(영문) 서울고등법원 2016.3.22. 선고 2015누56627 판결

The Defendant’s decision on December 18, 2014 regarding the case of revocation of transfer disposition No. 2014-557 between the Plaintiff and the Intervenor joining the Defendant is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the decision;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except where "any unfavorable measure" in Section 4 (i) of the judgment of the court of first instance is "any unfavorable measure against its will", and therefore, it is also accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the decision of this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

The decision of this case is unlawful since the defendant dismissed the petition review seeking the cancellation of the disposition of this case despite the following illegal grounds.

A) The instant disposition is procedural error without deliberation by the teachers’ personnel committee.

B) According to the Defendant’s decision on April 23, 2012, the Plaintiff was reinstated as a faculty member of the FF department of the Intervenor. Accordingly, the Plaintiff was deemed to belong to the H department newly established by combining the FF department and the G department. However, without any grounds, the Intervenor changed the Plaintiff’s affiliation to J against the Plaintiff’s explicit intent without any grounds, and the Plaintiff, as a university professor who strong his major field and develops his academic research, suffers serious disadvantages by being excluded from the Plaintiff’s principal duties as a university professor who was excluded from the scope of the right of personnel discretion. Thus, the instant disposition was unlawful by abusing and abusing the scope of the right of personnel discretion.

2) The defendant's argument (including the intervenor's argument; hereinafter referred to as "the defendant's argument").

A) According to the articles of incorporation of the Private School Act or the Intervenor, “a change of affiliation” as the instant disposition cannot be said to be subject to deliberation by the Teachers’ Personnel Committee.

B) The Intervenor had broad discretion on the change of the Plaintiff’s affiliation. Around October 2014, the time when the Plaintiff was actually reinstated, the FJ was closed, and the newly established HJ department was not simply integrated with FF department and G department, so there was no major subject that the Plaintiff could be demoted, and the H department was in a situation where the Plaintiff was unable to immediately teach, and the H department was in excess of the fixed number of teaching staff. Even if the Plaintiff was affiliated with J, there was no disadvantage in the Plaintiff’s status, salary, place of work, research, or external activities, etc., and the Plaintiff’s research was relatively low compared to the Plaintiff’s burden of research. In light of various circumstances, the instant disposition was taken within the scope of legitimate personnel authority, and even if the grounds alleged by the Plaintiff asserted by the Plaintiff, the instant disposition merely lacks rationality and is not unlawful.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

1) Whether procedural defects exist in the instant disposition

A) Article 53-3(1) of the former Private School Act (amended by Act No. 13938, Feb. 3, 2016; hereinafter “former Private School Act”) provides that the relevant school shall establish a teachers’ personnel committee in order to deliberate on “important matters concerning personnel management, such as appointment and dismissal of teachers.” Article 53-3(2) of the same Act provides that matters necessary for the organization, function, and operation of the teachers’ personnel committee shall be prescribed by the articles of association for private school managers who are school foundations.

B) The relevant provisions of the Articles of Incorporation (Evidence A20) of the Intervenor are as follows.

Chapter 6. Appointment of a teacher in Section 1, a teacher in Section 1, and Article 43 (Term of Office of the Head of a School) and (2) of a university. (3) A teacher in a university shall be appointed or dismissed by the president upon the recommendation of the president after the deliberation of the personnel committee for personnel affairs. The terms and conditions of the following contract shall be determined and appointed as follows:

C) Relevant provisions of the Intervenor’s Staff Personnel Management Regulations (No. 21) are as follows:

Article 1 (Purpose) The purpose of this Article is to prescribe the detailed matters concerning the personnel management of faculty members of the National University of Korea as stipulated in Section 1 of Chapter VI of the Articles of Incorporation.The term "Appointment" means new employment, promotion, promotion, promotion, transfer, change of position, concurrent office, dispatch, dismissal, dismissal from office, temporary retirement, release from position, reinstatement, removal from office, and removal from office. Matters not specified in Article 39 (Application Mutatis Mutandis) shall be governed by the Private School Act, the Enforcement Decree of the Private School Act

D) In light of the following circumstances acknowledged by the relevant rules and the Intervenor’s articles of incorporation, teachers’ personnel regulations, and the following circumstances, it is reasonable to deem that the instant disposition, which was changed from the major department to the department of culture against the Plaintiff’s explicit intent, was subject to deliberation by the teachers’ personnel committee. However, since the Intervenor issued the instant disposition without undergoing deliberation by the teachers’ personnel committee, the instant disposition was procedurally erroneous.

(1) In light of the purport of Articles 9(1) and 10(2) of the Special Act on the Improvement of Teachers’ Status (hereinafter “Special Act”), Article 16(2)3 of the Regulations on Petitions for Teachers, and the purpose of the Special Act on the Status of Teachers that seeks to improve teachers’ status and promote the development of education by improving the honorable treatment and treatment of teachers and strengthening their status guarantee (Article 1), when the Appeal Commission rendered a decision to change the disposition of the dispositive authority, there is a change in the legal relationship between the dispositive authority and the school juristic person immediately following such decision (see Supreme Court Decision 2010Da8880, May 9, 2012).

Therefore, when the defendant decided to change the disposition of removal from office against the plaintiff on April 23, 2012 to three months, the plaintiff was reinstated to the F Department. Thus, the plaintiff's subsequent disposition of this case changed the plaintiff's affiliation from M to J constitutes "transfer" as it changed the university to which the plaintiff belongs, and thus constitutes "transfer".

(2) In light of Articles 52, 55, 56, and 57 of the former Private School Act, Article 6 of the Special Act on the Status of Teachers provides that the qualifications, service, status guarantee, reasons for ipso facto retirement shall be almost the same as those of national and public school teachers, it can be applied to the State Public Officials Act or the Public Educational Officials Act. Article 32 of the former State Public Officials Act (amended by Act No. 685 of Feb. 4, 2003) provides that "the former State Public Officials Act (amended by Act No. 685 of Feb. 4, 200)" means "the former State Public Officials Act" means "the person who is subject to removal from office" as "the former Public Officials Act", "the former Public Officials Act (amended by Act No. 685 of Feb. 1, 200)" means "the appointment of a new teacher," and "the former Public Educational Officials Act is amended by Act No. 6000, Feb. 4, 2003>

(3) Article 31(6) of the Constitution provides that "basic matters concerning the status of teachers shall be determined by Act." Article 56(1) main sentence of the former Private School Act, Article 43(2) of the Educational Officials Act, and Article 6(1) of the Special Act on the Status of Teachers provide that "No unfavorable measure, such as leave or dismissal against will, shall be taken without a sentence, disciplinary action, or any other reason prescribed by law," thereby guaranteeing the status of teachers compared to ordinary workers in order to ensure the autonomy and specificity of education. In addition, lectures and research in the case of university professors are the primary duties of teaching staff. It is necessary to give lectures to their major areas and develop their academic research more advanced through this, which constitutes an essential part of the status of university professors. In light of the foregoing, Article 56(1) main sentence of the former Private School Act, Article 43(2) of the Public Educational Officials Act, and Article 6(1) of the former Special Act on the Status of Teachers constitutes an important change in the status of university teachers." Article 3(1).

2) Whether there is any substantive defect in the instant disposition

A) As a matter of principle, transfer or change of position to workers belongs to the personnel management authority, and an employer has considerable discretion within the scope necessary for the performance of duties, but it is not allowed if there are special circumstances, such as violation of the Labor Standards Act, etc. or abuse of rights (see Supreme Court Decision 97Da36316, Dec. 12, 1997). In particular, in the case of teachers as seen earlier, their status is more strongly guaranteed compared to ordinary workers pursuant to the relevant Acts and subordinate statutes. Whether a change of position to a teacher falls under the scope of legitimate personnel management authority shall be examined in a more strict standard. Whether the change of position falls under the scope of legitimate personnel management authority should be examined in a more strict standard. In a case where the change of position is not achieved based on reasonable and objective criteria, is made under unfair motive or purpose, or where the disadvantage of a teacher’s daily life significantly exceeds the level that the teacher should normally take charge

B) According to Article 2(5) and (8) of the Public Educational Officials Act, the so-called "transfer" that allows a public educational official to work for a different working agency or department within the same position and qualification is widely defined as a type of "election." Article 10 of the same Act provides that the appointment of a public educational official shall be made based on his/her qualifications, performance, performance, and other capabilities, and shall guarantee equal opportunities depending on his/her ability. Furthermore, Article 17 of the same Act provides that the standards for the appointment of a public educational official shall be more specifically determined by stipulating that a public educational official shall be appointed to a proper position in consideration of his/her qualifications, major field, retraining, career, work experience, aptitude, etc. in the assignment of a public educational official. Thus, the appointment and assignment of a public educational official shall not be deemed an act of free discretion, and it shall be made in accordance with the above legal principles and standards (see Supreme Court Decision 2007Du5233, Sept. 6, 2007).

As seen earlier, in light of Article 56(1) of the former Private School Act and Article 6(1) of the Special Act on the Improvement of Teachers’ Status, private school teachers are also guaranteed status to the same extent as public educational officials, the above principles and standards for the transfer of public educational officials can also be applied to private school teachers. As such, the above principles and standards for the transfer of public educational officials can be considered as one standard in determining whether such transfer principles and standards are observed within the scope of legitimate personnel

C) In light of the aforementioned facts and evidence, the Plaintiff’s 12 and 13 evidence and the fact that the Plaintiff’s 6th anniversary of his/her fixed number of faculty members were found to be reasonable in the field of study and culture, and that the Plaintiff’s 6th anniversary of his/her fixed number of faculty members was not lower than 1, based on the overall purport of his/her arguments, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, and that the Plaintiff’s 6th fixed number of faculty members was not lower than 1, 201, and that the 6th fixed number of faculty members was not lower than 1,013.

3) Sub-decisions

Therefore, although the disposition of this case should be revoked on the above grounds, since the defendant judged otherwise and dismissed the plaintiff's petition review request, the decision of this case should also be revoked on the ground that it is unlawful.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the appeal by the Intervenor to the defendant is dismissed as it is without merit.