[1] The scope of the decision of inconsistency with the Constitution as to Article 53-2 (3) of the former Private School Act and the scope of the application of the amended provisions of the current Private School Act

[2] The case holding that Article 53-2 (3) of the former Private School Act, at the time of the decision of inconsistency with the Constitution, applies not to the former Private School Act, but to the current Private School Act, where the unconstitutionality is removed, since the decision of inconsistency with the Constitution becomes an issue as to whether the former Private School Act is unconstitutional or not and the court continues

[3] Whether there is a legal interest in seeking confirmation of invalidity against the person who has the right to appoint and dismiss a teacher of a private school, who has the right to apply for an examination for reappointment under Article 53-2 of the Private School Act, in cases where he/she has been decided or notified by the person who has the right

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999); Article 47 of the Constitutional Court Act / [2] Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 199); Article 47 of the Constitutional Court Act / [3] Article 53-2 of the Private School Act; Article 250 of the Civil Procedure Act

［1］［3］ 대법원 2006. 3. 9. 선고 2003다52647 판결 (공2006상, 569) ［1］ 헌법재판소 2003. 12. 18. 선고 2002헌바14, 32 전원재판부 결정 (헌공 제88호) 대법원 2002. 11. 8. 선고 2002다21882 판결 (공2003상, 29)

Plaintiff

Defendant School Foundation (Attorney Han Man-chul et al., Counsel for defendant-appellant)

Gwangju High Court Decision 2001Na2456 decided June 3, 2005

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

We examine the grounds of appeal.

1. Judgment on ground of appeal No. 1

A. As to the laws applicable to the instant case

(1) Article 53-2(3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997 and amended by Act No. 6004 of Aug. 31, 1999; hereinafter “former Private School Act”) provides that “A college teachers of a college educational institution may be appointed or dismissed for a specified period as prescribed by the articles of association of the relevant school juristic person.” The Constitutional Court rendered a decision of inconsistency with the Constitution as to the constitutional complaint on December 18, 2003, stating that “The permission for a fixed-term appointment by the legislative person is unconstitutional, but it cannot be deemed that the permission for the fixed-term appointment itself is unconstitutional, without any supplementary provision on grounds for refusal of reappointment of objective standards, opportunity to state teachers, prior notice of rejection of reappointment, procedure for objection, etc., is contrary to the principle of teacher legal status under Article 31(6) of the Constitution.”

Accordingly, the Private School Act was amended by Act No. 7352 on Jan. 27, 2005 (hereinafter referred to as the "current Private School Act") in line with the purport of the decision of inconsistency with the above decision of inconsistency with the Private School Act, and Article 53-2 of the current Private School Act shall provide for an examination of reappointment of a teacher at least seven months prior to the expiration of the term of appointment (paragraph (5)), stating that "the teacher of a college educational institution may be appointed under contract terms, such as period of service, salary, conditions of work, work, and performance agreements, as prescribed by the articles of association ( Paragraph (3))," and thus allow the fixed-term appointment of a teacher at a private school, but in relation to the reappointment of the teacher, the person who is authorized to appoint a teacher of a private university or college shall attend the relevant private school and notify the relevant teacher of the fact that he/she is entitled to request the examination of reappointment at least seven months prior to the expiration of the term of appointment, and the person who is authorized to appoint the teacher shall not state his/her opinion or notify in writing.

(2) As long as the Constitutional Court has decided to render a ruling of inconsistency with the Constitution as to any of the legal provisions and entrusts the legislative body with the discretion to form a legislative body with the duty to revise or abolish such legal provisions constitutionally, the legislative amendment and the scope of retroactive application shall, in principle, depend on the legislative discretion. However, considering the purport of the ruling of inconsistency with the Constitution as to the above legal provisions or the specific normative control in the adjudication of inconsistency with the Constitution as to the above legal provisions, at least the above cases become a ruling of inconsistency with the Constitution as to the above cases and the cases pending in the court as to which the first sentence of Article 53-2 (3) of the former Private School Act has become a controversial issue at the time of the above ruling of inconsistency with the Constitution as to the above cases, the above ruling of inconsistency with the Constitution as to the above cases shall affect the retroactive effect. Thus, even if the current Private School Act, which was amended pursuant to the above ruling of inconsistency with the Constitution as to these cases, it cannot be applied as it is, and the provisions of the current Private School Act to which the unconstitutionality has been removed.

According to the records and relevant Acts and subordinate statutes, the plaintiff was notified on February 28, 199 that he had worked for a fixed term of 1 year at (school name omitted) university operated by the defendant and that he had refused to be reappointed from the defendant on February 29, 200 at the same time (hereinafter “decision of refusal to be reappointed”). Since the plaintiff filed the lawsuit of this case by asserting that the decision of refusal to be reappointed was null and void on May 16, 200, the provisions of Article 53-2 of the former Private School Act, which were the basis for the decision of refusal to be reappointed, are disputed at the court of this case, and the provisions of Article 53-2 of the former Private School Act, which were amended by Act No. 604 on August 31, 199, which were enforced at the time of expiration of the plaintiff’s term of appointment, shall be deemed to have been unconstitutional, and the provisions of Article 53-2 of the former Private School Act, which were amended by Act No. 7352, Jan. 27, 200005.

B. As to the lawsuit of this case

Article 53-2 of the current Private School Act explicitly provides that the person who has the right to appoint and dismiss applies for review of reappointment, the right to apply for review of reappointment of the relevant teacher, the prior notification of the grounds for refusal of reappointment by the person who has the right to appoint and dismiss the relevant teacher, the deliberation of reappointment based on objective standards, the right to state opinion and submit in the procedures for review of reappointment of the relevant teacher, and the method of appeal against the refusal of reappointment. In light of the provisions of the current Private School Act, the teacher of the private school, the term of whose appointment has expired normally on a fixed-term basis, has the right to apply for review of reappointment (hereinafter referred to as the "right to apply for review of reappointment"), based on objective grounds prescribed by the school regulations, such as education of students, academic research, evaluation of matters concerning guidance of students, etc., which are the right to request reasonable and fair review of the person who has the right to appoint and dismiss, and thus, a decision or notification to the effect that the person who has the right to appoint and dismiss such private school affects legal relations as above.

According to the records, on February 28, 1999, the plaintiff worked for a private school (name omitted of school) operated by the defendant for a fixed period of one year, and at the same time the term of appointment expires on February 29, 200 and at the same time the defendant received a decision to refuse the reappointment of this case from the defendant, it is clear that the plaintiff filed the lawsuit in this case in order to seek confirmation of invalidity. In this case where the provisions of the current Private School Act are applied retroactively, in light of the above legal principles, the plaintiff whose term of employment expires normally has the right to apply for reappointment under the current Private School Act, and therefore, there is a legal interest to seek confirmation of invalidity on the decision to refuse reappointment of this case that affects the legal relations related thereto

Therefore, the court below is just to reject the defendant's defense of this case on the ground that the plaintiff has a legal interest in seeking nullification of the decision to refuse reappointment of this case, and there is no error in the misapprehension of legal principles as to the status of teacher of private school or the nature of the decision to refuse reappointment of this case, as alleged in

2. Judgment on ground of appeal No. 2

Examining the reasoning of the judgment below in light of records and relevant Acts and subordinate statutes, the court below determined that the decision to refuse reappointment was null and void on the ground of the defendant's arbitrary and subjective criteria, such as lack of qualification as a professor, failure to abide by the procedures for review of reappointment as provided by the current Private School Act, and failure to comply with the basic evaluation of academic research performance, student education, and student guidance evaluation of the performance evaluation of the Plaintiff's performance, and even if the Plaintiff was evaluated as re-appointed, the determination was made on the ground of the defendant's arbitrary and subjective criteria, such as lack of qualification as a professor, damage to a university's honor through a voluntary organization, damage to student inciting and face-to-face educational crisis, infringement of personnel rights, and threat of public conflicts. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the above decision to refuse reappointment and the retroactive application of the current Private School Act, misunderstanding of legal principles as

3. Conclusion

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

Justices Kim Young-ran (Presiding Justice)