[1] Requirements for refusal by an administrative agency to become an "administrative disposition" which is the object of an appeal

[2] The legal nature of the measure of approving the change of a founder in a private university

[3] In a case where a private university has changed to a public university, whether the status of the teachers of the private university has terminated automatically (affirmative), and whether the appointment as a teacher of the public university belongs to the discretionary act of the appointing authority (affirmative)

[4] Whether the provisions on the guarantee of status of a teacher under the Private School Act and the Special Act on the Improvement of Teachers' Status apply to a case where a founder is changed from a private university to a public university (negative)

[5] In a case where a private university is changed to a public university, whether the former teacher is entitled to apply for appointment as a public educational official due to the change of the founder (negative)

[6] Whether Article 53-2 (3) of the Private School Act, which provides the basis for the appointment of fixed-term teachers of private universities, violates Article 31 (4) of the Constitution (negative)

[1] In order for an administrative agency to be the subject of an administrative disposition against a citizen's rejection of a petition, it must have the right of law or sound reasoning to require the citizen to engage in an administrative act according to the petition. In a case where an administrative agency refuses to accept the petition without such basis, the rejection does not affect the applicant's right or legal interest, and thus, it cannot be deemed an administrative disposition subject to an appeal litigation.

[2] The disposition of approving the change of a founder in a public university by the Minister of Education as stipulated in Article 85(3) and (1) of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997) is not only a disposition of authorization in the sense of completing the legal effect by supplementing the change of founders between the parties concerned, but also includes the abolition of the private university and the establishment of a new public university.

[3] Unlike teachers of private universities, the status of teachers of private universities is naturally terminated due to the change of founders unless there is an act of establishing a new status relationship by the special employment under Article 11 (3) of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996) or a new status relationship by the special employment under Article 12 (1) 5. In such cases, whether the appointment authority is to appoint teachers of the previous private university as teachers of the previous private university belongs to discretionary action based on the decision of the appointment authority, in the end of the decision of the appointment authority.

[4] Article 56 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) and Article 6 of the Special Act on the Improvement of Teachers' Status do not apply to cases where a guarantee of status of a teacher has been changed from a private university to a public university.

[5] On the ground that a founder is changed from a private university to a public university, a teacher of a private university cannot be deemed to have the right to demand the appointment of a public educational official.

[6] Since fixed-term appointment for private university teachers is based on Article 53-2(3) of the Private School Act, it cannot be said that the above provision violates Article 31(4) of the Constitution which provides for the principle of autonomy of university, and the existence of the right to apply for appointment as a public educational official due to the change of founder does not vary depending on whether Article 53-2(3) of the Private School Act violates the Constitution.

[1] Article 2 of the Administrative Litigation Act / [2] Article 85 of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997) / [3] Article 56-2 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 85 of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997), Articles 11 (3) and 12 (1) 5 of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996) / [4] Article 56 (1) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 56-2 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), Article 6 of the former Private School Act / [13]

[1] Supreme Court Decision 94Nu8433 delivered on December 9, 1994 (Gong1995Sang, 506), Supreme Court Decision 93Nu21729 delivered on May 26, 1995 (Gong1995Ha, 2275), Supreme Court Decision 95Nu13081 delivered on May 14, 1996 (Gong1996Ha, 186), / [2/3/4] Supreme Court Decision 96Nu7151 delivered on April 25, 1997 (Gong197Sang, 1640) / [6] Supreme Court Decision 94Da12852 delivered on October 14, 1994 (Gong194Ha, 297Ha, 2976).

Professor-young (Attorney Kang Jae-hun et al., Counsel for the defendant-appellant)

(B) The Minister of Education (former: the Mayor of Incheon Metropolitan City)

Seoul High Court Decision 94Gu23908 delivered on January 25, 1996

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

The grounds of appeal are examined.

1. On the first ground for appeal

In order for an administrative agency to be subject to an administrative disposition against which a citizen's refusal to file an application is an administrative disposition, the administrative agency must have a right under law or sound reasoning to require the citizen to engage in an administrative act according to the application. If an administrative agency refuses to accept the application without such a ground, it does not affect the applicant's right or legal interest, and it cannot be deemed an administrative disposition that is subject to an appeal litigation (see, e.g., Supreme Court Decisions 94Nu8433, Dec. 9, 1994; 93Nu21729, May 26, 195; 95Nu13081, May 14, 1996).

In light of Article 85(3) and (1) of the Education Act (amended by Act No. 5272 of Jan. 13, 1997), the Minister of Education grants authorization for the change of a public university to a private university as prescribed in Article 85(3) and (1) of the same Act (amended by Act No. 5272 of Jan. 13, 1997), as well as the purpose of completing the legal effect by supplementing the change of the founders between the parties concerned, it includes not only the abolition of the private university but also the establishment of a new public university. Meanwhile, unlike the private university teachers, the teachers of the public university are treated differently in public law relations such as the appointment authority, appointment procedure, and the change of the founders of the relevant Acts and subordinate statutes such as the Educational Act and the Public Educational Officials Act, it is ultimately decided that the new founder bears the obligation to appoint the teachers of the previous private university or that there is no basis for the change of the status of the newly established teacher due to the change of the appointment authority.

In addition, Article 56 (1) of the Private School Act (amended by Act No. 5274 of Jan. 13, 1997; hereinafter the same) and Article 6 of the Special Act on the Improvement of Teachers' Status do not apply to cases where the guarantee of status of a teacher is changed from a private university to a public university as in this case.

Therefore, it cannot be said that the private university has a right to demand the appointment of a public educational official on the ground that the founder has changed from the private university to the public university.

In the same purport, the court below held that the lawsuit of this case seeking revocation is unlawful, because it does not affect the plaintiff's right or legal interest and it does not affect the appointment authority's rejection of the plaintiff's application, even if the founder of the Incheon National University already changed from the Private Institute of Private Foundation to Incheon Metropolitan City, the plaintiff whose appointment period as the professor of the Private University has expired since he applied for appointment as a public educational official. Thus, the lawsuit of this case seeking revocation is not unlawful, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to special employment due to the change of founder.

The Supreme Court's decision cited by the Plaintiff is not appropriate to invoke the instant case as it differs from the instant case.

2. On the second ground for appeal

Since fixed-term appointment for private university teachers is based on Article 53-2 (3) of the Private School Act, it cannot be said that the above provision violates Article 31 (4) of the Constitution that provides for the principle of autonomy of university. Moreover, the existence of the right to apply for appointment as a public educational official due to the change of founder does not vary depending on whether it violates the above Article 53-2 (3) of the Private School Act, and the issue of violation of the above provision of the Private School Act does not affect the conclusion of this case. The ground of appeal on this point is without merit.

3. On the third ground for appeal

The argument in the grounds of appeal that the refusal of appointment in this case is abuse of discretionary power is based on the premise that the Plaintiff has the right to apply for appointment as a public educational official, or that there is no such right to apply for appointment. Therefore, this is without merit.

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

Justices Park Jong-ho (Presiding Justice)