) department did not add any condition to the (name 8 omitted) department, which was closed following the closure and disposition of the instant case.

② Although a considerable number of the subjects of the (name 8 omitted) subject was related to Plaintiff 1’s major (personnel and organization management during business administration), outside instructors were demoted to the subject of “personnel management” due to the lack of full-time faculty who majored in personnel and organization management in the (name 8 omitted) subject at the time of the closure and disposition of the instant case.

③ In addition, part of the (name 9 omitted) subject of the (name 9 omitted) subject is also related to Plaintiff 1’s major, and in fact, Plaintiff 1 is able to sufficiently teach the subject of the (name 9 omitted) subject of the subject of the subject of the (name 9 omitted) subject of the subject of the subject of the subject of the (name 2012 and the first semester of 2013 in light of the fact that the subject of the subject of the subject of the subject of the subject of the (name 9 omitted), fire fighting organization management, and fire fighting

④ At the time of Plaintiff 1’s application for reorganization, the professor of the Department (name 9 omitted) added a new condition to Plaintiff 1 without attaching the following conditions: (a) particularly, the Mediation Committee attached the condition that “If the rate of securing teachers of the relevant department exceeds 61% or the suspension of recruitment is decided, the number of faculty members of the relevant department would be 80% of the total annual salary in the immediately preceding year, and the annual salary in the year 2013 would be 80% of the total annual salary in the immediately preceding year, which is difficult to accept by Plaintiff 1).

F) The circumstances relevant to Plaintiff 2 are further examined as follows.

① The professors of △△△△△△△△ have expressed their conditional consent to the application for the re-transfer of Plaintiff 2, and the Defendant, on April 10, 2013, issued a disposition of changing Nonparty 6, an associate professor, who was an associate professor of the same department (name 2 omitted) as Plaintiff 2, to △△△△△△△△△△△, but did not accept the application for re-transfer

② In addition, the Defendant did not notify Plaintiff 2 of the fact that △△△△△ professors presented “a master’s or higher graduate school course related to life” as a condition for the relocation of △△△△△△△△△△, and thus, Plaintiff 2 had the opportunity to undergo re-education. As the Defendant consented to the Plaintiff 2’s relocation of △△△△△△△△△△△△△△△△△△, the Defendant should be re-registered to another major department on the premise of the pre-determination of Plaintiff 2. However, the Defendant asserted that there was no other major department suitable for Plaintiff 2, but the Defendant did not have any reason to comply with the pre-determination condition, and it does not seem difficult for the Defendant to pay Plaintiff 2 with any other major department.

③ 원고 2가 ♡♡향교 등에서 한학(한학)을 공부하고 관련 학술활동 및 강의 등을 여러 차례 해 온 경력에 비추어 볼 때 △△△△△△의 ‘생활한문’ 등의 강의를 할 수 있다고 봄이 타당하고, 실제 원고 2는 2012학년도 2학기에 △△△△△△에서 ‘한국사’와 ‘독서와 토론’ 과목을 강의하였다.

G) Additional consideration of the circumstances related to Plaintiff 3 is as follows.

① Doiology is an academic field that requires the completion of basic chemistrys related to food sanitation, and most of the subjects related to medicine in the department (name 11 omitted) appears to be related to Plaintiff 3’s major (material environmental science). In addition, Plaintiff 3 published a thesis related to the major subject of Doisung department and participated in the academic activity several times.

② On December 8, 2010, Plaintiff 3 applied for the re-transfer to the △△△△△△△△ Department. On January 23, 2013, Plaintiff 3 applied for the re-transfer to the △△△△△△△△△△△△△, but the Mediation Committee did not give any particular response to Plaintiff 3’s application for re-transfer to the △△△△△△△△△△△△

③ As seen earlier, a considerable number of subjects among Plaintiff 3’s major are likely to be related to the class subjects of part-time instructors who were demoted from △△ Department to 2009 to 2012.

④ Plaintiff 3’s lectures on “general chemical” among the subjects of the department (name 11 omitted) from 2009 to 2012, respectively. Plaintiff 3’s lectures on “a hospital personnel theory” among the subjects of the department (name 11 omitted) in 2012 and 2013. In addition, in light of the strong situation between 2010 and 2012 and 2012, Plaintiff 3’s lectures on “natural science theory” and “environmental understanding” among the subjects of the △△△△△△△△△△△△△△△△, respectively, appears to have sufficient lectures on each of the above departments.

D. Small conclusion

Therefore, the dismissal disposition of this case against the plaintiffs is null and void as it deviates from and abused its discretionary power (the dismissal disposition against the plaintiff 3 is also null and void as in the above procedural defect). As long as the defendant asserts that the dismissal disposition of this case is valid, there is a benefit to seek confirmation from the plaintiffs.

4. Determination on the claim for payment of unpaid wages

The Defendant paid KRW 6,409,550 per month to Plaintiff 1, and KRW 6,637,273 per month to Plaintiff 2, and KRW 6,715,982 per month to Plaintiff 3, not later than the date of the instant dismissal. The Defendant’s payment of wages to the Plaintiffs since the date of the instant dismissal on August 28, 2013 is without dispute between the parties, and as seen earlier, the Defendant’s dismissal against the Plaintiffs is null and void, and thus, the Plaintiffs and the Defendant still continue to have a valid labor relationship.

Therefore, the Defendant, from August 29, 2013 to the time the Plaintiffs are reinstated, is obligated to pay the wages of KRW 6,409,550 per month to Plaintiff 2, KRW 6,637,273 per month, and KRW 6,715,982 per month to Plaintiff 3, respectively. Since the Defendant asserts that the dismissal of this case is legitimate and the Defendant does not allow the reinstatement of the Plaintiffs, the Defendant also needs to claim in advance the amount of the above wages until the Defendant is reinstated.

5. Conclusion

Therefore, the plaintiffs' claims of this case should be quoted in their reasoning, and the judgment of the court of first instance is just in its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Tae Tae-tae (Presiding Judge) Kim Sung-ju

주1) 원고 2는 ♡♡향교에서 운영하는 ‘한문강좌’에서 소학(소학)과 사서삼경(사서삼경)을 30여 년간 공부하였고, 1987년 겨울 강좌부터 ♡♡향교가 주관하는 유교대학 강사 등으로 활동하였으며, ▷▷ 전통문화 진흥원에서 ‘학술부장’ 및 ‘이사장’을 역임하고 2006년도부터 ‘일요 한문반’의 훈장을 맡고 있다. 또한, 원고 2는 2001년 「서양이분법과 동양음양법의 극복」이라는 논문을 저술하는 등 총 14편의 동양사상 관련 논문을 저술하였다.

2) Furthermore, the recent academic tendency is likely to bring about the need for the convergence and integration between majors and academic systems. Therefore, according to the will of the Defendant, the major and academic outcome of the Plaintiffs seems to be possible to be re-convened.

3) In fact, as of January 1st 2014, the ratio of securing teachers in (name 9 omitted) department as of (name 9 omitted) department is likely to exceed 61%. If Plaintiff 1 accepted the above conditions presented by the Conciliation Committee, it would have been inevitable to retire on March 1, 2014.