[1] The legal nature of the measure of approving the change of a founder in a private university

[2] In a case where the establishment of a private university is changed to a public university, whether the status of employees of the private university is terminated automatically (affirmative), and whether the appointment of employees of the previous private university constitutes the discretionary act of the appointing authority (affirmative)

[3] In a case where the head of a local government who became a new founder following a change in the founder of a private school agreed to appoint the former employees, and the supervisory office also ordered the former employees to supplement the status guarantee of employees, the former employees have the right to request the appointment authority to appoint the local public officials as a local public official for cooking

[4] The case holding that if the head of a local government, who became a new founder due to a change in the founder of a private school, refuses to appoint some employees only on the basis of the results of the evaluation of the appointment examination committee without objective and reasonable criteria when determining whether to recommend the appointment of the former employees, it

[5] In a case where the head of a local government revokes an appointment refusal disposition against the previous employees in the process of establishing a private school, whether the head of a local government is recognized as intentional or negligent in performing his/her duties (negative)

[1] The Minister of Education's disposition of approving the change of a founder in a private university is not only a disposition of authorization in the sense of completing the legal effect by supplementing the change of a founder between the parties, but also includes the abolition of a private university and the establishment of a new public university.

[2] In a case where a private university is changed to a public university, the status of the staff of the private university is naturally terminated due to the change of the founder unless there is an act of establishing a new status that is the appointment of the public official by the appointing authority. In such a case, whether the appointing authority appoints the staff of the previous private university as the staff of the public university is ultimately subject to discretionary action based on the decision of the appointing

[3] In a case where the head of a local government who becomes a new founder due to a change in the establishment of a public university in a private university enters into an employment agreement with the former employees, and the supervisory authority also instructs the head of a local government or the supervisory authority to supplement the status guarantee of employees, in light of the status and duties of the head of a local government or the supervisory authority during the change of the establishment, the former employees of a private school have the right to apply to the appointing authority for appointment

[4] The case holding that a local government head who becomes a new founder due to a change in the founder of a public university in a private university is unlawful as a deviation from or abuse of discretion, if he/she refuses to appoint some employees only on the basis of the result of evaluating the appointment review committee without objective and reasonable criteria

[5] In principle, the act of appointing the former employees when the founder is changed to a public university at a private university, as a discretionary act by the appointing authority, is not an obligation to appoint the said employees to the head of the local government who newly established the private school, even if the right to request the appointment of the former employees of the private school is acknowledged. It is difficult to determine whether the public official is a right under the foregoing exceptional circumstances. In light of the fact that the status of the public official is a legal relation, and the public official is not a legal relation, and there is no provision on the procedure of appointment or the requirement of appointment, etc., if the new founder is changed to the relevant Acts and subordinate statutes such as the Education Act, it is difficult to deem that the local government head of the local government was negligent in performing his/her duties, even though the refusal to appoint the former employees has been cancelled as a result of deviation or abuse of discretionary power due to lack of objectivity or rationality of the procedure or criteria of the relevant disposition, by amending the relevant regulations in accordance with the agreement and the direction of the supervisory authority, and by preparing a reasonable procedure and conducting a special examination.

[1] Article 85 (1) and (3) of the former Education Act (amended by Act No. 5272 of Jan. 13, 1997), Article 1 of the Administrative Litigation Act [general administrative disposition], Articles 2, 4, 27, and / [2] Articles 11 (3) and 12 (1) 5 of the former Public Educational Officials Act (amended by Act No. 5207 of Dec. 30, 1996), Article 53-2 and / [3] Article 1 of the Administrative Litigation Act (amended by Act No. 5274 of Jan. 13, 1997), Article 27 of the former Public Educational Officials Act, Article 53-2 of the former Private School Act (amended by Act No. 5274 of Jan. 13, 199) / [1] Article 1 of the Administrative Litigation Act / [27, Article 27 of the former Public Educational Officials Act, Article 25 (1) of the Civil Act

[1] [1] [2] [3] [4]

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Doz., Counsel for plaintiff-appellant)

/ [1] [3] Supreme Court Decision 96Nu3654 delivered on April 25, 1997 (Gong1997Sang, 1634) and Supreme Court Decision 96Nu7151 delivered on April 25, 1997 (Gong197Sang, 1640)

/ [5] Supreme Court Decision 84Meu597 delivered on July 24, 1984 (Gong1984, 1434), Supreme Court Decision 94Da26141 delivered on November 8, 1994 (Gong1994Ha, 3244)

Gyeong-Gyeong and 23 others (Law Firm Shin, Attorneys Cho Young-min et al., Counsel for the plaintiff-appellant)

Incheon Metropolitan City (Law Firm Dong-dong Law Office, Attorneys Lee Jin-jin et al., Counsel for the defendant-appellant)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs the amount in the sum column of the attached Form No. 4 and the amount calculated by applying the rate of 5% per annum from October 1, 1997 to the date of this decision, and 20% per annum from the next day to the date of full payment, and shall pay to the plaintiffs private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, private interest, and private interest from October 1, 197

1. Basic facts

A. The employees working at the Incheon National Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the Institute of Education, the University of

B. On December 12, 1993, the board of directors of the National Institute of Private Teaching, which was established and operated by the National Institute of Private Teaching, decided to transfer all affiliated educational institutions including the Incheon National University and the Incheon National University (hereinafter “the schools”) established and operated by the National Institute of Private Teaching, to Incheon Metropolitan City (Seoul Special Metropolitan City at that time), and entered into an agreement on December 30, 1993 with the Incheon Metropolitan City Mayor and the founder of the school of this case for the establishment of the National Institute of Private Teaching Institutes, which changed from the National Institute of Private Teaching to the superintendent of the National Institute of Private Teaching Institutes. According to the agreement, the "agreement on the transfer of all levels of schools under the jurisdiction to establish the City Institute of Private Teaching Institutes, which is a school juristic person," which is a local public official, shall be appointed as a local public official within the prescribed number of employees within

C. Meanwhile, the Minister of Education, upon receipt of an application for change of the founder of a school from the National Institute of Private Teaching on December 30, 1993, issued an order to supplement the measures to secure the prescribed number of general employees, to promote the amendment of relevant statutes, and to provide relief measures for disqualifications, by ensuring that the Minister of Education should thoroughly ensure that there is no civil petition or water due to the publicization of schools at various levels, such as the Incheon National University, etc. on December 30, 1993. On January 15, 1994, the Minister changed the founder of the Incheon National University pursuant to Article 85 of the Education Act and appointed the Incheon National University as the person in charge of handling the general school affairs of the schools at issue on February 4 of the same year.

D. On February 14, 1994, the Mayor of Incheon Metropolitan City added public officials in extraordinary civil service in charge of educational administration affairs, exempted them from a written examination and exempted them from a written examination for appointment, and allowed them to conduct a special employment examination for the employment of the defendant personnel committee. The above personnel committee, while conducting an interview on February 25, 1994, had five members commissioned as examiners, in accordance with the method of conducting the interview, to exclude them from the final determination of the appointment of the plaintiff 15, excluding the plaintiff 15, excluding the plaintiff 15, 15, 17, 15, 15, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 5, 5, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 5, 1, 1, 1, 1, 5, 1.

E. Accordingly, the Seoul High Court filed a lawsuit seeking confirmation of invalidity or revocation of the above rejection disposition against the head of Incheon Metropolitan City as Seoul High Court Decision 94Gu37044. The Seoul High Court decided on April 18, 1996 that the schools of this case are changing from private schools to public schools and maintain its identity, thus maintaining its identity, so the head of Incheon Metropolitan City has the duty to appoint the Plaintiff employees as local public officials unless there are any legal problems. The elements of the personnel committee's evaluation can not escape from the subjective and arbitrary evaluation because there are no objective criteria, and it is not a nature that can be evaluated as a single-hour interview, and that the Plaintiff's response to the Plaintiff's employees on the questions presented in the interview or its evaluation was made without any record, and that the court below's decision to dismiss the Plaintiff's new rejection disposition or rejection disposition based on the aforementioned legal principles as to the employee's abuse of discretionary authority. In conclusion, it is justifiable for the court below to have dismissed the judgment below's appointment of the Plaintiff 10.

2. The plaintiffs' assertion

The defendant's refusal disposition violates the above agreement and the change of founders, thereby infringing the plaintiffs' right to live. The plaintiff's employees did not receive monthly benefits from March 1994 due to the defendant's tort, and received considerable mental impulses with the rest of the plaintiffs who are their spouses, so the defendant is liable to compensate for these damages.

3. Determination

(As seen in the above, it is judged that the Incheon Metropolitan City Mayor or the defendant is liable for employer's liability to reject the appointment of the plaintiff's employees.

A disposition to authorize the change of a founder in a private university is a disposition of authorization in the sense of completing the legal effect by supplementing the change of founder between the parties concerned, and also includes the abolition of a private university and the establishment of a new public university. As such, the status relationship of employees of a private university naturally terminates due to the change of founder unless there is an act of establishing a new status relationship, such as appointment of a public official by the appointing authority. In such a case, whether the appointing authority again appoints employees of the previous private university as employees of a public university belongs to discretionary action based on the decision of the appointing

However, in light of the above agreement of the Mayor of Incheon Metropolitan City, the above order of the Minister of Education, the status and duties in the process of changing their founders, etc., it is reasonable to deem that the Plaintiff employees have the right to apply for the appointment of local public officials for the appointment authority as a local public official on a cooking basis. Accordingly, the Mayor of Incheon Metropolitan City shall determine whether to appoint a local public official in accordance with objective and reasonable standards according to the appointment requirements and procedures prescribed by the relevant Acts and subordinate statutes. However, the rejection of the appointment of the Plaintiff employees solely based on the evaluation results of the aforementioned personnel committee without any objective evidence supporting detailed evaluation criteria or evaluation results

However, in principle, the appointment of public officials does not change to the appointment authority's discretionary act, and in the case of the plaintiff's employees, even if the right to apply for the appointment is acknowledged due to the above special circumstances, it does not necessarily mean that the Incheon Metropolitan City Mayor has the obligation to appoint the plaintiff employees. It is difficult for administrative officials to judge whether the above exceptionally recognized right exists. Unlike the private university employees, the employees of public universities are public officials in a public law relationship, and there is no provision on the duty to appoint the employees of the previous private universities or colleges, or on the procedure and requirement of the appointment. In light of the above, if the new founder is changed to the relevant laws and regulations such as the Education Act, the Private School Act, and the Local Public Officials Act, etc., the new founder is not required to impose the duty to appoint the employees of the previous private universities or colleges, or there is no provision on the procedure and reason of the appointment. However, even if the rejection of the appointment with the plaintiff's employees has been revoked because they deviate or abused from the discretionary power by the judgment later, the head of Incheon Metropolitan City has revised the relevant regulations in accordance with the above agreements and instructions and guidelines, and conducted special employment.

In addition, in light of the fact that the head of Incheon Metropolitan City does not necessarily have an obligation to appoint the plaintiff employees, and that there is only 15 persons whose appointment is refused, among 190 persons, there was no such illegal disposition, i.e., the decision whether to appoint them in accordance with objective and reasonable standards prescribed by the relevant statutes, and it is difficult for all of the plaintiff employees to be appointed in the same class as the plaintiff's employees, because the decision of rejection was revoked by the decision, and it does not have the same effect as the active disposition of appointment immediately after the decision of rejection was revoked (Therefore, the plaintiff's employees must seek the realization of prompt rights in accordance with the procedure of indirect compulsory performance, and the remaining employees except the plaintiff's seats have received considerable remedies in accordance with the procedure). It is difficult to see that the rejection disposition of this case causes damages as alleged by the plaintiffs.

Therefore, the plaintiffs' assertion based on the premise that tort is established against the defendant is without merit.

4. Conclusion

If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.

Justices Kim Jong-il (Presiding Justice) Kim Jong-chul