[1] Whether a private school teachers' disciplinary committee must necessarily hear a person's statement in consenting to disciplinary action against a teacher (negative)

[2] Validity of the articles of incorporation that is more favorable to teachers than the requirements for dismissal of teachers under Article 58 (1) of the Private School Act (effective)

[1] Where a person who is authorized to appoint and dismiss a private school teacher dismissess a private school teacher on the grounds under Article 58 (1) 2 of the Private School Act, he/she shall obtain the consent of the teachers' disciplinary committee under Article 62 of the same Act pursuant to Article 58 (2) of the same Act. In this case, the disciplinary committee does not have to hear the statements of the person himself/herself

[2] Where the articles of incorporation of a school juristic person does not immediately dismiss a teacher whose performance is extremely poor, but rather requires a waiting position for a period of not more than three months along with removal from position, and it is recognized that there is no improvement of his ability or improvement of his ability during that period, then it can be done with the consent of the disciplinary committee, which is more favorable to the teacher, and thus, it does not constitute a violation of the provisions on the guarantee of status under the Private School Act.

[1] Articles 58 and 62 of the Private School Act, Articles 8 and 20 of the Decree on Disciplinary Action against Public Educational Officials / [2] Article 58 of the Private School Act

[1] [2] Supreme Court Decision 95Da15766 delivered on July 25, 1995 / [1] Supreme Court Decision 71Da205 delivered on January 31, 1972 (No. 20-1, 5) Supreme Court Decision 92Da47533 delivered on April 12, 1994 (Gong194Sang, 1411)

Plaintiff (Attorney Kim Chang-soo et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Cho Dong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 94Na15785 delivered on May 12, 1995

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

1. We examine the grounds of appeal by the Plaintiff’s attorney.

A. As to the first ground for appeal

Where a person who is authorized to appoint and dismiss a private school teacher dismisss a private school teacher on the grounds under Article 58 (1) 2 of the Private School Act, he/she shall obtain the consent of the teachers' disciplinary committee under Article 62 of the same Act pursuant to Article 58 (2) of the same Act. In such cases, the disciplinary committee shall not hear the statements of the person himself/herself.

In the above purport, the court below is just in holding that the dismissal disposition of this case cannot be deemed unlawful even if the defendant corporate disciplinary committee notified the plaintiff to attend prior to the dismissal of the plaintiff and did not hear his statement, and the judgment below does not contain any error of law like the theory of lawsuit. The Supreme Court decision cited by the theory of lawsuit is not appropriate in this case.

B. Regarding ground of appeal No. 2

In order to guarantee the status of private school teachers, the Private School Act provides that in principle, a person who is subject to a waiting order may be dismissed from office only on the grounds prescribed by the sentence, disciplinary action, or the Private School Act (main sentence of Article 56 (1) of the Act); and that “when his service performance is extremely poor,” one of the grounds for dismissal (Article 58 (1) 2 of the Act). Meanwhile, according to the legal established by the court below, the articles of incorporation of the defendant corporation may choose not to assign a position to a person whose service performance is extremely poor (Article 39 (2) of the Act). For a person who is released from office, a waiting order may be dismissed from office with the consent of the relevant teachers’ disciplinary committee for a period of not more than three months (Article 39 (5) of the Act). Since the above articles of incorporation provides that a person who is subject to a waiting order may be dismissed from office for a period of not more than three months after the dismissal of his or her service performance immediately after the dismissal of his or her position.

In addition, according to the facts duly confirmed by the court below, since the plaintiff's work performance was extremely poor and the defendant corporation did not have any opening even after he received removal from his position and waiting order, it is justifiable to dismiss the plaintiff from office on the ground that there are grounds for dismissal under Article 39 (8) of the articles of incorporation.

Although the reasoning of the lower court’s reasoning is inappropriate, the lower court’s conclusion that the instant disposition of dismissal is legitimate is justifiable, and there are no grounds for all arguments.

C. Regarding ground of appeal No. 3

Upon examining the evidence relations with the court below's cooking, the fact-finding and judgment of the court below as to the point of points out of the theory of lawsuit are justified, and there is no error of law such as the theory of lawsuit in the court below. There is no reason for this issue.

2. 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 Shin Sung-sung (Presiding Justice)