(영문) 서울행정법원 2019.11.7. 선고 2018구합75498 판결

1. On May 23, 2018, the decision that the Defendant rendered on May 23, 2018 regarding the claim for revocation of closure and dismissal between the Plaintiff and the Intervenor joining the Defendant

2. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant shall be borne by the Defendant, and the part arising from the participation shall be borne by the Intervenor

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the decision of this case

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is a school foundation that establishes and operates the pertinent agency, department, internal regulations, etc. without entering the D University (hereinafter referred to as “D University”) in describing the agency, department, internal regulations, etc.

B. On March 1, 1997, the Plaintiff was newly appointed as a Korean language and a full-time lecturer in tourism on April 1, 2002 and served as an assistant professor, associate professor, associate professor on April 1, 2006, and professor on May 1, 2013, respectively.

C. On June 3, 2013 and June 4, 2013, the Intervenor held the first school affairs committee to change the name of the Korea Language Department to the Korean Language Department in the entertainment planning, and deliberated and decided to increase the fixed number of admission of the said department to 10 persons. On July 17, 2013, the second school affairs committee held on July 17, 2013, deliberated and decided to abolish the Korea-China Translation Department (the Korea-China Language Department in the entertainment planning) in accordance with the direction of university specialization development from 1,010 to 850 persons. The third school affairs committee held on January 28, 2014 maintained such decision.

D. On January 28, 2014, the president proposed an amendment to school regulations that reflects the result of the adjustment of the fixed number of admission (Article 3-3 of the school regulations (attached Table 3-3) and the establishment of departments by recruitment units (departments) and the Korean translation and elimination in the fixed number of admission). An intervenor published the amendment to the school regulations on the website of the school from February 4, 2014 to February 23, 2014, and promulgated the above amendment to the school regulations on February 28, 2014 (hereinafter referred to as the “Abolition of the instant department”).

E. On April 12, 2017, when there was no registered birth with the Korea-China Translation, the Intervenor was dismissed on February 8, 2018 from the Plaintiff on the ground of the abolition of the instant department (hereinafter “instant dismissal”).

F. On March 22, 2018, the Plaintiff dissatisfied with the instant disposition of dismissal, and filed a petition review with the Defendant on March 22, 2018, the Defendant, on May 23, 2018, deemed the instant disposition of dismissal lawful and justifiable, dismissed the Plaintiff’s petition review request (hereinafter “instant decision”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 8, 9, Eul evidence Nos. 4 through 10, 14, and 19 (including branch numbers), and the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. Summary of the plaintiff's assertion

The decision of this case is unlawful for the following reasons, and thus should be revoked.

1) Although the former Regulations on the Restructuring of University Development (hereinafter “instant Restructuring Regulations”) enacted on April 27, 201 by the Intervenor included the important contents of the alteration of teacher treatment, it was unlawful to abolish the instant department, given that there was no provision based on the articles of incorporation or school regulations, and was not enacted through legitimate procedures, and that there was no opinion gathering from university members. Therefore, the abolition of the instant department is unlawful.

2) On June 3, 2013, the Intervenor decided to abolish the department immediately on the ground of the actual condition of the recruitment of new students with the Korea-China translation without seeking to recruit new students of entertainment planning Chinese language, although it was decided to change the name of the Korea-China Translation Department to the Korean language in the entertainment planning and increase the fixed number of admission of the said department. The abolition of the department of this case cannot be deemed to have satisfied the criteria for abolition stipulated in the restructuring regulations of this case.

3) According to the instant restructuring regulations, most departments are closed and subject to closure, but it is obviously unlawful to abolish only with the Korea-China translation to which the Plaintiff belongs, against the arbitrary and equitable nature.

4) The amendment of the school regulations is merely an amendment of the school regulations that reduces the fixed number of new students of D University from 850 to 840 persons in total, and it is not an amendment of the school regulations that reflects the abolition of the department in this case, and thus, the abolition of the department in this case cannot be deemed lawful.

5) According to Article 5 subparag. 1 of the instant Restructuring Regulations, the department closed should suspend the recruitment of students from the following year. The Intervenor promulgated the amendment of the school regulations on February 28, 2014, immediately before the beginning of the first semester, and discontinued the recruitment of students from the year 2014. As such, the Intervenor’s suspension of the recruitment of students was unlawful in violation of the foregoing provision.

6) Even if the abolition of the instant department is lawful, the Intervenor dismissed the Plaintiff without making any effort, even though it was likely that the Plaintiff would be avoided by converting and posting the Plaintiff to another department or by forceing the subject of culture. Such dismissal is an unlawful act of deviation from and abuse of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 31(6) of the Constitution of the Republic of Korea provides that "the basic matters concerning the educational system including school education and lifelong education, the operation thereof, education finance and the status of teachers shall be determined by the Act", and adopts the educational system and the statutory principle of teacher status. Article 53-2(3) of the Private School Act provides that "A college teachers may be appointed by determining terms and conditions of a contract, such as the period of service, salary, working conditions, and performance and performance agreement, as prescribed by the articles of incorporation." Article 56(1) of the Private School Act provides that "No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will, unless he/she is subject to a sentence, disciplinary action, or due to the change or abolition of a class or department: Provided, That this shall not apply where he/she becomes a teacher or a member of a private school due to the change or abolition of a department." In addition, the Public Educational Officials Act provides that other special cases concerning the qualifications, appointment, training, and status guarantee of teachers of a national or public school.

In light of the fact that the educational law, including the Constitution, guarantees the status of a teacher in light of the autonomy and peculiarity of education, and that ex officio dismissal following the abolition of the department can be conducted regardless of whether there is a cause attributable to a teacher if it falls under the legal requirement even though the status of the relevant teacher is completely deprived of the relevant teacher, regardless of whether there is a cause attributable to a teacher. In addition, the condition of "a abolition of a department," which is a premise for an ex officio disposition of a teacher, constitutes the abolition of the relevant law, which is a premise for an ex officio disposition of a teacher, must be strictly interpreted only when the department is closed by legitimate procedures. In addition, the standard of abolition of the department, including the new student recruitment rate, the student enrollment rate, employment rate, and the operation status of the department, can be sufficiently known to the university members in advance, thereby guaranteeing predictability, and the need to exclude the arbitrary abolition of the school authority and ex officio dismissal following such abolition of the department, if it is necessary to establish and amend the restructuring regulations that include the standards and procedures for the abolition of the department and the following changes of the status.

2) Specific determination

Even in light of the autonomy and peculiarity of university, in light of the following various circumstances, the abolition of the department of this case and the Intervenor’s disposition of dismissal against the Plaintiff is illegal. Therefore, the decision of this case that dismissed the Plaintiff’s request for examination of the appeal on the premise that the abolition of the department of this case and the disposition of dismissal are legitimate, is unlawful. Thus, the Plaintiff’s assertion pointing this out

A) According to Articles 4, 5, and 6 of the instant restructuring regulations, with respect to the departments with less than 70% of the enrollment capacity of new students on April 1 of each year, the departments are closed in the following year, and the closure and procedure are terminated after all students graduate (in the case of a duducing student, the school teachers belonging to the departments are entitled to apply for the assignment of other departments through the change of affiliation (in the case of a ducing student, the need for consent of the similar departments), transition of major, etc. (in the case of the establishment of a new department through the transition of major, consultation with the school office and the permission of the president) and early retirement. In the case of the assignment of other departments and establishment of a new department through the transition of major, the basic salary is paid, and the provisions of the instant restructuring are ex officio dismissal due to the abolition of the departments. In light of the standards and procedures for the abolition of the departments, the absence of explicit grounds for the school regulations or articles of incorporation, guarantee the predictability of the members of the universities and colleges, and the necessity of ex officio.

B) Article 7(1) of the Regulations on the Regulations on the Establishment, Amendment, repeal, and Management of the Intervenor’s Regulations provides that “The enactment, amendment, and repeal of the Regulations shall be implemented with the approval of the President after the review of the future strategic office and the deliberation of the Committee on the Management of the Fund for at least 20 days, except in extenuating circumstances.”

According to the statement in Eul evidence 15-2, each department of April 8, 2011 (the Department of Foreign Cooperation)

B) The fact that prior notice and inspection period from April 11, 201 to April 18, 2011 were grounded on the issuance of notice of the instant restructuring regulations to the receiver of the document is recognized. However, in the case of other provisions enacted by the intervenor around that time, the notice was attached to the school website for which all the university members can easily access, and the prior notice period was 20 days or 25 days before the notice was given to the submission of the opinion within the prior notice period, and it appears that the notice period was 10 days before the notice was 20 days or 25 days before the date of the enactment of the instant regulations, and that the notice period was 4 days after the notice was issued to the receiver of each of the above departments (see Article 7) and that the notice period was 10 days after the notice period was 20 days before the date of the enactment of the instant regulations, but only the notice period was 10 days after the notice period was 20 days or more (see Article 7).

C) Meanwhile, according to Articles 4(1) and 7(1) of the Adjustment Regulations, if the number of new students is less than 70% of the enrollment capacity of the above departments (departments) in the following year, it is necessary to develop the department even if the department is closed and there is an agreement by all teaching staff members, it may be postponed by one year after obtaining approval from the president through the deliberation of the Organizational Affairs Committee. However, if the 2012-year rate of new students is 62.5% (25% per week, 100% at night), the registration rate of new students of the 2013-year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old year-old period-old period-old period-old period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period-based period.

D) Furthermore, according to the evidence Nos. 9 and 13-3 of the evidence Nos. 13, the above defect is more serious in that the president submitted to the chairperson of E on July 17, 2013 an implementation plan for entrance screening for the year 2014, including the contents of deletion of the Korean translation from the recruitment unit, etc., and that the intervenor did not actually recruit Korean translation and new students at the entrance screening for the year 2014. The above defect is more serious in that the intervenor had already abolished the Korean translation and the Korean translation before revising the school regulations on February 28, 2014 and suspended the recruitment of new students.

3. Conclusion

Therefore, without examining the remaining arguments of the plaintiff, the decision of this case should be revoked illegally. Thus, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges

Judge Park Jong-yang

Judges Park Jong-hwan

Promotional Notes for Judges

Note tin

1) For example, prior notice of enactment of a provision on the appointment of a contract for non-retirement faculty member on November 29, 2010 (20 days of inspection), prior notice of enactment (25 days of inspection) of the Regulations on the Deliberation Committee on Registration Fees and the Regulations on the Support of Disabled Students on May 6, 2011, and prior notice of enactment (20 days of inspection) of the Regulations of the Degree Review Committee on June 1, 201 (20 days of inspection).

2) According to the evidence No. 16-1 of the evidence No. 16, unlike the enactment of the instant restructuring provision, the intervenor may recognize the fact that the intervenor publicly announced the amendment proposal, etc. of the instant restructuring provision on the school website for 20 days from July 1, 2015 to July 20, 2015, accompanied by the comparison table on the new and structural structure.

Attached Form

A person shall be appointed.

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