[1] Meaning of “when a private school juristic person is closed due to the opening or closing of a class or department” under the proviso of Article 56(1) of the Private School Act, and measures to be taken before the private school juristic person discontinues its department

[2] In a case where the dismissal of a private university is avoided or there is room for minimizing the dismissal of a teacher due to the removal from office due to the abolition of a class or department by a teacher from office on the ground that he/she was dismissed from office and department, whether a person subject to dismissal is subject to the reasonable and objective criteria for dismissal, and whether a teacher who does not have any particular defect as a result of the examination under the above criteria is subject to the restriction to determine the dismissal (affirmative), and whether a relief measure is required as much as possible (affirmative)

[1] The proviso of Article 56 (1) of the Private School Act refers to a case where a teacher’s position or fixed number of faculty members is lost due to the abolition of the establishment class or department or the reduction of organization through legitimate procedures for the revision of the school regulations.

In addition, “the abolition of the department” is permitted within the extent that does not practically infringe the right of learning of 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, a private school foundation may abolish the department only when there is no registered student by taking appropriate measures, such as criminal records, against all registered students, including students and temporary students, whose school register has been established in the department subject to the abolition prior to the abolition of the department.

[2] In light of Article 31(6) of the Constitution, Article 56(1) of the Private School Act, Article 43(2), Article 53(3), and Article 57(3) of the Educational Officials Act, Article 6(1) of the Special Act on the Improvement of Teachers’ Status, Article 70(1)3 and (3) of the State Public Officials Act, Article 62(1)3 and (3) of the Local Public Officials Act, etc., when a private university ex officio dismissal of a teacher on the ground that the private university’s abolition of class or department and its abolition of office or teaching staff members accordingly, as in the case of a national university, there is room to avoid or minimize the dismissal of a teacher due to the removal or transfer of a teacher from office to another private school under the Private School Act, Article 70(3) of the State Public Officials Act, Article 62(3) of the Local Public Officials Act, and Article 70(1) of the Local Public Officials Act requires reasonable and objective restrictions on the performance of duties and dismissal of a teacher.

[1] Article 56 (1) of the Private School Act / [2] Article 31 (6) of the Constitution of the Republic of Korea, Article 56 (1) of the Private School Act, Articles 43 (2), 53 (3), and 57 (3) of the Educational Officials Act, Article 6 (1) of the Special Act on the Improvement of Teachers' Status, Article 70 (1) 3 and (3) of the State Public Officials Act, Article 62 (1) 3 and (3) of the Local Public Officials Act, Article 62 (3) of the Local Public Officials Act

[1] Supreme Court Decision 2010Du5103 Decided June 24, 2010 (Gong2010Ha, 1460) / [2] Supreme Court Decision 2007Da66071 Decided March 13, 2008 (Gong2008Sang, 526)

Plaintiff 1 and two others (Attorneys Lee Jong-hee et al., Counsel for the plaintiff-appellant)

School Foundation ○ Private Teaching Institutes (Law Firm Squa, Attorneys Gyeong-soo et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2014Na3114 decided February 4, 2015

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the interpretation of the abolition of the department

A. Article 56(1) of the Private School Act provides that “No teacher of a private school shall be subject to disadvantageous 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 this shall not apply where he/she is in office or in excess of his/her class or department due to the abolition

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

B. For the reasons indicated in its reasoning, the lower court determined that the dismissal against Plaintiff 3 on the premise that the department of environmental health was abolished at the time of the dismissal of ○ University as indicated in the proviso of Article 56(1) of the Private School Act and the proviso of Article 86(1) of the Defendant’s Articles of Incorporation, based on the premise of ex officio dismissal of her faculty members, is reasonable, and that the dismissal of this case on the premise that the department of environmental health was abolished at the time of the dismissal of her faculty members, as well as the number of enrolled students becomes zero (0) through lawful procedures for amendment of school regulations, is invalid.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is consistent with the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interpretation of “the abolition of department” as stipulated in the proviso of Article 56(1) of the Private School Act

2. As to the remaining grounds of appeal

A. In full view of Article 31(6) of the Constitution, Article 56(1) of the Private School Act, Article 43(2), Article 53(3), and Article 57(3) of the Educational Officials Act, Article 6(1) of the Special Act on the Improvement of Teachers’ Status, Article 70(1)3 and (3) of the State Public Officials Act, Article 62(1)3 and (3) of the Local Public Officials Act, etc., when a private university ex officio dismissal of a teacher on the ground that the private university’s abolition of class and department and the abolition of teaching staff, etc., as in the case of a national university, is likely to avoid or minimize the dismissal of a teacher due to the removal or transfer of a teacher from office to another private school of the school foundation or another private school of the relevant private university, as in the case of a national university, it is necessary to determine whether to impose reasonable and objective restrictions, such as the type of appointment, performance of duties, capacity to take disciplinary action, etc.

In addition, the court determines whether the assertion of facts is true in accordance with logical and empirical rules on the basis of the ideology of social justice and equity with free evaluation of evidence taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court of final appeal that the court below did not go beyond the bounds of the free evaluation of evidence (Article 432 of the same Act).

Meanwhile, the reasoning of a written judgment is sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the parties or all means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s allegations is indicated in a written judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment, even if the specific and direct judgment on a party’s allegations are not indicated in the written judgment, and even if it is obvious that the assertion would be rejected even if it was not actually determined, it cannot be said that there was an error of omission of judgment since it has no influence on the outcome of the judgment (see, e.g., Supreme Court Decisions 2006Da218, Jul. 10, 2008;

B. For the reasons indicated in its holding, the lower court determined that: (a) (i) the Defendant did not provide the Plaintiffs with an opportunity for retraining of other major departments without giving them an opportunity for retraininging or re-educateing them; (b) by the faculty ratio of other departments, it does not depend on the Plaintiffs’ relocation of other departments; (c) it does not have any academic relationship between the Plaintiffs’ major and academic activities and the departments wishing to rearrange the Plaintiffs; (iv) the Defendant was in charge of lectures to the departments wishing to rearrange the Plaintiffs by employing a large number of new faculty members or utilizing part-time instructors after the closure of the instant case; and (v) there is no objective and reasonable difference between the previous professors and the Plaintiffs subject to the removal of the instant case without the consent of other departments, and merely refer to the matters with the other departments that are not a reason for refusing the reorganization of the Plaintiffs; and (ii) the Defendant did not have any objective and reasonable ground for dismissing the Plaintiffs from office without any specific dismissal of the Plaintiffs by means of re-routing other departments within the ○○ University.

C. The allegation in the grounds of appeal in this part is purporting to dispute the fact-finding that led to the judgment of the court of fact-finding, and it cannot be accepted merely because it is erroneous for the selection of evidence and the judgment on the value of evidence belonging to the free evaluation of the court of fact-finding. In addition, considering the reasoning of the judgment below in light of the evidence duly admitted, the above judgment of the court below is deemed based on the legal principles as seen earlier, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the expertise of universities, reorganization of teachers due to abolition of department, dismissal of private school teachers

3. Conclusion

Therefore, all appeals are 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 So-young (Presiding Justice)