[1] Whether a school foundation may delegate its authority to the president to issue an order of leave of absence to a university teacher (affirmative with qualification)

[2] In a case where the president of a private university takes a disposition of ordering temporary retirement for one year on the ground that there is an ex officio reason under Article 59(1)1 of the Private School Act to associate professor A of the relevant medical graduate school according to the standards for duties delegated by the president of a private university to the president of a university, the case holding that the court below erred in the misapprehension of legal principle on the ground that the delegation of the president’s authority to issue an order of temporary retirement to teachers by the president of a school juristic person to

[1] Article 53-2(2) of the Private School Act provides that a school foundation may delegate the right to appoint and dismiss faculty members of a university to the president in order to faithfully realize the principle of guaranteeing the autonomy of university as prescribed by the Constitution, and to prevent abuse of delegation of the right to appoint and dismiss faculty members and to ensure the accountability and transparency of the personnel affairs of the school foundation through strict procedures, which shall be enacted and amended through strict procedures and made public. Meanwhile, as long as a school foundation can delegate the right to appoint and dismiss faculty members of a university to the president, the right to order temporary retirement of faculty members may also be delegated to the president. In light of the purport of the above provision on delegation of the right to appoint and dismiss faculty members, as well as various disadvantages such as prohibition of performing duties, reduction of wages, restriction on inclusion in continuous service period, etc., which may result in the maintenance of the status of faculty members, shall also be governed by the articles of association.

[2] In a case where the president of a private university takes a disposition of ordering temporary retirement for one year from the date of delegation of matters concerning the temporary retirement and reinstatement to the president, the case holding that the judgment below erred in the misapprehension of legal principles on the ground that the delegation of authority to order temporary retirement to the president to the faculty members of the relevant medical school is not effective on the grounds that the president delegates the authority to order temporary retirement to the faculty members belonging to the relevant school foundation in light of the structure and contents of the provisions related to the articles of association of the relevant school foundation, and that it is difficult to view that the president delegated the authority to order temporary retirement to the president in light of the provisions related to the articles of association of the relevant school foundation, and that there is no separate provision on appointment and dismissal of the general faculty members or delegation of authority to order temporary retirement, since the delegation of authority to the president to the president to order temporary retirement of the faculty

[1] Article 31(4) of the Constitution of the Republic of Korea; Article 53-2(1) and (2), and Article 59(1)1 of the Private School Act / [2] Article 31(4) of the Constitution of the Republic of Korea; Article 53-2(1) and (2), and Article 59(1)1 of the Private School Act

Plaintiff (Law Firm citizen, Attorneys Kim Ba-soo et al., Counsel for the plaintiff-appellant)

Appeals Review Committee for Teachers

Defendant Intervenor’s Intervenor (Law Firm Squa, Attorneys Jeju-don et al., Counsel for the defendant’s intervenor)

Seoul High Court Decision 2011Nu2141 decided September 27, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 31(4) of the Constitution provides that the autonomy, specialty, and political neutrality of education and the autonomy of university shall be guaranteed under the conditions as prescribed by Act. Article 53-2(1) and Article 53-2(2) of the Private School Act provides that a teacher of a private school established and operated by a school foundation shall be appointed or dismissed by the relevant school foundation upon a resolution of the board of directors at the recommendation of the head of the relevant school, but the right to appoint or dismiss a teacher of a college educational institution may be delegated to the head of the relevant school under the conditions as prescribed by the articles of association of the relevant school. Article 59(1)1 of the Constitution provides that “When a person who is authorized to appoint or dismiss a private school

Article 53-2 (2) of the Private School Act provides that a school foundation may delegate the authority to appoint and dismiss faculty members of a university to the president of a university in order to faithfully realize the principle of guaranteeing the autonomy of a university prescribed by the Constitution, while enacting and amending the authority through strict procedures as the fundamental rule on the organization and activities of the school foundation in order to prevent abuse of the authority to appoint and dismiss faculty members and to ensure the accountability and transparency of the personnel affairs of the school foundation. Meanwhile, as long as a school foundation can delegate the authority to appoint and dismiss faculty members of a university to the president, it may delegate the authority to issue an order of temporary retirement to the president as long as the school foundation can delegate the authority to appoint and dismiss faculty members of a university. In light of the purport of the above provision on delegation of the authority to appoint and dismiss faculty members, the authority to issue an order of temporary retirement should also be delegated to the president as prescribed by the articles of association.

According to the reasoning of the judgment below, the court below acknowledged that the president of ○ University established and managed by a supplementary intervenor (hereinafter “participating”) concurrently holds office as a director of the board of directors of the Intervenor, and the president of the Intervenor established the guidelines for the performance of duties delegated to the president of ○ University on or around March 2005 regarding the temporary retirement and reinstatement of faculty members. The president of ○ University recognized that the Plaintiff, who served as an associate professor of the medical graduate school of ○ University, has a ground for ex officio retirement under Article 59(1)1 of the Private School Act in accordance with the above guidelines for the performance of duties, and determined that Article 23(2) of the Articles of Incorporation of this case provides that the matters delegated by the president may be dealt with, and Article 116 provides that the matters necessary for the enforcement of the articles of incorporation of ○ University shall be prescribed by the enforcement rules following the resolution of the board of directors, and that the president of the Intervenor lawfully delegated the president of ○ University with the authority of the president of this case.

However, Articles 23(2) and 116 of the instant articles of association merely stipulate the general scope of duties of directors or stipulate specific matters necessary for the implementation of the matters prescribed in the articles of association. It is difficult to deem that the instant articles of association delegates the president the right to appoint and dismiss faculty members to the president of ○○ University. Article 39(2) of the instant articles of association merely delegates the president the right to appoint and dismiss faculty members or to delegate the right to order temporary retirement to the president of ○○ University. Thus, the Intervenor’s delegation of the president of ○○ University with the authority to order temporary retirement is not prescribed in the articles of association. Accordingly, the Intervenor’s delegation of the authority to order temporary retirement to the president of ○○ University is invalid. Accordingly, the lower court erred by misapprehending the legal doctrine on delegation of the right to order temporary retirement to the faculty members of universities as prescribed by the Private School Act and by misapprehending the interpretation of the provisions of the instant articles of association, which affected the conclusion of the judgment. Therefore, the allegation in the grounds of appeal assigning this

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Supreme Court.

Justices Park Poe-dae (Presiding Justice)