(영문) 서울행정법원 2015.7.23. 선고 2015구합52531 판결

1. On December 18, 2014, the Defendant’s decision on the revocation of transfer disposition (2014-557) between the Plaintiff and the Intervenor joining the Defendant is revoked.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the partnership;

A. On April 1, 1991, the Plaintiff was newly appointed as the assistant professor of the National Foundation established and operated by the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) and was promoted as the associate professor on April 1, 1995, and on April 1, 200, respectively.

B. From September 1, 2009 to February 28, 2011, the Plaintiff served as a major professor at the National University B.

C. On January 11, 2012, the intervenor argued that the plaintiff "(i) year 201 as a professor in charge of the D subject(joint subject) of the 201 semester C Campus, even though he/she is in charge of the D subject(joint subject), he/she should assign E concurrent professors so that he/she should proceed with lectures and reinforcements," and that he/she would be at least ten weeks from the opening date of the class, and that he/she failed to comply with the direction of the plaintiff, even though he/she did not comply with the direction of the plaintiff, and (ii) after the completion of the class was confirmed on September 21, 201, the C Campus Chief, the natural science university head, and the administrative office chief, etc. urged him/her to continue normal classes over several occasions, but the class was not normal, and (iii) the president sent the official door to â€˜D normal school renewal' and the progress of lectures in the future, which led to failure to comply with the direction of the plaintiff."

D. On February 6, 2012, the Plaintiff dissatisfied with the above removal disposition, filed a petition review seeking the cancellation of the removal disposition against the Defendant. On April 23, 2012, the Defendant rendered a decision to change the period into three months of the suspension from office.

E. On July 19, 2013, the Intervenor filed an administrative litigation seeking revocation of the decision made by the Defendant on April 23, 2012, but this Court rendered a judgment dismissing the Intervenor’s claim on the grounds that not only the Intervenor but also the prime professor at the time was responsible for the failure to give lectures and instructions but also the disciplinary action was excessive (this Court Decision 2012Guhap21963), and on April 16, 2014, the Seoul High Court sentenced the dismissal judgment (No. 2013Nu24411) at the Seoul High Court, and on July 24, 2014, the Supreme Court rendered a judgment dismissing the appeal (No. 2014Du6475) and became final and conclusive on the same day.

F. Around May 2012, the Intervenor newly established the H Department by integrating the F and G departments to which the Plaintiff belongs.

G. On July 28, 2014, the Intervenor issued a personnel order to change the disposition of suspension from office against the Plaintiff as of January 11, 2012.

H. On August 11, 2014, the Director General sent a letter to request the Plaintiff to prepare and send his/her intention to return to the National University. On August 20, 2014, the Plaintiff sent a certificate of content to the effect that the Plaintiff, on August 20, 2014, stated his/her intention to return to the National University as follows, and intended to return to the National University, so that normal education and research activities can be conducted in the H Department.

A person shall be appointed.

I. On October 1, 2014, the Intervenor issued a personnel order to the Plaintiff to change the position of the Plaintiff to the J of the National University Cc Campus (Although the above personnel order does not correspond to the administrative disposition under the Administrative Litigation Act, it constitutes an unfavorable disposition under Article 9(1) of the Special Act on the Improvement of Teachers' Land, hereinafter referred to as the "disposition of this case").

(j) On November 6, 2014, the Plaintiff filed a petition review with the Defendant seeking the revocation of the instant disposition.

(k) On December 18, 2014, the Defendant rendered a decision to dismiss the Plaintiff’s petition review request to the effect that the instant disposition was an act within the Intervenor’s legitimate personnel discretion (hereinafter “instant decision”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Gap evidence 8-1 through 4, Gap evidence 19, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. The plaintiff's assertion

The decision of this case is unlawful since the defendant dismissed the petition review seeking the cancellation of the disposition of this case despite the following illegal grounds.

1) According to the provisions of the Defendant’s articles of incorporation, the change of affiliation pursuant to the instant disposition constitutes matters concerning the terms and conditions of a contract for the appointment of a teacher and did not undergo deliberation and resolution by the teachers’ personnel committee. Therefore, the instant disposition is procedural defect.

2) Inasmuch as the removal disposition was changed by the Defendant’s decision on April 23, 2012 as a result of the suspension of office for three months, it is unlawful for the Plaintiff to take the instant disposition to change its affiliation against the Plaintiff’s explicit intent without any grounds. Furthermore, there is no circumstance to justify the alteration of the Plaintiff’s affiliation, while the Plaintiff is in doubt of the disadvantage suffered from the removal of its principal duties as a university professor who strong the major and further develops its academic research, and thus, the instant disposition was unlawful by abusing the scope of discretion and abuse of discretion, since the period from January 11, 2012 to March 11, 2012 was reinstated as a faculty member of the FF department.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

1) Whether procedural defects exist in the instant disposition

A) Article 53-3(1) of the Private School Act provides that the relevant school shall establish a teachers’ personnel committee in order to deliberate on important matters concerning the personnel affairs, such as appointment and dismissal of teachers. Article 53-3(2) of the same Act provides for matters necessary for the organization, function, and operation of the teachers’ personnel committee.

B) The relevant provisions of the Articles of Incorporation (Evidence A) of the Intervenor are as follows.

Chapter 6. Appointment of a teacher in Section 1, a teacher in Section 1, and Article 43 (Term of Office of the principal of a school) (3) of the teacher in a university shall be appointed by determining the following terms and conditions of the contract:

5. A teachers' personnel committee (hereinafter referred to as the "personnel committee") shall be established in a university to deliberate on important matters concerning personnel affairs, such as appointment and dismissal of teachers (excluding the head of a school) under Article 51, as deemed necessary by the president of the university. Article 52 (Function of Personnel Committee) (1) The personnel committee of a university shall deliberate on the following matters:

C) Relevant provisions of the Intervenor’s Staff Personnel Management Regulations (Evidence A) are as follows:

Article 1 (Purpose) The purpose of this Article is to prescribe the detailed matters concerning the personnel management of faculty members of the National University of Korea as stipulated in Section 1 of Chapter VI of the Articles of Incorporation.The term "Appointment" means new employment, promotion, promotion, promotion, transfer, change of position, concurrent office, dispatch, dismissal, dismissal from office, temporary retirement, release from position, reinstatement, removal from office, and removal from office. Matters not specified in Article 39 (Application Mutatis Mutandis) shall be governed by the Private School Act, the Enforcement Decree of the Private School Act

D) On the following grounds, it is reasonable to view that the instant disposition, which changed the Plaintiff’s position as a teacher of a university from the major department to the department of culture against the Plaintiff’s explicit intent, was a matter of deliberation and resolution by the teachers’ personnel committee. However, since the Intervenor did not undergo the deliberation and resolution procedure by the teachers’ personnel committee in rendering the instant disposition, there is procedural error.

① The change of the department to which a teacher of a university belongs is the same as the transfer disposition, and the transfer of Article 5 of the Intervenor’s Regulations on the Personnel Management of Teaching Staff is defined in the form of appointment. Therefore, the instant disposition is deemed to be included in the concept of appointment and dismissal of teachers.

② Article 31(6) of the Constitution provides that “The basic matters concerning the status of teachers shall be determined by the Act,” and Article 56(1) main sentence of the Private School Act, Article 43(2) of the Educational Officials Act, and Article 6(1) of the Special Act on the Improvement of Teachers’ Status provide that “All teachers shall not be subject to unfavorable measures, such as leave of absence from office or dismissal against will without punishment, disciplinary action, or any other cause determined by the Act,” thereby ensuring that their status is strengthened compared to ordinary workers in order to ensure the autonomy and specificity of education. In addition, in the case of university professors, lectures and research are the main part of their major, and further developing their academic research by lectures and research on their major field constitutes the essential part of university teachers’ status. In light of the foregoing, it can be deemed that the change of a major department or senior professor’s major subject to education from the former to the culture department, making it practically difficult to teach and research their major field like the former one, constitutes an important change in the status of university teachers.

(3) In addition, the change of the Plaintiff’s department results in changes in the contents of duties, such as affiliated agencies, workplace, and lecture. Thus, this constitutes a change in the working conditions among the contract terms for the appointment of teachers under Article 43 (3) 3 of the Intervenor’s Articles of incorporation, and constitutes the matters subject to deliberation by the teachers’ personnel committee under Article 52 (1) 2 of the Articles of

2) Whether there is any substantive defect in the instant disposition

A) As a matter of principle, transfer or change of position to workers belongs to the personnel management authority, and an employer has considerable discretion to the extent necessary for the performance of duties, but it is not allowed if there are special circumstances, such as violation of the Labor Standards Act, etc. or abuse of rights (see, e.g., Supreme Court Decision 97Da36316, Dec. 12, 1997). In particular, as seen earlier, in the case of teachers, their status is more strongly guaranteed compared to ordinary workers pursuant to the laws and regulations. Whether the change of position to teachers falls under the scope of legitimate personnel management authority should be examined in more strict standards. In a case where the change of position falls under the scope of legitimate personnel management authority, where the change of position was not made in accordance with reasonable and objective standards, or where the disadvantage of teachers in their daily life is made under other unreasonable motive or purpose, or where the disadvantage of teachers significantly exceeds the level of normal personnel management authority, it cannot be said

B) According to Article 2(5) and (8) of the Public Educational Officials Act, the so-called "transfer" that allows a public educational official to work for a different working institution or department within the same position and qualification is widely defined as a type of "election." Article 10 of the same Act provides that the appointment of a public educational official shall be made based on his/her qualifications, results of education, performance, and other capabilities, and shall guarantee equal opportunities depending on his/her ability. Furthermore, Article 17 of the same Act provides that the standards for the appointment of a public educational official shall be more specifically determined by stipulating that a public educational official shall be appointed to a proper position in consideration of his/her qualifications, major field, retraining, career, work experience, aptitude, etc. in the assignment of a public educational official. In light of the above, the appointment and assignment of a public educational official shall not be deemed an act of free discretion, and it shall be made in accordance with the above legal principles and standards (Supreme Court Decision 207Du5233 Decided September 6, 2007).

Article 55(1) of the Private School Act provides that the provisions concerning the service of the teachers of national and public schools shall apply mutatis mutandis to the service of the teachers of private schools, and as seen earlier, Article 56(1) of the same Act and Article 6(1) of the Special Act on the Improvement of Teachers’ Status also are guaranteed the status of the private school teachers to the same extent as the public educational officials. As such, the above principles and standards for the transfer of public educational officials can also be applied to the private school teachers. Thus, whether such principles and standards are complied with can be considered as one standard in determining whether there is a legitimate personnel authority.

C) Further to the above evidence, it is difficult to see the following circumstances that the Plaintiff’s new departments and records Nos. 13 and 7, and the Plaintiff’s new departments and records No. 3 were based on the overall purport of oral arguments. ① The current number of teachers is 80, and the current number of teachers is 6, and it is necessary to raise the ratio of full-time teachers to promote culture education. On the other hand, the fixed number of teachers in 2016, which is 16, is 8, and the fixed number of teachers of the previous departments and records is 160, and it is difficult to view that the Plaintiff’s previous new departments and records No. 3, which are different from the previous departments and records No. 1, and that the new departments and records No. 2, which are different from the previous departments and records No. 3, which are different from the new departments and records No. 3, which are different from the previous departments and records No. 3, which are different from the new departments and records No. 2, which appear to be changed.

3) Sub-decisions

Therefore, even though the disposition of this case should be revoked on the above grounds, since the defendant judged otherwise and dismissed the plaintiff's request for review of the appeal, the decision of this case cannot avoid revocation because it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.