In a case where an assistant principal of a private secondary school is exempted from the duties of an assistant principal of a private school and an assistant principal was issued as a teacher by the internal regulations of a school juristic person, the case holding that it is difficult to readily conclude that it is unlawful and invalid to determine the term of an assistant principal on the ground that there is no provision regarding the term of office of an assistant principal other than the principal, and rather, matters concerning the term of an assistant principal

In a case where an assistant principal of a private school is exempted from the duties of an assistant principal of a private school and an assistant principal has been issued as a teacher by the internal regulations of a school juristic person, the case holding that it is difficult to readily conclude that it is unlawful and invalid to determine the term of an assistant principal on the ground that there is no provision regarding the term of an assistant principal other than the principal, and rather, matters concerning the term of an assistant principal of a private

Articles 53 and 56 of the Private School Act

Plaintiff (Attorney Sung-tae et al., Counsel for defendant-appellant)

Defendant School Foundation (Attorney Lee Jong-soo et al., Counsel for the defendant-appellant)

January 21, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The plaintiff confirms that the plaintiff is in the assistant principal's status of ○ Middle School operated by the defendant.

1. Basic facts

A. The defendant is a school foundation established pursuant to Article 10 of the Private School Act for the purpose of conducting middle and general education on August 29, 1967, and the plaintiff is appointed as a teacher on April 1, 1989 and teach the Korean language in the ○○ Middle School which belongs to the defendant corporation.

B. On February 16, 200, the Defendant corporation enacted the “internal regulations on the appointment of assistant principal” (hereinafter “instant regulations”) with the main contents of the two-year assistant principal term system.

C. On September 1, 200, the Defendant corporation appointed Nonparty 1 as an assistant principal on September 1, 200 following the resolution of the board of directors pursuant to the instant provisions, and issued an order as a teacher on August 31, 2002, which was two years after the appointment of an assistant principal.

D. On September 1, 2002, following the resolution of the board of directors, the defendant corporation appointed Nonparty 2 as an assistant principal acting as an assistant principal, and ordered the plaintiff to be an assistant principal on August 21, 2004.

E. On June 29, 2005, the Defendant foundation received a written opinion on the two-year term system for the teachers of ○ Middle School on the two-year term of office of assistant principal. With the consent of 19 of the 20 persons who submitted the written opinion, 19 of the 20 persons, who obtained the Plaintiff’s certificate of qualification as assistant principal, dismissed the Plaintiff from the assistant principal’s duties as an assistant principal and appointed the Plaintiff again as of September 1, 2005, which is the next day.

F. On August 29, 2007, the board of directors of the Defendant Corporation re-verifications the instant provision at the 8th meeting of the board of directors, and on September 1, 2007, the Plaintiff sent a notice of issuance No. 1 of the instant disposition to the Plaintiff on September 1, 2007, when the Plaintiff’s assistant principal duties are exempted and the Plaintiff issued as a teacher (hereinafter “instant disposition”).

[Ground for Recognition: Facts without dispute between the parties; Gap evidence No. 1; Eul evidence No. 1; Eul evidence No. 3-2; Eul evidence No. 4, 8, 9, and 10; the purport of the whole pleadings

2. Relevant provisions;

(a) Private School Act;

Article 53 (Appointment and Dismissal of Head of School)

(3) The term of office of the head of each school of all levels shall be stipulated by the articles of association, while a private school manager who is a private person shall not exceed four years, but may be reappointed: Provided, That the head of an elementary or secondary school may be reappointed only once.

Article 56 (Prohibition of Temporary Retirement, Dismissal, etc. Contrary to Intention)

(1) No teacher of a private school shall be subject to any unfavorable disposition, such as leave of absence or dismissal, against his/her will, unless he/she is sentenced to a punishment or disciplinary action or on any other ground prescribed by this Act: Provided, That this shall not apply when he/she is in office or in excess of

(b) Internal rules concerning the appointment of assistant principals; and

Article 3 (Term of Office) The term of office of an assistant principal shall be two years in principle, but he/she may be reappointed only once.

The chief director shall be appointed according to the procedure stipulated in the articles of association.

C. The defendant's articles of incorporation

Article 22 (Composition, Functions, etc. of Board of Directors)

(2) The board of directors shall deliberate and decide on the following matters:

5. Matters concerning the appointment and dismissal of the head and teachers of a school established by a corporation;

In order to deliberate on important matters concerning the personnel affairs of teachers (excluding the head of a school), the teachers’ personnel committee (hereinafter referred to as the “personnel committee”) shall be established in the school concerned.

Article 65 (Functions of Personnel Committee)

(1) The Personnel Committee shall deliberate on the following matters:

1. Matters concerning assignment of teachers;

3. Determination as to the defendant's defense prior to the merits

Since the defendant corporation claims that there is no legal interest in seeking a lawsuit for confirmation in this case since the plaintiff's successor is appointed as an assistant principal and performs the duties of assistant principal in ○○ Middle School, so long as the appointment of successor is nonexistent or there is no ground for invalidation or revocation of appointment, the lawsuit for confirmation shall be allowed as the most effective and appropriate means to resolve the dispute (see Supreme Court Decision 2001Da15828, 15835, 15842, Feb. 13, 2004). The defendant corporation may have up to two assistant principals in the middle school under the organization of Gap's office (Articles of incorporation Article 84). Thus, if the invalidation of the disposition in this case is confirmed, the plaintiff can return to the status of assistant principal regardless of whether the successor is appointed as a teacher of the corporation.

4. Judgment on the merits

A. Whether the instant disposition constitutes demotion

As to the plaintiff's assertion that the disposition in this case is a voluntary demotion, the defendant asserts to the effect that the disposition in this case is a fact notification act that confirms that the term of office expires, and it cannot be deemed a voluntary demotion, unless the term of office of the assistant principal is legitimate.

On the other hand, it is reasonable to see that the original assistant principal itself as a teacher is a voluntary demotion. The defendant corporation argues that the grounds for the issuance are merely an act of notifying the fact of the disposition in this case on the grounds that it is an assistant principal term system. However, the plaintiff is disputing the validity of the disposition in this case, regardless of whether the assistant principal term system is against the plaintiff's will, notwithstanding whether the assistant principal term system is against the plaintiff's will, the disposition in this case is not a mere act of notifying the fact. The defendant's assertion is without merit.

B. The plaintiff's assertion: The plaintiff asserts that he is in the position of assistant principal of ○ Middle School operated by the defendant corporation on the premise that the disposition of this case is null and void for the following reasons.

① The Defendant’s articles of incorporation do not have grounds for establishing the instant provision, and even if there are family-based provisions, the instant provision is null and void without the resolution of the board of directors. The instant disposition taken based on the invalid provision is also null and void

② According to Articles 3 and 4 of the instant provision, and Articles 64 and 65 of the Defendant’s Articles of Incorporation, the important matters concerning the personnel affairs of teachers except the principal shall be deliberated upon by the Teachers’ Personnel Committee. However, the instant disposition is null and void since it was made only by a resolution of the board of directors without deliberation

③ Although the proviso to Article 56 of the Private School Act does not fall under “the time when a class or department becomes closed due to the abolition or abolition of a class or department,” the instant disposition was rendered against the Plaintiff’s will, and thus, is null and void.

(4) Article 53 of the Private School Act provides that only the term of office of the principal of an secondary school may be prescribed by the articles of association or rule, and the term of office of other teachers shall not be specified by the articles of association or rule.

C. Judgment as to the Plaintiff’s assertion

First of all, as to whether the provision of this case is null and void due to the lack of the defendant's articles of incorporation, Article 22 (2) 5 of the articles of incorporation of the defendant corporation provides that matters concerning the appointment and dismissal of the head and teachers of the school established by the board of directors shall be deliberated and resolved. As seen above, the defendant corporation may exercise individual deliberations and voting rights concerning the appointment and dismissal of the head and teachers of the school established by the defendant corporation pursuant to Article 22 (2) 5 of the articles of incorporation, and it is deemed that autonomous regulations concerning the appointment and dismissal of the head and teachers of the school can be established. Thus, the plaintiff's

Next, according to the results of the fact-finding on whether the provision of this case is null and void without the resolution of the board of directors, the fact-finding on the head of the Daejeon District Office of Education of the Daejeon District Court is recognized as having established the provision of this case on February 16, 200 without the resolution of the board of directors on February 16, 200. On the other hand, according to the evidence No. 5, it can be acknowledged that the non-party 1 and the non-party 2, who was the former assistant principal of the plaintiff, was appointed as the assistant principal, and the resolution of the board of directors was passed by each of the board of directors. Thus, even if there was no formal resolution of the board of directors at the time of the enactment of the provision of this case, so long as the non-party 1 and the non-party 2 were appointed as the assistant principal of the term system

D. Judgment on the Plaintiff’s assertion

In light of the above facts and the following circumstances, it is difficult to deem the disposition of this case to be null and void on the sole basis of the fact that it did not undergo a deliberation by the teachers' personnel committee on September 14, 2007, by holding the first teachers' personnel committee on September 18, 2007, and by holding the first teachers' committee on September 2007, 2007. The above facts and the following circumstances are as follows: (a) there was no teachers' personnel committee at the time of the disposition of this case; (b) there was no teachers' personnel committee at the time of the disposition of this case; (c) there was no teachers' personnel committee at the time of the disposition of this case; (d) there was an examining authority on important matters concerning the personnel affairs of teachers other than the principals; and (d) it was established by the personnel committee of ○ middle school teachers after the disposition of this case against the plaintiff; and (d) it was confirmed ex post facto after the expiration of the teachers' personnel committee.

E. Judgment on the Plaintiff’s assertion

On February 16, 200, after the enactment of the provision of this case on February 16, 200, three teachers including the plaintiff perform the assistant principal positions for two years (three years including the period of acting for the plaintiff). Under the provision of this case, at the time of appointment as the assistant principal on September 1, 2004, the plaintiff was dismissed pursuant to the provision of this case, and he was appointed as the assistant principal, and the non-party 2, who was the former assistant principal, responded to the appointment of the assistant principal with the knowledge that he was appointed as the assistant principal, and was working as the assistant principal on June 29, 2005, the plaintiff's opinion that it was too short of the terms of office for the assistant principal, and that it was not consistent with the order of acting for the assistant principal on June 29, 2005 under the premise that the plaintiff's opinion was written on the premise that the term of office of the assistant principal was partially changed, and that it was not consistent with the order of acting for the above assistant principal.

F. Judgment on the Plaintiff’s assertion

However, the term of office of the principal of a secondary school under the Private School Act is limited to the Plaintiff’s assertion, but it is difficult to conclude that the term of office of the principal of a secondary school is illegal and invalid because the term of office of the principal of a secondary school is not prescribed in the Private School Act. Rather, according to the result of the fact-finding conducted by the Minister of Education, Science and Technology, and the fact-finding conducted by the Minister of Education, Science and Technology in the case of a private school, the term of office of the principal of a private school is determined by a school juristic person who has the right to appoint and dismiss the principal of a private school. Accordingly, the Plaintiff’s above assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge) (Presiding Judge)