2017Na20556 Confirmation of the period of appointment

1. A;

Seoul

2. B

Mayang-si

3. C

Daegu

4. D;

Daegu

[Judgment of the court below]

E Educational Foundation

Chang-si

Representative F

Law Firm Jungwon, Attorney Jung-won

Attorney Song Jin-hee, Counsel for the defendant-appellant

Daegu District Court Decision 2016Gahap2321 Decided December 23, 2016

August 31, 2017

October 12, 2017

1. The part of the judgment of the court of first instance against the plaintiff B shall be revoked, and the lawsuit against the plaintiff B shall be dismissed.

2. The defendant's appeal against the plaintiff A, C, and D is all dismissed.

3. The total litigation cost incurred between the Plaintiff B and the Defendant and the appeal cost against the Plaintiff A, C, and D are borne by the Defendant.

1. Purport of claim

The employment period of plaintiffs A, C and D at G University established and operated by the defendant shall be February 2, 202, respectively.

28. The appointment period of Plaintiff B shall be until February 28, 2018.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

This court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this court's reasoning is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. The plaintiffs' assertion

Of the instant disposition of reappointment, the term of appointment for two years is null and void for the following reasons, and the term of appointment is converted to six years (two years for Plaintiff B) by Article 138 (Conversion of Invalidity) of the Civil Act.

Therefore, the plaintiffs seek confirmation that the term of appointment of the plaintiffs against the defendant is from March 1, 2016 to June 201 (the two years for plaintiff B).

① The Defendant unilaterally set the term of appointment for the Plaintiffs as two years (one year for Plaintiff B) and rendered the instant disposition of reappointment, and there was no consensus among the Plaintiffs on this.

② In order to revise the terms and conditions of the Defendant’s articles of incorporation and the provision on personnel management of G University teachers to the disadvantage of the Plaintiffs and other faculty members, the part containing the labor conditions of the faculty members of G University constitutes the rules of employment, which is subject to the consent of the majority of the full-time faculty members pursuant to Article 94(1) of the Labor Standards Act. However, the Defendant amended the articles of incorporation and the provision on personnel management of teachers without following such procedures, and there is no validity of the amended articles of incorporation and the amended provision on personnel management of teachers. The part concerning the term of appointment among the instant provision

③ Reduction of the term of appointment of the plaintiffs to lower their former employment than that of the plaintiffs is unlawful in violation of Article 56 (1) of the Private School Act regarding the status guarantee of teachers as it infringes on the plaintiffs' trust interests, and thus, the term of appointment in the instant disposition of reappointment is null

B. Defendant’s assertion

As part of the method of operating the term of appointment flexibly in preparation for reduction of the number of students and strengthening of university competitiveness and restructuring, the Defendant’s articles of incorporation and regulations on the personnel management of teachers were legally amended through a resolution of the board of directors. Therefore, there is no defect in the amendment of the Defendant’s articles of incorporation and regulations on the personnel management of teachers. The amended articles of incorporation and regulations on the personnel management of teachers, which were effective and enforced at the time of the instant disposition of reappointment, shall be applied to the Plaintiffs. Accordingly, the Plaintiffs and the Defendant concluded a renewal contract with the terms of employment of the Plaintiffs for two years (one year in case of Plaintiff B) in accordance with the amended articles of incorporation and

If the plaintiffs did not intend to accept the term of appointment stipulated in the disposition of reappointment of this case as alleged by the plaintiffs, the term of appointment equivalent to essential matters in the reappointment contract does not coincide with the parties. Therefore, it should be deemed that the contract of reappointment itself was not established between the plaintiffs and the defendant.

3. Whether the plaintiff B's lawsuit is legitimate

A. In a lawsuit seeking confirmation of the requirements for the protection of rights of a lawsuit seeking confirmation, there must be a benefit of confirmation as a requirement for the protection of rights. The benefit of confirmation is recognized only when the defendant is the most effective and appropriate means to obtain a judgment against the defendant to remove such apprehension and risk. Thus, the defendant of the lawsuit seeking confirmation has a benefit of confirmation against the defendant (see Supreme Court en banc Decision 96Da11747 delivered on October 16, 1997, etc.).

B. The Plaintiff B’s interest in confirmation

As Plaintiff B seeks confirmation of the term of appointment based on the disposition of re-employment from the instant lawsuit until February 28, 2018, Plaintiff B sought confirmation that the term of appointment based on the disposition of re-employment is until February 28, 2018, according to the overall purport of the Plaintiff B’s written evidence Nos. 27 and arguments as to whether the Plaintiff’s lawsuit has the interest in confirmation, the Defendant decided to approve the appointment period for Plaintiff B from March 1, 2017 to February 28, 2018, and the Plaintiff was working as a teacher at G University as of the date of the said disposition of re-employment. According to the above facts of recognition, Plaintiff B, following the disposition of re-employment, was conducted by the new disposition of re-employment.

28. There is no reason to believe that approval for reappointment has been obtained and that the defendant has claimed the period of appointment stipulated in the above new disposition of reappointment. Thus, it cannot be deemed that there is a legal interest in seeking confirmation that the same period of appointment is guaranteed by the disposition of the instant case. Accordingly, Plaintiff B’s lawsuit is unlawful.

4. Determination as to the cause of the claim by the plaintiff A, C, and D

A. Conclusion of a contract for reappointment

Although a contract for the appointment of private school teachers is made according to the procedures prescribed by the Private School Act, the legal nature of the contract is a private employment contract (see Supreme Court Decision 9Da5571 delivered on December 22, 2000, etc.). In order for the contract to be concluded, there is a need for the objective agreement of several conflicting declarations of intent between the parties, and in order to have an objective agreement, all the matters indicated in the parties' expression of intent must be the same, while the contract is important, and even if the contract is not an objective element, there is a mutual agreement between the parties as to the fact that the parties expressed their intent as a requirement for the formation of the contract with a significant intention, especially as to the fact that the parties expressed their intent as a requirement for the formation of the contract (see Supreme Court Decision 2001Da53059 delivered on April 11, 2003).

Plaintiff A, C, and D apply for reappointment on the premise that the term of appointment is six years, and the Defendant determined the term of appointment for Plaintiff A, C, and D as two years and disposed of the instant case. At the time of the instant disposition of reappointment, there was a substantial disagreement between the Plaintiffs and the Defendant regarding the term of appointment that can be the essential part of the contract in making the contract of reappointment for fixed-term teachers.

On the other hand, according to Gap evidence Nos. 27 through 29, the defendant takes a disposition of re-employment of this case with two years' employment period fixed as above, and the starting date of the appointment period is 2016.

3. From January 1, 200 to Plaintiff A, C, and D recognize the status of teacher by giving lectures to Plaintiff A, and the above Plaintiffs are arguing that the six-year employment period should be applied first, it is recognized that the above plaintiffs recognized the validity of the approval for reappointment based on the disposition of this case and performed normally the above duties as a teacher, and there is no counter-proof. In addition to the above facts, if the re-employment itself was not established with due attention to the lack of substantial intention for the employment period, it would be against the above plaintiffs' intent to dispute only the employment period if it was not established, and the purport of the provision on the terms of office of teachers might be dismissed as if the following are viewed, it is reasonable to view that the above plaintiffs' subscription [including the subscription based on the consent to change under Article 534(1) of the Civil Act] to the defendant's subscription for the term of employment with two-year employment period without reservation to dispute about the shortage of employment period between the above Plaintiffs and the Defendant until March 1, 2016.

(b) Validity of the amended articles of incorporation;

1) If an employer did not obtain the consent of the employee while revising the working conditions stipulated in the rules of employment disadvantageous to the employee and without obtaining the consent of the employee, the effect of the previous rules of employment remains intact as it does not extend to the relationship with the existing employee whose benefit is infringed, but the revised rules of employment naturally applies to the relationship with the employee who accepted the working conditions under the revised rules of employment and acquired the employment relationship (Supreme Court Decision 2009Da624, Jun. 24, 201).

58364, Supreme Court Decision 2010Da17468, Jun. 28, 2012, etc.). Unless there are grounds for granting a teacher a duty to be reappointed to a teacher whose term of appointment expires in the articles of incorporation, etc. of a school juristic person, a teacher who has been appointed for a specified period shall naturally lose his/her status as a teacher upon expiration of his/her term of appointment (see, e.g., Supreme Court Decision 95Da11696, Feb. 27, 1996) even if the teacher was dismissed or dismissed before the expiration of his/her term of appointment, unless there are special circumstances to the contrary, although the Defendant’s articles of incorporation and personnel management regulations of the Plaintiff, C, and D have the nature of the rules of employment, as alleged by the Plaintiff, C, and D, if they were modified without the consent of the workers, they are merely effective in relation to the existing worker whose interest is infringed, and the amendment of the articles of incorporation and employment regulations shall be deemed valid.

(c) Amendment of provisions such as articles of incorporation and protection of trust interests 1) Articles of incorporation, etc. applicable to plaintiffs A, C and D;

Even in cases where an Act and subordinate statutes are amended as a basis, it shall be based on the amended Act and subordinate statutes enforced at the time of the physical division unless otherwise specified in the transitional provision, and in relation to the application of such amended Act and subordinate statutes, the application of the amended Act and subordinate statutes may be restricted to protect public trust in cases where the public trust in the existence of the preceding Act and subordinate statutes is recognized to be more protected than the public interest demand for the application of the amended Act and subordinate statutes (see, e.g., Supreme Court Decision 2012Du23501, Jul. 24, 2014). Likewise, the application of the amended Act and subordinate statutes in terms of protecting public trust in the administrative disposition of administrative agencies may be restricted in cases where the public trust interests of teachers are more protected than the public interest demand for the application of the amended provisions, such as the articles of association.

In full view of the following circumstances revealed by the facts admitted as above and the quoted evidence, if the defendant was subject to normal procedures for reappointment after receiving an application for reappointment from the plaintiff A, C, and D, the disposition of reappointment should naturally be conducted in accordance with the articles of incorporation and teachers appointment regulations before the amendment, but the articles of incorporation and teachers' personnel regulations delayed review or disposition of reappointment without any special reason, and the above plaintiffs' decision of reappointment should be made only after the amendment of the articles of incorporation and teachers' personnel regulations disadvantageous to the above plaintiffs. Thus, the above plaintiffs' interest in the application of the relevant provisions is more protected than the public interest demand for the application of the amended articles of incorporation. Accordingly, the amended articles of incorporation and teachers' personnel management regulations in relation to the period of reappointment among the disposition of reappointment of the plaintiff A, C, and D cannot be applied as they are, and instead, the articles

① Plaintiff A, C, and D filed an application for reappointment with the Defendant from November 201 to December 2012, 201, requesting the commencement of the procedure for review of reappointment. However, the Defendant did not implement the procedure for review of reappointment on the ground that the aforementioned Plaintiffs were dismissed due to the expiration of the period, while issuing an order of personnel reinstatement to the said Plaintiffs.

② On January 3, 2015, Plaintiff A, C, and D filed a lawsuit seeking confirmation of invalidity of a disposition rejecting reappointment with the Defendant (Seoul Northern District Court 2015Gahap20210 and Daegu District Court 2015Gahap83, hereinafter referred to as “litigation”), and the Defendant notified the aforementioned Plaintiffs of the fact that he/she will conduct a teachers’ training evaluation necessary for reappointment on February 3, 2015, and submitted the records evaluation necessary for reappointment from the above Plaintiffs. However, Article 53-2 subparag. 4 through 7 of the Private School Act did not give any notice of the progress or result of the review. However, if the Plaintiff, C, and D were to file an application for review of reappointment with the said teachers within 15 days from the date on which the term of appointment expires, and the said teachers notified to the person authorized to appoint and dismiss the said teachers within 2 months from the date on which they were notified of the fact that they would normally be subject to review by the person authorized to appoint and dismiss the said Plaintiffs within 2 months from the date of appointment.

③ On June 30, 2015, when the lawsuit filed by Plaintiff A, C, and D was pending, the Defendant amended the Defendant’s articles of incorporation and personnel management regulations for teaching staff, thereby reducing the period of reappointment of the teaching staff under his/her control.

④ On July 2015 through November 2015, the court of first instance rendered a judgment ordering the Defendant to implement the procedures for review of reappointment of the Plaintiff A, C, and D, while confirming that the Defendant’s rejection of reappointment is null and void, and thereafter, the said judgment becomes final and conclusive between December 2015 and January 2016.

⑤ Although the Defendant recognized that “the Plaintiffs A, C, and D meet the criteria for reappointment through the submission of the written reply, etc. on May 14, 2015 and the written reply, etc. on May 29, 2015,” the Defendant issued a disposition of re-appointing the instant Plaintiffs by applying the amended articles of incorporation and teachers’ personnel regulations to approve the re-appointing of the said Plaintiffs in the business negative ( December 29, 2015) for which the judgment of the said lawsuit became final and conclusive, and limited the employment period to two years, by applying the amended articles of incorporation and teachers’ personnel regulations as seen earlier.

2) Nullity of a contract for reappointment with two years of employment

The main sentence of Article 56(1) of the Private School Act provides that a teacher of a private school shall not be subject to unfavorable measures, such as a leave of absence or dismissal against his/her will, unless he/she is sentenced to a punishment, disciplinary action, or grounds prescribed by this Act. Since the above provisions of the Private School Act regarding the term of office of a teacher are compulsory provisions to be strictly followed for academic freedom and guarantee of the status of a teacher, an agreement to reduce his/her term of office as otherwise prescribed by the articles of incorporation upon delegation of such provisions is invalid (see Supreme Court Decision 2016Du5255, Feb. 15, 2017

The reappointment contract concluded between the plaintiff A, C, D and the defendant with a two-year term of employment shall be deemed null and void since it violates the purpose of Article 56 (1) of the Private School Act as it infringes on the interests of protecting trust for the six-year term of employment under the Articles of Incorporation and the Regulations on the Personnel Management of Faculty Members before the amendment.

D. 1) In the event that a juristic act becomes null and void due to violation of the provisions governing A's mandatory appointment, the defendant's assertion that it would have been effective as another juristic act pursuant to Article 138 of the Civil Act if both parties were to have known that it would have done another juristic act if it would have been null and void. In this case, the parties' intention as to whether it would have done another juristic act would have been null and void at the time of the juristic act would have been decided in light of the principle of trust and good faith (see, e.g., Supreme Court en banc Decision 2009Da50308, Jul. 15, 2010). The defendant's assertion that it would have been difficult for the defendant to serve as a new teacher for new appointment as the result of the above amendment of the articles of incorporation, which would have been against the principle of trust and good faith of the plaintiffs, and that it would still have been against the principle of trust and good faith of the plaintiffs (see, e.g., Supreme Court en banc Decision 2016Da13216

According to the above facts of recognition, the reappointment contract entered into between the plaintiff A, C, D and the defendant is effective for six years according to Article 138 of the Civil Code.

E. Sub-committee

Therefore, the term of appointment of Plaintiff A, C, and D, an associate professor at G University, shall be from March 1, 2016, to February 28, 202, which was six years from the beginning date of the term of appointment of the instant disposition for reappointment, and as long as the Defendant contests this, the aforementioned Plaintiffs shall have the interest to seek confirmation thereon.

5. Judgment on the defendant's assertion

A. The defendant's assertion

Even if the articles of incorporation and teachers' personnel management regulations are applied to plaintiffs A, C, and D before the amendment and the employment period of six years is guaranteed, the starting point for the reappointment period is indicated in the disposition of this case.

3. From January 1, and from the expiration date of the existing employment period of the above plaintiffs, the employment period of the above plaintiffs shall be deemed to start from the expiration date of the existing employment period of the above plaintiffs. Accordingly, the employment period of the plaintiffs 6 years from the expiration date of the existing employment period of the plaintiffs A, i.e., the plaintiff A until February 28, 2018, the plaintiff C until February 28, 2019, and the plaintiff D August 2

31. up to 31.

B. Determination

In general, the disposition of reappointment is to form a new employment relationship for a teacher who loses his status due to the expiration of the term of validity in the future, and the defendant refused to proceed with the procedures for examining the reappointment of the plaintiff A, C, and D only when the above plaintiffs filed a lawsuit related to the plaintiffs. In light of the fact that the defendant's letter of personnel appointment for the above plaintiffs is indicated as the date of birth in the future ( March 1, 2016), it is reasonable to view that the term of appointment according to the disposition of reappointment is not retroactive to the date of expiration of the term of appointment of the above plaintiffs, as seen earlier, and that the period of appointment pursuant to the disposition of reappointment is to begin from the beginning of the term of appointment determined by the disposition of reappointment, as seen earlier.

6. Conclusion

Therefore, the plaintiff B's lawsuit is unlawful and thus dismissed, and the claim against the plaintiff A, C, and D should be accepted for the reasons. Since the part of the judgment of the court of first instance concerning the plaintiff B is unfair with different conclusions, it is so revoked and dismissed the lawsuit of the plaintiff B (the total cost incurred between the plaintiff B and the defendant shall be borne by the defendant in light of the process of the lawsuit or the reasons for rejection, etc.) and the part concerning the plaintiff A, C, and D in the judgment of the court of first instance, are just in conclusion. Therefore, the defendant's appeal against the above plaintiffs is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-chul

Judges Dok-si

Judges Jeong Sung-sung