(영문) 대구지방법원 경주지원 2015.1.9.선고 2013가합1396 판결

1. The defendant confirmed that each dismissal disposition against the plaintiffs on April 26, 2013 is null and void. 2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

The following facts may be acknowledged by integrating the respective descriptions of Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 2, 4, 7 through 16, and 23 (including paper numbers) and the whole purport of oral arguments:

A. The Defendant is a school juristic person that establishes and operates a D University and E University. From March 1, 1999, Plaintiff A was appointed as a professor of D University from April 1, 1998, and from April 1, 1998, Plaintiff B was employed as a professor of D University. B. On January 18, 2010, the president of D University notified the B of the fact that each of the said departments is subject to the abolition of the department in accordance with Article 4-2 of the school regulations and Article 8 of the Regulations on the Adjustment of Management of School Affairs, and notified the Plaintiffs on March 4, 2010.

C. On April 19, 2010, the D University Faculty Committee passed a resolution on the abolition of the departments and school regulations with the contents of the abolition of the balking design, tourism log, etc. On April 23, 2010 and D University Faculty Committee notified the Plaintiffs on May 6, 2010 that the president of D University would not recruit new students of the year 201 as the balking design and tourism log was abolished.

D. After publicly announcing a partial amendment to school regulations, the president of the Korea Development Institute announced the repeal of the Berning Design, the Tourism Day, etc., following the deliberation by the School Affairs Committee on July 21, 2010 and the deliberation by the board of trustees on August 31, 2010, amended and promulgated the school regulations as above on September 13, 2010.

E. Meanwhile, the president of the Korea University publicly announced the establishment of a new department to the faculty members of the department at issue.

Accordingly, the Plaintiff suggested the establishment of a department referring to the Dobbbbbian surgery on April 12, 2010, and the establishment of a department referring to the practical tourism language and the establishment of a new department on April 12, 2010. However, on May 27, 2010, the president of the D University notified that all of the results of deliberation were rendered a non-provisional decision as to the proposal for the establishment of each of the above departments after deliberation by the School Affairs Committee and the University Council Council. On April 28, 2011, the president of the D University announced the new establishment of a department to the closed department and the target department on May 9, 201, while the president of the D University proposed the establishment of a medical tourism language and the establishment of a new department on May 27, 2011, the president of the D University was exempt from the establishment of a new department on May 27, 2011 and the establishment of a new department on the grounds that the Plaintiff was not subject to examination.

F. On May 24, 2010, the president of the D University publicly announced an application for transition education to the Plaintiffs. On June 7, 2010, Plaintiff B applied for transition education, and Plaintiff A did not apply for transition education. On June 15, 2010, the president of the D University notified the results of the review that the transition of major was impossible. The president of the D University again announced the Plaintiffs on November 16, 201, the president of the D University filed an application for transition education to the major, and the Plaintiff B applied for the medical tourism expert course on November 16, 201. The president of the D University notified that the transition of major was impossible after deliberation by the D University’s major transition Education Review Committee. Moreover, the president of the D University notified the Plaintiff on December 12, 2011 that the transition of major was not possible on December 12, 2012. The president of the D University again notified the Plaintiff’s application for transition of major education to the Medical Tourism Review Committee.

G. On November 21, 2012, the president of the D University publicly announced an application for the transition assignment to the Plaintiffs. The Plaintiff applied for the transition assignment to the University Hotel and the E University E University Funeral Service, and Plaintiff B applied for the transition assignment to D University Casino, E University Casino, E University Tourism Service, and Plaintiff B applied for the transition assignment to D University Casino.

Accordingly, on December 27, 2012, the president of the D University requested the president of the D University to state his/her opinion on the transition assignment of the plaintiffs. On December 27, 2012, the president of the D University asked the president of the E University about whether the Plaintiff is able to learn the similar department of study. All professors of the D University agreed to the transition assignment of the plaintiffs, and agreed that the E University did not have any similar department or a specific major. On December 26, 2012, the president of the D University notified the Plaintiffs on March 29, 2013 after deliberation and resolution by the Teachers Personnel Committee.

H. On January 21, 2013, and March 3, 2013, 2013, and 29, the Korea Teachers’ Personnel Committee of D University notified the Plaintiffs of the opportunity to state their opinions on the abolition and dismissal from office in writing. The Plaintiffs submitted written opinions that they would not consent to the abolition and dismissal from office on January 22, 2013, and that Plaintiff B would not consent to the abolition and dismissal from office on April 3, 2013. On April 26, 2013, the board of directors of the Defendant resolved the closure and dismissal from office against the Plaintiffs.

(i) On April 26, 2013, the Defendant’s chief director notified the Plaintiffs as of May 1, 2013 (hereinafter “each of the instant dismissal dispositions”), on the grounds that: (a) the Vietnam design department (Plaintiff A); (b) the tourism log division (Plaintiff B); (c) the registered students affiliated with the Plaintiff (Plaintiff B); (d) provided an opportunity for new departments and major transition education; (c) but failed to grant approval; and (d) whether it is possible to teach similar subjects in the university; and (e) whether it is possible to transfer them to E University affiliated with the same legal entity; and (e) the transition is not possible; and (e) the Defendant’s chief director notified the Plaintiffs of

2. Summary of the plaintiffs' assertion

Each disposition of dismissal in this case is unlawful and invalid in the following respects:

A. According to the school regulations of the D University, it shall deliberate on the school regulations on the abolition of a department by the faculty or the school affairs committee and the school affairs committee, but decided on the abolition of the department with the bend design and the tourist language committee. Even if the school regulations were amended by the school regulations committee to decide on the deliberation and amendment of the school regulations, such school regulations are null and void unless the faculty has passed a resolution on the amendment of the school regulations.

B. On September 13, 2010, Article 4-2 (2) 2 of the School Regulations, which provides that "if at least 40% of the minimum recruitment quota occurs from the recruitment of new students, the relevant department will be abolished from the relevant year" was amended on September 13, 2010, and Article 5 of the Regulations on the Adjustment of School Affairs (Article 5) provides that "the minimum recruitment unit of the department shall be the recruitment number for the pertinent year" shall be the recruitment number for the pertinent year. However, on May 6, 2010, prior to the amendment of the school regulations, before the school regulations as above, the Defendant has already notified the Plaintiffs of the abolition of the bending design and the tourism day. Since the above departments were abolished only after that date, the minimum recruitment number of new students in 2010 falls short of the recruitment number for new students in the pertinent year, the Defendant’s dismissal from the office shall be invalidated for up to 10% of the total recruitment number of new students and 14% of the number of new students in each of year.

C. Although the school affairs restructuring regulation, which is the basis for the abolition of each of the above departments, is scheduled to change the status of teachers, it is null and void as an amendment to the rules of employment in violation of the Labor Standards Act, since it was enacted without gathering

D. Even if each of the above departments was abolished in accordance with school regulations, it did not undergo the procedures for gathering opinions from students, parents, and teachers regarding closed departments.

E. The Defendant abolished each of the above departments even though they were registered in the Baling Design and Tourism Terms and Conditions, and subsequently prevented the above students from taking a previous conviction and excluding teaching guidance. In addition, the Defendant did not make such efforts despite the possibility of avoiding the dismissal of the Plaintiffs by means of the transition of major, reorganization of departments, etc., and is unlawful in that it deviates from and abused the discretionary power on the appointment and dismissal of teachers due to the lack of objective standards and grounds for dismissal.

3. Determination

A. Violation of procedures under school regulations

The written evidence No. 15 alone is insufficient to recognize that the Defendant’s amendment of the school regulations on the abolition of departments in the D University’s school regulations on around 2010, which provides that the faculty council or the school affairs committee shall deliberate on the abolition of departments, and there is no other evidence to acknowledge the amendment. Rather, according to the evidence No. 23-8, the school regulations of D University at the time may recognize the fact that the school regulations stipulate the amendment of the school regulations as matters deliberated by the school affairs committee and the council council council, and as seen earlier, the fact that the D University has amended the school regulations on the abolition of each of the above departments after deliberation by the school affairs committee and the council council council. Moreover, there is no evidence to acknowledge that the Defendant illegally amended the school regulations on the abolition of departments as alleged by the Plaintiffs. Accordingly, this part of the Plaintiffs’ assertion is without merit.

B. Whether the abolition of the department is illegal

Gap evidence 20-1, Eul evidence 5-1, Eul evidence 5-1, 2, 6, 7-1, 2, 21-9, 23-8, and the whole purport of arguments, comprehensively taking account of the whole purport of the statements and arguments of evidence Nos. 20-1, Eul evidence Nos. 5-2, 7-1, 2, 21-8.

Article 4-2 of the Regulations on the Adjustment of School Affairs (amended by December 8, 2009) provides that where the number of new students falls short of the prescribed number of students through deliberation by the university council, the school council may choose not to recruit new students with the permission of the president. Article 8 of the Regulations on the Restructuring of School Affairs (amended by the Presidential Decree No. 2009) provides that the relevant department shall abolish the relevant year if the number of new students falls short of at least 40% of the prescribed number of students. According to the above school regulations, in the case of the year 2010, 30 Vietnam design and the minimum number of new students for tourism days and 40 persons for total number of new students for tourism days and 40 persons for total number of new students for 20 years included in the total number of new students for 11 years and 16 new students for tourism days, which is below 40% of the prescribed number of students for each school year 20 years prior to the repeal and repeal of the relevant school regulations.

According to the above facts, it is reasonable to view that the 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 2010-year 201, the school regulations and school regulations, which had already been enforced in effect, met the requirements for the abolition of departments under the school regulations and the school regulations under the school regulations, which had already been enforced on February 17, 2010-year 201, were amended and promulgated by the school council deliberation procedure, and there is no other evidence to acknowledge that there is any defect as alleged by the plaintiffs in the above procedures for the abolition of each department (the plaintiffs asserted that the school regulations, which was abolished after the closure of each of the above departments, was implemented, but the plaintiffs' notification on May 6, 2010, merely did not immediately inform the plaintiffs of its intention.

Therefore, the plaintiffs' above assertion is without merit.

C. Whether the school management and restructuring regulations are defective

There is no evidence to acknowledge that there is a defect in the process of the enactment of the regulations on school administration restructuring of D University, which served as the basis for the balking design, tourism log, and abolition, and the plaintiffs' above assertion is without merit.

(d) Whether defects are discovered due to lack of procedures for gathering opinions;

In addition, there is no evidence to prove that the Defendant did not undergo the procedures for gathering opinions from students, parents, and teachers regarding the Balking Design, and tourism language and abolition, and even if not going through the above procedures, there is no evidence to deem that the aforementioned courses are unlawful as a matter of course by reason of such circumstance. Therefore, the Plaintiffs’ assertion is without merit.

(e) Whether registered persons are registered;

Article 56 (1) of the Private School Act provides that "no teacher of a private school shall be subject to unfavorable measures, such as temporary retirement or dismissal against his/her will, unless he/she is subject to a punishment or disciplinary action or due to a ground prescribed by this Act: Provided, That this shall not apply where he/she is in office or class due to the abolition or abolition of a class or department, and Article 4 (1) of the former Enforcement Decree of the Higher Education Act (amended by Presidential Decree No. 23485, Jan. 6, 2012) provides that "the establishment of a major and the fixed number of students, the procedure for amendment of school regulations," and Article 4 (2) of the Enforcement Decree of the Private School Act provides that "when the head of a school intends to enact or amend school regulations pursuant to Article 6 (1) of the Act, he/she shall undergo procedures for prior public notice, deliberation, and publication of a draft establishment or amendment as prescribed by school regulations, referring to cases where the head of a school intends to establish or amend school regulations, see Article 56 (10).2).

In light of the above legal principles, considering the overall purport of Gap evidence No. 8-3 and No. 4, 2010 and the purport of the whole statement and arguments, two regular students were temporarily absent from the Balking design division around February 23, 2012, and seven regular students were found to have been absent from the Tourism Day division around February 21, 2012. Meanwhile, each of the statements and arguments in No. 20-1 and No. 2 were deemed to have existed around October 1, 2012, taking full account of the overall purport of the statements and arguments in No. 20-1 and No. 2, and all of the regular students of the Balking design were not registered by taking measures, such as criminal records, etc., and around April 1, 2013, each of the above departments became legitimate by taking measures, such as the abolition of each of the above departments.

On the other hand, it is not sufficient to recognize that the Defendant had unlawfully forced students to work in the Baling Design and Tourism Day only with the descriptions of the evidence Nos. 4 and 8-1 and 2, and there is no evidence to acknowledge otherwise.

Therefore, the plaintiff's above assertion is without merit.

F. Whether there exists possibility of avoiding each of the dispositions of this case

1) Relevant legal principles

In a case where it is difficult for a private university to avoid dismissal or to minimize persons subject to dismissal due to the abolition of a class department and the abolition or transfer of a class position by a teacher of another private school or another department of the relevant school due to the abolition of a class department and the abolition of a class department, it shall be subject to restrictions on dismissal according to the results of the examination in accordance with the standards, by analogy of Article 70(3) of the State Public Officials Act and Article 62(3) of the former Local Public Officials Act, based on the fact of disciplinary action, etc., in view of the form of appointment, performance, job performance, job performance, etc., and in a case where the private university has no possibility of evading the dismissal of a teacher due to the transfer of a class department or the transition of a position, etc. (see Supreme Court Decision 2011Du2217, Jul. 14, 201). In a case where there is no possibility of avoiding the dismissal of a teacher due to the above dismissal standards due to the situation of a private school, the dismissal of a school is inevitable by virtue of a school within 607.

2) Plaintiff A

In full view of the following circumstances acknowledged by the overall purport of the statements and arguments in the evidence Nos. 7-1 through 3, 11-1, 2, 25-1, 26, 27, 28-28, 45-1, 26, 27, 32, 33, and 34 of the evidence Nos. 7-1 through 3, 11-2, and 25-2 of the evidence Nos. 26, 27, 32, 33, and 34 of the evidence Nos. 7-1 through 3, 11-2, and 25-2 of the evidence Nos. 7-2, the defendant is likely to avoid dismissal by transferring the plaintiff Nos. A to the hotel type of D University or the E University type of faculty. However, according to the facts found above, the defendant cannot be deemed to have undergone the procedure of determining whether to dismiss the plaintiff at the time of each of the dispositions of this case. Accordingly,

① From March 1, 1999 to 2009, Plaintiff A had been in charge of the division while working in D University Tourist Resort division. At the time, Plaintiff A was in charge of Chinese-style meals, culture, and booming care, and Plaintiff A was in charge of the division into a tourist hotel preparation division in the tourist hotel preparation division in 2010, and Plaintiff A was in charge of balking design and teaching since March 1, 2010.

(②) 원고 A은 가정 학박사(조리학 전공), 관광호텔경영학박사(푸드비즈니스 전공) 학위를 취득하였고, 영양사, 제빵기능사, 제과기능사, 소믈리에, 음료관리, 위생사, 바리 스타, 바텐더 자격증 등을 보유하고 있다.

③) 원고 A은 D대학교에서 주방위생 및 공중보건, 식품위생 및 법규, 식품위생학, 빵과자실습, 제과실습, 제과제빵실습, 제과테크닉, 제빵테크닉, 빵과자공예실습, 제과제빵창작연구, 케익데코레이션실습, 바리스타실습, 디저트실습, 푸드코디네이션실습, 베이커리경영론 등의 과목을 강의한 경력이 있다. 이와 유사한 과목으로 E대학교 조리외식학부에는 식품위생, 고급제과제빵실습, 고급패스트리실습, 제빵 · 설탕공예실습, 제과점창업사례분석, 베이커리숍 운영실무, 푸드스타일링기초실습, 푸드코디네이터론, 칵 테일실습, 기초영양학, 식품재료학 교육, 식음료관리와 실습 등이 개설되어 있어. 원고 A의 학력이나 경력에 비추어 위 과목을 강의할 수 있고 전임교원으로서의 시수도 충족할 수 있을 것으로 보인다.

④ As of April 2013, the percentage of securing full-time faculty members of the hotel cooking division of D University and the E University cooking division of non-university cooking division is below 100% as follows. Therefore, it is not impossible to convert Plaintiff A to one of the above departments.

A person shall be appointed.

2) Plaintiff B

In full view of the following circumstances acknowledged by the respective descriptions of Gap evidence Nos. 29, 31 through 38, and 45-1, 2, Eul evidence Nos. 31, 32, 33, and 34 and the overall purport of pleadings, it is determined that the defendant could avoid dismissal by converting the plaintiff Nos. 29, 31 through 38, and 45-2, and the entire purport of pleadings

However, according to the above facts, the defendant cannot be deemed to have undergone the procedure of examining whether to dismiss the plaintiff B after setting the objective dismissal criteria at the time of each dismissal of this case. Thus, the dismissal of this case against the plaintiff B is illegal and invalid, and as long as the defendant asserts that the dismissal of this case is valid, the above plaintiff has a benefit to seek confirmation.

① From April 1, 1998, Plaintiff B served in D University Tourism Interpretation Division (hereinafter “D University Tourism Interpretation Division”) and was in charge of the head of a department, obtained a gramal doctor’s degree (language major) and held a reading instructor’s license.

② Plaintiff B had a strong career in subjects, such as Korean language class, Japanese language class, Japanese language practice, Japanese language practice, Japanese language practice, Japanese language language practice, Japanese language practice, Japanese language class practice, Japanese language performance test, Japanese language ability test, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, hotel practice, Japanese language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class, Korean language class practice, and Korean language class.

③ As of April 2013, the rate of securing full-time faculty members in E-university Tourism Course is below 100% as follows, it is not impossible to convert Plaintiff B into one of the above departments.

A person shall be appointed.

4. Conclusion

If so, all of the plaintiffs' claims are reasonable, it is decided as per Disposition.