A. The purport of Article 65(1) of the Private School Act concerning guarantee of right to state in a disciplinary procedure against a private school teacher;

B. In preparation for the teacher's failure to participate in the first and second disciplinary committee in the disciplinary procedure referred to in paragraph (a) above, whether the measure at issue is appropriate for each of the notice of attendance at the same time (affirmative)

C. Whether Article 6(3) of the Decree on Punishment of Public Educational Officials applies mutatis mutandis to the disciplinary procedure referred to in paragraph (1)(negative)

A. Article 65(1) of the Private School Act provides that “The teachers’ disciplinary committee shall investigate the truth in the deliberation of a disciplinary case, and hear statements from the person in question before the disciplinary decision is made: Provided, That this shall not apply in cases where summons is not made two or more times in writing.” The purport of the provision is to ensure that the teachers subject to disciplinary action shall be given the opportunity to attend the disciplinary committee to vindicate for the suspected facts of the disciplinary action and make statements beneficial to themselves in the disciplinary proceedings against the teachers of private schools, but it shall be interpreted that the teachers subject to disciplinary action shall be deemed to have waived their right to make statements and that the disciplinary decision may be made without the hearing of statements if the teachers subject to disciplinary action have failed to comply

B. In order to guarantee the right to make a statement under Paragraph A above to a teacher subject to disciplinary action, it is sufficient to give two or more times an opportunity to attend the Disciplinary Committee by means of summons in writing, and it does not necessarily have to serve two or more times in summons procedures. In preparation for the case where the relevant teacher does not attend the first and second Disciplinary Committee, it is unnecessary to give two or more notice of attendance at the same time unless the schedule of the meeting of both committees is designated and notified urgently without any particular time.

(c) With respect to a disciplinary action against a teacher of a private school, only the provisions of the disciplinary procedure provided for in the Private School Act shall not apply mutatis mutandis, or those of the Decree on the Disciplinary Action against Public Educational Officials

(a)Article 65(1) of the Private School Act; Article 65(3) of the Decree on the Disciplinary Action against Public Educational Officials;

Plaintiff

A school foundation and a Korean Private Teaching Institute

Daegu High Court Decision 92Na2159 delivered on September 17, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Article 65(1) of the Private School Act provides, “The teachers’ disciplinary committee shall investigate the truth in a disciplinary case, and hear statements from the person in question before the disciplinary decision is made: Provided, That this shall not apply in cases where summons is not complied with at least twice in writing.” The purport of the above provision is to ensure that the teachers subject to disciplinary action may attend the disciplinary committee to vindicate the facts of suspicion of disciplinary action and make statements beneficial to themselves in the disciplinary proceedings against the teachers of private schools. However, if the teachers subject to disciplinary action fail to comply on two or more occasions despite summons in writing, it shall be interpreted that they voluntarily waive their right to make statements and that the disciplinary decision may be made without a hearing without a statement.

Therefore, in order to guarantee the right to make statements for the teachers subject to disciplinary action as above, it is sufficient to give the opportunity to attend the disciplinary committee two times or more by means of summons in writing. It is not always required to deliver a notice of attendance in the procedure of summons at least two times. In preparation for the case where the relevant teacher fails to attend the first and second disciplinary committee, even if the notice of attendance is issued at the same time by specifying the date and place of holding the first and second disciplinary committee in advance, it is not necessary to give the notice of attendance at the same time, unless the schedule of holding the committee is designated and publicly announced well without any particular time.

In this regard, the court below affirmed the decision of the court below that even if the defendant corporation delivered a notice of attendance to the plaintiff on July 21, 1989 to the plaintiff on July 28, 1989 that the plaintiff did not attend the committee at the same time, the second disciplinary committee's notice of attendance was delivered to the plaintiff on August 4, 200, such circumstance alone that the notice of attendance of the disciplinary committee of this case cannot be viewed as being deprived of the plaintiff's right to make statements prior to the disciplinary resolution, and there is no error in the misapprehension of legal principles such as the theory of lawsuit. The argument is without merit.

In addition, in this case where it is recognized that both the first and second disciplinary committee attendance notices to the plaintiff of the defendant corporation were lawfully delivered, the court below's argument that the defendant's subsequent notice of attendance of the second disciplinary committee was erroneous by the defendant's second disciplinary committee attendance notices to the plaintiff of the defendant corporation and the measure that the plaintiff received was erroneous is without merit.

2. In addition, the court below held that even if the defendant did not send a copy of a request for disciplinary decision in the notice of attendance of the disciplinary committee to the plaintiff, it cannot be deemed that there was a procedural defect that can invalidate the disciplinary action against the plaintiff, even if it did not send a copy of the request for disciplinary decision to the plaintiff in the notice of attendance of the disciplinary committee to the plaintiff, in light of the fact that the plaintiff was notified in advance that he would be subject to disciplinary action from the National Teachers' Union through several interviews with the principal, etc. prior to the referral of the disciplinary committee of this case, and that there was no provision that the plaintiff should send a copy of the request for disciplinary decision to the disciplinary committee at the time of the disciplinary action against the plaintiff, the court below's above measures are proper, and there is no error of law against the plaintiff.

According to Article 6(3) of the Decree on Disciplinary Action against Public Educational Officials which regulates disciplinary agencies and disciplinary proceedings of public educational officials, “the person having authority to request a disciplinary decision shall send a copy of the request for disciplinary decision to the disciplinary suspect at the same time with the request for disciplinary decision of public educational officials.” Under the premise that the above provision is applied mutatis mutandis to disciplinary actions against teachers of private schools, the defendant alleged that there was an error of law in failing to notify the procedure of disciplinary decision due to delivery of a copy of the above request for disciplinary decision in the instant disciplinary proceedings against the plaintiff. However, as for disciplinary actions against teachers of private schools such as this case, it is deemed that only the provision of disciplinary procedure prescribed by the Private School Act is applied to the disciplinary procedure prescribed by the above Ordinance on Disciplinary Action against Public Educational Officials, and the provision on disciplinary proceedings under the above Decree on Public Educational Officials should not be applied mutatis mutandis. All precedents cited in the lawsuit are relevant to the case

3. In addition, the reasoning of the judgment below is examined in light of the records, the decision that the disciplinary committee of defendant corporation did not disclose the list of the disciplinary committee members in response to the request of the disciplinary committee in advance, and therefore it cannot be deemed that there was an error in the disciplinary procedure since the defendant did not disclose the list of the disciplinary committee members in advance to the plaintiff in response to the request of the disciplinary committee. In addition, the decision that the plaintiff appeared in the reexamination committee held on September 1, 1989 in accordance with the plaintiff's request for a retrial and sufficient statement for self-defense is just, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to the disciplinary procedure

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice)