In a case where Gap, a private university professor, was appointed by the president while serving as the professor of Gap University, and sought confirmation of professor position against Eul school juristic person, who resigned from the president due to plagiarism, etc., the case holding that Eul maintains the position as professor of the above university

In a case where Party B, who is a private university, requested confirmation of his/her faculty position, etc. against a school juristic person, prior to the enactment of a special provision on appointment that “where a person who is appointed as the president during his/her term of office as the president arises, he/she shall be deemed to be appointed as a teacher immediately before the appointment of the president on the following day of the date of his/her retirement”, the case held that Party B, who is a professor, cannot be deemed to have retired from his/her office as a matter of course, unless there exist any special provisions on “where a person is appointed as the president during his/her term of office as the president on the following day of the date of his/her retirement,” on the grounds that he/she had taken office as the president during his/her term of office as the professor and retired from his/her office due to plagiarism, etc., which strictly guarantees the status of teacher, Article 56(1) and (2) of the Private School Act, Article 6(1) of the Special Act on the Improvement of Teachers’ Status, etc.

Article 56 (1) and (2) of the Private School Act, Article 6 (1) of the Special Act on the Improvement of Teachers' Status, Article 24 (7) of the Educational Officials Act

Plaintiff (Attorney Park Jae-ju, Counsel for the plaintiff-appellant)

Defendant School Foundation (Law Firm Eapa, Attorney Lee Gyeong-hee, Counsel for defendant-appellant)

December 20, 2011

1. The plaintiff confirms that he is a professor of the defendant.

2. The defendant shall pay 155,193,486 won to the plaintiff.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit are assessed against the defendant.

5. Paragraph 2 can be provisionally executed.

The defendant shall pay to the plaintiff the amount equivalent to KRW 7,390,167 per month from March 20, 2010 to the time of the closing of the argument in this case.

1. Basic facts

A. The Defendant is an educational foundation that establishes and operates “○ University” and “○ Automobile University” under its jurisdiction.

B. From March 1, 1992, the Plaintiff was appointed as an assistant professor to the said ○ University’s mechanical engineering department, and was promoted to the associate professor on April 1, 1995, and was in office as a professor from April 1, 2001.

C. On March 1, 2010, the Plaintiff was appointed as the 13th president of ○ University. On March 1, 2010, the Plaintiff resigned from the 19th president on March 19, 2010, prior to the expiration of the president’s term of office.

(d) Relevant regulations concerning the personnel management of teaching staff of ○ University;

Article 1 (Purpose)

The purpose of this Regulation is to prescribe matters not prescribed in the articles of incorporation of the defendant school juristic person concerning the personnel affairs of the ○ University.

Article 2 (Classification of Faculty Members)

Faculty members shall be classified into full-time faculty members and special employment faculty members in accordance with the following standards:

1. The term "full-time teacher" means a person qualified as a teacher prescribed by Presidential Decree and appointed pursuant to Articles 48 and 49 in the articles of incorporation of a defendant school juristic person;

Article 7 (Restriction on Holding Concurrent Offices)

(1) No teacher shall concurrently hold the office of transfer of another institution: Provided, That in cases falling under any of the following subparagraphs, he/she may concurrently hold the office of transfer with prior approval of the president of another institution; hereinafter the same shall apply).

Article 7-2 (Dispatched Service)

(1) In any of the following cases, the president may permit the dispatch of faculty members under his/her control:

(hereinafter omitted)

(3) Where the grounds and purposes of dispatch cease to exist, the president shall return the teacher to the original affiliated institution without delay.

Article 8 (Retirement Age)

The retirement age of teachers shall apply mutatis mutandis to the retirement age under Article 47 of the Educational Officials Act and the last day of a semester to which the month to which the retirement age belongs shall be the date of retirement.

Article 16-2 (Special Cases concerning Appointment)

Where a person appointed as the president during his/her term of office has a ground for retirement of the president, he/she shall be deemed appointed as a teacher immediately before his/her appointment on the following day of retirement.

Article 24 (Detailed Rules on Guarantee of Status)

Matters concerning guarantee of the status of teachers shall be governed by Section 1 of Chapter VI of the Articles of Incorporation.

Article 26 (Dismissal from Office on Voluntary Performance)

A teacher who falls under any of the following subparagraphs shall be dismissed inevitably:

1. When he falls under disqualifications under Article 33 of the State Public Officials Act;

2. When he desires to retire: Provided, That this shall not apply to a teacher who is under duty to work;

3. When the term of appointment expires and the term of appointment is not extended;

4. When he reaches the retirement age.

5. When he loses from the examination for appointment of teachers whose retirement age is guaranteed.

6. Death;

E. Relevant provisions of the Defendant’s articles of incorporation

Article 46 (Optional Dismissal)

(1) The head of a school established and operated by this corporation shall appoint or dismiss the chief director.

(hereinafter omitted)

(2) Full-time teachers other than the head of a school, and full-time professors, associate professors, and associate professors or higher-ranking professors shall be appointed or dismissed by the head of the school with the consent of the board of directors: Provided, That the head of the school shall be dismissed from office on official

Article 48 (Appointment of Teachers in Posts)

Where a full-time teacher who was appointed on or before December 31, 2001 is reappointed on or after January 1, 2002, the "Guidelines for the Appointment of University Faculty Members in Office" prescribed by the competent agency shall apply mutatis mutandis to the reappointment on or after January 1, 2002, to the professor who is an associate professor up to the retirement age for a specified period as follows, and the details of the special appointment teacher shall be separately prescribed by the regulations (hereinafter

Article 50 (Reasons for Temporary Retirement)

Where a teacher desires to take a leave of absence on any of the following grounds, a person who is authorized to appoint and dismiss him/her may order him/her to take a leave of absence:

9. Where any ground prescribed by any Act, such as Article 44 (2) and (3) of the Public Educational Officials Act occurs.

Article 55 (Remuneration)

Remuneration of teachers shall be prescribed by remuneration regulations based on teaching evaluation, etc.

Article 56 (Prohibition of Temporary Retirement, Dismissal, etc. Contrary to Intention)

(1) No teacher shall be subject to any unreasonable disposition, such as a leave of absence or dismissal from office, against his/her will, unless he/she is subject to a sentence of punishment, disciplinary action or private school Act: Provided, That this shall not apply to cases where he/she becomes an abolished position or an excessive member due to

(2) No teacher shall be released from office on the recommendation.

Article 87 (Heads, etc. of Schools)

(1) Each university shall have a president.

F. Relevant provisions of the ○ University Remuneration Regulations

Article 4 (Remuneration of Teachers)

Remuneration of teachers shall be paid by classifying them into basic annual salaries, performance grades, and allowances, and shall be determined by the president for each fiscal year.

Article 6 (Calculation of Remuneration)

(1) The standards for calculating an annual salary of teachers shall be one year from March 1 of each year to the end of February of the following year.

Article 7 (Payment of Remuneration)

(1) In principle, monthly remuneration of teachers and employees shall be paid on the 17th day of each month: Provided, That where the payment date of remuneration is a legal holiday, it shall be paid on the preceding day

Article 9 (Kinds of Allowances)

(1) Teachers' allowances shall be classified into position allowances, special service allowances, long-term service allowances, oil allowances, and children's school expenses allowances.

Article 13 (Long-Term Continuous Allowances)

(1) Teachers shall be paid long-term continuous allowances according to their working training.

G. The Plaintiff received benefits from March 201, 201, when the president of ○ University resigned. Around that time, the Plaintiff’s basic annual salary is KRW 87,362,00, and the long-term continuous service allowance is KRW 110,000 per month.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1, 2, 6, Eul evidence No. 7-1, 2, Eul evidence Nos. 9 and 10, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Even if the Plaintiff was appointed as the president during his/her term of office as the professor of ○ University under Defendant-affiliated, barring special circumstances, such as the Plaintiff’s resignation from his/her faculty, the Plaintiff does not lose his/her faculty position, and the Plaintiff did not express his/her intent to resign from the faculty at the time of resignation of the president on March 19, 2010, and thus, the Plaintiff is in the position of ○ University under Defendant-affiliated. However, the Defendant disputing this, the Defendant confirmed that the Plaintiff was in the position of professor of ○ University, and sought payment of unpaid benefits at the rate of KRW 7,390,167 from March 20, 2010 to the date following the date the Plaintiff resigned from the president’s position.

B. Defendant’s assertion

The Plaintiff lost teaching positions by appointing the president of ○ University. Unless reinstatement is made thereafter, the Plaintiff is not in the position of professor of ○ University under Defendant-affiliated, and even if not, on February 2, 2010, issues arise such as plagiarism, duplicate publication, and indication of author of unjust thesis relating to the thesis published by the Plaintiff at ○ University University, etc., the Plaintiff voluntarily resigned from the position of president.

3. Determination

A. Determination on the claim for confirmation of teaching positions

(1) Whether the Plaintiff lost teaching positions upon appointment of the president of ○ University

In the Defendant’s Articles of Incorporation and ○ University’s Personnel Management Regulations, which provide for the personnel management of the faculty of ○ University, do not clearly stipulate where a professor is appointed to a president while in office, whether he/she maintains his/her status as a professor. Article 14 of the Higher Education Act is the principal of a school, which is a higher educational institution, and is divided into president or dean and other professors, associate professors, and assistant professors. However, there is no clear provision on whether a professor maintains his/her status as a professor when a professor is appointed to a university while in office.

However, considering the contents and purport of the relevant regulations and the following circumstances, it is reasonable to view that the Plaintiff, a teacher of ○ University, is not naturally deprived of the teaching position, and that the teaching position is maintained, barring special circumstances, such as the Plaintiff, even if he/she was appointed as the president of the said university while in office, has retired from the teaching position at the time.

First, in accordance with Article 24 of the Regulations on the Personnel Management of ○ University Teachers, matters concerning the guarantee of the status of ○ University Teachers shall be governed by Chapter 1 Section 2 of Chapter 6 of the Defendant’s Articles of Incorporation. The main text of Article 56(1) of the said Articles of Incorporation provides that “A teacher shall not be subject to any unfair disposition, such as a leave of absence or dismissal against his will, without a sentence, disciplinary action, or any other reason prescribed by the Private School Act,” and Article 56(2) of the said Articles of Incorporation provides that “A teacher shall not be released from office upon recommendation.” The main text of Article 56(1) of the Private School Act provides that “A teacher shall be strictly guaranteed the status of ○ University Teachers and shall not be subject to any unfavorable measure, such as a leave of absence or dismissal against his will without any reason prescribed by this Act.” Article 56(2) provides that “A teacher of a private school shall not be subject to any recommendation,” thereby strictly guaranteeing his status as a teacher of a private school, and shall not be subject to any disciplinary action or dismissal.

Second, as seen earlier, Article 16-2 of the Regulations on the Personnel Management of ○ University provides that “If a person who is appointed as the president during the term of office as the president arises, he/she shall be deemed appointed as the faculty member immediately before the date following the date of his/her retirement.” This provision provides that where a professor who is employed as the president of a university is appointed as the president of a university, he/she shall be able to return to the faculty member automatically after the expiration of his/her term of office in the absence of explicit provisions on the maintenance of his/her status and the return to the faculty member after the expiration of his/her term of office (this is a confirm provision of nature. Accordingly, in this case where a professor is appointed as the president during his/her term of office, he/she shall be deemed to have retired from the position of the president before the expiration of his/her term of office, and the provision on the personnel management of the above head of a university shall be deemed to be inconsistent with Article 28(2) of the Public Educational Officials Act.”

Third, according to Article 7-2(1) of the Regulations on the Personnel Management of Teaching Staff of ○○ University, the president may permit the dispatch of teaching staff under his/her control. In such a case, the president shall return the said faculty to the original affiliated agency without delay when the reason and purpose of the dispatch cease to exist pursuant to Article 7-2(3) of the said Regulations. Meanwhile, according to Article 50 Subparag. 9 of the Defendant’s Articles of incorporation, if a teacher wishes to take temporary retirement when the reason prescribed in Article 44(3) of the Educational Officials Act arises, he/she may order the person with authority to appoint and dismiss the said teacher, and Article 44(3) of the Public Educational Officials Act provides that “If a public educational official in his/her office is appointed as a public official other than a public educational official, the person with authority to appoint may order temporary retirement. In this case, the period of temporary retirement shall be the period of his/her office.” In light of the fact that there is an institutional device that makes it possible to maintain his/her status when he/she is dispatched or other public officials.

Fourth, the defendant asserts that "the school foundation operating a private school has a wide range of discretion over the national and public school teachers, and therefore should be different from the status guarantee of the teachers of the national and public school." However, as seen earlier, the defendant's articles of incorporation and the regulations on personnel management of the teachers of the private school are strictly guaranteed pursuant to various relevant laws, it is not deemed that the plaintiff is a private school teacher of the ○ University, which is the private school. Rather, it is more true in view of the fact that the status guarantee of the teachers is strengthened by newly establishing the special provisions on personnel management of the ○ University on February 22, 2011, and there is no ground to regard the case where the teacher voluntarily resigns from the president, and that there is a need to guarantee the professional status or status of the teachers, and that the special status or status of the teachers of the private school is not different in essence from that of the teachers of the private school and the teachers of the national and public school.

Therefore, the Defendant’s assertion that the Plaintiff lost his position as professor of ○ University as the Plaintiff was appointed to the president of ○ University is without merit.

(2) Whether the Plaintiff also resigned from the position of president of ○ University

According to the facts established above, the Plaintiff is only recognized as having resigned from the above position before the term of office of the president of ○ University expires on March 19, 2010, and there is no evidence to prove that the Plaintiff resigned from the position of the president with the president as otherwise alleged by the Defendant. Accordingly, the Defendant’s assertion on this is without merit.

(3) Sub-decisions

Ultimately, the plaintiff is in the position of professor of ○ University established and operated by the defendant, and as long as the defendant is dissatisfied with this issue, the plaintiff has a benefit to seek confirmation, so the plaintiff's claim for this part is justified.

B. Determination as to the claim for unpaid benefits

As seen earlier, as long as the Plaintiff was in possession of the Plaintiff, who did not lose the teaching position of the ○○ University under the Defendant’s control, the Defendant is obligated to pay the unpaid benefits for a period of 21 months from March 20, 2010 to December 20, 201, which is the day following the date on which the Plaintiff had resigned from the president’s position, as the date on which the Plaintiff started not to pay the benefits to the Plaintiff.

Meanwhile, at the time of the Plaintiff’s resignation from the president’s position, the sum of the basic annual salary and the long-term continuous service allowances to be paid by the Plaintiff among the Plaintiff’s benefits is KRW 7,390,166 per month [ = KRW 7,280,166 per month + KRW 12 months, and KRW 110,00 per month of the long-term service allowances] as seen above. As such, the Defendant’s legitimate benefits to be paid to the Plaintiff during the period from March 20, 2010 to December 20, 2011 (i.e., KRW 15,193,486 (i.e., monthly, KRW 7,390,166) x 21 months).

Therefore, the defendant is obligated to pay KRW 155,193,486 to the plaintiff. Thus, this part of the plaintiff's claim is justified within the scope of the above recognition.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong-won (Presiding Judge)

1) Article 24(4) of the Public Educational Officials Act (current Article 7) newly established upon the amendment by Act No. 5207, Dec. 30, 1996 (amended by Act No. 5207) provides that “When a person who is employed as a faculty member at a university or college has completed his/her term of office under Article 28 subparag. 1, he/she shall be deemed to have been appointed as a faculty member immediately before he/she is appointed as the head of the university, notwithstanding Article 25, on the day following the end of the term of office of the head of the university.” In relation to the interpretation of the above provision, the Supreme Court held that “where a professor, etc. who is employed at the university or college at that time is appointed as a faculty member after maintaining his/her status and returning his/her position after his/her term of office expires, he/she shall not be deemed to have been appointed as the head of the university or college and shall not be deemed to have been appointed as the head of the university or college during the term of office.”