206Kahap1040 Removal, Suspension and Provisional Disposition

A

B Educational Foundation

October 10, 2006

1. Subject to the condition that the creditor deposits 30,000,000 won as security for the debtor or submits a document concluding a payment guarantee entrustment contract with the same amount as the guaranteed amount to the creditor, the effect of the dismissal disposition made on August 14, 2006 by the debtor against the creditor shall be suspended until the judgment on the merits of the case of claim for nullification of the removal disposition by professors No. 2006,8652 of the court is finalized.

2. The costs of lawsuit shall be borne by the obligor;

The same shall apply to the order.

1. Basic facts

According to the overall purport of the record and examination of this case, the following facts are substantiated.

A. On March 1, 1996, a creditor was appointed as a professor of the same department as C University’s management information department and assistant professor from April 1, 2003, and the debtor is a school juristic person operating C University. (B) The president of Cuniversity demanded a resolution of disciplinary action against the creditor of the obligor’s teachers’ disciplinary committee on the grounds that most of the grounds for disciplinary action were recognized as grounds for disciplinary action on July 28, 2006, the obligor’s teachers’ disciplinary committee dismissed the creditor by applying Article 55 of the Private School Act, Articles 57 and 63 of the State Public Officials Act, Article 66 of the Enforcement Decree of the Private School Act, Article 24-5 of the Enforcement Decree of the Private School Act, Article 66 of the Debtor’s Articles of Incorporation, and the president of C University removed the creditor on August 206, 14 (hereinafter “instant disposition”).

Grounds for Disciplinary Action

(1) On November 2005, 25, D, E, F, etc. filed a complaint with the prosecutor against the president, president, president, president, deputy president, K Planning and Coordination Director, and L Planning and Planning Team leader (as above five persons) in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, related to the purchase of the 2 campus, and thereby impairing the honor of schools and their employees by broadcasting the face of the accusation during the Ma press news time (hereinafter “Disciplinary Claim 1”);

(2) C.C.’s refusal to comply with the summons of the Honorary Inspection Committee composed of the president’s orders, and on April 14, 2006, together with members of the Teaching Council, interfered with the investigation by collectively entering the said Investigation Committee’s meeting room (hereinafter “Disciplinary Grounds 2”);

(3) On February 25, 2004, the fact that a fine was finalized on January 13, 2005 on the ground that the NO’s reputation was damaged by openly pointing out false facts on the Internet homepage of the above university (hereinafter “instant ground for disciplinary action”) with respect to NO, a professor of the East University on February 25, 2004;

(4) On October 23, 2004, when taking charge of the lectures and thesis guidance of the Switzerland’s master plan course, the Plaintiff received written warnings from the Disciplinary Committee on the date of granting a master’s degree to students (including students) without submitting a master’s degree paper. Around 2003, the Plaintiff filed a lawsuit seeking nullification of the instant disciplinary action on the ground that the Plaintiff was issued as an exchange professor who did not have been issued by the president to promote personal convenience in the process of filing a request for exemption of the obligation to return to the Republic of Korea for two years after the expiry of the period of non-person’s term of stay, which was acquired at the time of returning to the U.S. university’s research establishment due to defamation by disseminating false facts about the president on the Internet communication network within the university, and thereafter, the Plaintiff filed a lawsuit seeking nullification of the instant disciplinary action on the ground that the Plaintiff was dismissed (hereinafter referred to as “the foregoing ground for dismissal”).

(d) the relevant regulations;

(1) The provisions concerning teachers of national and public schools shall apply mutatis mutandis to the service of teachers of private schools under Article 55 (Service of Private Schools) of the Private School Act.

(1) If a teacher of a private school falls under any of the following subparagraphs, the person who is authorized to appoint and dismiss the teacher concerned shall request a resolution on disciplinary action, and take a disciplinary action according to the result of a resolution on disciplinary

1. Where he performs an act contrary to the teacher's principal portion in violation of this Act and other education-related Acts and subordinate statutes;

2. When he violates or neglects his duties;

3. When he commits an act detrimental to the dignity of a teacher regardless of whether he is on or off duty.

(2) Disciplinary measures shall be removal, release, suspension from office, reduction of salary, and reprimand.

(2) A public official under section 57 (Duty of Odives) of the State Public Officials Act shall obey any order of his superior officer with respect to his duties.

Article 63 (Duty to Maintain Dignity) No public official shall commit any act detrimental to his/her dignity, regardless of whether he/she is on or off duty.

Article 66 (Prohibition of Collective Action) (1) No public official shall do any collective act for any labor campaign, or activities other than public services: Provided, That those who are actually engaged in labor shall be excluded.

(3) Article 48 (Release from Position or Dismissal) (1) A person authorized to appoint and dismiss a debtor's articles of incorporation may choose not to assign a position to a teacher who falls under any of the following subparagraphs:

1. Person who lacks ability to perform his duties, or whose performance record is extremely poor, or whose working attitude as a teacher is extremely unfaithful;

2. In making a decision on a disciplinary case by the teachers' disciplinary committee under Article 66, the person against whom the disciplinary decision has been requested, shall take into account the behavior, performance record, merits, achievements, outline, details of request for disciplinary punishment, and other circumstances of the person to be disciplined.

(4) If a teacher under Article 53 (Disciplinary Action) of the Debtor’s Personnel Management Regulations falls under any of the following, he/she may be subject to disciplinary action such as removal, dismissal, suspension from office, reduction in salary, and reprimand:

1. Where he falls under any cause for disciplinary action provided for in the State Public Officials Act, the Educational Officials Act, or the articles of incorporation of the school foundation B;

2. The parties' assertion

A. Creditor's assertion

The dismissal disposition of this case is null and void since the obligor mispers the facts of the disciplinary action without any grounds for disciplinary action. Even if certain grounds for disciplinary action are acknowledged, the dismissal disposition of this case, which is a heavy disciplinary action to deprive the obligee of the status as a researcher and an educator by neglecting the status as a researcher and an educator, is null and void since the amount of disciplinary action is too unreasonable, and thus the obligee should continue to engage in research activities and lectures to students. In light of the fact that the obligee, as the director of P Research Institute affiliated with C University and the responsible researcher of Q Q Co., Ltd. (hereinafter referred to as “A”), a company affiliated with the P Research Institute, a research institute affiliated with C University, should perform the duty of care, prior to this lawsuit, there is a need to preserve the validity of the dismissal disposition of this case.

B. The debtor's assertion

In light of the fact that the dismissal disposition of this case is a disciplinary cause against the creditor, the degree of the creditor's participation in disciplinary action, the necessity to stop certain professors' actions in an reckless manner while impeding the development of the school by severe disciplinary action, and the necessity to suspend the act of some professors during the past 10 years of working at Cuniversity, and the reason for disciplinary action was not taken as a disciplinary action, but the creditor did not handle outside contract research expenses and service expenses as school revenues and expenditures as the head of the above research institute, and it is legitimate and appropriate to dismiss this case in addition to the facts that there were useful facts without treating them as a reason for disciplinary action in the case of this case, the removal disposition of this case is legitimate and appropriate, and the creditor is not assigned any lectures at all during the current research year, and the service duties received by the said research institute are replaced by a warden, and in Q and related with the above research institute, there is no need for the creditor to maintain the status of the professor prior to the judgment of this case.

3. Determination on the right to be preserved (existence of grounds for disciplinary action and whether to abuse the right to take disciplinary action);

A. Determination on grounds of disciplinary action No. 1

(1) Facts of recognition

According to the records of this case, the following facts are substantiated.

(A) C University paid approximately KRW 1.25 billion out of KRW 19.3 billion, which is the amount approved by the Ministry of Science and Technology, in the course of purchasing the land and the ground buildings of Daejeon Sung-gu T, U, V, and W from R and S for the establishment of the 2 campus.

(B) On October 27, 2005, the C University Professors Council (hereinafter referred to as the “C University Professors Council”) which came to know of the above fact through the MM media report requested the university to verify the fact of the report and to provide appropriate instructions on the report. However, on November 25, 2005, the university did not properly issue appropriate instructions. However, on November 25, 2005, the university submitted a written accusation to the Daejeon District Public Prosecutor’s Office on suspicion of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against the debtor, the president of H branch D and five related persons, such as the president of H and the president of C University I, in the name of the university head D and the president of the Faculty Council.

(C) The creditor submitted the above accusation to the Daejeon District Prosecutor’s Office in the capacity of the professor Council’s general secretary. At the time, the M media taken the above accusation and broadcasted it.

(D) On March 7, 2006, Defendant 5, including H and C University President I, were found to have paid approximately KRW 1.25 billion more than the amount approved by the Ministry of Science and Technology in the course of purchasing the 2 camp site for C University No. 2 Camp on March 7, 2006, but such a sales contract was concluded with the approval of school-related persons at the time of the conclusion of the sales contract, and it was generalized to pay more money than the amount approved by the Ministry of Science and Technology at the time of the conclusion of the sales contract, and it is difficult to deem that there was no money or valuables received in connection with the conclusion of the sales contract to have violated the duties of the Ministry of Science and Technology.

(2) Determination

(A) Generally, even if there was a fact of being investigated by an investigative agency after the accusation was filed by the complainant, the accusation cannot be deemed a tort unless it was caused by intention or gross negligence that the accusation was an abuse of the right.

In light of the above facts and the following circumstances which can be seen in the records of this case, the accusation of this case was made under the name of the president of C University Labor Relations Division and the president of C University Labor Relations Council, not in the name of the creditor, and the creditor appears to have received a written accusation in the capacity of the professor Council. Before the accusation of this case was made, there was a report on the purport that the student’s enrollment fee in absolute part of the school budget in the university was used unfairly through the media, and there was an opinion demanding the thorough explanation of the relevant parties. In addition, it was difficult for the prosecutor to find that the accusation of this case was based on misconception of the facts against the above defendant, and it was difficult for the obligee to file a false accusation and find it difficult for the obligee to file a false accusation. In light of the above circumstances, it cannot be seen that the obligee failed to file a false accusation in the name of the university or gross negligence if he made an effort to grasp the debtor’s duty more closely and more closely. However, it cannot be seen that the obligee’s intent or gross negligence was unlawful.

(B) In addition, the debtor seems to have a doubt as to the reason why the business trip of the accusation of this case was reported, but the materials submitted by the debtor alone are insufficient to deem that the process of the accusation of this case was reported by the creditor's involvement, and there is no other evidence to recognize this differently (the teacher disciplinary committee of the debtor also determined that there is no evidence to recognize it).

(3) Sub-decisions

Therefore, in relation to paragraph (1) of the disciplinary cause, it is difficult to consider it as a disciplinary cause for the creditor.

B. Determination on grounds of disciplinary action No. 2

(1) First of all, according to the records, the part of the refusal to summon the person subject to disciplinary action may refuse to make a statement against him/her against several times as a general criminal case. The creditor’s articles of association may hear his/her own statement in the resolution of disciplinary action, but if he/she fails to summon him/her two times or more, it appears to be based on Article 64 of the Private School Act and Article 64(1) of the Debtor’s Articles of association, even though it appears to be based on the facts, Article 64 of the Private School Act and Article 64(1) of the Debtor’s Articles of association, which provides for disciplinary action after sufficient investigation, is deemed to be aimed at ensuring the procedural legitimacy of disciplinary action. The purport of Article 64 of the Private School Act and Article 64(1) of the Debtor’s articles of association is to ensure that the person subject to disciplinary action may refuse to comply with a resolution of disciplinary action against him/her. However, if the debtor’s articles of association fails to comply with a written summons, it can be deemed that the creditor cannot present the above grounds for disciplinary action.

(2) Next, in light of the fact that the creditor, along with the members of the Faculty Council on April 14, 2006, committed a collective act, such as interfering with the investigation by collectively entering the meeting room at the time of the third summons of the said Investigation Council, there was a suspicion in relation to the process of purchasing the site of C University No. 2 Camp, as seen earlier, within the press and school. The creditor and the members of the Teaching Council seem to have visited the said Investigation Committee to assert that the debtor attempted to take disciplinary action against the creditor due to the grounds for disciplinary action stipulated in Paragraph (1) of the instant disciplinary cause, and that it seems that the creditor and the Teaching Council are deemed to have the right to request for the explanation of the inappropriate use of the school budget comprised of the enrollment fees of the student as the members of the Cuniversity. In light of the fact that the creditor and the Teaching Council are deemed to have the right to request for the explanation of the inappropriate use of the school budget comprised of the enrollment fees as the professors belonging to the said Investigation Council, it is insufficient to deem that he/she committed a collective act prohibited as a teacher.

(3) Even if the obligee’s above action is in violation of the obligee’s duty of obey and prohibition of collective action, the Defendant’s dismissal disposition on this ground is null and void as seen below D.

C. Determination on grounds of disciplinary action No. 3

In light of the records of this case, on February 25, 2004, the creditor was issued a summary order of KRW 1 million on September 3, 2004 on the charge that the creditor had access to the above university Internet homepage by computer and publicly posted false facts on the bulletin board and damaged the honor of N who is a professor. The above summary order was confirmed on January 13, 2005.

According to the above facts, the creditor, who is a teacher of a private school, has a duty not to do any act detrimental to his dignity, regardless of whether it is within or outside the scope of his duties, but if he was subject to criminal punishment by harming his reputation by posting false facts with respect to the professor, such act may be deemed to be an act detrimental to his dignity as a teacher listed in the grounds for disciplinary action under Article 61 (1) 3 of the Private School Act, and such act shall be deemed to constitute a ground for disciplinary action (the creditor shall be subject to the ground for disciplinary action under Article 61 (3) of the Private School Act; however, in light of the fact that the creditor is deemed to have failed to take disciplinary action in the course of denying the statute of limitations against the ground for disciplinary action against the creditor, and the debtor shall be deemed to have been subject to criminal punishment for defamation as the ground for disciplinary action under Article 61 (3) of the instant ground for disciplinary action, the statute of limitations against the creditor shall be deemed to have run since September 3, 2004.

D. Whether to abuse the right of disciplinary action against the dismissal of this case

(1) In a case where a disciplinary measure is taken against a disciplinary person who is a school employee under the Private School Act, the disciplinary measure is taken at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretionary power is deemed to abuse the discretionary power, it may be illegal only if the person having the authority to take the disciplinary measure is deemed to have considerably lost validity under the social norms. The disciplinary measure against a school employee has considerably lost validity according to the specific case, the contents and nature of the disciplinary measure, the purpose of the disciplinary measure, the criteria for the determination of disciplinary action, etc., should be considered to be clearly unreasonable objectively and objectively. Even if the person having the authority to take the authority to take the disciplinary action is entrusted with the discretion of the person having the authority to take the disciplinary measure, it is against the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or the person having the authority to take the disciplinary action generally takes a disciplinary measure, which goes against the principle of proportionality or the principle of fairness and equality of flight without a reasonable reason.

In addition, in a case where there are several kinds of facts suspected of disciplinary action against a worker, whether it is appropriate to dismiss such disciplinary action is appropriate or not shall not be determined with only one or some of such grounds, and it shall be determined by whether the worker is responsible to the extent that it is impossible to continue the employment relationship in light of social norms in light of

(2) With respect to the instant case, it appears that the instant disciplinary action is mainly based on the grounds for the disciplinary action stipulated in Paragraph (1) of the same Article. As seen earlier, it appears that the instant disciplinary action cannot be the appropriate grounds for disciplinary action against creditors. The grounds for disciplinary action under Paragraph (2) of the same Article appears difficult to recognize the same. With respect to the thesis map of the Republic of Korea IT master’s degree, a warning was already taken by the Head of C University on March 12, 2003, and a warning was taken by the President of C University on the issuance of written consent to exemption from returning to Korea. With regard to defamation, the Plaintiff and the Council seems to have continued conflict and conflict with the creditors prior to the instant case. In light of the fact that the obligor and the Professor Council did not make sufficient efforts to resolve the Plaintiff’s grounds for disciplinary action against the Plaintiff, such as the Plaintiff and the Professor Council’s assertion that the Plaintiff would not have been subject to disciplinary action against the Plaintiff, which would have been subject to a new disciplinary action against the Plaintiff for whom the Plaintiff could not be dismissed.

E. Sub-committee

In light of the above circumstances, the dismissal disposition of this case is ultimately subject to determination as to the existence of grounds for disciplinary action and whether the right to discipline is properly exercised. However, in light of the above circumstances, the dismissal disposition of this case does not partially recognize grounds for disciplinary action, or the remaining grounds for disciplinary action do not deviate from or abused the scope of discretion. Thus, the application of this case has a vindication as to the right to preserve the claim.

4. Determination on the necessity of preservation

A. The instant application constitutes a provisional disposition setting forth a temporary position under Article 300(2) of the Civil Execution Act. As such, such provisional disposition does not have the nature of enforcement preservation, and it is a preservative measure that, if there is a legal relationship or legal relationship between the parties and the parties concerned, and the progress of the current situation is left away until a final and conclusive judgment is rendered, it would cause serious damage or imminent danger to the right holder, and even if a final and conclusive judgment is obtained, it would cause serious damage or imminent danger to the right holder, and thus, would be prevented from such damage or imminent danger. In particular, in order to determine the necessity of preservation, there is any disadvantage or pain to the extent that it is deemed harsh to wait until the final and conclusive judgment on the merits is rendered, and such situation would cause imminent danger to the extent that the current legal relationship is difficult or benefiting.

B. Regarding the instant case, the obligee appears to have suffered serious damage to the reputation and self-esteem of professors and scholars due to the instant dismissal disposition. The obligee itself appears to have maintained the validity of the instant dismissal disposition. In the event that the validity of the instant dismissal disposition continues to be maintained, the obligee appears to be unable to give lectures to students as professors even in 2007. The obligee’s qualification as the professor’s professor was allocated to the Republic of Korea university on January 2007. The obligee is the director of the P Research Institute. The obligee continued to conduct research as a person in charge of research on various duties concerning the establishment and establishment of a comprehensive human resources management system from the Z Co., Ltd., and it is difficult for the foregoing research institute as a person in charge of research on the Plaintiff’s affairs and human resources management system. However, the obligee’s assertion to the effect that it is necessary to suspend the Plaintiff’s duties as a professor prior to the instant dismissal disposition. However, the obligee’s assertion to the effect that Qu Research Institute’s need to do so is not acceptable.

5. Conclusion

If so, the application of this case is reasonable and reasonable, and it is so decided as per Disposition by admitting it.

October 10, 2006

The presiding judge, judge and public prosecutor;

Judge Choi Jin-young

Judges Kim Jong-il