2013Guhap26088 Decision of the Appeal Committee for Teachers

Educational Foundation of Seoul Digital University

Seoul Mapo-ro 320, 7 stories (a drawing Dong)

Representative of the Doctrine

Attorney Yang Yang-soo, Counsel for the defendant-appellant

Appeals Review Committee for Teachers

The representative of the sexual ginseng;

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee In-hae, Counsel for the defendant-appellant

Maap○

Seoul Special Metropolitan City Gwanak-ro 8-ro 7

Law Firm Rara, Attorney Park Hon-soo

Attorney Park Jong-chul et al.

April 3, 2014

May 8, 2014

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the cost of participation.

The decision made by the Defendant on July 22, 2013 between the Plaintiff and the Defendant’s Intervenor regarding the case of filing a claim for refusal of reappointment No. 2013 - 178 shall be revoked.

1. Details of the disposition;

A. On December 1, 2002, the Defendant’s assistant intervenor was appointed as an assistant professor of the Seoul Digital University, a lifelong educational facility in the form of the distance college established and operated by the Plaintiff, as the Seoul Digital University (hereinafter “university”).

B. The Plaintiff and the Defendant Intervenor renewed the contract in February 2004 and appointed the Defendant Intervenor B as assistant professor No. 5. The term of the contract shall be two years from March 1, 2004 to February 28, 2006, and the remuneration shall be KRW 40,310,000 per annual salary as an annual salary, and the termination of the contract shall be determined at least two months before the expiration of the contract term, and the contract for the appointment of teachers was concluded with the purport that the Plaintiff will be automatically dismissed if the contract is not renewed.

C. On March 1, 2005, the Plaintiff entered into a contract for the appointment of teachers with the Defendant’s assistant intervenor on March 1, 2005, as well as the direct salary class of assistant professor 6, and the annual salary of assistant professor 40,600,000, respectively. However, the Plaintiff entered into a contract for the appointment of teachers with the same content as the above employment contract.

D. The Plaintiff, as a personnel management standard on July 8, 2005, established the personnel regulations for faculty members, and the Addenda thereto, “the evaluation of teachers’ achievements and the evaluation of the performance of employees shall be subject to the grace period after the enactment of the relevant enforcement regulations.” However, the Plaintiff did not establish the regulations on the appointment, reappointment, and the criteria for the examination of transition to fixed-term teachers at the time. Accordingly, the Plaintiff, upon the resolution of the board of directors on February 27, 2006, based on the following factors: (i) the lack of the aforementioned regulations on teachers’ personnel management and the situation of school demand at the time; (ii) the examination of transition cannot be conducted on a fixed-term basis; (iii) the contract was terminated as of February 28, 2006 as of February 28, 2006; and (iv) the extension of the contract term until the renewal of the contract was made with respect to the former fixed-term faculty members, including Defendant Intervenor, who was subject to the application for transition to fixed-term.

E. Meanwhile, from around 2005 to January 2007, the Defendant’s Intervenor acted as the president of the University Faculty Consultation Council. On February 9, 2007, the Plaintiff respondeded to the Disciplinary Committee on the ground that the Defendant’s Intervenor engaged in the act of defamation against the chief director, etc. of the Foundation, ② the act of supporting and inducing students’ agriculturality, ③ the act of providing outside press agencies with unfounded suspicions, such as embezzlement of school expenses. The Plaintiff’s Disciplinary Committee decided to dismiss the Defendant’s Intervenor on February 20, 2007, and the president of the University notified the Defendant’s Intervenor of the details of the resolution on disciplinary action (hereinafter “the dismissal disposition”).

F. On May 22, 2006, the Plaintiff newly enacted and enforced detailed regulations on the personnel management of teachers on the date of the Party. After that, the Plaintiff, on March 12, 2007, instructed the Plaintiff to dismiss 12 full-time faculty members who were subject to an application for a fixed-term transition review as of February 28, 2006, including the Defendant’s supplementary intervenor, for the purpose of preventing disadvantages to the previous full-time faculty members through the fixed-term conversion review and re-contract transition guidance, prior to the expiration of the period, on March 12, 2007, on the ground that he did not inform the Plaintiff of the status of the previous faculty members for a fixed-term period of contract for two years from March 1, 2007 to February 28, 2009, on the ground that he did not maintain the status of the former faculty member for two years from the date of the fixed-term transition.

G. On April 13, 2007, before filing a lawsuit on the merits, the Defendant Intervenor filed an application for provisional disposition, such as the preservation of status, with the Seoul Central District Court 2007Kahap1213, which was before filing the lawsuit on the merits. The above court's dismissal on June 11, 2007 is null and void due to abuse of discretionary power. The Plaintiff's dismissal order is suspended until the first instance court sentenced that the appointment contract was explicitly renewed by February 29, 2008 with the Defendant Intervenor as a contracting teacher until February 208. The dismissal order is suspended until the first instance court sentenced the first instance court's decision. The Defendant Intervenor's status as an assistant professor at the university digital image department of this case was determined as a temporary assistant professor at the Seoul Central District Court 207Kahap1213, and the Plaintiff shall not be paid the Defendant 2's assistant to the Defendant 30th day of the above 20th day of February 29, 2008.

H. On April 18, 2007, the Defendant’s assistant intervenor filed a lawsuit seeking confirmation of invalidity of the instant dismissal disposition as Seoul Central District Court 2007Gahap3295, and the same court rendered a judgment on February 14, 2008 that confirmed invalidation of the said dismissal disposition. The instant judgment was both dismissed and finalized (Supreme Court Decision 2008Na35687 Decided December 26, 2008) and the final appeal (Supreme Court Decision 2009Da9096 Decided April 23, 2009).

I. However, even though the dismissal disposition of this case was ruled null and void, the plaintiff did not restore the supplementary intervenor to the original state, the defendant's supplementary intervenor confirmed that the defendant's supplementary intervenor was in the status of assistant professor of the digital image department of the university of this case on September 23, 2009, Seoul Central District Court 2009Da10898, and filed a lawsuit claiming payment of wages and consolation money due to unfair dismissal, consolation money due to refusal of reinstatement, and consolation money due to interference with business. Accordingly, the above court accepted only the claim for consolation money due to interference with business operations on August 31, 2010, and dismissed the rest of the office, but the appellate court (Seoul High Court 2010492034) confirmed that the defendant's supplementary intervenor was in the status of assistant professor of the university of this case and confirmed that the plaintiff was in the status of assistant professor of this case and the defendant's supplementary intervenor of this case 202 were in the position of assistant professor of this case.

(j) On November 21, 2012, the Plaintiff sent to the Defendant’s assistant intervenor a letter of objection that the Plaintiff would proceed with the examination of the contract in order to implement the lawsuit seeking confirmation of invalidity of the above dismissal disposition and the judgment in the lawsuit seeking confirmation of assistant professor status. The Plaintiff provided the following guidance: (a) on March 12, 2007, the Plaintiff may choose a person subject to review of the contract in accordance with the implementation schedule stated in the notice within the school; (b) among them, the review will proceed with the review of the contract in accordance with the contents selected by the person subject to review; and (c) the review provision applied the provision that was not the most unfavorable to the person subject to review at the time of the enactment; and (d) expressed his intention to conduct a fair examination so as not to be favorable to other full-time faculty members

A person shall be appointed.

(k) On November 30, 2012, the Defendant Intervenor responded to the purport that the criteria for review of re-contracts were retroactively applied as indicated in the table table below, or that the evaluation of achievements during the period of unfair dismissal is unreasonable. The Defendant Intervenor did not separately submit data for review of re-employment.

A person shall be appointed.

Other. Accordingly, on December 21, 2012, and January 10, 2013, the Plaintiff sent a written public notice to the Defendant’s Intervenor for re-contract review. The Defendant’s Intervenor sent the written public notice to urge the Defendant’s Intervenor for reasonable re-contract review and rehabilitation on January 2, 2013 and January 21, 2013, respectively.

(m) However, on February 12, 2013, the Plaintiff notified the Defendant’s Intervenor of his refusal to renew the contract on the grounds that the Plaintiff failed to meet the essential requirements for re-contract as follows. Accordingly, the Defendant’s Intervenor filed an application for re-adjudication on February 25, 2013, but the Plaintiff dismissed the re-adjudication on March 18, 2013, and rendered a disposition rejecting re-election on May 7, 2013.

A person shall be appointed.

n. On June 7, 2013, the Defendant’s assistant intervenor confirmed that the dismissal disposition was null and void in accordance with the court’s ruling, and even though the status as assistant professor was confirmed, the Plaintiff continued to prohibit the use of laboratories, access to internal communications networks, lectures, administrative assistance and utilization, etc., and even according to the former faculty’s performance evaluation regulations applied by the Plaintiff to other professors on January 29, 2010, the Defendant’s assistant intervenor filed a petition for review to seek revocation of the rejection of reappointment by asserting that the Plaintiff may pass the examination of promotion and reappointment.

(o) On July 22, 2013, the Defendant did not prepare criteria for the examination of appointment in relative office to ensure fair competition with other professors who performed normal research activities, etc. on the part of the Plaintiff, such as the Intervenor joining the Defendant, who was unfairly dismissed. The Defendant decided to revoke the disposition rejecting re-employment on the ground that the Intervenor infringed on the right to fair deliberation in accordance with reasonable standards granted to the Intervenor joining the Defendant and abused discretion (hereinafter referred to as the “decision of this case”).

[Ground for recognition] Unsatisfy, Gap evidence 1, Gap evidence 2, Gap evidence 3-1, 2, and Gap evidence 4

- 1, 2, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-1, 2-2, the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. The plaintiff's assertion

According to the Plaintiff’s former Faculty Evaluation Regulations, from March 1, 2006 to February 29, 2008, the period from March 1, 2006 to February 20, 2008 was the period for the examination of the transition of the term to the Defendant’s Cho Jae-in. Defendant Intervenor did not meet the research results. However, the research conditions of the professors employed at cyber colleges are considerably different from the research conditions of the professors employed at universities, not cyber colleges, and thus, the faculty members of cyber colleges may not attend schools or engage in research activities in the absence of laboratories. The Plaintiff, taking into account the possibility of the Plaintiff’s Intervenor’s Intervenor’s assertion of the dismissal of the instant case, prepared a thesis on the period subject to the examination for the Defendant’s Intervenor, taking into account the possibility that he/she would attend the school, and conducted a study during the litigation against the dismissal of the instant case. However, the Defendant, without considering the aforementioned research conditions, determined that the Defendant’s Intervenor did not have any error based on fair competition with the Defendant’s professor.

B. Facts of recognition

1) The main contents of the regulation on the evaluation of achievements of the full-time faculty of the instant university are as follows.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

2) The Defendant’s assistant intervenor drafted 3 papers as indicated in the following table column from October 2005 to February 2010, but the Plaintiff did not reflect the Defendant’s assistant intervenor’s research business on the grounds of the Plaintiff’s non-high column stated in the same table column.

[Ground for recognition] Unsatisfy, Gap evidence 4-1 and 2-2, the purport of the whole pleadings

A person shall be appointed.

C. Determination

1) According to the relevant provisions of the Private School Act, a teacher of a private university who is appointed by the fixed-term selection system for university faculty and whose appointment has been completed in a simplified period of appointment has the right to demand a fair review based on reasonable standards as to whether he/she is reappointed with an expectation of re-appointing, barring special circumstances, if he/she satisfies the aforementioned criteria after undergoing a fair review based on reasonable standards on his/her ability and qualities as a teacher. In cases where the appointing authority refuses re-appointing a teacher who has filed an application for reappointment, barring special circumstances, there is no ground that he/she falls short of the criteria for re-appointing, i.e., the objective reason for refusal of re-election, or even if there are such grounds, the decision to refuse re-appointing is null and void (see, e.g., Supreme Court Decision 2008Da57980, Sept. 30, 2010; 208Da58081, May 7, 2018).

2) In light of the fact that the Private School Act guarantees the right to demand a fair review on whether a teacher of a private school is reappointed to a teacher of a private school, the private school, who is the other party, is obligated to determine whether a teacher is reappointed by setting reasonable and equitable review criteria concerning the matters provided by each subparagraph of Article 53-2(7) of the Private School Act, i.e., education of students, matters concerning academic research, and instruction of students.

3) The circumstances shown in the above facts are as follows.

A) The Plaintiff differs from the research circumstances of cyber colleges and other universities. As such, the Plaintiff assumes that the members of cyber colleges did not attend school and can sufficiently conduct research activities without any laboratory. However, according to Article 52 of the Higher Education Act, cyber colleges (air colleges, correspondence colleges, air and correspondence colleges, air and correspondence colleges, and cyber colleges) provide citizens with an opportunity to undergo higher education through information and communications media, thereby training human resources needed by the State and society, and realizing an open learning society at the same time, thereby contributing to the development of lifelong education. In light of the purpose of the establishment of such cyber colleges, cyber colleges are only different from other universities in that cyber colleges deliver the results of research by professors via information and communications media. Furthermore, it is difficult to find legal grounds to view that the research conditions of cyber colleges professors differ from those of other universities, and there is no need to interpret the Plaintiff’s basic data access or research without any access thereto.

B) From March 1, 2006 to February 20, 2007, where the appointment contract with the Plaintiff was implicitly extended, the Defendant’s assistant intervenor appears to have been unable to perform normal research activities during the remainder of the term excluding (one semester and two semesters in 2006) from June 11, 2007, which was the date of the decision of the provisional disposition of this case, from June 29, 2007, which was the date of the decision of the provisional disposition of this case, until February 29, 2008.

C) In light of the background leading up to the instant dismissal disposition, the progress of the relevant lawsuit, and the contents of the judgment, etc., the Defendant’s Intervenor’s supplementary intervenor could not engage in a normal research activity as seen above is ultimately attributable to the Plaintiff’s cause attributable to the Plaintiff, and such disadvantage cannot be attributable to the Defendant’s supplementary intervenor.

D) There are many areas of academic papers, books, translations in the field of study, preparation of research reports, academic conference activities, and non-school researchers, etc. However, the Defendant’s Intervenor did not receive any support for research or other research activities of the instant university for a considerable period after the instant dismissal disposition. Nevertheless, it is unreasonable to request the Defendant Intervenor to conduct a research project at the same level as other professors.

E) According to the regulations on the evaluation of the former professor’s performance at the University, the research business category requires at least one year at least the same time as the Science Promotion Foundation, etc. However, the said regulations were enacted on May 22, 2006, and applying them to the previous semester would retroactively apply. As seen earlier, applying the said provisions to the Defendant’s Intervenor’s supplementary participant who was unable to engage in adequate research activities, thereby forcing the Defendant’s supplementary participant to perform his thesis performance. Therefore, applying the said provisions as it is is disadvantageous to the Defendant’s supplementary participant who was not re-appointed at the time of dismissal.

4) In full view of the above circumstances, it is unreasonable to demand the Defendant’s Intervenor’s Intervenor who was unable to engage in research activities due to the Plaintiff’s illegal dismissal from office to submit a thesis performance according to the Research Activity Evaluation Regulations. Rather, the Plaintiff violated the duty to prepare relative standards to ensure fair competition with other professors who performed normal research activities, etc., but the Plaintiff breached this duty. Ultimately, the instant decision that revoked the Plaintiff’s rejection disposition to re-appoint the Defendant’s Intervenor is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jung-chul

Judge Lee Jin-hun

Judges Park Jong-young