With respect to a request for review of an appeal by a teacher of a private school who is subject to a decision of the Appeal Committee for Teachers and a disciplinary action, where the Appeal Committee for Teachers decides to revoke the disciplinary action on the ground that the cause for disciplinary action is not recognized in itself, and where it is determined that some of the causes for disciplinary action is recognized as a result of the examination

The decision of an appeals review committee for teachers (hereinafter referred to as the “committee”) has binding force on a disposition-taking agency, and this extends to the determination of specific grounds such as the recognition and determination of facts constituting the basis for the decision, as well as the determination of facts constituting the premise thereof. Therefore, if an administrative litigation is not instituted against the cancellation of a disciplinary action by citing a request for review of an appeal by a private school teacher, or if the decision of the committee becomes final and conclusive as it is in an administrative litigation instituted by a school juristic person, etc. against the same, only the order of the decision of the committee and the judgment on the grounds constituting the premise thereof shall belong to the disposition-taking agency, such as the school juristic person. Even if the decision of the committee was determined differently from the decision of the committee based on the reasoning of the decision, it cannot be binding even if a request for review was made by a private school teacher by a private school teacher and the Committee without examining whether the disciplinary action is legitimate. Accordingly, even if the decision of the school juristic person becomes invalid as the result of the deliberation in the administrative litigation procedure conducted by the school juristic person, etc. This conclusion is reasonable.

Articles 7(1), 9(1), and 10(2) and (3) of the Special Act on the Improvement of Teachers' Status; Article 16(2)2 and 3 of the Regulations on Petitions for Teachers; Article 27 of the Administrative Litigation Act / [General]

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-appellee-appellant-appellee-appellant-appellee-appellant-Appellee-

School Foundation Sejong Private Teaching Institutes (Law Firm Haelim, Attorneys Cho Gyeong-hwan et al., Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

Defendant Intervenor (Law Firm Cheongdam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu21760 decided May 2, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. Article 7(1) of the Special Act on the Improvement of Teachers' Status (hereinafter referred to as the "Act") provides that an appeals review committee (hereinafter referred to as the "committee") shall be established in order to examine appeals against disciplinary action against teachers of various levels of schools. Article 9(1) provides that "When a teacher is dissatisfied with a disciplinary action or other unfavorable measure against his/her will, he/she may file an appeal review with the Commission within 30 days from the date he/she becomes aware of such disciplinary action or other unfavorable measure," and Article 10(2) provides that "the Commission's decision shall bind the person in charge of the disposition," and Article 10(3) provides that "Any party, such as a teacher and a school juristic person under Article 2 of the Private School Act, may file a lawsuit against the decision of the Review Commission pursuant to paragraph (1) may be brought in accordance with the Administrative Litigation Act." In addition, Article 10(4) of the Act provides that a person in charge of the request for review shall be dismissed as well as the Commission's decision revocation or revocation of such action.

In full view of the above provisions, when a teacher of each level is subject to disciplinary action, an appeal review may be requested to the committee, and when the committee has rejected such request or changed a initial disciplinary action, the administrative litigation may be instituted again with the court. In addition, when the committee has made a disposition to accept a request for examination of teachers or to change a initial disciplinary action, the disposition authority may not appeal if the initial disciplinary action is against a teacher of a national or public school, but if it is against a teacher of a private school, the school juristic person, etc. may file an administrative lawsuit with the court

However, in light of the inherent nature of the administrative litigation such as a lawsuit of dissatisfaction against the disposition of an administrative agency, depending on whether the disciplinary action subject to examination by the Committee is against a teacher of a private school or a national or public school, the parties to the administrative litigation raised against the disposition of the Committee and the subject to examination and ex post facto procedures should

First of all, a disciplinary action against a teacher of a national or public school is an administrative disposition in itself, and even if an administrative litigation is filed after a request for review of an appeal is made to the Committee and a decision is made by the Committee, the object to be tried shall be subject to the original disciplinary action by the Superintendent of the Office of Education, etc.: Provided, That the object to be tried shall be limited to cases where there is a unique illegality such as an illegal cause in the Committee’s review procedure. Therefore, the defendant of the administrative litigation is not a party to a disposition that made the original disposition, except in exceptional cases as above. In addition, the court is not the legitimacy of the Committee’s decision, but rather a party to a disposition that made the original disposition becomes a party to a disposition that made the original disposition. As such, regardless of the conclusion of the Committee’s decision, it is subject to legitimate disposition in the original disposition, whether the disciplinary action is appropriate (if the Committee changes a disciplinary action based on the original disposition, it shall be deemed that the changed disposition is subject to the original disposition, and the subsequent procedure shall not be subject to the Committee’s decision, but be revoked.

On the other hand, in the case of disciplinary action against a private school teacher, a disciplinary action against a school juristic person is not an administrative disposition, and a decision made by the Committee according to a request for review of an appeal is an administrative disposition, and it is a structure of dispute over a decision made by a teacher, school juristic person, etc., which is subject to adjudication in administrative litigation, not an original disciplinary action against a school juristic person, etc., but a decision made by the Committee is an administrative agency, so the defendant also becomes an administrative agency, and even if a decision revoked a decision made by the Committee becomes final and conclusive, the Committee will re-examine the case,

On the other hand, the Commission's decision has binding force on the disposition agency as well as the matters included in the order of the decision, which is the premise thereof, and has impact on the determination of specific reasons such as the recognition and judgment of facts that constitute the premise (see Supreme Court Decision 2003Du7705, Dec. 9, 2005, etc.). Accordingly, if no administrative litigation is instituted against the cancellation of a disciplinary action by citing a request for review of an appeal by a private school teacher, or if a court dismisses a request for cancellation of a decision of the Commission in an administrative litigation instituted by a school juristic person, etc., and the decision of the Commission becomes final and conclusive, the Commission's decision shall belong to the disposition agency such as school juristic person, etc., and even if the decision was judged differently from the decision of the

Therefore, in a case where a private school teacher requests a review of a disciplinary action against a private school teacher, who received a request for a review of a disciplinary action, and the Committee made a decision to revoke a disciplinary action without examining whether the disciplinary action is legitimate on the ground that the disciplinary cause itself is not recognized, if it is determined that some of the grounds for disciplinary action are recognized as a result of a review in the administrative litigation procedure instituted by the school foundation, etc., the court should revoke the decision of the Committee. This is likewise true in a case where the decision of the Committee to revoke the disciplinary action is excessive in light of the criteria for disciplinary action, and thus, it is reasonable for the Committee to conclude that the decision of the Committee is reasonable. As such, the binding force of a final and conclusive judgment in an administrative litigation only belongs to the relevant administrative agency where the decision of the Committee is revoked, and the decision of the Committee becomes effective, and thus, the school foundation, etc., which is also deemed to be correct for the error of the Committee and the school foundation, etc.

2. According to the records, the defendant's defendant's defendant (hereinafter "the intervenor") revoked the request for the review of the appeal against the validity of the dismissal of this case on the ground that the grounds that all grounds for the dismissal of this case are not recognized. However, the court below held that the defendant's refusal to resolve the problem through a smooth conversation with the parents who filed a criminal complaint against "five students, etc.," among the grounds for the dismissal of this case, and spread it to the press, constitutes "when he injured his dignity as a teacher regardless of whether he is inside or outside of the job," as provided in Article 61 (1) 3 of the Private School Act. Further, the court below revoked the dismissal of this case on the ground that the defendant's dismissal of this case was not recognized in whole, even though some of the grounds for the dismissal of this case were recognized, and thus, it was unlawful, and further revoked the disposition of this case on the ground that the revocation of the disposition of this case becomes final and conclusive, the defendant should further examine whether the disciplinary action of this case should be determined in addition to this premise.

3. As a ground of appeal, the defendant first asserts that the act of criminal complaint against the "five students, etc." as stated in the judgment below should not be deemed to constitute injury to dignity as a disciplinary cause under the Private School Act in ethical aspect.

However, in light of the relevant legal principles and records, the judgment of the court below that the intervenor's above act constitutes grounds for disciplinary action is just and acceptable, and there are no errors in the misapprehension of legal principles as to the meaning of "damage to good" alleged in the grounds

4. In addition, if the purport of the judgment of the court below is that some grounds for disciplinary action are recognized, but the dismissal disposition is excessive, the court below should have dismissed the plaintiff's appeal against the judgment of the court of first instance which dismissed the plaintiff's claim, not the defendant's revocation of the disposition of this case, but the court below should have determined that the disciplinary action of this case was legitimate because part of the grounds for disciplinary action is excessive, which led to the defendant's revocation of the disposition of this case. However, the court below erred in the misapprehension of legal principles as to the binding force of the revocation judgment.

However, the above argument in the grounds of appeal cannot be accepted in light of the legal principles as seen earlier. Rather, as the judgment of the court below, the defendant revoked the plaintiff's disciplinary action on the ground that the whole grounds of appeal in this case are not recognized, and where the court revokes the defendant's disposition in this case on the ground that some of the grounds of appeal are recognized, the defendant should make a new judgment on the original request for a review of appeal, but if the judgment becomes final and conclusive, the defendant should make a new judgment on the ground that part of the grounds of appeal is recognized in accordance with the purport of the final and conclusive judgment, or make a change in the original or appropriate decision. The judgment of the court below is just in accordance with the above legal principles and there

5. All appeals are dismissed by the assent of all participating Justices, 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.

Justices Kim Chang-suk (Presiding Justice)