2016 Doz. 10695 Disposition of Exclusion of Persons to be Paid Honorable Retirement Allowances

A

Attorney Lee In-bok, Counsel for the defendant-appellant

Gwangju Metropolitan City superintendent of education

Law Firm 000

Attorney 000

Litigation Performers;

July 21, 2016

August 18, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 29, 2016, the Defendant revoked the disposition to exclude the Plaintiff from the honorary retirement allowances payable to the Plaintiff.

1. Basic facts

A. On September 12, 1988, the Plaintiff was appointed as a teacher at a Female High School, and served as a teacher at a female middle school from March 1, 1993 to March 1, 2016, and a school juristic person (hereinafter referred to as “CA”) is a juristic person that operates a female self-governing school and a female middle school.

B. On November 6, 2015, the Defendant published an implementation plan for voluntary retirement of teachers of private schools as of the end of February 2016 (hereinafter “instant public announcement”). The main contents are as follows.

1. A person eligible for voluntary retirement 1. A teacher of a private school who is eligible for voluntary retirement 20 years or more under the Pension for Private School Teachers and Staff Act as of February 29, 2016, and a person who remains after the date of voluntary retirement 1 year or more of his/her wishes to retire by himself/herself; 2. A person who falls under any of the following subparagraphs specified in Article 3(3) of the Regulations on Payment of State public officials, voluntary retirement allowances, etc. (amended by Presidential Decree No. 25751, Nov. 19, 204) as of the date the period of application for the payment of allowances to be excluded from voluntary retirement 3. A person who intends to be paid the voluntary retirement allowances 1. The procedure of application for voluntary retirement 1. the procedure of application for voluntary retirement 3. The head of a school under his/her jurisdiction shall examine documents and submit them to the Superintendent of an Office of Education;

The superintendent of the Office of Education shall, upon receiving an application from the head of the corporate director, determine persons eligible for voluntary retirement allowances within budgetary limits pursuant to Article 60-3 of the Private School Act, Article 7 (2) of the Regulations on Payment of State Public Officials, honorary retirement allowances, etc., and Article 5 of the Special Provisions on the Payment of Voluntary Retirement Allowances of Public Educational Officials.

C. On November 24, 2015, the Plaintiff submitted an application for the payment of honorary retirement allowances via the B/L middle school principal to express his/her intent to voluntarily retire.

D. On January 29, 2016, the Defendant notified the CResearch Institute of Korea of one person other than the Plaintiff as an honorary retirement recipient at the end of February, 2016, thereby taking a disposition to exclude the Plaintiff from the honorary retirement allowances (hereinafter “instant disposition”).

E. On February 12, 2016, the Plaintiff retired from office by filing a resignation report with CAD and was dismissed from office as a member.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 2 and 3

(including), the purpose of the whole pleading;

2. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

The Plaintiff, who is a teacher of a private school, was excluded from a person eligible for voluntary retirement, is only a matter with the CAD, and the Defendant cannot be deemed to have issued a disposition against the Plaintiff. In addition, the Plaintiff, on February 12, 2016, retired from office as a member of the Council by submitting a resignation to the CADD and retired from office as a member of the Council.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Even if a third party, who is not the other party to an administrative disposition, is not the direct party, a revocation lawsuit shall be instituted in cases where the interests protected by the law are infringed by the pertinent administrative disposition, and the legal interests here refer to the direct and specific interests protected by the law based on the relevant administrative disposition, and the interests in this context refer to the direct and specific interests protected by the law based on the relevant administrative disposition, and where a third party has an indirect or factual and economic interest in the pertinent administrative disposition (see Supreme Court Decision 2012Du19496, Jul. 23, 2015).

2) In light of the above legal principles, if we agree with the following circumstances that are acknowledged by comprehensively considering the facts as seen earlier, Gap evidence Nos. 3 and Eul evidence No. 1’s overall purport of pleadings, the other party to the disposition of this case constitutes a third party, not the other party to the disposition of this case, and it is difficult to view the plaintiff as a private teaching institute that there is a direct and specific interest pursuant to the relevant laws and regulations and regulations, and therefore, the lawsuit of this case is unlawful since there is no legal interest to seek the revocation of the disposition of this case to the plaintiff.

A) According to Articles 53-2 and 58 of the Private School Act, the right to appoint and dismiss private school teachers is against a school foundation that establishes and operates the relevant school. Therefore, the Plaintiff’s employer who is a private school teacher is the CK.

In addition, Article 60-3 of the Private School Act provides that "where a person who has served as a private school teacher for not less than 20 years voluntarily retires before a specified year, an honorary retirement allowance may be paid within the scope of the budget, and the amount to be paid, the procedure for payment of honorary retirement allowances, and other necessary matters shall be determined by the articles of association." Accordingly, Article 41-2 of the CGG’s articles of association provides that "where a person who has served for not less than 20 years as a teacher voluntarily retires before he/she set the retirement age for public educational officials under Article 47 of the Public Educational Officials Act, he/she may be paid honorary retirement allowances within the scope of the budget, and Article 41-2 of the CGG’s articles of association shall apply mutatis mutandis to the payment of honorary retirement allowances and the payment of honorary retirement allowances to a person who is entitled to receive honorary retirement allowances, and the person who has the right to appoint

B) The instant disposition is based on the public notice, etc. of Articles 43 and 60-3 of the Private School Act, and this is based on which the State or a local government grants subsidies to the pertinent school juristic person that receives financial deficiencies for the promotion and fostering of private school education, and if the school juristic person examines and submits to the Superintendent of the Provincial Office of Education, the superintendent of the Provincial Office of Education determines the eligibility for a person subject to the application for the voluntary retirement within the scope of the budget and notifies the relevant school of the determination of a person subject to the voluntary retirement allowance.

According to this, if a school juristic person, after examining eligibility for voluntary retirement, submitted to the defendant, the defendant is entitled to receive voluntary retirement allowances within the scope of the budget, and the defendant is entitled to receive voluntary retirement allowances, and the CJ is a structure that directly pays voluntary retirement allowances to the relevant teacher, and the CJ is a CJ., which is the direct party to the instant disposition and finally decided whether to pay honorary retirement allowances to the plaintiff. ② Article 43 of the Private School Act and the public notice of this case provide the legal relationship between the defendant and the relevant school juristic person, who is the recipient of subsidies, and ③ Article 60-3 of the Private School Act and the Articles of incorporation of CJ provide that the person who is entitled to receive voluntary retirement allowances should be for the promotion and fostering of private school education, ③ the person who is entitled to receive voluntary retirement allowances is also the person who is entitled to receive the voluntary retirement allowances. Thus, it is difficult to view that the defendant's determination of eligibility for the voluntary retirement allowances by the instant disposition is included in the purpose of protecting individual, direct, and economic interests of private school teachers.

C) In addition, on February 12, 2016, the Plaintiff submitted to C&A and retired from office upon dismissal from office. There is no special circumstance to deem that the Plaintiff’s legal interest continues to exist due to the instant disposition.

3. Conclusion

Since the lawsuit of this case is unlawful, it is decided to dismiss it and it is so decided as per Disposition.

Park Gi-ro (Presiding Judge)

Kim Jong-si

Withdrawal of Designation

Site of separate sheet

Related Acts and subordinate statutes

/ Private School Act

Article 43 (Support)

(1) If it is deemed necessary to promote education, the State or a local government may grant subsidies to school juristic persons or private school support organizations which have applied for subsidies or give other support to support for the education of private schools as prescribed by Presidential Decree or Municipal Ordinance of the local government concerned.

(2) The competent agency shall have the authority as provided in the following subparagraphs over the school juristic persons or private school support organizations which receive the support under paragraph (1) or Article 35 (3):

1. If it is necessary for rendering support, the state of affairs or accounting of such affairs from such school juristic persons or private school support organizations; and

receipt of a report with respect to such

2. If the budget of the school juristic person or the private school support organization concerned is recognized as improper in view of the purpose of support, it shall be recognized.

To recommend necessary modifications to the budget;

(3) If the State or a local government has supported a school juristic person or private school support organization in accordance with paragraph (1) or Article 35 (3) and if the support has produced little tangible result and it is recognized as improper to continue such support or the school juristic person or private school support organization concerned does not follow the action taken by the competent agency under paragraph (2), the State or the local government may suspend the support thereafter.

Article 53-2 (Appointment of Teachers Other Than Heads of Schools)

(1) School teachers of various levels of schools shall be appointed by the school juristic person or manager of private school concerned who falls under any of the following subparagraphs:

2. The appointment of a teacher of a private school established and operated by a private school manager shall be made upon the recommendation of the head of the school concerned;

Article 58 (Reasons for Dismissal from Office)

(1) If a teacher of a private school falls under any of the following subparagraphs, the person authorized to appoint the teacher concerned may dismiss him:

(1) Where a private school teacher who has served for not less than 20 years voluntarily retires before his retirement age, honorary retirement allowances may be paid within the limit of the budget.

(2) The scope, amount and payment procedure of honorary retirement allowances under paragraph (1) and other necessary matters shall be determined by the articles of association.

【Public Educational Officials Act

Article 36 (Honorable Retirement)

(1) Where a person who has served for at least 20 years as a public educational official retires voluntarily before his/her retirement age, he/she may be paid an advance retirement allowance within budgetary limits.

(3) The scope, amount and payment procedure of honorary retirement allowances under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.

Article 47 (Retirement Age)

(1) The retirement age of public educational officials shall be 62: Provided, That the retirement age of public educational officials who are a teacher under Article 14 of the Higher Education Act shall be 65.

【Rules on Payment of State public officials and honorary retirement allowances

Article 7 (Determination of Payment of Honorable Retirement Allowances)

(1) Upon receipt of an application for the payment of honorary retirement allowances pursuant to Article 6, the head of a central administrative agency shall determine persons eligible for honorary retirement allowances in consideration of the estimated amount, etc. within ten days after the application period (referring to the date of application where an application for honorary retirement allowances is filed pursuant to Article 6 (2); hereafter the same shall apply in this Chapter) expires

【Special Cases on the Payment of Honorable Retirement Allowances for Public Educational Officials

Article 5 (Determination of Persons Eligible for Payment of Allowances)

(1) When the superintendent of the Office of Education receives an application under Article 4, he/she shall determine persons eligible for allowances within budgetary limits.

(2) When determining a person to be paid allowances under paragraph (1), it shall undergo an examination by the personnel committee under Article 24 of the Personnel Management Regulations for Public Educational Officials.

(3) In examining persons eligible for allowances referred to in paragraphs (1) and (2), the senior teacher referred to in Article 9-4 of the Decree on the Appointment of Educational Officials shall be first considered.