(영문) 춘천지방법원 2013.11.8.선고 2013구합671 판결

A. On March 1, 199, the Plaintiff was newly appointed as C and a full-time lecturer at Samyang University, which was integrated with the Gangwon University on March 1, 1999, and was promoted as an assistant professor on April 1, 2001 and as associate professor on April 1, 2005, respectively, and was reappointed as of September 1, 201.

B. On May 10, 2012, the Gangwon University Appointment Review Committee composed of full-time faculty members conducted the following evaluations in accordance with the research performance and the guidelines for the examination on appointment of full-time faculty members of Gangwon University from April 1, 2005 to September 1, 2012, which is the evaluation period of reappointment, from April 1, 2005 to September 1, 2012 (hereinafter “instant guidelines”).

A person shall be appointed.

C. On July 27, 2012, the Defendant issued a disposition to refuse the Plaintiff’s reappointment on the ground that the Plaintiff fell short of the standard points set forth in Article 7 of the Guidelines as above (hereinafter “instant disposition”) following deliberation by the University Personnel Committee on the said evaluation results (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 16 evidence, Eul evidence 1, 8 through 15, and 17 (including relevant numbers), the purport of the whole pleadings

2. Provisions relating to the reappointment of the Gangwon University (Evidence A2 and 3);

Rules on Appointment of Full-time Faculty Members at Gangwon University

Part I (Purpose) The purpose of this Chapter is to determine the standards, procedures, etc. for the appointment of full-time teachers of the Gangwon University to be adequate for the personnel management of the full-time teachers of this university. Article 2 (Definitions) (1) refers to professors, associate professors, assistant professors, and full-time instructors. Part V of the re-contracts for the same class (subject to the same class and research results) Article 15 of the re-contracts for the same class (subject to the same class and research results).

The purpose of this Guidelines is to ensure the rationality and fairness in the management of personnel affairs of teachers by prescribing matters concerning the standards for examination of promotion, retirement, guarantee of reappointment, and appointment to contract for the former faculty of Gangwon University. Chapter II, Article 7 (Occupational Review) of the Guidelines for the examination of appointment of former faculty members of Gangwon University (amended by January 27, 2012; hereinafter referred to as the "Guidelines of this case") shall be limited to those within the period of promotion. (2) The achievements of education, academic activities guidance, etc. of those eligible for promotion shall be examined by the examination committee on appointment of former faculty members of Gangwon University based on the results of the examination of their achievements 2-3. (3) Each member shall be individually rated by the examination table of examination of appointment of former faculty members of Gangwon University, and the results of the examination of appointment of former faculty members shall be reported to the head of the examination committee on the following 2-1 to 3.4 of the report on the results of examination of appointment of former faculty members by 100, and the results of the examination of research results of the examination of the two (2-1 to 4) through 6.

Article 21 (Request for Examination) The head of the relevant university or college shall submit the documents referred to in subparagraphs 1 and 3 of Article 20 to the president, and the documents referred to in subparagraph 2 shall be submitted to the Appointment Review Committee to request an examination. Article 7 shall apply mutatis mutandis to the examination of achievements on education, academic activities, guidance of students, etc. of persons subject to reappointment or re-contract. The president shall give a person who fails to obtain at least the points specified in Article 23 as a result of the examination of his/her achievements.

3. Whether the instant disposition is lawful

A. As to the instant guidelines

1) The plaintiff's assertion

The instant guidelines, which served as the basis of the instant disposition, contain the possibility of arbitrary and subjective evaluation of the evaluators, are likely to abuse or deviate from discretionary power as their own, and accordingly, the Plaintiff obtained a lower score in the performance evaluation despite its outstanding research performance. Therefore, the instant dispositions based on the instant guidelines are unlawful.

A) Article 22(1) and Article 7(3) of the instant Guidelines provide that “The evaluation mark of achievements attached to Article 22(1) and 2-6” is the most important examination document in the review of reappointment. (1) The evaluation point of each of the evaluation items of the performance evaluation table is limited to the allocation of outstanding (five points), excellent (4 points), ordinary (3 points), and insufficient (2) 70% (70%) of the full number (10 points) of the full number of the faculty in the case of the full-time faculty in the appointment of fixed-term (10 points) but in the case of promotion, it is not determined whether the average of the total points is less than 70% of the full number of the fixed-term faculty in the appointment of the Gangwon University, unlike the explicit provision that “a person whose average of the total points is less than 70% of the full number of the results of the occupational examination” as a result of the examination.

B) Article 22(2) and (3) of the instant Guidelines provide that a person who fails to obtain points above the point set forth in Article 23 of the said Guidelines shall be given an opportunity to vindicate. Article 23 of the said Guidelines is deleted.

2) Determination

According to the rules on the appointment of full-time teachers of Gangwon University and the rules on the appointment of the guidelines of this case, the following facts are acknowledged: “A person whose total average points are less than 70% of the full score as a result of the occupational examination of this case is less than 19-1 through 3, B-20, and 21” in Article 23 of the guidelines of this case. However, on December 6, 2006, when the rules on the appointment of full-time teachers of Gangwon University were amended at the same time, Article 23 was transferred to the above appointment rules, and Article 9-2(1)4 of the above appointment rules of Gangwon University, and Article 9-2(1)5 of the above appointment rules, “a person whose average points are less than 70% of the full score of the results of the occupational examination of this case, and a person who fails to submit signs and a copy of the academic paper published before the date of promotion after the submission of a certificate of expected appointment of this paper.”

In other words, according to the above facts and the facts recognized as above, the evaluation table of performance evaluation under Articles 22, 7, and 2-6, and 2-2 of the Guidelines of this case is composed of four options such as excellent points (5 points), excellent points (4 points), ordinary (3 points), and insufficient points (2 points) to evaluate each examiner of the appointment examination committee individually, and thus, seek reasonable criteria for examination. (2) In addition to the guidelines of this case, Article 17 of the Rules on the Appointment of Full-time Teachers of the Gangwon University provides criteria for examination; (3) The promotionary 2-6 is an evaluation table used in both cases of retirement age, reappointment, and re-contract; and (70 points, which are the standard points, are considered to be evaluated individually; and (4) the guidelines of this case are not applicable mutatis mutandis to the examination of the appointment of full-time university; (3) The appointment guidelines of this case are not applicable mutatis mutandis to the examination of the appointment of full-time university; and (4) the appointment guidelines of this case are not applicable mutatis mutandis.

Therefore, the plaintiff's above assertion is without merit.

B. Regarding the part on the examination of achievements

1) The plaintiff's assertion

In light of the following circumstances, the Plaintiff’s average 55.6 points, which are the Plaintiff’s achievement review points, are unfair and actually higher than 70 points, and thus, the instant disposition that was rendered on the ground that the Plaintiff’s achievement review point is less than 70 points, is unlawful.

A) The Plaintiff’s maintenance of dignity and work status as a professor was subject to three months of dismissal from position or suspension due to sexual indecent act, and the “person’s personality and dignity as an educator” score is insufficient for all three examiners (two points). Thus, the above case can be recognized as reflected. However, in the case of “(2) work status and work status,” the Plaintiff was a professor unrelated to the disciplinary power, and the Plaintiff did not have any problem. Therefore, the Plaintiff’s points are insufficient (2 points) is a subjective and arbitrary assessment.

B) The first semester of 201, which was a disciplinary action of three months of dismissal from position or suspension due to an indecent act against student guidance, was taken in 2008 and that of three months of suspension from office was taken in other universities without permission, should be excluded from evaluation, since the first semester of 201 was a period during which normal lectures could not have been made.

The two semesters in 2011 and the one semester in 2012, which were reinstated after the above disciplinary action, were closed due to the lack of students, and thus, the Defendant did not pay any consideration to the Plaintiff reinstated, such as establishing new students’ lectures, and aiding and abetting students to commit illegal acts, such as preventing the Plaintiff’s laboratory door and damaging it.

Even if all of the above periods are included, the Plaintiff’s performance evaluation guidelines for full-time faculty members of Gangwon University is attached to the implementation guidelines for the evaluation of their achievements, 165 points out of 165 points when all responsible hours and lectures have been

146 points out 146 points out. In addition, except for the part in charge of observing the hours of responsibility and over-hour hours, the remaining part of the planning of lectures and preparation of lectures, the degree of loyalty, the development of teaching materials and teaching methods, the student guidance and the ability to create a school atmosphere, the student employment and career guidance efforts shall be evaluated as only for the part that the plaintiff has made a normal lecture. As the plaintiff can be seen in the research performance, the plaintiff was the highest of the practical ability, and made an in-depth lecture from March 2005 to February 2008, and was given career counseling with students from time to time as a professor in exclusive charge of student employment. Accordingly, it is arbitrary and illegal that this part of points is not sufficient (2 points) other than one outstanding (5 points), one excellent (4 points) and one excellent (5 points).

As can be seen from the Plaintiff’s evaluation of 1,30% in the research performance, the Plaintiff submitted a large number of research records, published them over 51 times in July 7, 2005, and made an excellent performance, such as D', D', 2006, D', 25 E', F1, etc., and thus, it is unlawful to conduct an evaluation that is short of this, reflecting other circumstances, such as disciplinary action, even though it should be subject to outstanding (5 points).

D) Contribution to service and national society

Inasmuch as it is recognized that the Plaintiff was involved in sexual indecent acts, etc. but the name of the school is high, it is reasonable to recognize that the part of the effort for the development of this school is excellent (four points). The portion of contribution to the State and local communities is reasonable. The Plaintiff’s contribution to the State and local communities as well as the State and local communities, including the Plaintiff’s work activities and exhibition activities outside Korea, should be evaluated as excellent (4 points) even if it is concessioned, it is illegal to give a score that falls short of the assessment based on an arbitrary rating of the evaluators.

E) The reflection of the results of the faculty evaluation is illegal that the three examiners gave the lowest score (15 points). Even though the Plaintiff’s research performance shows very outstanding scores, it is deemed that the Plaintiff’s evaluation of the period during which the Plaintiff was not actually working as the target period (the year 2009 was suspended from office, and the year 2005 was omitted).

F) As a result, the Plaintiff’s evaluation of the Plaintiff’s achievements was conducted without any criteria, without any reason, on the basis of objective data, even though there was no reason for the Plaintiff to obtain low scores in the relevant part, and this may also be seen as the examination of the Plaintiff’s achievements with low research performance. Even if there was a ground for disciplinary action and caused interference with the Plaintiff’s work, insofar as the Plaintiff did not deprive the Plaintiff of his status as a teacher through disciplinary action and ex officio dismissal, it is not determined that the Plaintiff did not have basic qualities as a teacher. Therefore, if there was research and lectures ability above a certain level, barring special circumstances, it is unreasonable to re-appoint the Plaintiff, barring any special circumstance, and to intentionally dismiss the Plaintiff for the said reason.

(b) Related statutes;

Attached Form 2 shall be as shown in attached Table 2.

The following facts are recognized according to each of the above evidence and the evidence of Nos. 2 through 7 (including corresponding numbers):

1) In around 208, the Plaintiff was indicted by the Defendant at the Gangseo-gu District Court 2008Kadan811 and was sentenced to a fine at around that time due to the suspicion of indecent act by force against female students belonging to the Department C of the Gangwon-do University C at B, which the Plaintiff is a professor, and the said judgment became final and conclusive at that time. Accordingly, the Plaintiff was subject to dismissal from position during the period from May 21, 2008 to August 26, 2008 from the Defendant, and was subject to three months of suspension from office from the next day until November 26, 2008.

2) The Plaintiff temporarily retired from office due to each disease from March 1, 2009 to June 30 of the same year, from October 29 to December 24 of the same year, from May 1, 2010 to June 23 of the same year, and from August 23, 2010 to December 8 of the same year.

3) The Plaintiff was enrolled in the Seoul Arts University before he was enrolled in the Samwon University Tak Campus, and was subject to three-month suspension from April 14, 201 to July 14 of the same year on the ground that the Plaintiff was enrolled in the said university from around 2005 to around July 201 without the Defendant’s permission.

4) The examination documents submitted by the Plaintiff relating to the examination for reappointment in accordance with the relevant regulations and the examination documents submitted by the Defendant to the Plaintiff from the relevant department are as follows.

① 산업과학대학원 강의 | 2005년도 1학기 및 2006년도 1학기: 강좌수 1개(강의계획서 배포함), 강의 시간 3시간

- - Two lecture numbers of one semester 2007 (distribution of each lecture plan), five lecture hours;

(2) The lecture of a faculty

- 1 semester in 2005: 3 course, 9 hours in charge, 14 hours in lectures, 14 hours in lectures, distribution of plans for lectures of each lecture and conduct evaluations of lectures.

- 2 semesters of 2005: Dong Dong.

- 1 semester in 2006: 2 semesters in 2006: 3 courses, 9 hours for responsibility, 10 hours for lectures, 10 hours for lectures, 206 distribution of plans for lectures of each lecture, and implementation of lectures: 3 courses, 9 hours for responsibility, 14 hours for lectures, 14 hours for lectures, and the distribution of plans for lectures of each lecture and the evaluation of lectures.

- 1 semester in 2007: 4 course, 9 hours in charge, 17 hours in the course, 17 hours in the course, 2007, 2007: 3 course responsible hours, 9 hours in the course, 14 hours in the course, 14 hours in the course, 15 hours in the course, and 207.

- 1 semester in 2008: 3 course, 8.4 hours in charge, 7.2 hours in charge, 2 semesters: 9 hours in charge;

* In the case of the first semester of 2008, changes in the person in charge of classes due to removal from position (as of May 6, 2008): 3 of undergraduate subjects and 12 of Si Number (10 parking)

* Nim, during the period in which the Plaintiff paid leave of absence, 2009 and 2010, 3 faculty evaluation 2006 No. 2006, 2007, 2008, Dogre, 2009 common, 2009, 2010 and 2011.

④ From March 1, 2005 to February 28, 2008, Dongri-ri guidance Hari-ri’s Hari-ri’s Hari-ri’s Hari-ri’s Hah’s Hari-ri’s Hari-ri’s Hari-ri’s 2006, 207, 209, and 2012, respectively,

D. Determination

1) Even if a university faculty member’s broad freedom of teaching is permitted, it shall not be detrimental to the rights and interests of the students, who have fundamental rights to receive education, and the right to receive education, as prescribed by various education-related Acts enacted based on the Constitution that declared the legal principle of education system, should be realized. In addition, the legal principle of a teacher’s status, which forms the basis of the right to receive fair examination of the reappointment of a teacher, also provides the basis for realizing or guaranteeing the right to receive education. In addition, the fact that the protection of legal interests and interests of the school juristic person, i.e., where an excessive restriction on the personnel rights related to the reappointment of a teacher, may be contrary to the purport of the provision of the Constitution guaranteeing the autonomy of a university, should also be taken into account (see, e.g., Supreme Court Order 2005HunMa723, Oct. 30, 2008).

In light of such constitutional provisions and the purport of education-related Acts and subordinate statutes, university faculty members should be basically equipped with the ability and qualities to maintain dignity as a faculty member, who is a virtue-based academic research, education for students, student guidance, observance of education-related Acts and subordinate statutes, and other faculty members under the articles of incorporation of a school foundation. This also applies to reappointment (see, e.g., Supreme Court Decision 2007Da9009, Feb. 1, 2008). Whether to re-appoint university faculty members is, in principle, belong to discretionary action that can be determined for the purpose by the appointing authority, by taking into account the various circumstances, such as high level of professional knowledge, teaching ability, and personality required for university faculty members (see, e.g., Supreme Court Decisions 96Da7069, Jun. 27, 1997; 97Da25477, Dec. 23, 197; 208Da58788, Sept. 28, 2010>

2) As the above evidence and facts revealed, ① the pertinent person having authority to appoint the Plaintiff’s records can determine the criteria for examination of reappointment, including setting items to the extent of justifiable and objective reasons for the determination of reappointment. Articles 22 and 7 of the Guidelines on the Examination of Outcomes stipulate justifiable and objective reasons as stated earlier. ② The Defendant provided the Plaintiff with an opportunity to explain his/her achievements including lecture records, teaching records, and guidance to the Plaintiff during the period of evaluation of reappointment from the Plaintiff or the persons related to the same graduate school, and then submitted data or opinion to the Plaintiff during that period, and finally, deemed that the Plaintiff did not have any obligation to explain his/her achievements such as submission of materials or opinion regarding the appointment of the Plaintiff at the above 20 points out of the evaluation of his/her achievements (the above evaluation results are as follows. ② The Defendant merely stated that the Plaintiff was not subject to the instruction of appointment of the Plaintiff at least 4 points in the evaluation of his/her achievements, and thus, did not have any disadvantage to the Plaintiff’s general school faculty members in terms of research performance evaluation guidelines for the Plaintiff’s.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judges and assistant judges

Judges, Superintendent of the National Assembly

Judges Kim Gin-ju

Note tin

1) The appointment review committee received 51 points, 58 points, and 58 points from three examiners of the appointment review committee, and assessed as average 5.6 points, and assessed as a result of each review committee’s performance evaluation.

Detailed details of the results shall be as shown in attached Form 1.

2) Attached 2-6 is as shown in Attached 1 except for the part drawn up.