(영문) 부산지방법원 2015.5.15.선고 2014가합14422 판결

(a) The amount calculated by the rate of 20% per annum from November 7, 2014 to the date of full payment with respect to Plaintiff A and the amount calculated by the rate of 9,211,660 won per annum from February 6, 2014 to the date of full payment;

B. Money calculated by the rate of 20% per annum from February 6, 2014 to the date of full payment with respect to KRW 3,195,837 to Plaintiff B and the amount calculated by the rate of 8,738,080 per annum from November 7, 2014 to the date of full payment;

sub-payment.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. Status of the parties

1) On March 1, 1985, Plaintiff A was appointed as a full-time lecturer at D University (hereinafter “D University”) and was appointed as a professor on April 1, 1996 through full-time instructors, assistant professors, and associate professors. Since March 1, 1985, Plaintiff A was in charge of the president of D Faculty Council (hereinafter “D Faculty Council”) from March 1, 2013, and from March 1, 1985.

2) Plaintiff B was appointed as a full-time lecturer on March 1, 1997 through an associate professor and associate professor on September 1, 201, and was appointed as professor on September 1, 201. Since September 12, 2013, Plaintiff B was in charge of the Vice-Speaker of the Teaching Council from September 12, 2013. Defendant is an educational foundation that operates D in Busan Southern-gu.

(b) Disputes between the president and the faculty council;

1) A series of cases that occurred after the appointment of the F president, and that occurred after the appointment of F president, F, a Dong of G, the Defendant president, was appointed as the D major president on September 201, and thereafter the following dates have occurred. ①) From 2012 to 2013, 32 of the 62 university professors employed by the Defendant from 2012 to 201, from among 62 university professors of industry-academic cooperation (hereinafter referred to as “the president”), the 28 persons were the president and high school motive.

② The president, among the first-class persons selected by the relevant department in the course of pharmacy in 2013 and the recruitment of new faculty members, excluded both the applicants who were non-permanent faculty members, and determined the first-class senior faculty members, who were the third-class senior.

③ While entering H pastor as a teaching tree, the president paid the key money equivalent to KRW 180,000,000 as teaching expenses, and provided that he/she prepared the Jin Housing to the teaching tree.

(14) Women who are the president’s vice president were employed as the Defendant’s contractual workers.

(5) The construction of this Ministry’s sports facilities operated by the president shall be awarded a successful contract.

(6) The president has carried out the floor, wall surface, and toilet construction in the president's room and meeting room by bringing the construction cost of KRW 19.5 million into the construction cost.

2) On March 1, 2013, D professors established the faculty council, and elected the Plaintiff as the president, J Vice-Speaker, and K as the secretary.

3) On March 22, 2013, the president sent e-mail to all the faculty members of the president, taking into account the various circumstances of the school, such as from 80-9 billion won to 80 billion won, having determined that the year of 2013 was determined by the same decision except for the salary grade.

(iv)application for the management consulting support business of the President of Private School Promotion Foundation and publication by the Council of Professors;

A) On March 27, 2013, the president sent e-mail to all teachers to the effect that they will apply for participation in the “private university management consulting support program” (hereinafter “support program”) operated by the Korean Private School Promotion Foundation, and applied for participation in the support program on March 28, 2013.

B) On April 2, 2013, the Faculty Council sent to all the faculty members by e-mail a letter expressing that they oppose to applying for participation in the Support Project independently.

5) The filing of issues by the faculty council;

A) On April 18, 2013, the faculty council held the board of representatives on April 18, 2013. At that time, there was a report on the division of financial management as stated in the table, and on May 23, 2013, the board of representatives held on May 23, 2013 also had discussions on the agenda relating to D’s financial management (matters concerning benefits) and the current status of appointment and operation of industry-academic cooperation professors.

The number of teachers or the number of teachers' or the number of teachers' or the number of teachers' remuneration has been reduced to be taken up in the immediately preceding semester.After all, it is difficult to find out that the highest amount of the teachers' remuneration should be paid in return for their own measures.

B) After that, the Plaintiff A and the Teaching Council sent the e-mail or name as indicated below to all teachers.

A person shall be appointed.

C) L News reported the issue related to DJ professor of Industry-Academic Cooperation under the title of “M” and “N” on May 31, 2013 and June 3, 2013. At the time, Plaintiff A had an interview reported.

6) Recommendation to dismiss the Vice-President of the Teaching Council;

A) On June 20, 2013, the Faculty Council held an extraordinary general meeting and resolved on each item of agenda indicated below.

Summary of Bill Proposal

A person shall be appointed.

B) On September 9, 2013, the president sent e-mail to the entire faculty members to the effect that they cannot accept recommendations for dismissal as vice-presidents.

C) On September 15, 2013, the Faculty Council urged the president to accept a proposal to dismiss two vice-presidents by September 25, 2013, but the president did not accept such proposal.

(vii) demand of the President of the Faculty Council to resign or hold a short demonstration;

A) On September 26, 2013, the Faculty Council held a board of representatives on September 26, 2013 and resolved to delegate to the president of the Faculty Council all matters related to the receipt of the president’s letter of name requesting the resignation of the president on September 30, 2013.

A person shall be appointed.

B) In the personnel committee held on October 14, 2013 and October 17, 2013, the proposal was rejected by the president of the planning division and the president of the P graduate school. However, on October 17, 2013, the president appointed the president as the vice president of the planning division and the P as the principal of the graduate school.

C) On October 17, 2013, the Faculty Council held a council of delegates and resolved to decide whether to present the agenda of the president's retirement movement through the process of gathering opinions from each university and college and the process of an extraordinary council of delegates, etc.

D) On October 24, 2013, the Faculty Council sent a document stating that the Defendant Council recommended the dismissal of the president.

E) On January 10, 2013, 31, the Faculty Council decided to hold temporary assemblies and hold temporary assemblies as listed below.

A person shall be appointed.

F) On November 201, 2013, the president sent e-mail indicating various suspicions [the abuse of university-industry-academic cooperation professors’ personnel rights (the appointment of a majority of the presidents of high schools), pharmacy and the abuse of personnel rights by new faculty members (the designation of internal members differently from quantitative examination for religious reasons), the support program-related issues, the portion of subsidies for deposit money at school expenses to the faculty members, the portion of spending KRW 19.5 million for the construction of the president’s room toilets, the portion of a woman having friendship with the president as a functional contractual position, the portion of a successful contract for the construction of the Busan Cheongdong Sports Facilities operated by the president, the portion of the president’s frequent overseas business trip, the portion of the president’s personnel committee’s business trip, the person disregarding the decision of the personnel committee, the recommendation for dismissal of the vice president’s position, and hereinafter “the suspicions related to the president of this case”).

G) From November 4, 2013 to November 29, 2013, the president of the Faculty Council, including the Plaintiffs, installed a tent, banner, and scamet, etc., in the vicinity of the Dump Central Library, and carried out a steel-free demonstration by radaring (hereinafter referred to as “instant demonstration”). The Plaintiff A was hospitalized on the wind, which is used as the aggravation of health during the demonstration, from November 8, 2013 to November 1, 2015, and was unable to participate in the instant demonstration during that period.

H) On November 5, 2013 and November 8, 2013, the president ordered the president of the faculty council to suspend the demonstration, i.e., to stop the demonstration, and to remove the outdoor installation or attachment related to the demonstration. i.e., the president of the D branch of the D branch of the D branch of the D branch of the D branch of the D branch of the D branch of the D branch of the college of November 8, 2013.

1) As to the in-school situation: The president acknowledges the overall responsibility of the president as the highest person in charge of the school, and 5) As to the short-term demonstration by the president of the faculty council: The professor Council will continue the demonstration, i.e., the demonstration, and continue the productive efforts to resolve various issues through the regular meeting with the headquarters to be prepared thereafter.

(j) On November 10, 2013, 2011, the Korean Faculty Council of the D Total Students (the Central Steering Committee) announced a letter of name stating that "the education and research will continue for the students after the abolition of the intra-school demonstration." On November 11, 2013, the president of the D University shall be free from all members of the D University, and the president of the D University shall be free from extreme and non-productive disputes, shall be forced to be suspended, and the opinion of the Personnel Committee shall be respected in the future, and the opinion of the Personnel Committee shall be respected."

However, on November 14, 2013, the Faculty Council decided to continue the withdrawal movement on the ground that "no specific content exists and no authenticity exists in the promise of the President" and decided to conduct further demonstration by each university or college.

(l) On November 201, 2013, the president visited the scene of the demonstration to order the president of the Teaching Council to suspend the demonstration, but the president of the Teaching Council refused to comply with the order.

1) On November 21, 2013, the president published a debate in the school computer network to the effect that “the president decided to convene a teachers’ personnel committee to propose disciplinary action to the board of directors in accordance with school regulations against the president of the faculty council who led the collective demonstration.”

2) On November 22, 2013, the Faculty Council held a council of delegates and resolved to hold an extraordinary general meeting for impeachment of the president.

3) On November 25, 2013, the Defendant’s teachers’ personnel committee held a committee to deliberate on the case of the request for disciplinary action against the Plaintiffs, but decided to withhold the deliberation. On November 26, 2013, the president requested disciplinary action against the Plaintiffs. On November 26, 2013, the Defendant requested disciplinary action against the Plaintiffs to the teachers’ disciplinary committee after deliberation and resolution by the board of directors on November 27, 2013. Accordingly, the Plaintiffs were dismissed from position on November 28, 2013.

4) On November 28, 2013 through January 23, 2014, the teachers’ disciplinary committee decided to dismiss each of the Plaintiffs on the ground that the grounds that the grounds for the disciplinary action against the Plaintiffs, supra, constituted a violation of the duties prescribed in Articles 56 (Duty of Good Faith), 57 (Duty of Fidelity), and 66 (Prohibition of Collective Action) of the State Public Officials Act applied mutatis mutandis under Article 55 of the Private School Act, and the Defendant removed the Plaintiffs as of February 5, 2014 (hereinafter “each of the instant dispositions”).

A person shall be appointed.

5) The statutes and the defendant's regulations relating to each of the dispositions of this case are as shown in the attached Form.

D. Circumstances after each of the dispositions in this case were taken

1) On March 4, 2014, the Plaintiffs filed a petition review with the Appeal Committee for Teachers seeking the revocation of each of the dispositions of removal under the case number 2014-182, and 183. On June 25, 2014, the said Committee rendered a decision to revoke each of the dispositions of removal on the grounds that both the grounds that the grounds of the instant 1 through 3 are not recognized.

2) On October 6, 2014, the Defendant filed a lawsuit against the said committee for revocation of the decision of the Teachers’ Appeal Committee (Seoul Administrative Court 2014Guhap6943, 2014). On March 26, 2015, despite the recognition of the grounds for disciplinary action of the instant 2 and 3 cases, the said court determined that the said committee excluded the grounds for disciplinary action and rendered a decision unlawful. The said committee revoked the decision on the claim for revocation of the disposition of removal under Article 2014-182 between the Plaintiff and the Defendant. 【No dispute exists in the grounds for recognition. 【No dispute exists in this court’s fact-finding, which is significant in this court, evidence Nos. 1 through 46, 55 through 68 (including each number; hereinafter the same shall apply), Eul’s evidence Nos. 1 through 55, 57, 58, and 60, the purport of the entire pleadings, as a whole,

2. Summary of the plaintiffs' assertion

Each of the dispositions in this case shall be dismissed without the consent of the teachers' personnel committee. ① Since the president's dismissal was conducted without the consent of the teachers' personnel committee, the board of directors did not conduct a sufficient investigation.

Meanwhile, even if the plaintiffs abused their authority, there is no fact that they led the illegal demonstration, and there is no fact that they did not comply with the president’s lawful order, each of the instant disciplinary causes cannot be a justifiable disciplinary cause. Even if there is a legitimate disciplinary cause, each of the instant disciplinary causes is a deviation from and abuse of discretion due to excessive disciplinary action compared to the disciplinary cause.

Therefore, each of the dispositions in this case is null and void, and accordingly, the defendant is obliged to pay the unpaid benefits to the plaintiffs.

3. Determination on the claim to nullify the invalidity of each of the removals in this case

A. Determination on the existence of procedural illegality

1) Determination as to the plaintiffs' assertion that it is unlawful without the consent of the teachers' personnel committee

Article 64 through 66 of the Private School Act provides that a person who is authorized to appoint and dismiss a private school teacher shall request the teachers' disciplinary committee having jurisdiction over the relevant disciplinary case to make a resolution on disciplinary action when he/she falls under the grounds for disciplinary action under Article 61 (1), and the teachers' disciplinary committee shall notify the appointing authority of the resolution after conducting a deliberation on a disciplinary case due to a fact-finding, etc., and the appointing authority shall take disciplinary action according to the contents of the above resolution when he/she is notified. Article 53-3 (1) provides that a person who is authorized to appoint and dismiss a teacher (excluding the head of a school) shall establish the teachers' personnel committee to

Meanwhile, according to the evidence No. 56 of the defendant’s articles of incorporation, Article 52(1)1 of the defendant’s articles of incorporation provides that when the head of a college educational institution intends to recommend appointment and dismissal of professors, associate professors, or assistant professors, the personnel committee shall deliberate on the matters regarding the consent to the proposal for appointment and dismissal. Article 43(2) provides that teachers other than the head of a school shall be appointed and dismissed by the chief director after deliberation by the personnel committee.

In full view of the above provisions, a resolution on a disciplinary action against a teacher of a private school is within the authority of the teachers' disciplinary committee, and is binding as a result of the disciplinary action. However, the teachers' personnel committee is a deliberative body established to deliberate on important matters concerning personnel affairs, such as appointment and dismissal of teachers, and performs the function of carefully in exercising the authority by undergoing deliberation by the teachers' personnel committee prior to exercising the authority over important matters concerning personnel affairs. Thus, the person who is authorized to appoint and dismiss a teacher of a private school is not bound by the deliberation by the teachers' personnel committee.

In this case, the defendant's teachers' personnel committee held a committee on November 25, 2013 to deliberate on the case of a request for disciplinary action against the plaintiffs and made a decision to withhold the deliberation. However, unlike the result of deliberation by the teachers' personnel committee, the defendant requested the teachers' personnel committee to make a disciplinary decision against the plaintiffs, and thus, it cannot be said that there is any error in the procedure of each disposition of dismissal of each case.

Therefore, this part of the plaintiffs' assertion is without merit.

2) Determination as to the Plaintiffs’ assertion that the board of directors’ failure to conduct a sufficient investigation is unlawful

Article 64 of the Private School Act provides that a person who is authorized to appoint and dismiss a private school teacher shall conduct a sufficient investigation in advance when he/she falls under the grounds for disciplinary action under Article 61(1) of the Private School Act and then shall request the teachers' disciplinary committee having jurisdiction over the relevant disciplinary case to make a resolution. The meaning of the above provision refers to an investigation to the extent that it is possible to confirm the existence of the facts of the disciplinary action when he/she requests a proposal for disciplinary action and a request for a resolution on disciplinary action, and it is sufficient that the person who is authorized to recommend disciplinary action or the person who is authorized to request disciplinary action

In this case, it is difficult to view that the Defendant requested a disciplinary resolution against the Plaintiffs to the teachers’ disciplinary committee without undergoing sufficient investigation, in light of the following circumstances that can be acknowledged as the basis of the above recognition, namely, ① the conflict between the president and the faculty council has continued for a considerable period of time, ② it appears that most of the professors and students, including the students, were well aware of it; ③ the fact-finding was conducted upon the president’s proposal for disciplinary action against the Plaintiffs; and the Defendant’s board of directors was undergoing deliberation and resolution on the disciplinary action against the Plaintiffs based on the above materials.

Therefore, the plaintiff's assertion on this part is without merit.

B. Determination as to the existence of each of the grounds for disciplinary action in this case

1) Grounds for Disciplinary Action No. 1-1

The following circumstances, i.e., (i) the suspicions related to the president of this case, which the faculty council raised, based on most objective facts as seen earlier, can not be deemed to have spread false or non-verification. (ii) The main purpose or motive of raising the above issue is to raise the president's inherent mind in the university operation and to promote normalization of university operation, and it is difficult to deem the method to have exceeded the reasonable scope. (iii) Therefore, it is difficult to regard these acts committed by the faculty council by the plaintiffs as acts interfering with the duties of the defendant or D, or impairing the president's reputation, (iv) it is difficult to regard the plaintiffs' name as the name, etc. as acts interfering with the duties of the head of the university or impairing the president's reputation, (i) it is difficult to see that there is no other evidence to acknowledge that such acts constitute a violation of the law, (ii) it is difficult to say that there is a significant portion of the duty to promulgate teachers, (iii) it constitutes a violation of the disciplinary reasons, (iii) it is difficult to see this case's.

Therefore, this part of the plaintiffs' assertion is justified.

2) Grounds for Disciplinary Action No. 1-2

In light of the following circumstances that can be recognized by comprehensively considering the purport of the entire pleading in the above facts, namely, ① the chairperson and vice-chairperson of the Faculty Council appears to have been presiding over the board of representatives for the public interest purpose that the school should operate reasonably and normally; ② there is no evidence to deem that the Plaintiffs instigated members or announced false facts for private interest in the course of the faculty council meetings; ③ even if there are some defects in the resolution of the faculty council, the Plaintiffs cannot be deemed to have operated the board of directors by itself. In light of the above, the instant grounds for disciplinary action cannot be deemed to constitute justifiable grounds for disciplinary action, and there is no other evidence to prove otherwise.

Therefore, this part of the plaintiffs' assertion is justified.

3) Grounds for Disciplinary Action No. 1-3

In light of the following circumstances that can be recognized by comprehensively considering the purport of the entire pleading in the above facts, i.e., various statements of name, correspondence, distribution, banner, etc. prepared in the name of the faculty council, which are most matters resolved at the board of representatives and the general meeting; ② there is no evidence to deem that the president, including the Plaintiffs, prepared documents in the name of the faculty council; ③ the faculty council held a board of representatives on May 2013 and decided to delegate the contents of the name, etc. to the president; ④ it is difficult to recognize that the Plaintiff misrepresented the name of the faculty council solely on the ground that some of the members oppose the documents prepared in the name of the faculty council were written in the name of the faculty council; and there is no evidence to prove otherwise.

Therefore, this part of the plaintiffs' assertion is justified.

4) Grounds for Disciplinary Action No. 2

In light of the following circumstances, i.e., ① there is a distance from the professor’s main text of demonstration research and lectures, it is reasonable to view the demonstration as a final means to be taken by the faculty council among various means to correct the corruption of universities. ② Although the demonstration of this case was conducted for the purpose of urging the president to resign, it is difficult to recognize the legitimacy of the purpose or the reasonableness of the means of demonstration without having to resolve the problem through the legal procedure. ③ The demonstration of this case was conducted near the Central Library that many students go beyond the bounds of the purpose, and it was not short of the period, and the demonstration of this case was conducted for the purpose of maintaining the dignity of the above 10th National School Act, i.e., the head of the university or college of this case’s duty to maintain dignity, i., the purpose of which is to maintain the dignity of the professors, ii. The demonstration of this case’s duty to maintain dignity, i.e., the removal of faculty members from the private school’s duty to maintain dignity, i., the above 6th academic method and quality.

Therefore, this part of the plaintiffs' assertion is without merit.

5) Grounds for Disciplinary Action No. 3

As acknowledged earlier, the plaintiffs refused to suspend the demonstration by the president, continued to conduct the demonstration, or led the demonstration as the president and Vice-Speaker. The above facts are as follows; ① the president may exercise the right to direct and supervise the faculty members under his/her control by taking into account the overall purport of the arguments; ② the president’s order to suspend the demonstration of this case in violation of his/her duty to maintain dignity belongs to the legitimate scope of duties of the president; ③ the faculty council has a limit to not violate the relevant Acts and subordinate statutes in performing its role only when performing the duties to check the president and the president’s headquarters; ④ Even if the plaintiffs conducted the demonstration of this case as part of the faculty council’s activities, the demonstration of this case appears to be in violation of the president’s right to direct and supervise the demonstration. In light of the above, the grounds for disciplinary action of this case 3 is an act of refusing legitimate orders of the president, and constitutes grounds for disciplinary action stipulated under Article 61(1)1 of the Private School Act.

6) Sub-decisions

Ultimately, the grounds for disciplinary action Nos. 2 and 3 may be deemed to fall under the justifiable grounds for disciplinary action, but it is difficult to recognize the legitimacy of the grounds for disciplinary action, as there are no materials to deem the grounds for disciplinary action No. 1.

(4) If a disciplinary measure is taken against a person subject to disciplinary action under the Private School Act, it shall be deemed unlawful only if the disciplinary measure was taken as an exercise of discretionary authority by the person subject to disciplinary action against the person subject to disciplinary action, and the disciplinary measure against the person subject to disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action, including the contents and nature of the disciplinary measure, the purpose of the disciplinary measure to achieve the disciplinary measure, and the criteria for the determination of disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action, in light of the above principles of public interest which would have to exercise disciplinary power at the discretion of the person subject to disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action, and thus, it shall be deemed that the disciplinary measure against the person subject to disciplinary action against the person subject to disciplinary action against the person subject to disciplinary action has violated the principle of proportionality or the principle of disciplinary punishment against the person subject to disciplinary action against the person subject to disciplinary punishment against the person subject to disciplinary action against the above.

As a result, each of the dispositions in this case is null and void because it deviatess from and abused the authority of disciplinary discretion, and as long as the defendant contests this, there is a benefit of confirmation to confirm the relevant legal relations.

4. Determination as to the claim for unpaid wages

As long as each of the dispositions in this case is null and void, the employment relationship between the plaintiffs and the defendant still remains valid. Since the plaintiffs' employment obligation under the employment relationship could not be fulfilled due to the defendant's responsible causes after the above dismissal, the plaintiffs can seek payment of wages in return for the defendant.

갑 제53, 54호증, 을 제56호증의 각 기재에 변론 전체의 취지를 종합해 보면, ① 이 사건 각 파면처분 당시 원고 A의 월 평균급여는 9,211,660원이고, 원고 B의 월 평균급여는 8,738,080원인 사실 및 ② '직위가 해제된 자에 대하여는 보수의 8할을 지급한다'고 규정된 피고 정관 제48조 제4항에 따라 직위해제 기간 중 원고 A는 2013. 12월분 임금으로 8,985,300원의 80%인 7,188,240원(= 8,985,300원 × 80%)과 2014. 1월분 임금으로 10,313,363원의 80%인 8,250,690원(= 10,313,363원 × 80%)을 각 지급받았고, 원고 B은 2013. 12월분 임금으로 7,544,262원의 80%인 6,035,410원(= 7,544,262원 X80%)과 2014. 1월분 임금으로, 8,434,925원의 80%인 6,747,940원(= 8,434,925원 X80%)을 각 지급받은 사실을 인정할 수 있고, 원고 A가 직위해제 기간 중 지급받지 못한 임금은 합계 3,859,733원(= 8,985,300원 - 7,188,240원 + 10,313,363원 - 8,250,690 원)이고, 원고 B이 위 기간 중 지급받지 못한 임금은 합계 3,195,837원(= 7,544,262원 - 6,035,410원 + 8,434,925원 - 6,747,940원)임은 계산상 분명하다. 그렇다면 피고는, ① 원고 A에게 ① 직위해제 기간 동안의 미지급 임금 3,859,733원 및 이에 대하여 원고가 구하는 바에 따라 이 사건 소장 부본 송달일 다음날인 2014. 11. 7.부터 다 갚는 날까지 소송촉진 등에 관한 특례법이 정한 연 20%의 비율로 계산한 돈과 ① 파면일 다음날인 2014. 2. 6.부터 복직시까지 월 9,211,660원의 비율로 계산한 돈을 지급할 의무가 있고, ② 원고 B에게 ① 직위해제 기간 동안의 미지급 임금3,195,837원 및 이에 대하여 원고가 구하는 바에 따라 이 사건 소장 부본 송달일 다음 날인 2014. 11. 7.부터 다 갚는 날까지 소송촉진 등에 관한 특례법이 정한 연 20%의 비율로 계산한 돈과 ◐ 파면일 다음날인 2014. 2. 6.부터 복직시까지 월 8,738,080원의 비율로 계산한 돈을 지급할 의무가 있다.

5. Conclusion

Since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.