(영문) 서울고등법원 2017.9.1.선고 2017누44376 판결

The judgment of the first instance court shall be revoked. On April 20, 2016, the decision of dismissal made by the defendant against the petition for review of the revocation of dismissal No. 2016-139 between the plaintiff and the school foundation shall be revoked.

Reasons

1. Details of the instant disposition

The reasoning for this part of the judgment is as follows. The third part of the judgment of the court of first instance is used as follows. The "budget and settlement of accounts" of the second part of the judgment of the court of first instance is corrected as "budget and settlement of accounts", and the plaintiff also added the judgment of the court of first instance as stated in the reasoning for the judgment, except for the addition of the judgment of the second part as to the allegations emphasized by the plaintiff in the trial, it is consistent with Article 8(2) of the Administrative Litigation Act and the main part of Article 420 of the Civil Procedure Act.

H. On January 18, 2016, the Disciplinary Committee resolved to dismiss the Plaintiff. On January 29, 2016, the president of the Cuniversity notified the Plaintiff of his dismissal as of February 29, 2016, and the main contents are as follows.

1. Disciplinary reasons: Violation of Article 64 of the State Public Officials Act and Article 30 of the Regulations on the Personnel Management of Faculty Members under Article 55 (1) of the Private School Act (Service Prohibition) - Performance of profit-making activities as actual managers employed as D directors for a long period of time without the president’s permission - Performance of a number of research services; or . On the other hand, he/she shall attend school only on a day during which he/she has classes between 11 and 11 of the State Public Officials Act under Article 55 (1) of the Private School Act; he/she shall attend school; he/she shall be negligent in guiding and researching education for students by attending school as D and taking charge of all duties within the company; he/she shall not participate in the operation of the department; 2. Whether a disciplinary action is taken on February 1, 2008; hereinafter “Standards for Disciplinary Decision 1”) which is applied in the Regulations on the Disciplinary Punishment of Public Educational Officials;

2) 1.b.: ① The degree of misconduct in breach of the duty of good faith is serious and intentional (Article 1(1)1); ② removal from office; ② the degree of misconduct in breach of the duty of good faith is serious and intentional (Article 29(overseas travel) of the Regulations on the Personnel Management of Teaching Staff (Article 29(1)3); the degree of misconduct in breach of the duty of good faith is serious and gross negligence is severe; or the degree of misconduct is weak and intentional (Article 1(1) through ( dismissal or dismissal; 1) other extenuating circumstances are likely to cause water due to a civil petition related to sexual violence against women at around 2006) the members of the teachers’ disciplinary committee; and 2) the members of the ethical management officer, etc.; and 3) the members of the Spatial Committee, who are not only the members of the Ethical Committee but also the members of the Ethical Management Officer, etc., who are in violation of the spatial allocation decision of the spatial Committee

2. Additional determination

A. Summary of the plaintiff's assertion

In determining the legitimacy of dismissal of professors of private universities, considering the following: ① in order to substantially guarantee the freedom of study under Article 22(1) of the Constitution, the status of professors who conduct academic research as their main business, i.e., the stability of faculty members, and ② in order to guarantee the status of teachers and retirement age, Article 31(6) of the Constitution provides that “the basic matters concerning the status of teachers shall be determined by the Act.” The basic matters concerning the status of teachers shall be determined by the Act.” The relevant professor has committed serious misconduct to the extent that he/she loses his/her qualification to perform academic research, education, and instruction of students. However, the instant disposition should be revoked on the grounds that the degree of misconduct recognized as a part of the grounds for the instant disciplinary action against the Plaintiff cannot be deemed to be serious to the extent that he/she loses his/her teaching status

B. Determination

As the plaintiff asserts, our Constitution adopts the legal principle of teacher status in order to guarantee academic freedom, and to realize such constitutional spirit, the Private School Act (Article 56 (Prohibition of Dismissal, etc. from Office against Intention) and Article 60 (Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities (Article 4 and Article 6 (Guarantee, etc. of Teachers' Status)) provide for the guarantee of the status of teachers.

However, even if the fundamental rights under the Constitution are not infringed on the essential contents, it can be limited to a certain part by law, and Article 55 (Service) of the Private School Act provides that "the duty to faithfully perform duties" in Article 56 of the State Public Officials Act applied mutatis mutandis to private school teachers pursuant to Article 55 (Service) of the Private School Act shall not be engaged in profit-making business and Article 64 of the same Act provides that "the duty not to concurrently perform other duties without the permission of the head of the agency to which he belongs shall not be engaged." Thus, the provision of the State Public Officials Act does not infringe on the essential contents of the freedom of learning guaranteed by the Constitution, so

However, as seen earlier, it is sufficiently recognized that the Plaintiff’s attendance at school only on a monthly day for several years without the president’s permission, and the remaining days violated the duty of good faith under the State Public Officials Act, profit-making duties, and prohibition of concurrent offices, and that the Plaintiff’s disciplinary action against the Plaintiff also conforms to the standards for disciplinary action determined by the regulations on disciplinary action, etc

Therefore, even if considering the purport of the above provisions of the Constitution as asserted by the Plaintiff and other circumstances cited by the Plaintiff, the Defendant’s disposition of this case can be deemed legitimate.

3. Conclusion

The judgment of the first instance, which dismissed the plaintiff's claim, is justifiable, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.