[1] Whether the effect of the Constitutional Court's decision on the unconstitutionality of Article 10 (3) of the former Special Act on the Improvement of Teachers' Status is directly affected by the decision that had been previously unconstitutional (affirmative)

[2] The starting point for the period of filing a suit in a case where it is possible to file a revocation suit only due to the decision of unconstitutionality that the filing of a suit for revocation is not allowed under the law at the time of the disposition

[3] The standard for determining whether a disciplinary action against a private school teacher deviatess from or abused discretion

[1] Where Article 10(3) of the former Special Act on the Improvement of Teachers' Status (amended by Act No. 8414 of May 11, 2007), which only teachers may bring a lawsuit against a decision of the Appeal Committee on constitutional complaint, loses its validity, and even before the amended Act enters into force, a person who has a legal interest to seek cancellation of the decision of the Appeal Committee on Teachers, such as school juristic persons, can bring a lawsuit seeking cancellation under Article 12 of the Administrative Litigation Act even if he/she is not a teacher. As to the legal relationship, which is the direct opportunity for the request for adjudication on constitutional complaint, the effect of the decision of unconstitutionality becomes effective even if the decision was prior to the decision of the unconstitutionality decision.

[2] Article 20 of the Administrative Litigation Act provides for the period for filing a suit and takes the starting point of the period for filing a suit as the date when the person becomes aware of the existence of a disposition, etc. as the starting point of the period for filing a suit is due to the occurrence of objective or subjective grounds for filing a suit. Thus, in a case where a suit seeking revocation can only be filed due to a decision of unconstitutionality, the filing of a suit seeking revocation is not allowed under the law, and a suit seeking revocation can be filed only after the date when the person becomes aware of a decision of unconstitutionality, and the subjectively “date when the person becomes aware of a decision of unconstitutionality,” the starting point

[3] In principle, when a disciplinary measure is taken against a teacher of a private school, the disciplinary measure should be taken at the discretion of the person having the authority to take the disciplinary measure, so that the disciplinary measure is unlawful, it is limited to the case where the person having the authority to take the disciplinary measure is recognized that the disciplinary measure has abused the person having the authority to take the disciplinary measure who has the authority to take the disciplinary measure, as it considerably lacks validity under the social norms. In order to be a disciplinary measure which considerably lacks validity under the social norms, the disciplinary measure should be considered as a case where it is objectively and objectively unreasonable in light of the characteristics of the duty, the content and nature of the misconduct, the purpose of taking

[1] Article 47 of the Constitutional Court Act, Article 10 (3) of the former Special Act on the Improvement of Teachers' Status (amended by Act No. 8414 of May 11, 2007) / [2] Article 20 of the Administrative Litigation Act / [3] Article 27 of the Administrative Litigation Act, Article 61 of the Private School Act

[3] Supreme Court Decision 99Du2611 delivered on August 20, 199 (Gong1999Ha, 1903) Supreme Court Decision 98Du8858 delivered on October 13, 200 (Gong2000Ha, 2333) Supreme Court Decision 2002Du9179 Delivered on January 24, 2003 (Gong2003Sang, 734)

Plaintiff (Law Firm KEL, Attorneys Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Ministry of Education and Human Resources Development

An intervenor;

Seoul High Court Decision 2006Nu31664 decided August 28, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the period for filing a lawsuit

A. On June 24, 2005, the Plaintiff issued a disposition to dismiss the Intervenor’s Intervenor (hereinafter “ Intervenor”) from office as a full-time lecturer in the computer statistics department at the Joseon University under the Plaintiff’s control (hereinafter “instant dismissal disposition”). On January 27, 2005, the Defendant received the Intervenor’s petition review request pursuant to Article 9(1) of the former Special Act on the Improvement of Teachers’ Status (amended by Act No. 7354, May 11, 2007; hereinafter “former Teachers’ Status Act”) and rendered a decision to change the Plaintiff’s dismissal from office for the Intervenor into three months from office (hereinafter “instant decision”).

B. Article 10(3) of the former Teachers' Status Act provides that "A teacher may file a lawsuit against a decision of the Appeal Committee for Teachers (hereinafter referred to as the "Review Committee") within 60 days from the date of receiving a notice of decision, as prescribed by the Administrative Litigation Act." The plaintiff limited the person entitled to file an administrative litigation against a decision of the Review Committee as a teacher. On November 29, 2005, the plaintiff filed a petition for adjudication on constitutional complaint based on Article 68(1) of the Constitutional Court Act on the ground that the above legal provision violates Article 27(1) of the Constitution guaranteeing the right to claim a trial, etc., and the Constitutional Court rendered a decision of unconstitutionality on February 23, 2006 (see Constitutional Court Order 2005Hun-Ga7, Feb. 23, 2006; Constitutional Court Decision 2005Hun-Ga7, May 11, 2007; Constitutional Court Decision 201Do130, etc., as prescribed by the Private School Act.

C. Since Article 10(3) of the former Teachers' Status Act, which only teachers have been allowed to file a lawsuit against the decision of the review committee due to the Constitutional Court's above decision of unconstitutionality, becomes null and void, even before the amended Act became effective, a person who has legal interest in seeking revocation against the decision of the review committee, such as school juristic persons, can file a lawsuit for revocation pursuant to Article 12 of the Administrative Litigation Act even if the person is not a teacher, and as to the legal relationship, which is the direct opportunity for the request for adjudication on constitutional complaint under Article 68(1) of the Constitutional Court Act, the decision of this case, which is the direct opportunity for the plaintiff's request for adjudication on constitutional complaint, has the effect of the above decision of unconstitutionality. Thus, with respect to the decision of this case

Meanwhile, the main text of Article 20(1) of the Administrative Litigation Act provides that “a revocation litigation shall be instituted within 90 days from the date on which a disposition, etc. is known” and the main text of Article 20(2) of the same Act provides that “a revocation litigation shall not be instituted after the lapse of one year from the date on which a disposition, etc. is rendered.” The period for filing a revocation lawsuit shall be the period during which “the date on which a disposition, etc. is made” or “the date on which a disposition, etc. is known” can be lawfully filed, and the period for filing a revocation lawsuit shall be the starting point of the period for filing a lawsuit. As such, the period for filing a revocation lawsuit shall be the date on which objective or subjective grounds for filing a lawful revocation lawsuit may arise. Thus, where a revocation lawsuit can only be instituted due to a decision of unconstitutionality, the date on which a decision of unconstitutionality is rendered, and the date on which a subjective judgment becomes known” shall be the starting point of the period for filing a revocation lawsuit.

However, the Plaintiff filed the instant lawsuit on April 18, 2006, which was within ninety (90) days from February 23, 2006, which was the date when the above decision of unconstitutionality was rendered, and thus, it is lawful as the Plaintiff’s instant lawsuit complies with the period for filing the lawsuit under Article 20(1) and (2) of the Administrative Litigation Act.

Although the court below's reasoning on this part is somewhat inappropriate, the conclusion that the defendant rejected the defense on the merits of the case is legitimate, and there is no error of law affecting the conclusion of the judgment.

2. As to the grounds of appeal on disciplinary action

In principle, when a disciplinary measure is taken against a teacher of a private school, the disciplinary measure is taken at the discretion of the person having authority to take the disciplinary measure. Thus, the disciplinary measure is illegal only when the person having authority to take the disciplinary measure has been deemed to abuse the discretionary power, which has considerably lost validity under the social norms. If the disciplinary measure is deemed to be a disposition which has considerably lost validity under the social norms, it shall be deemed that it is objectively and objectively unfair in light of the characteristics of duties, the contents and nature of the reason for the disciplinary measure, and the purpose of the disciplinary measure and the circumstances accompanying the disciplinary measure (see Supreme Court Decision 98Du858 delivered on October 13, 200).

Examining the reasoning of the judgment below in light of the records, it is just that the court below determined that the dismissal disposition of this case cannot be objectively abused or deviates from its discretionary power, and there is no error of law such as misunderstanding of legal principles as to deviation and abuse of disciplinary power or incomplete hearing.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)