2012Guhap5696 Nullification of amendments to school regulations

A person shall be appointed.

Law Firm A, et al.

[Defendant-Appellee]

Busan National University President

Law Firm B, et al.

[Defendant-Appellant]

April 19, 2013

May 24, 2013

1. All of the plaintiff's claims are dismissed.

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

In the first place, Article 10(2) of the Regulations of the Busan National University, amended by the Defendant on August 24, 2012, was newly established.

Dispositions and measures taken to delete Article 30(4)2 of the Regulations of Busan National University prior to its amendment are invalid.

each of the above dispositions shall be revoked as preliminary.

1. Basic facts

A. The Plaintiff is the professor of Busan University, a national university, the Chairperson of the Teaching Council.

B. From June 21, 2012 to June 28, 2012, the Busan National University’s professor’s association held a vote on the method of selecting candidates from among “the retention and improvement of the straight line system” and “the exclusion of direct and indirect elections”. As a result, the voting rate was 87.6% and the opinion on retention and improvement of the straight line was 58.4.0%.

C. The contents pertaining to the instant case among the school regulations of the Busan National University, which was amended on August 2, 2012, are as follows. Article 10 (President) takes charge of the faculty affairs, supervises faculty members under his/her jurisdiction, guide students, and represent the principal school. (4) The faculty council shall deliberate and decide on the following matters; (2) the method and procedure agreed upon by the faculty members under Article 24(3)2 of the Public Educational Officials Act; and (3) other matters regarding the operation of the faculty council; and (4) the Defendant, on July 27, 2012, announced the amendment of the school regulations of the Busan National University to submit their opinions thereon by August 9, 2012; and (2) the amendment of the school regulations shall be selected from the president recommendation committee; and (3) the amendment shall be further prescribed by Article 30(2)2 of the Public Educational Officials Act and shall be deleted.

E. After deliberation on a draft of the amended school regulations on August 17, 2012, the board of trustees, including five members of the faculty council, five representatives of the staff, five members of the faculty council of Busan National University, and three representatives of students, it was rejected on the ground that the draft of the amended school regulations reflects the result of the total voting of professors, and that it was an anti- democratic matter that disregards the total number of professors, and that it did not go through the procedures for deliberation and resolution of the faculty council as stipulated in Article 30(4)2 of the school regulations prior to the amendment.

F. Moreover, on August 23, 2012, the professor Association of Busan National University held a meeting to deliberate on the amendment of the school regulations, and rejected the amendment of the school regulations on the ground that it violated the procedures stipulated in Article 24(3)2 of the Educational Officials Act and Article 30(4)2 of the school regulations prior to the amendment.

G. On the other hand, 73.8% approved on the abolition of the presidential election system in the employee council voting implemented between June 27, 2012 and June 28, 2012.

H. On August 21, 2012, the Defendant, following deliberation by the Board of Governors on the draft amended school regulations, on August 24, 2012.

The Regulations of the Busan National University promulgated some amendments to the Regulations (hereinafter referred to as the "Amendments to the Regulations of the Republic of Korea").

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 10 through 13, 15, Gap evidence 9 and 16 respectively, and Gap evidence 1, 2, Eul evidence 1, 2, 4, Eul evidence 5-1 and 2

2. The assertion and judgment

A. The plaintiff's ground of appeal 1) The main ground of appeal

According to the amendment of the school regulations of this case, the selection method of the candidate for the president of Busan University has been changed from the direct selection method to the selection method of the president appointment recommendation committee. The amendment of the school regulations of this case is null and void since the following errors were committed, and the defects are significant and apparent.

Article 30 (4) 2 of the School Regulations before the amendment provides that "the methods and procedures agreed upon by the faculty members on the election of candidates for the president" shall be the matters to be deliberated and resolved by the faculty members of Eul, and the amendment of the Regulations after deliberation by the Busan National University University, despite the rejection of the amendment, the Defendant's promulgation of the amended Regulations violates Article 30 (4) 2 of the Regulations before the amendment, and "private provisions on the enactment, amendment, and amendment of the Regulations and all regulations" under Article 36 (2) 2 of the Regulations of the Busan National University Association, although the amendment of the school regulations in this case without deliberation and resolution by the faculty members of the Teaching Council, it is unlawful that the amendment of the Regulations in this case was in violation of the procedures prescribed by the Regulations prior to the amendment and the Regulations of the Teaching Council.

B) The assertion of deviation and abuse of discretionary power

The amendment of the school regulations of this case infringed on the right to independent decision on the academic affairs of the faculty council against the total voting result of the professors of Busan University. The amendment infringed on the Plaintiff’s right to vote on the election of president candidates and the nature of the right to vote and abused discretion.

2) Preliminary Claim

Even if the above illegal grounds are not grounds for invalidation, the amendment of the school regulations of this case should be revoked as they constitute grounds for revocation.

B. Relevant provisions

As shown in the relevant provisions of the attached Table.

C. Determination

1) Whether the procedure is unlawful in the determination of the primary cause of action (i) the amendment of school regulations; and

Article 6 (1) of the Higher Education Act provides that "the head of a school may establish or amend school regulations within the scope of Acts and subordinate statutes", "Article 6 (2) provides that "the matters to be stated in school regulations, procedures for the enactment and amendment thereof, and other necessary matters" shall be prescribed by Presidential Decree, "Article 4 (1) 14 and 16 of the Enforcement Decree of the Higher Education Act," "the procedures for amendment of school regulations," "where the board of trustees and a faculty council exist, matters related thereto" shall be stated in school regulations." Article 6 (3) of the Higher Education Act provides that "When the head of a school intends to enact or amend school regulations pursuant to Article 6 (1) of the Higher Education Act, he/she shall undergo procedures for prior public announcement, deliberation, and promulgation of a draft establishment or amendment as determined by school regulations."

Accordingly, Article 11 (4) 2 of the School Regulations of Busan National University provides that "the matters subject to deliberation by the school regulations and regulations," and Article 85 provides that "the amendment of the school regulations shall be proposed by the president for at least 14 days from the date of the proposal of the amendment of the school regulations," and "the president of each department may submit his/her opinion in writing on the amendment of the school regulations as notified," and "the amendment of the school regulations shall be confirmed and promulgated by the president after deliberation by the school regulations committee (paragraph 4)," and "the amendment of the school regulations shall be made by the president after deliberation by the school regulations committee." According to all the provisions of the above Higher Education Act, the Enforcement Decree thereof, the Enforcement Decree thereof, and the school regulations, the procedures for the amendment shall be made through the defendant's proposal, public notice of the amendment for at least 14 days, deliberation by the school regulations committee, and the defendant's promulgation.

Meanwhile, the main sentence of Article 24(1) of the former Public Educational Officials Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) provides that "the head of a university shall be appointed by the President at the recommendation of the Minister of Education, Science and Technology upon the recommendation of the relevant university." Paragraph (2) of the same Article provides that "In order to recommend the appointment of the head of a university under the main sentence of paragraph (1), a university appointment recommendation committee (hereinafter referred to as "Recommendation Committee") shall be established at the university in any of the following methods, as prescribed by the relevant university." Paragraph (3) of the same Article provides that "the recommendation committee shall select candidates for the head of the relevant university in accordance with the methods and procedures agreed upon by the relevant university teachers; 2. According to the above provision, "the method of selecting candidates for the president of a national university" shall be "the method of selecting candidates for the head of the relevant university and the method of appointing associate professor," i.e., the so-called selection method and method of appointment of professors.

Article 24 (3) 1 and 2 of the former Public Educational Officials Act provides for the method of election of president candidates by the method of selection and straight selection, and Article 30 (4) 2 of the former Public Educational Officials Act provides for the method and procedure agreed upon by the faculty members referred to in Article 24 (3) 2 of the Public Educational Officials Act and the method and procedure for deliberation and resolution by the faculty council. However, the above school regulations provide for the detailed method and procedure for the election of president candidates by the method of straight selection, and it cannot be deemed that the matters to be deliberated and resolved by the faculty council, on the premise that the president is elected by the method of straight selection.

(3) Whether Article 36 (2) 2 of the Regulations of the Busan National University Professors Association is violated

Article 36 (2) 2 of the Regulations of the Busan National University provides that "the matters concerning the enactment, amendment, and repeal of the regulations and all regulations shall be decided by the deliberation and resolution of the faculty of Eul," but Article 30 (4) of the Regulations prior to the amendment shall be decided by the deliberation and resolution of the faculty of Eul. However, Article 30 (4) of the Regulations prior to the amendment provides that ① the enactment and amendment of the regulations of the faculty council shall be decided by the deliberation and resolution of the faculty council, ② the methods and procedures for the agreement of the faculty members under Article 24 (3) 2 of the Public Educational Officials Act, ③ other matters concerning the operation of the faculty council, and not the amendment of the regulations shall be decided by the regulations. Thus, even if the regulations of the faculty council stipulate any matters that are not enacted by the regulations as their own deliberation and resolution, it shall not take precedence over the school regulations. Thus, even if the amendment of the regulations of this case did not go through the deliberation and resolution of the faculty council, it cannot be said that

Therefore, the amendment of school regulations is made by the president’s proposal, public announcement for at least 14 days, deliberation of the school affairs council, and the promulgation of the president, and it is not necessary to separately deliberate and resolve on the contents of the amendment, and it is also the same. However, the fact that the Defendant promulgated the amended school regulations following the deliberation by the school affairs council after the Defendant’s proposal of the amendment of the school regulations at least 14 days is as seen earlier, since the amendment of the school regulations in this case is lawful in accordance with all the provisions of the Higher Education Act, the Enforcement Decree thereof, and the school regulations, and the contrary premise, this part of the Plaintiff’s assertion is without merit.

B) Whether the discretionary authority is deviates or abused or not

Article 12-3 (1) of the Decree on the Appointment of Public Educational Officials shall be comprised of not less than 10 but not more than 50 members from among the faculty members, students, and other persons than the relevant university, as prescribed by the relevant university. Article 12-3 (2) of the Act shall be comprised of not less than 10 but not more than 50 members, and outside members shall be not less than 1/4 of all members. Article 12-3 (6) of the Decree on the Selection of Candidates for the Busan National University shall be prescribed by the head of the relevant university. Accordingly, Article 2 of the Regulations on the Selection of Candidates for the Busan National University shall be established (hereinafter referred to as the "Committee") pursuant to Article 24 (3) of the Public Educational Officials Act (hereinafter referred to as the "Committee"), the Committee shall be comprised of not less than 30 but not more than 50 members, the Committee shall be comprised of professors or associate professors of the Busan National University, the president shall request the president of the University to recommend members of the Committee by not later than 210 days before the expiration date.

According to the above provisions, even if the method of selecting candidates by the president recommendation committee, rather than a direct election system, is adopted, so long as the president representing professors, such as the Plaintiff, recommends members of the president recommendation committee and demands the president to replace members in certain cases, the Plaintiff appears to have an institutional system that sufficiently reflects the intent of professors, such as the Plaintiff, in the selection of candidates for the president, so it cannot be deemed that the autonomy of professors is essentially infringed. Since there is no restriction on the qualification of candidates for the president, the Plaintiff cannot be deemed to have violated the basic contents of the election that the Plaintiff may be elected as candidates in the president recommendation committee, since there is no restriction on the qualification of candidates for the president, it is difficult to view that the basic contents of the election that the Plaintiff may be elected as candidates for the president, compared to the direct election system, has infringed

2) Determination on the conjunctive cause

The grounds for the instant conjunctive claim are identical to the illegality of the procedure, which is the cause of the primary claim, and the deviation and abuse of discretionary authority, even if it does not constitute grounds for invalidation, it is evident by the Plaintiff itself. As seen earlier, the Plaintiff’s assertion is not recognized. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, all of the plaintiff's main and ancillary claims are dismissed, and it is so decided as per Disposition.

Judge Park Jong-chul, Counsel for the judge

Judge Doo

Judges Senior Superintendent and Senior Superintendent

A person shall be appointed.