The meaning of "when a private school juristic person is closed or has become a staff member due to the opening or closing of classes or departments" as prescribed in the proviso of Article 56 (1) of the Private School Act and where a private school juristic person may abolish departments.

Article 56 (1) of the Private School Act

Supreme Court Decision 2010Du5103 Decided June 24, 2010 (Gong2010Ha, 1460)

A Institute of Education (Attorney Choi Jong-soo, Counsel for defendant-appellant)

Teachers' Appeals Review Committee (Law Firm Korea, Attorneys Choi Woo et al., Counsel for the plaintiff-appellant)

Intervenor joining the Defendant

Seoul High Court Decision 2014Nu41826 decided July 25, 2014

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. Article 56 (1) of the Private School Act provides that “No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will, unless he/she is sentenced to a punishment or disciplinary action or on any other ground prescribed by this Act: Provided, That the same shall not apply where he/she is in office or in excess of his/her class or department due

In the proviso of Article 56(1) of the Private School Act, the term “when a teacher is closed due to the abolition of a class or department or the abolition of a department” means a case where a teacher’s position or fixed number of staff under his/her control is lost due to the abolition of a class or department or the reduction of organization through lawful procedures for the amendment of school regulations (see Supreme Court Decision 2010Du5103, Jun. 24, 2010, etc.).

In addition, “the abolition of the department” should be permitted within the extent that does not practically infringe the right of learning of the students. Thus, barring special circumstances, such as where reasonable measures are taken to protect the right of learning and the right of learning is not practically infringed, it is reasonable to view that a private school foundation may abolish the department only when it takes appropriate measures, such as criminal records, against all registered students, including students and temporary students, whose school register is established in the department subject to the abolition before the abolition of the department, and takes appropriate measures, such as the abolition

2. After recognizing the facts as stated in its holding, the lower court determined that: (a) it is reasonable to interpret that: (b) the abolition (a) of the department as stipulated in the proviso of Article 56(1) of the Private School Act, etc., based on the premise of ex officio dismissal of a teacher, refers to the case where not only the number of enrolled students but also the number of enrolled students becomes zero (0) through lawful procedures for amendment of the school regulations; (c) there are 24 incumbent students at the ○ University △△△△△△△△ branch at the time of the instant dismissal as stated in the lower judgment; and (d) the Plaintiff’s assertion alone does not practically infringe upon his right to study; and thus, (c) in the case of the △△△△ branch, the instant dismissal disposition against the Defendant Intervenor was unlawful on the premise that it was closed with △△△ branch.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of “abolation of department” under the proviso of

3. 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 on the bench.

Justices Kim Chang-suk (Presiding Justice)